Dey v Victorian Railways Commissioners

The application was not made under, nor could it be supported under, Order XXV. rule 4 or Order XIX. rule 27. The question does not arise on the statement of claim and it involves no matter of pleading. It is a substantive question chiefly of law relating to an alleged bar to the cause of action to be pleaded by way of confession and avoidance. But had it been a question capable of arising in such a way that either of those rules could be used, the application must have failed. For the power they confer is not to be used in cases of doubt or difficulty or where the pleading raises a debatable question of law: Agar v. Williamson Ltd. [2] ; Healey v. Bank of New South Wales [3] ; Wall v. Bank of Victoria Ltd. [4] ; Goodson v. Grierson [5] ; Wright v. Prescott Urban District Council [6] ; Mayor, &c., of City of London v. Horner [7] ; Hubbuck & Sons, Ltd. v. Wilkinson, Heywood & Clark, Ltd. [8] .

1. (1920) 42 A.L.T. 98. 2. (1898) 24 V.L.R. 405. 3. (1890) 16 V.L.R. 2. 4. (1908) 1 K.B. 761, at pp. 763, 764. 5. (1916) 115 L.T. 772. 6. (1914) 111 L.T. 512. 7. (1899) 1 Q.B. 86, at p. 91.

The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.

In Burton v. Shire of Bairnsdale [9] , O'Connor J. said: "Prima facie every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed." Higgins J. made some observations which may be applied to the present case. "It is my opinion" he said "that the Full Court were led, by a very natural process I admit, to take a wrong attitude. They dealt with the matter as if they were deciding it on the merits whereas they had merely to decide whether there was anything in fact or in law that was fairly triable or arguable." Then his Honour said, "It is surely absurd to argue for days as to a plaintiff's case being arguable." "It cannot be doubted," said Lord Herschell in Lawrance v. Norreys [1] , "that the court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the court. It is a jurisdiction which ought to be very sparingly exercised and only in very exceptional cases."

1. (1908) 7 C.L.R. 76, at p. 92; 14 A.L.R. 529, at p. 534. 2. (1888) 39 Ch. D. 213; 15 App. Cas. 210, at p. 219.

It sometimes happens that an application in chambers under one of the rules mentioned or perhaps even in the inherent jurisdiction is by common consent treated as an occasion for settling some question. But that did not take place in the present case. We are informed that the plaintiff's counsel objected that it was not a case for the exercise of any summary power and that he persisted in that objection. It is to be noticed that notwithstanding that no jurisdiction under the rules attached an order for the dismissal out of court of the action was made in chambers. But, although of its own force the order finally determined the action, it may not have been so intended. For an order for leave to appeal was made on the footing that it was interlocutory.

It is in my opinion of more importance to maintain the integrity of the principle that under cover of the inherent jurisdiction to stop abuse of process litigants are not to be deprived of the right to submit real and genuine controversies to the determination of the courts by the due procedure appropriate for the purpose than for this Court to add another to the many judicial attempts that have been made to construe and apply the perplexing provisions that stand in Victoria as s. 5 (2) (b) of the Workers' Compensation Act 1928.

The use that the defendants have here made of the summary powers of the court raises at all events a question of principle about which I have not hitherto understood there was any doubt, even if at times courts with or without the help of the parties have overlooked it. I would allow the appeal on this simple ground. But as opinions are to be expressed about the operation in this case of s. 5 (2) (b) I shall state mine.

I shall not enter upon any general discussion of s. 5 (2) (b) of the Workers' Compensation Act 1928. I shall confine myself to specific points which appear to decide the question whether the widow and children are barred of the action under Lord Campbell's Act. These points arise upon the words "the worker may at his option claim compensation under this Act or take proceedings independently of this Act but the employer shall not be liable to pay compensation for injury to a worker both independently of and also under this Act." For the purposes of this case, as it is a death claim, the word "worker" where it first occurs, must be taken to refer to the worker's legal personal representative or to his dependants or other person to whom or for whose benefit compensation is payable (s. 3 (2) of the Act of 1928). The effect which is produced by the substitution was stated as follows by Lord Russell in Kinneil Cannel and Coking Coal Co., Ltd. v. Waddell [1] : "I find no difficulty in construing it in relation to the dependants of an injured workman who is dead - as if (omitting immaterial words) it ran thus: "but in that case the dependants may at their respective options either claim compensation under this Act or take proceedings independently of this Act; but the employer shall not be liable to pay to any dependant compensation both independently of and also under this Act." "

It is important steadily to bear this adaptation of the words of the provision to dependants of a deceased worker in mind in considering its application to the facts of the present case. It will be found that by doing so some of the difficulties are made to wear a different aspect.

The first point that it is desirable to make is one that does no more than exclude a possible, indeed a plausible, interpretation of the words "either claim compensation under this Act or take proceedings independently of this Act," an interpretation which if valid would tend against the plaintiff. It has been clear that these words cannot operate under the Victorian legislation to make the formulation of a claim under the Act that is unfruitful or the institution of proceedings independently of the Act that fail a ground for excluding resort by the worker or his dependants to the alternative remedy. That is made clear by the fact that not only does the legislation provide, as in England, a procedure for assessing compensation in the same litigation when an action for negligence against an employer fails (s. 12 (1) as amended by Act No. 4527) but it expressly enacts that if it is determined in any proceedings under the Act that the injury is one for which the employer is not liable such determination shall not prevent an action being brought in respect of the injury independently of the Act (s. 12 (2)).

It may be that after unsuccessful proceedings independently of the Act compensation cannot be obtained except by the procedure provided. There is not a little authority for that position. But it is a result to be attributed not to the meaning of the words in s. 5 (2) (b) but to an interpretation placed upon s. 12 (1). If the unsuccessful pursuit of one alternative remedy whether by claim or proceedings is not a bar to resorting to the other alternative, it is hard to see how the making of a claim or the institution of proceedings could be a bar before the result is known.

The second point to be made is that the "option" conferred by the opening words of the clauses I have quoted from s. 5 (2) (b) cannot be exercised by one who is not aware of the existence of both remedies. That was established finally by the decision of the Court of Appeal in Leathley v. John Fowler & Co. Ltd. [1] , giving effect to the opinions expressed by Viscount Simon Lord Russell and Lord Porter in Young v. Bristol Aeroplane Co. [2] .

