Porta v Hauser - [1919] HCA 54

Practice (High Court)-Appeal from Supreme Court of State-Appealable amount

Objection to competence of appeal not taken until hearing-Costs-Appeal book -Reasons for decision of Court below-Rules of the High Court 1911, Part II., Sec. III., rr. 3, 11, 14, 18.

Where an appeal brought as of right was at the time it came on for hearing struck out on the objection of the respondent that it was incompetent for the reason that the judgment appealed from was below the appealable amount, the

27 CLR 193

Court allowed the respondent such costs only as would have been incurred on a motion to strike out the appeal.

APPEAL from the Supreme Court of Victoria.

An action was brought in the Supreme Court by Laura Rosina Hauser, on behalf of herself and all other persons beneficially inter- ested in the residuary real and personal estate of John Porta, deceased, against Leslie Elmore Frederick John Porta personally and as executor of the will and codicil of John Porta, alleging certain breaches of trust against the defendant and claiming consequential relief. The action was heard by Irvine C.J., who by his judgment ordered that the defendant should restore and pay to the credit of the testator's residuary estate several sums of money amounting in the whole to over £300 and including one sum of £145 9s. 3d. and another of £64 9s. 9d.

The defendant appealed to the High Court from SO much of the judgment as ordered the restoration and payment of the sums of £145 9s. 3d. and £64 9s. 9d.

Dethridge, for the appellant. A. H. Davis, for the respondent, objected that an appeal did not lie as of right.

Dethridge asked for special leave to appeal. If leave be refused, the respondent should have no costs, as there was no application to strike out the appeal.

The judgment of the COURT, which was delivered by ISAACS J., was as follows :-

We do not think that any special circumstance either of law or of fact has been shown which would justify us in granting special leave to appeal, and therefore in the exercise of our discretion we cannot grant special leave.

As to the costs, we think that an application to strike out the appeal should have been made earlier before the full costs of the appeal had been incurred, and, therefore, although we give costs to

27 CLR 194

the respondent, we direct these costs to be limited to the costs of a

simple motion to strike out the appeal as incompetent, which might have been made earlier after notice of appeal had been given.

We also desire to say with reference to the absence from the appeal book of any reasons of the Chief Justice from whom appeal is sought to be brought, that it is extremely inconvenient for an appeal book to be furnished without such reasons, and it is the duty of the appellant to apply to the Judge or Judges of the Court below…

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: [1919] HCA 54
Decision Date: 20 October 1919

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a judgment of the Supreme Court of Victoria. The appellant, Leslie Elmore Frederick John Porta, was the executor of an estate and had been found liable for breaches of trust, with the Supreme Court ordering him to restore over £300 to the testator's residuary estate. The appellant sought to appeal to the High Court regarding specific sums ordered to be repaid.

The primary legal issue before the High Court was the competence of the appeal. The respondent objected that the judgment appealed from was below the appealable amount, meaning the appeal was not one that could be brought as of right. The appellant, in response to this objection raised at the hearing, sought special leave to appeal.

The High Court, in dismissing the appeal, held that no special circumstances justifying special leave had been demonstrated. Regarding costs, the Court found that the respondent should have made an earlier application to strike out the appeal rather than waiting until the hearing. Consequently, the costs awarded to the respondent were limited to those that would have been incurred on a simple motion to strike out the appeal. The Court also noted the inconvenience caused by the absence of the Supreme Court's reasons for its decision in the appeal book, emphasizing the appellant's duty to obtain and include these reasons.

Orders