SOUTH AUSTRALIA. Practice-Supreme Court of State-Action-Stay of proceedings-Action founded on H. C.
judgment of High Court-Proposed appeal to Privy Council_The Constitution (63 &64 Vict. c. 12), secs. 73, 74.
On an appeal to the High Court from a judgment in an action brought in the Supreme Court of a State, the High Court made an order declaring that the plaintiff was absolutely entitled to certain land which was then in the possession of the defendant. The plaintiff having then brought an action of ejectment Gavan Duffy JJ. in the Supreme Court, the defendant applied to that Court for a stay of the action of ejectment, alleging that she had been advised the decision of the High Court was wrong in point of law and that she was taking steps to apply
for special leave to appeal to the Privy Council from that decision. The Supreme Court granted the stay on the grounds that without a stay the pro posed appeal to the Privy Council might be nugatory, that the plaintiff could not be prejudiced, and that it was not suggested that the application to the Privy Council was not bond fide. On appeal to the High Court, [No. 2].
Held, that the grounds stated did not justify the granting of a stay, and that Decision of the Supreme Court of South Australia (Buchanan J.) set aside
APPEAL from the Supreme Court of South Australia.
An action had been brought in the Supreme Court by Robert James Martin McBride against Caroline Sandland claiming a declaration that the plaintiff was the owner in fee of certain land subject only to the defendant's tenancy by the year. Judgment having been entered for the defendant, the plaintiff had appealed to the High Court, which on 13th June 1918 allowed the appeal and made an order that judgment should be entered for the plaintiff on his claim for the declaration mentioned (McBride v. Sandland 1 ). The defendant's tenancy had expired on 31st December 1915, and on 14th June 1917 the plaintiff had served the defendant with notice to quit, but the defendant continued in possession of the land. After the order of the High Court was made, correspondence took place between the solici- tors of the parties as to the defendant giving up possession, and, the defendant refusing to do so, the plaintiff on 7th August 1918 issued a writ in the Supreme Court claiming an order for possession of the land and for mesne profits. On 15th August the plaintiff issued a summons for the summary disposal of the action, and on the same day the defendant issued a summons for an order staying proceedings in the action instituted by the writ of 7th August. In the affidavit in support of the summons for a stay it was alleged that the defendant had been advised that the judgment of the High Court was erroneous in point of law,…
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.
Continue reading McBride v Sandland (No 2)
Sign in free to access the full text
Details
AGLC
McBride v Sandland (No 2) [1918] HCA 59
Case
[1918] HCA 59
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from an order of the Supreme Court of South Australia that stayed proceedings in an ejectment action. The ejectment action was brought by Robert James Martin McBride (the appellant) against Caroline Sandland (the respondent) to recover possession of land. This action was founded on a prior judgment of the High Court which declared the appellant absolutely entitled to the land. The respondent sought a stay of the ejectment proceedings, alleging she intended to apply to the Privy Council for special leave to appeal the High Court's earlier judgment.
The legal issues before the High Court were whether the Supreme Court of South Australia had sufficient grounds to grant a stay of proceedings in the ejectment action, and whether the grounds relied upon by the Supreme Court justified such a stay, particularly in light of the finality of High Court judgments under the Constitution and the nature of appeals to the Privy Council.
The High Court held that the grounds relied upon by the Supreme Court did not justify the stay. The Court reasoned that a judgment of the High Court is final and conclusive unless special leave to appeal to the Privy Council is granted. The mere intention to apply for special leave, without more, is not a sufficient ground to stay proceedings based on a High Court judgment. The Court emphasised that there is no appeal as of right from the High Court to the Privy Council, and that a stay would only be granted in exceptional circumstances, which were not present here. The principle that a successful party is entitled to the fruits of their judgment was also highlighted, requiring sound reasons to suspend this right.
The High Court allowed the appeal, set aside the order of the Supreme Court of South Australia granting the stay, and ordered that the respondent pay the costs of the appeal.