1. (1946) K.B. 579. 2. (1946) A.C., at pp. 169, 173, 186.

As we must assume in the present case that the plaintiff was ignorant of the availability of the two remedies and of her right to pursue either at her option, it follows that the defendants cannot succeed upon the words alone "may at his option either claim compensation under this Act or take proceedings independently of this Act." They must succeed, if at all, by force of the words "but the employer shall not be liable to pay compensation for injury to a worker both independently of and also under this Act."

The third point which I wish to make is upon the operation of these words in relation to the description of award made by the Board in this case. That award gave neither the plaintiff nor any of her children any right to participate in the distribution of the money paid by the employers into the custody of the registrar. Their respective claims to participate remained dependent upon clauses 5 (1) and (2) of the First Schedule of Act No. 5128, the effect of which has been stated above. What the award did was to ascertain, at all events provisionally, the number of children, specify the money figure that resulted, and translate, perhaps unnecessarily, the statutory liability imposed upon the employers by the earlier words of clause 5 (1) into an award, which, had it been found necessary to enforce the obligation to pay the money into the custody of the registrar, might have been converted into a judgment of the County Court, by the means prescribed by s. 11 of Act No. 4524 as substituted by s. 4 of Act No. 4593 and amended by Act No. 5128. At first sight this may seem in strict logic to have imposed a liability, a fresh liability juristically different from the old liability, upon the employers to pay compensation under the Act, so that it would no longer be possible for the plaintiff, who has been taken as authorizing the claim that led to the award, and perhaps for the infants notwithstanding that they cannot be taken to have done so, to seek to impose a liability independently of the Act in respect of the same matter. But it has been found necessary to place upon the critical words an entirely different meaning. The necessity was felt in cases where death had resulted and different dependants took different courses. Lord Atkin, as a judge of the King's Bench and afterwards in the Court of Appeal, had adopted the view that once an order was made requiring an employer to pay over to or for the benefit of any dependants the compensation provided by the Act the employer could not thereafter be made liable independently of the Act in respect of the injury, the death. The employer had become liable under one alternative and he could not be made liable thereafter under the other. It did not matter that some of the dependants were unaware of or were opposed to the imposition of that liability upon him. "Otherwise the employer might have to pay twice": Bennett v. L. & W. Whitehead, Ltd. [1] ; Codling v. John Mowlem & Co., Ltd. [2] . Now it is apparent that this view takes into account not the relation of the employer to each dependant, not the right of each dependant to claim upon the sum, but the liability only of the employer to make available the total sum. It is not easy to reconcile with Lord Russell's translation, already set out, of the material part of s. 5 (2) (b) when adapted to the case of dependants of a workman who has been killed. In his Lordship's version, to repeat it, he makes the words equivalent to this statement: - "but the employer shall not be liable to pay any dependant compensation both independently of and also under the Act." In other words you look to the liability to each dependant, not to the employer's preliminary responsibility for making the total sum available. The liability to each dependant must be dealt with separately. Lord Atkin's view was held to be erroneous by the House of Lords which in two cases settled the operation of the provision with respect to the choice of remedies. In Kinneil Cannel and Coking Coal Co. Ltd. v. Waddell [3] it was decided that each dependant had a separate choice between compensation under the Act and his cause of action for negligence, in England under Lord Campbell's Act, and that each could exercise his option independently of the other and in a different way. In Avery v. London and North Eastern Railway Co. [1] it was held that the amount of compensation to be paid in a death claim could not be diminished because some of the dependants recovered damages under Lord Campbell's Act and the Employers' Liability Act and that in assessing those damages no account could be taken of the fact that the first dependants claimed not thus but under the Workmen's Compensation Act. In the latter case Lord Macmillan described the option as personal to each dependant of a deceased workman. "The effect of the interpretation section in requiring every reference in the Act to a workman to include, where the workman is dead, a reference to his dependants, as construed in this House, is undoubtedly to permit duplication of proceedings" [2] . The basal reason for these decisions lies in the conception that the several dependants are given several and unconnected rights. It places on the provision a meaning which makes it necessary to consider not whether the employer has made over to the authority the fixed lump sum. He must do that if any one of the dependants requires him to do so. The fact that the others stand out does not relieve him of the liability or reduce the amount. What the meaning placed on the provision makes it necessary to consider is whether the individual dependant has taken a course which gives that dependant a claim only upon the fund or a claim only for negligence as the case may be. On the surface of this interpretation it is plain enough that the children in the present case cannot be precluded by anything done by their mother, unless at all events in a representative capacity. Legal responsibility must be properly attributable to them before they can be affected.

1. (1926) 2 K.B. 380, at p. 409. 2. (1914) 2 K.B. 61; 3 K.B. 1055. 3. (1931) A.C. 575. 4. (1938) A.C. 606. 5. (1938) A.C., at p. 621.

But the importance of the interpretation is not confined to the children. For the interpretation rests upon or implies a principle which has yet another application in the circumstances of the case. The principle which the provision is interpreted as seeking to express and put into effect is not that an employer shall be protected from exposure to two proceedings, not that he shall be protected from exposure to more than one head or form of liability, not even that he shall be protected from liability to the maximum extent under both forms of liability provided that the payees are different, but that no workman and no dependant of a workman shall be entitled to recover more than the full sum under one of the two heads or forms of relief or remedy. Lord Dunedin in Kinneil Cannel and Coking Coal Co. Ltd. v. Waddell [1] goes to the central point and states it almost in a sentence. "The compensation to be paid by the employer may be viewed as a lump sum, and an aggregate of what is actually called a lump sum, plus a children's allowance if there are such. But the claim to participate in this lump sum is an individual claim, and what I think the section means to say, and what involves no absurdity, is that no individual is to get two payments, one at common law and the other under the Act."

Apart from all other considerations the plaintiff, the widow, having exercised no option is not to be precluded under the words "an employer shall not be liable both independently and under the Act" unless her individual claim to workers' compensation has become the subject of a distinct liability to her, a liability whether on the part of the employers directly or of the fund they have placed in the custody of the registrar.

Whether, without an exercise of her option, she would be precluded even by the creation of such a liability is another question, a question depending in some measure upon the deductions to be drawn from the decision of the House of Lords in Young v. Bristol Aeroplane Co., Ltd. [2] . But short of the creation of an individual right in her to a separate sum and a corresponding liability on the side of the employer she is not barred.

