DAVIES BROTHERS LIMITED Practice-High Court-Action of tort-Trial by jury-Judgment for defendant with
costs-Death of plaintiff after institution of appeal-Right of personal repre- sentative to continue appeal-Action personalis moritur cum personá - Appeal as to costs-High Court Procedure Act 1903-1915 (No. 7 of 1903-No. 5 of MELBOURNE 1915), sec. 39-Judiciary Act 1903-1920 (No. 6 of 1903-No. 38 of 1920), sec. 27 - Rules of the High Court 1911, Part I., Order XII., FT. 1, 4. 5: Order LIV., r 1: Order LVII., r. 8; Part II., Sec. V., r. 1.
The right of the personal representative of a party to an action to continue an appeal of that party exists in actions in which the cause of action would not have survived the death of one of the parties.
Held, therefore, that where in an action in the High Court for libel tried before a jury a verdict had been given for the defendant and judgment for costs had been entered against the plaintiff who, after instituting an appeal to the Full Court, had died, the executor of the plaintiff was entitled to an order making him a party to the action and authorizing him to carry on and prosecute the appeal.
Since under Order LIV., r. 1, of the Rules of the High Court 1911 the costs of a cause which is tried by a jury follow the event unless good cause is shown, sec. 27 of the Judiciary Act 1903-1920 does not prevent an appeal as to costs
An executor to whom probate is granted by a State Court derives his title from the will and not from the grant of probate, and, therefore, may be per mitted to carry on an appeal instituted by his testator in an action in the High Court for a libel published in all the States.
SUMMONS referred to the Full Court of the High Court.
An action for libel was brought in the High Court by Thomas Joseph Ryan, who resided in Brisbane, Queensland, against Davies Bros. Ltd. of Hobart, Tasmania, proprietors and publishers of the Mercury newspaper. The action was tried in Melbourne in June 1921 by Starke J. and a jury of twelve men who found a verdict for the defendant. Upon that verdict judgment was on 16th June 1921 entered that the plaintiff recover nothing against the defen dant and that the defendant recover against the plaintiff its costs of this action (including the costs of discovery and of the shorthand notes of the proceedings) to be taxed." On 6th July 1921 the plain- tiff gave notice of appeal to the Full Court from that judgment, asking that the verdict should be set aside, and the judgment set aside and reversed, and that a verdict and judgment should be entered for the plaintiff with costs to be assessed, or alternatively that a new trial should be had. The grounds of the appeal were substantially…
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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Ryan v Davies Bros Ltd [1921] HCA 53
Case
[1921] HCA 53
Decision Date
CaseChat Overview and Summary
In an action for libel brought in the High Court, the plaintiff, Thomas Joseph Ryan, obtained a verdict for the defendant, Davies Bros. Ltd., and was ordered to pay the defendant's costs. Following the institution of an appeal by the plaintiff, he died. The Public Curator of Queensland, appointed as the plaintiff's executor, sought an order to be substituted as the appellant and to continue the prosecution of the appeal.
The central legal issue before the Full Court of the High Court was whether the executor of a deceased plaintiff could continue an appeal, particularly when the original cause of action was in tort and would not ordinarily survive the death of a party. The court was also required to consider whether an appeal concerning costs was permissible in such circumstances, and the validity of an executor's title derived from a grant of probate in a State Court to prosecute an appeal in the High Court.
The Court held that the executor was entitled to continue the appeal. It reasoned that the maxim *actio personalis moritur cum persona* does not apply once a judgment has been entered, as the cause of action merges into the judgment, creating a new obligation. This obligation, whether to pay costs or to receive damages, survives to the personal representative. The Court distinguished the present case from *Twycross v. Grant* on the basis that in *Twycross*, the judgment had not been entered before the plaintiff's death, whereas here, a judgment for costs had been entered against the deceased plaintiff. Furthermore, the Court found that Section 27 of the *Judiciary Act 1903-1920* did not prevent an appeal as to costs, as costs in a jury trial generally follow the event unless good cause is shown. Finally, the Court affirmed that an executor derives title from the will, not the grant of probate, and therefore, having proved the will in Queensland, the Public Curator had the standing to prosecute the appeal to protect the assets of the estate.
The Court ordered that the Public Curator of Queensland, as executor, be made a party to the action and the appeal, and be at liberty to carry on and prosecute the appeal. The executor was also granted leave to set down the appeal for hearing. The costs of the summons and argument were made costs in the appeal.