McLaughlin v Daily Telegraph Newspaper Co Ltd

[1904] HCA 5

1 CLR 143

[ ] McLAUGHLIN

APPELLANT (No. 1): PLAINTIFF,

DAILY TELEGRAPH NEWSPAPER

RESPONDENTS. CO. LTD. McLAUGHLIN

APPELLANT (No. 1); PLAINTIFF,

VALE OF CLWYDD COAL MINING

RESPONDENTS. CO. LTD.

DEFENDANTS. High Court Procedure Act 1903, secs. 8, 35,36-Practice-AppealstoHigh - - Court-

Security for Costs-Application for increase of amount-Time for making appli- cation-Costs of affidarits- Fees of Counsel.

Applications for increase of amount of security under O. 36 of the High Court Procedure Act must (following the English practice) be made with expedition, whether there is a Justice of the High Court sitting in the State where the appeal

On 29th Dec., 1903, the plaintiff filed notice of intention to appeal to the High Court from decisions of the Supreme Court of New South Wales, and deposited £50 as security for the due prosecution of the appeal, in accordance with sec. 35, sub-secs. (1) and (3) of the High Court Procedure Act. On 4th Feb. the defendants in each case had notice of the plaintiff's appeal, and on 8th March took out a summons for increased security under sec. 36 of the Act. There was no Justice of the High Court sitting in Sydney until 14th March, but in the interval Justices of the High Court had been sitting in Hobart and Melbourne.

Held (per Griffith, C.J.) that the applications were made too late, and that the applicants should have proceeded under sec. 8 by taking out a summons in Sydney as early as possible and having the cause transferred, for the purpose of hearing the summons, to Hobart or Melbourne.

1 CLR 144

SUMMONS for increase of security. The plaintiff had brought separate suits in the Supreme Court of New South Wales, in Equity, against the Daily Tele- graph Newspaper Company, Limited, and the Vale of Clwydd Coal Mining Company, Limited, for rectification of the share register of the company in each case, claiming to have his name replaced on the registers as the holder of a certain number of shares, on the ground that a certain power of attorney under the authority of which the companies had transferred the plaintiff's shares to other persons was void, having been executed by the (No. 1).

plaintiff while he was insane. The suits were heard and argued before Simpson, C.J. in Equity, and were dismissed. On 29th December the plaintiff gave notice of his intention to appeal from the decisions of the Chief Judge in Equity, to the High Court, and in each case gave the usual security of £50 for the due prosecution of the appeals, as required by sec. 35, sub- secs. (1) and (3) of the High Court Procedure Act 1903. Both defendants now applied under sec. 36 of that Act by summons to have the amount of security increased.

Lingen, for the Daily Telegraph Company, Limited, read affidavits on behalf of the applicants, and asked that the amount of security be increased from £50 to £200. The affidavits stated that the cases had lasted for a long time in the Supreme Court and had involved great expense, and that the appeal to the High Court would in all probability be very long and expensive, and the amount given as security would not cover the probable costs. It was also stated that the plaintiff was engaged in other expen- sive litigation and was contemplating more, and that he had been requested by applicants to increase the amount of security, other- wise application would be made to the Court to compel him to do so, on the ground that the £50 was insufficient to cover the costs of the appeal. In the Court below one case lasted eight days and the other six.

Sheppard, for the Vale of Clwydd Coal Mining Company, read affidavits filed on behalf of the applicants, and asked that the amount of security in that case be increased from £50 to £150.

1 CLR 145

Ralston and Watt, for the plaintiff in both cases, read affidavits H. of the plaintiff in answer, and contended that as notice of appeal had been served on December 29th, the summonses should be McLAUGHLIN dismissed on the ground that they had not been taken out as promptly as they might have been.

Lingen. We have come at the earliest possible moment and as McLAUGHLIN soon as the Court was sitting in Sydney. To have proceeded under sec. 8 before a Justice sitting in another State would have been much more expensive.

[GRIFFITH, C.J.-I intimated to the applicants through the Deputy Registrar in Melbourne that I was prepared to hear the applications in Melbourne, as a summons might, under sec. 8 of the High Court Procedure Act, have been taken out in Sydney and heard in Melbourne. There would be little or no expense in taking that step. If the applicants are unwilling to do SO they must take the risk of being out of time.

Sec. 8 is not compulsory. It is purely a matter of discretion, and in this case, where the expense of applying in another State would have been out of proportion to the importance of the application, the Court will not insist upon the applicants proceed- ing under the section. To SO proceed would entail great incon- venience, and fresh counsel would have to be instructed in a very difficult case. This is not a case in which great expedition is required. We did not know until 16th Feb. that only £50 security had been deposited. Under the circumstances the applicants adopted the most reasonable course in waiting until a Justice of the High Court was sitting in Sydney.

GRIFFITH, C.J. Every application of this kind should be made with expedition. The defendants had notice of the plaintiff's intention to appeal on Feb. 4th, and must have known that he would not give more than the minimum amount of security, £50, unless compelled, but they have waited until now to make their applications. Sec. 8 of the High Court Procedure Act 1903, was framed to meet such cases as this. Under that a summons could have been taken out on 5th Feb., and dealt with almost immediately by a Justice sitting at Hobart or Melbourne. There would have

1 CLR 146" text-full="1 CLR 146" text-short="1 CLR 146">1 CLR 146

been no difficulty in sending instructions to either place, as the

point involved is not at all difficult. There is no more hardship

McLAUGHLIN in compelling the applicants to do this than there is in making

country solicitors send instructions to their city agents to make an application in Chambers. As the defendants had an oppor- tunity of making these applications in good time, and chose not to do so, I shall follow the practice as to such matters followed in appeals in England. I hold that the applications are too late. Both applications are therefore dismissed with costs, but no costs of affidavits will be allowed on either side.

As in my opinion this (No. 1).

matter was a simple one, the fees of one counsel only will be allowed.

Attorney for Vale of Clwydd Coal Mining Co., Mark Mitchell. Attorneys for Daily Telegraph Newspaper Co., Lawrence and Laurence.

Attorney for J. McLaughlin, W. Morgan.

[HIGH COURT OF AUSTRALIA.] MOUNTNEY SMITH

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Negligence -Dangerous - state of premises-Injury to customer-Invitation by owner-

Scope of servant's authority-Direction by servant-Evidence- - Liquor Act (No. 18 of 1898) sec. 24. March 15,

It is the duty of an hotelkeeper to inform customers of the position of the lavatories which by sec. 24 of the Liquor Act (No. 18 of 1898) he is bound to provide.

A servant representing his employer in any department of the employer's business, has an implied authority to give customers who deal with the employer