High Court of Australia
WALTER BAHR and JOHANNA MARIA BAHR
ve
MARCUS GRENVILLE NICOLAY
and
DAVID GEORGE THOMPSON and THELMA CONSTANCE THOMPSON
and
IAN LANGDON SHELLABEAR and JENNIFER ELIZABETH SHELLABEAR
JUDGMENT ; TOOHEY J.
Heard: 27 August 1987 Delivered: 28 August 1987
WALTER BAHR and JOHANNA MARIA BAHR
ve
MARCUS GRENVILLE NICOLAY
and
DAVID GEORGE THOMPSON and THELMA CONSTANCE THOMPSON
and
IAN LANGDON. SHELLABEAR and JENNIFER ELIZABETH SHELLABEAR
On 14 August 1987 the Court granted to the appellants special leave to appeal from the judgment of the Full Court of the Supreme Court of Western Australia given on 25 May 1987. The appeal itself is listed for hearing on
15 September in Perth.
The second respondents, who are the respondents most affected by the appeal, seek security for costs. They do so in reliance upon what may be described as the second' limb of 0.70 r.7(1) of the High Court Rules viz. security "for the payment of such costs as may be awarded by the Court to the
respondent".
In Lucas v. Yorke (1983) 58 A.L.J.R. 20, at p.21; 50 A.L.R. 228, at p.229 Brennan J. described the discretion to order security for the costs of an appeal conferred by 0.70 r.10 of the High Court Rules as they then stood as "absolute". The same is true of the power conferred by 0.70 r.7(1). Nevertheless, the discretion must be exercised
judicially and this means, as Rich J. pointed out in King v.
2.
Commercial Bank of Australia Ltd. (1920) 28 C.L.R. 289, at
p.292 that "in each case the Judge has to inquire how, on
the whole, justice will be best served".
In consequence I do not approach the present summons by reference to - particular rules. The impecuniosity of the appellants and the likelihood that they will be unable to meet the second respondents' costs if they are unsuccessful in their appeal is a matter to be taken into account. But there is no rule that security should ordinarily be ordered in such a case: see Lucas v. Yorke at p.21; pp.228-229 of
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