The fourth point which I think should be made relates to the effect of the judgment of Lord Patrick in Brown v. William Hamilton & Co. [3] . This judgment commanded the approval of Viscount Simon, Lord Russell and Lord Porter in Young's Case [4] though with some qualification as to the differences between option and election. Their Lordships made use of opinions and expressions to be found in the judgment. In particular Viscount Simon and Lord Russell adopt the view that the words "the employer shall not be liable both independently of and also under this Act" do not confer a distinct and additional protection upon the employer which does not depend upon the worker's option but, as I understand it, that it expresses a consequence of the existence and ultimately inevitable exercise of the option. A second matter which Viscount Simon, Lord Porter and perhaps Lord Russell take from the same source though it is to be found elsewhere is the view that in assessing damages in an action of negligence the amounts already received by a workman as compensation under the Act must be taken into account and allowed to the employer in reduction of the damages. Thus resort to an action of negligence after the enjoyment of compensation under the Act can never result in a double recovery.

1. (1944) Sc.L.T. 282; 37 B.W.C.C. Supp. 52. 2. (1946) A.C., at pp. 171, 176, 186.

The first of these propositions did not originate with Lord Patrick but with Lord Low (Burton v. Chapel Coal Co., Ltd. [1] ). Lord Patrick says [2] : "It is assumed by the judges in the Scots cases rather than stated that the second part of the subsection (i.e. the words "but the employer shall not be liable both independently etc.") has no effect independent of and different from the first part and in particular has no effect restrictive of the right to elect conferred by the first part. That view is, however, expressly stated by Lord President Clyde in King v. Edinburgh Collieries Co., Ltd. [3] when he said that in his opinion the second part was exegetical of the first part and I read Lord Low's opinion in Burton v. Chapel Coal Co. Ltd. [1] as being to the same effect." Again Lord Patrick says [4] : "The words of the second part of the subsection can receive adequate effect if one regards them only as exegetical of the first part of the subsection, as Lord Clyde did, or to put it in another way, if one regards the first part of the subsection as defining the rights of the workman and the second part as defining, perhaps unnecessarily, the resulting rights of the employer, as Lord Low did in Burton's Case [1] ".

1. (1909) S.C. 430. 2. (1944) Sc.L.T., at p. 285. 3. (1924) S.C. 167. 4. (1909) S.C. 430. 5. (1944) Sc.L.T., at p. 286. 6. (1909) S.C. 430.

In Young's Case [5] Viscount Simon says: "Lord Patrick in Brown v. William Hamilton & Co. [6] develops the view which I would uphold with much clearness and cogency. I think that the Scotch authorities quoted by Lord Patrick [7] are right in treating the final part of s. 29 ("but the employer," etc.), as exegetical of the preceding part ("but in that case the workman may, at his option," etc.), and not as further restricting by an added condition the workman's right of option. As Lord Patrick points out, and as was also laid down by the present Lord Goddard in the Court of Appeal in Unsworth v. Elder Dempster Lines, Ltd. [8] , no difficulty in adopting this construction arises from the rule that the employer is not to be bound to pay twice over. If, before the workman can be regarded as having really exercised his option, he receives one or more weekly payments under the Act, and he then opts to issue a writ and recovers damages, the damages in the action would be reduced by the amounts already received."

1. (1946) A.C., at p. 171. 2. (1944) Sc.L.T. 282, at p. 286; 37 B.W.C.C. Supp. 52, at pp. 63, 84. 3. (1944) Sc.L.T. 282, at p. 285; 37 B.W.C.C. Supp. 52, at p. 60. 4. (1940) 1 K.B. 658, at p. 674.

Lord Clyde's word "exegetical" may perhaps be not a very happy expression of his meaning. Moreover in view of the mystery in which the provision has so long been enveloped it may have been unfortunate to choose a word of which a classical or post-classical use was to describe books explaining the significance of omens. Grammarians are perhaps more accustomed to the word epexegetical, but it has a narrower use I imagine. However Lord Clyde means that the second limb of the clause explains, expounds, carries out and interprets the first. How this is done is made quite clear by a passage in Lord Russell's opinion which should be read but of which I shall quote only three sentences. His Lordship says [1] : "to make a choice the workman must be aware of his right to choose, and of the alternatives open to his choice On the other hand, if a workman, who knows of his right to choose and of the alternatives open to his choice, has enforced his claim to compensation independently of or under the Act, he cannot thereafter seek to enforce any other liability of the employer But unless and until he has so enforced the liability of his choice, I find nothing in the sub-section to prevent him from changing his mind, abandoning any pending proceedings in reference to one liability, and commencing proceedings to enforce the other liability." Lord Porter did not concur in the view thus expressed. He appears to have considered that the limb of the clause, which in these judgments is called the second, operated independently of the option conferred by the first but that it did not apply unless a stage had been reached at which the employer is at least compellable to pay (the workman) either by judgment in an action by award or by registered agreement [2] .

1. (1946) A.C., at p. 176. 2. (1946) A.C., at p. 187.

Lord Macmillan and Lord Simonds however differed from Viscount Simon, Lord Russell and Lord Porter in the entire interpretation of the section and if this pronouncement of the House upon the provision is to be used as an authority, as the Court of Appeal used it in Leathley v. John Fowler & Co. Ltd. [3] , it seems to me that attention must be confined to the judgments of the three Lords last named.

I have made no attempt to form, or perhaps I should say to persist in, views of my own concerning the meaning of the section, but I have applied myself to an attempt to ascertain the effect which the weight of authority seems to give to the provision. So regarding the matter I think that in this as in so many other questions of workmen's compensation what may be called the Scots view has been justified and has prevailed and that the general conception of the provision which has now been adopted either in the House of Lords or as a result of opinions expressed in the House is more in harmony with the view expressed by Lord Patrick and adopted by Viscount Simon and Lord Russell. I think therefore that for the reason that the plaintiff was unaware of the existence of the two remedies and the choice open to her she could not be barred under the words "but the employer shall not be liable both independently of and also under this Act."

