Ryan v Davies Bros Ltd

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.