Glover v Walters [1950] HCA 1

High Court of Australia Dixon J. Glover v Walters [1950] HCA 1

ORDER Order accordingly.

Cur. adv. vult.

J. Dixon delivered the following judgment:—

Feb. 22 Dixon J

This is an application by the plaintiffs in the suit for a writ of ne exeat colonia. The plaintiffs reside in South Australia and the defendant in Victoria and it is upon this diversity of residence that the jurisdiction of the Court over the suit is founded.

I do not doubt the power of this Court to issue a writ of ne exeat colonia in a proper case. It is a prerogative writ used for the purpose of preventing a subject quitting the country without giving bail or security to answer a money claim of an equitable nature. Formerly the writ was issued out of the High Court of Chancery. The writ is directed to the Marshal commanding him to cause the defendant personally to come before him and give sufficient bail or security in the sum mentioned in the order and adequate to the nature of the case; that the defendant will not go or attempt to go into parts beyond the seas without leave of the Court, and in case the defendant shall refuse to give such bail or security then the Marshal is commanded to commit the defendant to prison, there to be kept in safe custody until he shall do it of his own accord, and when the Marshal has taken such security he is to certify to the Court. The writ is not issued except for an equitable debt or demand. There must be a sum certain to be indorsed upon the writ as that for which bail is to be taken. In matters of account it need not be finally ascertained but it must be sworn to as an amount which at least would be shown by an account when taken. There is an instance of the grant of the writ in a suit for specific performance against a purchaser: Boehm v. Wood [1] . But a decree had been made in that case and the purchase money payable had been almost finally ascertained. Speaking generally, the writ of ne exeat does not issue unless there is an equitable debt in a sum certain. For a legal debt the plaintiffs must rely upon mesne process or the statutory provisions for holding to bail in jurisdictions where these remedies exist. In Boehm v. Wood [1] Lord Eldon stated some of the essential conditions. He said [2] : "There are certain circumstances attending the application for the writ which admit of no dispute. In the first place the debt must be equitable; in the second place it must be due; and in the third place it must be a debt in respect of which the Court can see its way to direct what sum shall be marked upon the writ. To the rule that the debt must be equitable there is one case of exception, the case of account; that exception stands upon this ground, that this Court has jurisdiction in matters of account as well as a court of law, and that the proceedings at law in such matters are attended with very great difficulties. This Court has therefore said, though it be a general rule that the debt shall be equitable, and the affidavit as to the amount positive, yet, in matters of account, that shall be considered as an equitable debt which is also a legal debt, and it shall be sufficient for the party to swear to his belief as to the amount of the balance."