The fifth point I shall make relates to the particular position of the infants. Even if I had been of opinion that the plaintiff, the widow, was barred I should have thought that the infants were not. On the assumption I have stated the position of the infants would depend on their responsibility in law for the claim which led to the award. To my mind it is not a question of the "validity" of the award, but of the legal connection of the infants with the proceedings. Suppose that in an imaginary case dependants though not infants are numerous and one of them without the authority of the others proceeds in the most formal manner on behalf of himself and the other dependants. Are they "bound" in the sense that the proceedings preclude them from alternative remedies, conclude them so that they no longer may exercise an option? I should say clearly not: because the representation of them is unauthorized. In the case of infants the agency or representation must be established by legal means. The infants are under a disability depriving them of the power of employing an attorney or other agent. Not that they attempted to do so in the present case. The law however supplies the means of providing representation of infants and by that means making legal proceedings available to them. In describing the circumstances I have shown that whether regularly or irregularly the proceedings could not be treated as proceedings of the infants. For so far as appears there are no grounds for connecting the infants legally with the claim. It is not shown to be for their benefit. There was no next friend. So far as appears the proceedings were res inter alios acta. On the face of the Board's documents they do not purport to make the infants parties, though I do not think that is of great importance. It is true that s. 17 (2) of Act No. 5128 says that proceedings shall be deemed to have been instituted by the claimant. But the infants were not "claimants."

For all these reasons I am of opinion that neither the plaintiff in the action nor the four children she names pursuant to Lord Campbell's Act are precluded by anything that appears from prosecuting the action.

In my opinion the appeal should be allowed with costs and the order discharged the defendants respondents paying the taxed costs of the summons and the attendance of counsel in chambers being certified for.

The ground of this application to dismiss the present action raises a question involving the construction and application of s. 5 (2) (b) of the Workers' Compensation Act 1928, as amended, of Victoria. The application results from the defence framed upon this provision and filed in this action.

The plaintiff and her children are brought within the operation of this sub-section by s. 3 (2) of the Act. In this defence there is an allegation that the plaintiff's application for compensation under the Workers' Compensation Act was an exercise of the statutory option for herself and her children. This allegation must for the present purposes be disregarded because there is no proof of any element of knowledge necessary to give the plaintiff's application the character of an exercise of her statutory option.

The defence also contains an allegation that an award was made upon the plaintiff's application under the Act, and that the defendant paid the sum awarded into the statutory court for the benefit of the dependants of the deceased. There is a question whether the award, although it is expressed in this way, binds the rights of the plaintiff's children in such a way as to effect the present action. The rest of this allegation is, however, incontestably proved. It raises the question whether irrespective of any effect which the exercise of the statutory option would have, the award debars her from maintaining this action. The award by its own force cannot do this. It can bar the action only if it derives that force from s. 5 (2) (b).

In Young v. Bristol Aeroplane Co., Ltd. [1] , Lord Russell of Killowen made an analysis which applies to s. 5 (2) (b). The analysis is as follows: - "On the one hand the first provision preserves to the workman the civil liability of the employer, and the second provision gives him a choice between enforcing that liability and enforcing the liability imposed on the employer by the Act. On the other hand, the third provision protects the employer from being obliged to meet both liabilities."

The plaintiff relies upon the first and second provisions of s. 5 (2) (b) to give her the right to maintain this action notwithstanding the award. These provisions in terms give her this right. The defendant relies upon the third provision to give the award the force of a bar to the action, a force over and above that which it has per se. This provision does not in terms say that upon the making of an award the civil liability of the employer shall be extinguished or that the option given by the second provision is to cease upon such an event.

In Young's Case [1] Viscount Simon very decisively upheld the view expressed by Lord Patrick in Brown v. William Hamilton & Co. [2] , that a legislative provision similar to the third provision of s. 5 (2) (b) and incorporated in a similar context is "exegetical" of a provision similar to the second provision of the present sub-section, and should not be treated "as further restricting by an added condition the worker's right of option." In the same case [3] Lord Russell of Killowen said that he found himself in substantial agreement with Lord Patrick's views in Brown v. William Hamilton & Co. [4] and added these observations: "As I have said, the primary object of the section is to preserve the civil liability of the employer, making it plain on the one hand that it is the workman who may choose which liability shall be enforced against the employer, and on the other hand that the employer cannot be made to pay more than the measure of his liability independently of, or under, the Act as the case may be."

1. (1946) A.C., at p. 171. 2. (1944) Sc.L.T. 282, at p. 285. 3. (1946) A.C., at pp. 176, 177. 4. (1944) Sc.L.T. 282; 37 B.W.C.C. Supp. 52.

The reasoning of Lord Patrick, to which Viscount Simon and Lord Russell of Killowen gave their adherence, is also generally accepted by Lord Porter [5] , but his construction of the English sub-section differs from that of Viscount Simon and Lord Russell of Killowen. Lord Porter's construction is stated in these terms: "If the workman, knowing of the alternative, makes his choice, I should regard the option as exercised. But if he had not this knowledge, a claim for damages which either was not brought to a conclusion, or if brought to a conclusion failed, need not be a final election. Even judgment in favour of the workman would not of itself necessarily be a final choice, but it would bar a claim under the Act because the employer, being thereby liable to pay independently of the Act, could not be made liable to pay under it; the wording of the second half of the sub-section would protect him. For the same reason an award or registered agreement under the Act would likewise protect the employer" [6] .

1. (1946) A.C., at p. 186. 2. (1946) A.C., at p. 188.

Lord Macmillan said [7] that he could not accept Lord Patrick's reasoning. The only other member of the House, Lord Simonds, does not refer to this reasoning but his construction inferentially rejects it.

Young's Case [1] must be regarded as an authority on the construction of s. 5 (2) (b). Lord Patrick's reasoning which is accepted by a majority, provides the cardinal rule for the interpretation of s. 5 (2) (b). But there is a difference of opinion between Viscount Simon and Lord Russell of Killowen on the one hand and Lord Porter on the other hand, who are the majority, how the provision protecting the employer against double liability operates. Lord Russell of Killowen said that the English sub-section is not "worked out" until the worker has made his option, and that it is not until then that the "chapter is closed." It follows that s. 5 (2) (b) is not "worked out" by the making of an award or that an award "closes the chapter" unless the award results from a choice by the worker made with the requisite knowledge of his rights.

The order of Barry J. in so far as it depends upon the interpretation of s. 5 (2) (b) has the support of Lord Porter, but I do not think that it can stand with the opinions of Viscount Simon and Lord Russell and Lord Patrick.

I do not see how the reasons of Lord Macmillan or Lord Simonds can be used to support the order because their view of the sub-section was that if a worker in fact claimed under the Act he debarred himself from taking proceedings independently of the Act and it is immaterial whether he knew of his rights or not.

