Gurnett v Macquarie Stevedoring Co Pty Ltd [No 2] [1956] HCA 29

High Court of Australia Dixon C.J. McTiernan, Williams, Webb and Taylor JJ. Gurnett v Macquarie Stevedoring Co Pty Ltd [No 2] [1956] HCA 29

ORDER Application refused.

The following written judgments were delivered:—

June 15 Dixon C.J.

By this application a party to an appeal in this Court seeks an indemnity certificate under the Suitors' Fund Act 1951 N.S.W. in respect of the costs of an appeal in the Supreme Court of New South Wales. We pronounced upon the merits of the appeal to this Court on 28th November 1955 [1] . It was an appeal from an order dismissing an appeal. The order was made by the Full Court of the Supreme Court and the appeal thereby dismissed was instituted by a plaintiff against a verdict which, at the end of his case, had been found for the defendant at the direction of the presiding judge. This Court was of opinion that the case ought not to have been withdrawn from the jury and accordingly pronounced judgment reversing the order of the Supreme Court. The minutes of the order to give effect to this Court's decision were expressed to allow the appeal with costs, to order that the order of the Full Court of the Supreme Court be discharged, and that in lieu thereof it be ordered that the appeal to that court be allowed with costs, the verdict for the defendant be set aside and there be a new trial of the action. As to costs, it was ordered that the costs of the former trial should abide the result. No order has yet been drawn up to give effect to the minutes of the order of this Court. It is therefore open to the Court to vary or add to it. The defendant in the action now applies to the Court to vary or add to the order pronounced by providing in some way that the defendant should have an indemnity certificate in respect of the costs of the appeal in the Supreme Court. The defendant in the action was the respondent to the appeal to the Full Court of the Supreme Court and was also the respondent to the appeal to this Court. The application in effect, if not in form, is that to the minutes of that part of the order pronounced which states what order shall be made in lieu of that discharged, we should now add a provision granting an indemnity certificate under s. 6 of the Suitors' Fund Act 1951 N.S.W..