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…

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: [1904] HCA 5
Decision Date: 14 March 1904

CaseChat Overview and Summary

In *McLaughlin v Daily Telegraph Newspaper Co Ltd*, the High Court of Australia considered an application by the respondent newspaper company for an increase in the security for costs ordered against the appellant, McLaughlin, in an appeal to the High Court.

The central legal issue before the Court was whether the respondent had established sufficient grounds to warrant an increase in the security for costs previously fixed by a Justice of the High Court. This involved an examination of the relevant provisions of the *High Court Procedure Act 1903*, specifically sections 8, 35, and 36, which govern appeals to the High Court and the ordering of security for costs.

Griffith, C.J., applying the principles established in relation to security for costs on appeal, determined that the respondent had not presented a compelling case for an increase. His Honour noted that the initial security had been fixed after due consideration, and the respondent had failed to demonstrate a material change in circumstances or new facts that would justify a revision of that order. The Court also addressed the costs associated with the affidavits filed in support of the application and the fees of counsel, indicating that these would be dealt with in the final judgment.

Orders