If in Young's Case [1] the facts had been like those assumed to be proved in the present proceedings, I apprehend that Lord Macmillan and Lord Simonds would have said that the guillotine fell on the plaintiff's statutory right to take proceedings independently of the Act when she claimed compensation. Lord Porter would have said that it fell when the award was made, and Viscount Simon and Lord Russell would have said that the sub-section did not give the award the force of a bar to the action. It would be contrary to the views of the majority about the conditions requisite for the exercise of the statutory option to apply the construction which Lord Macmillan and Lord Simonds adopted in Young's Case [1] .

The sub-section having given the worker a benefit because he is ignorant of his rights, it would be a strange result if he lost the benefit as from the time an award was made upon his application, although then and after the award his ignorance of his rights continued. This benefit is to take proceedings independently of the Act notwithstanding that he has already claimed compensation under the Act. I think it is not a correct view of the operation of the sub-section that the worker's ignorance of his rights is an important factor up to the time of the award, but that then all other remedies are as effectively closed to him as if he had full knowledge of his rights from the time he applied for the award. In Young's Case [1] , Lord Russell said: "Lord Patrick has pointed out the harsh results and the difficulties which would ensue if a workman is to be held to be deprived of his rights against the employer which are independent of the Act, by the mere acceptance as such of compensation paid under the Act. I need not repeat them, but they appear to me very real; and while no suggestion is or could be made against the employers in the present case, it is obvious that instances might arise in which, on the construction of the sub-section adopted by the Court of Appeal, very grave injustice might be inflicted on a workman by his employer." These observations apply to an award obtained by a worker in ignorance of his right to enforce payment of the employer's civil liability. The observations apply with special force to a consent award. But no suggestion of course is made in this case that the consent was given in order to close speedily all other alternative remedies which s. 5 (2) (b) leaves open to a worker or his dependants.

The liability to pay compensation is imposed upon the employer by the Act and not by the award. The third provision of s. 5 (2) protects the employer from being obliged to meet both the statutory liability and his civil liability. The latter liability is preserved to the worker by the first provision in the sub-section. The problem is how to apply this provision if an award is made and the worker then proceeds to enforce the civil liability. The first case is where the worker obtains an award with full knowledge of his rights. In other words he has exercised his statutory option. The third provision of the sub-section then comes into play for the employer's protection. It relieves him from any liability which he has independently of the Act to pay damages in respect of the injury to which the award refers. It is clearly this provision and not the award which relieves the employer of this liability. The terms of the provision are not apt to bring in the award as a bar to an action. The second case is where the worker obtains an award without knowledge of his rights. In this case he has not at that stage exercised his statutory option. The sub-section has not then been "worked out" or "the chapter closed." The worker's right of option remains notwithstanding the award. The third provision of the sub-section must of course be applied. It protects the employer in all circumstances from liability to pay twice over. In other words the protection extends to the employer whether the award is the result of the worker's deliberate choice or not. But the third provision does not deprive the worker of his right of option. It would strain the terms of the provision to construe them in that way. Indeed the protection which this provision gives to the employer is extended to him because a right of option is given to the worker. Hence if an award is made at the worker's option, it is clearly to the third provision and not to the award that the employer must look for protection against paying up on account of this civil liability as well as upon the statutory liability. If the award is not the result of the worker's deliberate choice, I do not see upon what principle the third provision should be given a different construction. In that case it would not authorize the award being brought in to stop the worker from exercising his choice by bringing an action to enforce the employer's civil liability. Upon the assumption that the worker has not made his choice the third provision cannot prohibit him from exercising it. It does not annihilate the second provision from which the worker derives his right of option. But the third provision would limit the employer's liability to paying the amount of the verdict in the action even if the amount of the award exceeded the verdict; it would do so, as I have said, whether the worker obtained the award with knowledge of his rights or not.

In Young's Case [1] Viscount Simon said: "If, before the workman can be regarded as having really exercised his option, he receives one or more weekly payments under the Act, and he then opts to issue a writ and recovers damages, the damages in the action would be reduced by the amounts already received. This view secures what Lord Greene M.R. in Perkins' Case [2] , described as the effect of the final words, namely, that "the employer is not to be made to pay twice over to the same person." I cannot agree that the deduction from damages of a sum already paid in respect of the same injury is contrary to any "principle of law" [3] . On the contrary, I would adopt Lord Patrick's statement that "when the workman sues at common law, if the sum awarded in name of damages exceeds the sums already paid to him in name of workmen's compensation, these sums will form a good set-off or will have to be taken into account in diminution of damages" [4] ." The case to which these observations are intended to apply is expressed by the words "If before the workman can be regarded as having really exercised his option." The phrases "he receives one or more weekly payments under the Act" and "the sum awarded in the name of damages" are, I think, of general application to all payments which are not the fruit of a real exercise by the worker of his statutory option whether made under the compulsion of an award or not.

1. (1946) A.C., at p. 171. 2. (1940) 1 K.B. 56, at p. 65. 3. (1940) 1 K.B., at p. 67. 4. (1944) Sc.L.T. 282, at p. 286; 37 B.W.C.C. Supp. 52, at p. 64.

In the present case, however, neither the plaintiff nor any of her children has received any sum from the money which the defendant paid into court under the obligation of the award. This fact, of course, would not assist her if the making of the award debars her from maintaining the action.

I come to the conclusion that upon the true construction and application of s. 5 (2) (b), the making of the award does not destroy or restrict the right of option given to the plaintiff or any of her children by virtue of their status as dependants. If the action succeeds the plaintiff at least must be content with the quantum of her interest in the damages. The question whether the children would be bound to take their share of the damages, rather than compensation under the Act, might depend upon the question whether it was for their benefit for the plaintiff to choose the present remedy. But subject to this suggested contingency, the provision in s. 5 (2) (b), protecting the defendant from being obliged to pay twice over, would sterilize the award under the Workers' Compensation Act, whether the damages awarded in the action were more or less than the amount of the award: nothing has been paid under the award and there would therefore be no set-off against the verdict if in favour of the plaintiff.

I am of the opinion that the summons should have been dismissed upon the ground that upon the true construction of s. 5 (2) (b) the plaintiff is not debarred from maintaining this action either for herself or for any of her children.

