EDWARDS V. BOYD

GRIGINAL

IN THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Omak Judgment delivered at... SY8MEY... coon Wa, HouaTox, Govt, Print, ae, | on..Wednesday,..18th.March.1959.....

1078/85

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EDWARDS:

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TIERNAN J.

EDWARDS

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The facts and the history of this case have been gone into very fully in the course of the argument and it does not seem necessary again to traverse that field.

I come at once to the suit which was heard by Mr Justice Roper. In that suit the wills of the 2nd and the 5th April 1951 were known to the Court, besides the will of the 29th September 1950, of which the Court granted probate.

The appellant was, during the pendency of those proceedings, cited to prove the will of the 2nd April, but he did not do so. He undertook to prove only the third will. I agree with the view taken by Mr Justice Myers that the appellant did, at that stage, in fact abandon the will of the 2nd April. It is a very reasonable conclusion, having regard to all that was brought out in evidence before Mr Justice Roper, that the appellant could have had very little faith in the genuineness of that will,or; at any rate, in his prospects of being able to establish that it was the will of which the Court would grant probate.

I think that the decision of Mr Justice Roper must be taken to have necessarily involved that the will of the 29th September 1950 was the last will, or the last valid and effective will, of this testatrix.

It seems to me to follow inevitably, from the views which I have expressed, that the present suit of the appellant, the one which we are now considering, is a completely hopeless one, that it is one in which he could not possibly succeed if it were allowed to go on.

It is therefore true to say that the suit is

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vexatious and frivolous in the proper sense of those words. In my opinion, the order of Mr Justice Myers was right, and the Full Court, which unanimously affirmed it, was also right. It has been pointed out by Mr Clyne that Mr Justice Dixon said this, in the case of Cox vs. Journeaux and Others (52 C.L.R. 713): "The inherent jurisdiction of the High Court to stay an action as vexatious is to be exercised only when the action is clearly without foundation". In our opinion, it can be very justly said of this action that itis without substantial foundation. His Honour proceeded: ",...and when to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff".