Howard Smith and Co Limited v Varawa - [1910] HCA 30

HOWARD) SMITH &CO. LIMITED

APPELLANTS; DEFENDANTS, VARAWA

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF Practice-Appeal from Supreme Court of a State-Special leave-Stay by Supreme

Court of proceedings under judgment-Conditions - Rules of the Supreme Court of Victoria 1906, Order LVIII., r. 16.

It is only in very exceptional circumstances that the High Court will grant special leave to appeal from an order made by a Judge of the Supreme Court of a State in the exercise of his discretion staying proceedings under a judgment of that Supreme Court subject to conditions.

APPLICATION for special leave to appeal from the Supreme Court of Victoria.

In an action brought in the Supreme Court of Victoria by Peter Fedorovitch Varawa against Howard Smith &Co. Ltd., for malici- ous arrest and false imprisonment. and tried before àBeckett J. and a jury of twelve, the jury found a verdict for the plaintiff for £5,000 damages and judgment was entered for the plaintiff for that sum with costs.

On 10th May 1910 the defendants gave notice of appeal to the Full Court.

On 13th June the defendants issued a summons for a stay of proceedings, alleging that the plaintiff was a Russian subject

10 CLR 608

residing at St. Petersburg in Russia and that he came to Victoria

specially for the hearing of the action.

On the hearing of the summons, on 15th June, àBeckett J. ordered judgment to be stayed for one week, and further ordered that, if the defendants should pay to the plaintiff within one week £500, being part of the £5,000 received by him, the action and all proceedings thereunder should be stayed until further order, but that otherwise the plaintiff should be at liberty to proceed with execution upon the judgment for £5,000. It was further ordered that the plaintiff should be at liberty to tax his costs and proceed with his judgment for costs, the plaintiff's solicitor per- sonally undertaking to the Court to repay any costs SO taxed and paid in the event of the appeal of the defendants being successful and the judgment directing costs to be paid by the defendants being set aside as to such direction.

The defendants now, on notice to the plaintiff, asked for special leave to appeal from this decision.

Mitchell K.C. (with him Starke), for the defendants. Although leave to appeal from an order of this kind will only be granted under special circumstances: Hansard v. Lethbridge 1, the circumstances of this case are very exceptional. Upon the undisputed facts, according to the principles established by this Court and by the House of Lords, this action is one which should be dismissed as frivolous.

Unless the stay is granted the defendants' position is irreme- diable. If the stay had been absolutely refused, the defendants could have appealed on the ground of injustice. The defendants do not object to the plaintiff getting some of the fruits of his judgment if there is some security given for their…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1910] HCA 30
Decision Date: 17 June 1910

CaseChat Overview and Summary

In *Howard Smith & Co Limited v Varawa*, the appellants, Howard Smith & Co Ltd, sought special leave to appeal to the High Court of Australia from an order made by a judge of the Supreme Court of Victoria. The dispute arose from a judgment entered against the appellants in favour of the respondent, Peter Fedorovitch Varawa, for £5,000 damages in an action for malicious arrest and false imprisonment. The appellants had applied to the Supreme Court for a stay of proceedings under the judgment, and the judge had granted a conditional stay.

The legal issue before the High Court was whether special leave to appeal should be granted from the judge's discretionary order for a stay of proceedings, which was subject to conditions. The appellants argued that the circumstances were exceptional, contending that the action should be dismissed as frivolous and that their position would be irremediable without the stay.

The High Court refused special leave to appeal. The Court reasoned that the granting of a stay of proceedings was a matter entirely within the discretion of the judge of the Supreme Court. It reiterated the principle that special leave to appeal from such discretionary orders would only be granted in very exceptional circumstances. As the circumstances presented were not deemed sufficiently exceptional to warrant interference with the judge's discretion, leave to appeal was refused.

Orders