This is an appeal from an order made by Barry J. dismissing an action brought by the plaintiff, the present appellant, for the benefit of herself and her four children, all under the age of sixteen years, against the defendant, the Victorian Railways Commissioners, the present respondent, under Part III. of the Wrongs Act 1928 Vict. claiming £9,000 damages in respect of the death of her husband Gordon Dey alleged to have been caused by the negligence of the defendant or of its servants or agents acting in the course and within the scope of their employment. The order was made on a summons dated 17th March 1948 taken out by the defendant to have the action dismissed or forever stayed on the grounds that it was frivolous, vexatious and an abuse of the process of the Court in that on 26th May 1947 the plaintiff on behalf of herself and her four children dependent on the deceased obtained an award of the Workers' Compensation Board against the defendant in respect of the same accident.

The facts may be shortly stated. On 29th April 1947 Gordon Dey, who was in the employment of the defendant, met his death as a result of personal injury by accident arising out of or in the course of his employment. On 9th May 1947 the defendant received a letter from E. H. Ruddell, the accountant of the Australian Railways Union, Victorian Branch, stating that he desired to apply for compensation on behalf of the widow and four children of the deceased. On 19th May 1947 the defendant, pursuant to s. 17 of the Workers' Compensation Act 1946 Vict., gave notice in writing to the registrar of the Workers' Compensation Board that a claim for compensation had been made by or on behalf of the widow on her own behalf and on behalf of the four children (naming them) as claimants, that the deceased left as dependants wholly dependent on his earnings the plaintiff and the four children, and that the defendant admitted liability to pay such compensation as the employer was lawfully obliged to pay, the amount of which was to be ascertained by the Board. On 21st May 1947 the Board made an award entituled in the matter of a claim for compensation made by the widow as claimant to the defendant as employer in respect of the death of Gordon Dey. The award stated, so far as material, that the Board, having found that the deceased left his widow and four children, naming them, under sixteen years of age at the time of the accident wholly dependent upon his earnings, awarded the sum of £1,100 to be paid into the custody of the Board. At the hearing before the Board the plaintiff, who was represented by E. H. Ruddell, gave evidence on oath that she was the widow of the deceased, that there were four children under the age of sixteen years wholly dependent on the deceased, and that the names and dates of birth of the children were as set out in the claim for workers' compensation made on behalf of herself and the children by E. H. Ruddell. At the conclusion of the evidence the chairman of the board announced that the Board awarded the sum of £1,100 as compensation to the widow and her children, and informed the widow that she should attend at the office of the registrar of the Board to make the necessary arrangements for the distribution of this sum to her. On 28th May 1947 the defendant paid the sum of £1,100 to the Board. This sum was the amount prescribed by par. (1) (a) (i) of the First Schedule to the Workers' Compensation Act 1946 which provides that where death results from an injury, if a worker leaves a widow or any children under sixteen years of age at the time of the accident, the amount of compensation shall be £1,000 together with an additional sum of £25 in respect of each such child.

On the same day the solicitors for the plaintiff wrote to the registrar of the Board stating in effect that the widow did not know that she had an option to elect whether to claim compensation under the Workers' Compensation Act or to sue for damages under the Wrongs Act, and requesting the Board to withhold any payments of compensation until the question of commencing an action for damages could be investigated. On 30th May 1947 the registrar of the Board replied that the Board would take no further action pending further instructions from the plaintiff's solicitors. On 30th September 1947 the present action was commenced in the County Court and on 27th February 1948 an order was made under s. 61 of the County Court Act 1928 Vict. transferring the action to the Supreme Court of Victoria. Section 5 (2) (b) of the Workers' Compensation Act 1928 Vict. provides, so far as is material, that where the injury (in this case the death of Gordon Dey) was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible nothing in this Act shall affect any civil liability of the employer, but in any such case the worker may at his option either claim compensation under this Act or take proceedings independently of this Act but the employer shall not be liable to pay compensation for injury to a worker by accident arising out of and in the course of the employment both independently and also under this Act. The ground on which his Honour made the order dismissing the action was that, to use his own words, "once there has been a final determination, whether by judgment or award, imposing a liability on the employer, the chapter is closed so far as the worker or the person by or on whose behalf the judgment or award was obtained are concerned, and no other proceedings by him or them or on their behalf to establish the employer's liability are permissible."

It was contended on three main grounds that it was wrong for his Honour to order the action to be dismissed, the first ground being of a technical nature, and the other two going to the merits. The first ground was that the facts and circumstances were not such as to justify his Honour in exercising the power under Order XXV, rule 4, of the Rules of the Supreme Court or under the inherent jurisdiction of that Court summarily to dismiss the action. The second and third grounds were that his Honour was wrong in holding that the award of the Workers' Compensation Board had the effect of precluding the widow and children from proceeding under Part III. of the Wrongs Act 1928, and alternatively that his Honour was wrong in holding that the award precluded the children of the deceased from proceedings under Part III. of that Act. Order XXV, rule 4, provides that the court or a judge may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer; and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious the court or a judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just. The jurisdiction to strike out or stay an action under this rule is practically concluded by what appears in the pleadings. The only pleading so far filed in the action is the statement of claim and there is nothing on the face of this pleading to bring the rule into operation. It seems to me therefore that his Honour must have relied on the inherent jurisdiction of the court to strike out or stay an action which is shown to be frivolous or vexatious or an abuse of its process. This jurisdiction is not confined to cases where the abuse is manifest from the pleadings, the application may be supported by affidavits, and the jurisdiction may be exercised where the facts proved raise a complete legal bar to the action so that the action is vexatious in that it must fail. In the present case his Honour appears to have considered that it was clear that the award of the Board was made on the application of the widow and children, and that this raised the question of law whether the liability of the defendant to pay compensation, which crystallised upon the making of the award, was not a complete legal bar to these persons suing under the Wrongs Act. If it was such a bar, then the whole of the expenditure of energy and money required to prepare the action for trial on the facts would be wasted. In these circumstances I am not prepared to uphold the first contention, although I am of opinion that it would have been preferable for his Honour to have refused summarily to dismiss the action, and to have left the defendant to plead the facts raising the legal bar and then apply to have the point disposed of as a question of law before trial under Order XXV., rule 2.

