Bahr v Nicolay [1987] HCA 32

High Court of Australia Toohey J. Bahr v Nicolay [1987] HCA 32

ORDER The application by the second respondents that the applicants provide security for costs of their application for special leave to appeal be dismissed with costs.

Cur. adv. vult.

July 29 Toohey J. delivered the following written judgment:—

By this application the second respondents, Mr. and Mrs. Thompson, seek an order that Mr. and Mrs. Bahr, applicants for special leave to appeal to the High Court, provide security for the costs of their application for special leave.

Mr. and Mrs. Bahr are seeking special leave to appeal from part of a judgment of the Full Court of the Supreme Court of Western Australia given on 25 May 1987 which dismissed a claim by them against Mr. and Mrs. Thompson. The application for special leave is pending and is likely to be heard in Melbourne at the end of the August sitting of the Court. Affidavits have been filed in support of and in opposition to the grant of an order for security for costs. At the outset a question arises as to whether such an order is competent. The question arises in this way.

Since the amendments to s. 35 of the Judiciary Act 1903 Cth made by Act No. 12 of 1984, no appeal may be brought from a judgment of the Supreme Court of a State "unless the High Court gives special leave to appeal": s. 35(2). This requirement is reflected in the High Court Rules, O. 69A of which deals with applications for special leave to appeal, and O. 70 of which deals with appeals. As will appear later in these reasons, O. 70 contains express provision for security for costs; O. 69A does not.

Before Act No. 12 of 1984, s. 35 of the Judiciary Act provided an appeal as of right in certain cases, with a general provision whereby the High Court might grant special leave to appeal in respect of any judgment, final or interlocutory, and whether in a civil or criminal matter.