Fisk v Anderson

This matter concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The appellant, Robert Wilson Fisk, sought to set aside a mortgage sale. Following judgment for the defendants in the Supreme Court, Fisk lodged a notice of appeal. He subsequently applied to Powers J. to dispense with or reduce the security for the costs of the appeal, which was refused. Fisk then sought to prosecute the appeal in forma pauperis and again requested a reduction or dispensation of security, notwithstanding the prior refusal.

The legal issues before the Full Court of the High Court were whether it had jurisdiction to grant leave to prosecute an appeal in forma pauperis when the appeal had not been duly instituted, and whether it could reconsider an application to reduce or dispense with security for costs after such an application had already been refused by another judge.

The Court held that the application to reduce or dispense with security was res judicata, as a similar application had already been refused by Powers J. and no appeal had been brought from that decision. Furthermore, the Court determined that it had no jurisdiction to allow an appeal to be prosecuted in forma pauperis where the appeal had not been duly instituted, which included the failure to provide security for costs within the prescribed time.

Consequently, the summons was dismissed. The Court noted that even if there were no technical difficulties, the appellant had not demonstrated a case for granting special leave to appeal. The summons was dismissed with costs.