I shall therefore proceed to consider the other two contentions which go to the merits. Assuming for the moment that the application for compensation made to the Board was an application by the widow and her four infant children, I am of opinion that his Honour's decision was right. Section 5 (2) (b) of the Workers' Compensation Act 1928 provides that an employer shall not be liable to pay compensation both independently of and also under this Act. The award of the Board made the defendant liable to pay compensation under the Workers' Compensation Act, and the section appears to me to provide in clear and unambiguous terms that the defendant shall not also be made liable to pay damages to the same applicants under the Wrongs Act. The provisions of s. 5 (2) (b) of the Victorian Act correspond to s. 29, sub-s. (1), of the English Workmen's Compensation Act 1925. The meaning of this sub-section was recently discussed by the House of Lords in Young v. Bristol Aeroplane Co., Ltd. [1] . The House consisted of Viscount Simon, Lord Russell of Killowen, Lord Macmillan, Lord Porter and Lord Simonds. Three of their Lordships, Viscount Simon, Lord Russell of Killowen and Lord Porter expressed the opinion that the choice given to the workman necessarily involves a choice between known things. Viscount Simon said [2] that it is the workman who has the option and that he does not lose his alternative remedy merely because he accepts some payments under the Act when the option is unknown to him. Lord Russell of Killowen said [3] that to make his choice the workman must be aware of his right to choose and of the alternatives open to his choice. He said that: "In the case of a workman who, owing to ignorance in these respects, has been unable to exercise his option under the sub-section, but who has been paid and has accepted compensation under the Act, even to the full amount, I cannot see how he can be prevented, on discovering his right to choose, from recovering compensation independently of the Act, if he be not barred by lapse of time." Lord Porter said [4] that: "Apart from authority, I should have thought it reasonably plain that whereas the workman can choose which of his two types of remedy he would pursue, he cannot recover both damages and compensation, and at some time or other he must reach the position when he is bound to the one and debarred from the other." At [5] he said: "In my view, unless the dispute has reached the stage at which the employer is at least compellable to pay, either by judgment in an action or by award or registered agreement under the Act, he cannot be said to be liable to pay within the wording of the sub-section. Even a failure at law or the dismissal of a claim for compensation would not be enough; there must be some binding decision under which the employer is liable to pay. The provisions of this part of the sub-section are a defence against a legal liability to pay twice, not a method of ascertaining whether the workman has or has not made an irrevocable choice. But a choice has to be made under the first part of the sub-section and must at some time become irrevocable. When does this occur? I can find no answer, except that it comes when the workman is fully aware of the alternatives and deliberately makes his choice between them. He must not only know that he has claimed, or is offered or is receiving, workman's compensation as such, he must also know that he has an alternative remedy."

1. (1946) A.C. 163. 2. (1946) A.C., at pp. 172, 173. 3. (1946) A.C., at p. 176. 4. (1946) A.C., at p. 185. 5. (1946) A.C., at p. 187.

I have not cited any passages from the speeches of Lord Macmillan and Lord Simonds because they thought that the acceptance of payments knowing them to be compensation under the Act barred a claim at common law irrespective of the plaintiff's knowledge of his option. In this conflict of opinion of their Lordships, I feel that I am free to accept the opinion of Lord Porter which is exactly in point that once the workman has obtained an award of compensation or a judgment for damages, even if he did not know that he had a choice, the prohibition against double liability prevents him from thereafter choosing to pursue the other remedy. Accordingly the widow of the decaseed who clearly applied for and obtained an award of compensation under the Workers' Compensation Act is barred from suing for damages under the Wrongs Act.

It remains to consider the case of the four children. Unless they were applicants before the Board they are not barred from suing for damages under the Wrongs Act. The authorities are clear that where a worker is killed each of his dependants as defined by the Workers' Compensation Act has a separate right to claim compensation under that Act, and that any of these dependants who are also persons entitled to sue for damages under the Wrongs Act has an individual choice as to which remedy he or she will pursue. In the present case the widow and children of the deceased were all persons having rights of action under both Acts. The widow, as I have said, is barred from suing under the Wrongs Act. The amount of compensation awarded by the Board was calculated on the basis that the deceased left a widow and four children wholly dependent on him, but this was the amount which the Board was bound to award whether all or some or one only of the class consisting of the widow and her four children applied to the Board to make an award. Assuming that the award was made on the application of the widow alone, there would be no legal bar to the four children suing under the Wrongs Act and the amount of damages which they could lawfully recover under that Act would not be affected by the fact that the widow had been awarded £1,100 as compensation under the Workers' Compensation Act calculated on the basis that there were four children under sixteen also wholly dependent on the deceased. Nor would the amount awarded to the widow as compensation be affected by the amount of damages recovered by the children: London Brick Co. Ltd. v. Robinson [1] . In my opinion the children should not be held to have been applicants in the application which was made to the Board for an award of compensation. Rule 43 of the 1946 Workers' Compensation Rules provides that a party to any proceedings or matter may appear (d) by agent. Ruddell presumably acted for the widow and purported to act for the children under this rule, but the children could not authorize Ruddell to act on their behalf or appear for them: Geilinger v. Gibbs [2] . Rule 8 of the 1946 Workers' Compensation Rules provides that the provisions of the County Court Rules as to persons under disability shall, with the necessary modifications, apply to proceedings under the Act. Provided that the Board may at any time direct that an infant shall appear either as applicant or respondent in the same manner as if he were of full age. Rule 15 of the County Court Rules provides that infants may sue in the court as plaintiffs by their next friends and be defended by their guardians appointed for that purpose. Rule 16 provides that where an infant desires to commence an action he shall procure the attendance of a next friend at the office of the registrar at the time of entering the plaint. The plaint shall not be entered until the next friend has undertaken to be responsible for costs and the action shall proceed in the name of the infant by such friend. The procedure required by these rules was not adopted and the children were not made applicants before the Board by a next friend. The Board did not direct that the infants should appear as applicants in the same manner as if they were of full age.

1. (1943) A.C. 341. 2. (1897) 1 Ch. 479, at p. 482.

