Bayne v Blake [1907] HCA 71

High Court of Australia|1907-07-01|Before: Higgins JJ

BAYNE AND ANOTHER . 2 . APPELLANTS ; PLAINTIFFS, AND BLAKE AND ANOTHER 5 4 : . RESPONDENTS. DEFENDANTS,

H.O. or A, Practice - Appeal to Privy Council from judgment of High Court - Stay of pro-

aia The Privy Council having granted special leave to appeal from a judgment

InChambers. In an action upon an administration bond bronght in the Supreme Court of Victoria by the plaintiffs, Lila Elizabeth Bayne and Mary Bayne against Arthur Palmer Blake and William Riggall, judgment was given for the defendants. Against that judgment the plaintiffs appealed to the High Court which gave a judgment declaring that the plaintiffs were entitled to recover such a sum, not exceeding £5,000, as should represent the loss to the intestate's estate by reason of certain breaches of the bond, and remitting the cause to the Supreme Court for inquiry as to the amount of such loss: Bayne v. Blake (1).

From this judgment special leave to appeal was granted to the defendants by the Judicial Committee of the Privy Council, but no order was made by that Court staying proceedings under the judgment of the High Court.

The defendants now by summons sought a stay of the pro- H. ©. or A.

ceedings under the judgment of the High Court pending the hearing of the appeal to the Privy Council.

Know K.C. and Clive Teece, for the defendants, offered to pay into Court the taxed costs of the appeal if the stay should be granted.

H. E. Manning, for the plaintiffs, asked for the costs of the application, citing Cooper vy. Cooper (1).

GrirritH C.J. made an order staying all proceedings under the judgment of the High Court until further order, on the defendants paying into Court the taxed costs of the appeal to the High Court, and directed that the costs of this application should abide the event of the appeal to the Privy Council.

The formal order of the Judicial Committee having arrived from England, the plaintiffs now applied on summons to have the stay removed.

Arthur for the plaintiffs in support cited Shaw v. Holland (2).

Weigall K.C. for the defendants contrd. Cur. adv. vult.

According to the English practice a stay of inquiries pending an appeal to the House of Lords will not be granted except under very special circumstances: Shaw v. Holland (2). If there were danger of the necessary evidence being lost by delay, a stay would, no doubt, be refused. The institution of an appeal to this Court operates automatically as a stay of proceedings under the judgment appealed from, unless security is given by the party desiring to proceed. In the present case special leave has been given by the Judicial Committee to appeal from a decision of this Court directing inquiries to be made in the Supreme Court. The

H.C. of A. appellants desire to proceed with the inquiries pending the appeal, ees and as proceedings under the judgment of this Court have been

Bayse Stayed until further order they apply for the suspension of the

Brace, Stay. I think that in such cases the analogy of appeals to the High Court should be followed rather than that of appeals to the House of Lords.

At first I was disposed to think that the removal of the stay would not prevent an independent application to the Supreme Court to stay proceedings. But on consideration I think that it would have that effect so far as the pending appeal to the King in Council was relied on as a ground for a stay, although it

would not prevent a postponement of proceedings on special grounds,

At present I do not see any sufficient ground for removing the stay. The summons will be adjourned generally with leave to bring it on again if the parties are so advised.

Solicitor, for plaintiffs, F. S. Stephen, Melbourne. Solicitors, for defendants, Blake & Riggall, Melbourne.

BL (HIGH COURT OF AUSTRALIA] McGEE . : F . i ' ' ; INFORMANT ; AND WOLFENDEN . . : 7 'i f . DEFENDANTS. H. ©. or A. Fs Ex parte McGee,

MELpourse, SPECIAL LEAVE 'tO APPEAL, March 12.

,.3,, Licensing Act 1906 (Vict.) (No. 2068), sec. 91 - Sunday - Hours during which sale of liquor to public is prohibited - Person found on licensed premises - Special Higgins JJ. leave to appeal refused,

At a glance

Court

Decision date

Before

Source

Judgment (24 paragraphs)

BL (HIGH COURT OF AUSTRALIA] McGEE . : F . i ' ' ; INFORMANT ; AND WOLFENDEN . . : 7 'i f . DEFENDANTS. H. ©. or A. Fs Ex parte McGee,