Brundza v Robbie & Co [1952] HCA 49

High Court of Australia Fullagar J. Brundza v Robbie & Co [1952] HCA 49

ORDER Order accordingly.

Cur. adv. vult.

Fullagar J. delivered the following written judgment:—

Sept. 8 Fullagar J.

This is an application for an order that further security for costs be given by the appellant in addition to the £50 which is required by the High Court Procedure Act 1903-1950. The statutory security has been paid into court, and the appeal has been set down for hearing. I have felt some difficulty about the application. It is a matter of discretion, involving the weighing of various considerations one against another.

The appeal is from a judgment of Sholl J., which was pronounced on 30th June 1952 in an action in which the appellant was plaintiff. The judgment dismissed the action with costs. Notice of appeal to this Court was given on 21st July. On 13th August the respondent issued a summons in the Supreme Court asking for leave to prosecute the judgment for costs. The ground of the application was that the appellant was about to leave the jurisdiction and proceed to Ethiopia. He had said in evidence on the hearing of the action that he intended so to do in the near future. The summons never came to a hearing, because the respondent offered to pay to his solicitors the amount at which the costs should be taxed, such amount to be held in trust to abide the result of the appeal and to be paid to the respondent if the appeal were unsuccessful. This offer was accepted. The costs were taxed on 15th August at £311 odd, and this sum is now held in trust by the appellant's solicitors in accordance with the agreement.

On 27th August the appellant left Melbourne by ship with the intention of proceeding to Ethiopia and taking up residence there. The ship called at Fremantle on 31st August, leaving some four or five hours after arrival. On 29th August, i.e., after the appellant had sailed from Melbourne, the summons for further security for costs of the appeal was issued. The only prior application for further security was made by telephone to the respondent's solicitors late in the afternoon of 29th August—before it was served but most probably after it had been issued.