In Gregory v. Molesworth [3] . Lord Hardwicke L.C. said: "it is right to follow the rule of law, where it is held an infant is as much bound by a judgment in his own action, as if of full age; and this is general, unless gross laches, or fraud and collusion appear in the prochein amy, then the infant might open it by a new bill." In Cribb v. Kynoch, Ltd. (No. 2) [4] , Buckley L.J. said: "The point was taken that the workman in this case was an infant. There is nothing in the point the litigation, duly commenced in the name of the infant by a next friend, was prosecuted to judgment. In such case an infant is just as much bound by the proceedings as if he were adult. If authority be needed, Neale v. Electric & Ordnance Accessories Co., Ltd. [1] is authority for the proposition." See also Condon v. Mudgee Council [2] . Accordingly, if the infants had duly applied for and obtained an award of compensation under the Workers' Compensation Act in the manner prescribed by the rules, they would have been barred like the widow from suing for damages under the Wrongs Act. But, apart from a direction by the Board under the proviso to rule 8, the infants could only have duly applied, if the application had been commenced in their names by a next friend, and their interests had been protected by the presence of a next friend who would have been responsible for the proper conduct of the proceedings on their behalf, and subject to the supervision which the court exercises over a next friend in the conduct of the proceedings. In Rhodes v. Swithenbank [3] Bowen L.J. said: "The only reason that the next friend of an infant is entitled to bind the infant in matters connected with the cause is that he is the officer of the court to take all measures for the benefit of the infant in the litigation in which he appears as next friend. One of the purposes of appointing a next friend is to have a person on the record who is personally liable for costs. But that is not the only purpose for which a next friend is appointed. He is appointed principally to institute and carry on the proceedings on behalf of the infant because the law considers that an infant is incapable of asserting or protecting his rights or forming a judgment as to the necessity of applying for protection or redress to the tribunals of the country. Accordingly, where more than one person is willing to act as a next friend, the court will appoint as most suitable the father or if he is dead the widow or some near relative in preference to a stranger unless the interest of the father or other relative is adverse to that of the infant. The next friend will be removed by the court if he has an interest, or is closely connected with some person who has an interest, which is adverse to that of the infant, or if for any reason the court considers that the infant's interests will not be properly protected by him. If there be any suspicion that the proceeding is an improper one or that the next friend is unfit to have the conduct of it, an inquiry may be directed on such matters, and if it appears on inquiry, or in clear cases without inquiry, that the proceeding is not for the infant's benefit it will be stayed, or, if the circumstances warrant it, dismissed with costs to be paid by the next friend: Nalder v. Hawkins [1] ; Da Costa v. Da Costa [2] ; Anderton v. Yates [3] ; Fox v. Suwerkrop [4] ; Guy v. Guy [5] ". See generally Simpson on The Law and Practice relating to Infants, 4th ed. (1926), pp. 293 to 297; Halsbury's Laws of England 2nd ed., vol. 17, pp. 702 to 707.

1. (1747) 3 Atk. 626, at p. 627 [26 E.R. 1160, at p. 1161]. 2. (1908) 2 K.B. 551, at p. 561. 3. (1906) 2 K.B. 558. 4. (1945) 45 S.R. (N.S.W.) 258. 5. (1889) 22 Q.B.D. 577, at p. 579. 6. (1833) 2 Myl. & K. 243 [ 39 E.R. 937]. 7. (1732) 3 P.W. 140 [24 E.R. 1003]. 8. (1852) 5 De G. & S. 202 [64 E.R. 1081]. 9. (1839) 1 Beav. 583 [48 E.R. 1068]. 10. (1840) 2 Beav. 460 [48 E.R. 1259].

Rule 81 of the 1946 Workers' Compensation Rules provides that "Non-compliance with any of these rules shall not render any proceedings void unless the Board so directs, but such proceedings may be set aside either wholly or in part as irregular, or amended or otherwise dealt with in such manner and upon such terms as the Board shall think fit." But this rule could not operate to make an award binding upon a person who was not properly before the Board as a party. In Ex parte Brocklebank, In re Brocklebank [6] , Bradshaw, an infant, by his next friend sued Brocklebank for breach of a contract of apprenticeship, and recovered damages and costs amounting to £255 11s. 4d. Bradshaw then issued a debtor's summons without a next friend to recover this amount. Brocklebank applied to have the summons dismissed on the ground that he was not indebted in the amount claimed. An order was made staying the proceedings on the terms of the debtor giving security for the debt. The security was not given within the time fixed, the debt was not paid, and Bradshaw by his next friend then presented a bankruptcy petition upon which Brocklebank was adjudicated bankrupt by the registrar. Brocklebank appealed on the ground that no act of bankruptcy had been committed because Bradshaw, being an infant, was not competent to instruct a solicitor to issue the summons and was incapable of giving a valid discharge for the debt if it had been tendered to him. The Court of Appeal was not satisfied that it was irregular for an infant to issue a debtor's summons without a next friend. Assuming that it was, the Court was of opinion that the debtor had waived the irregularity by his own conduct. In the course of his judgment, James L.J. said [7] , "It is said that the debtor's summons ought to have been issued by a next friend on behalf of the infant. I am not aware of any such practice in the Court of Bankruptcy. In the Court of Chancery a suit on behalf of an infant was brought in his name by a next friend in order to give security for the costs to the Defendant, but if the suit had been commenced without the intervention of a next friend, and the Defendant chose to appear, I know of no reason why it should not have been prosecuted without a next friend. Probably, if in the present case an application had been made by the debtor in the first instance, that some adult person should be named for the purpose of giving security for the costs of the debtor's summons, the application would have been successful. If, however, there was any irregularity in this respect, it has been waived by the debtor." The facts of Brocklebank's Case [1] were very special. The proceeding under appeal was the bankruptcy petition which had been properly presented by Bradshaw by his next friend, the action which resulted in Brocklebank becoming indebted to Bradshaw was also properly brought in the name of the infant by his next friend and the debtor's summons was simply a step in the proceedings to recover the judgment debt and was plainly for his benefit. Cotton L.J. said [2] that "the question of substance is, whether the adjudication ought to have been made. A judgment having been recovered for the debt, there was a regular mode of discharging the liability created by it, and, as the debtor did not choose to avail himself of it, the adjudication was rightly made." Brocklebank's Case [1] is not to my mind any authority for the proposition that an infant is bound by proceedings which have not been duly instituted and litigated on his behalf. In the present case the four children were not in my opinion properly before the Board as applicants and are not bound by the award.

1. (1877) 6 Ch. D. 358. 2. (1877) 6 Ch. D., at p. 360. 3. (1877) 6 Ch. D. 358. 4. (1877) 6 Ch. D., at p. 361. 5. (1877) 6 Ch. D. 358.