Chanter v Blackwood (No 3) [1904] HCA 18; (1904) 1 CLR 456 (16 August 1904)

HIGH COURT OF AUSTRALIA

Chanter Petitioner; and Blackwood Respondent (No. 3).

H C of A

16 August 1904

Griffith, C.J.

Moule, for the respondent, in support of the summons.

McCay, for the petitioner, contra.

Moule.—

McCay.—

16th August

Griffith, C.J.

I reserved judgment on the objection that the travelling expenses of the petitioner to attend the trial of the petition ought not to be allowed. The case of Howes v. Barber (18 Q.B., 588; 21 L.J. Q.B., 254) was cited in support of the objection. In that case, Lord Campbell, C.J., said:—"The simple fact that parties are examined as witnesses must by no means be considered sufficient to establish a claim for their expenses as witnesses, and if it appear that their attendance was unnecessary, or that they attended to superintend the conduct of the cause, the claim ought to be rejected." On the other hand, the expenses of a person subpoenaed as a witness may be allowed although he is not actually called, if his attendance was reasonably necessary, having regard to the probable course of the case. In the case of a party the issue of a subpoena would be an idle form. In my opinion, therefore, the expenses of a party who may reasonably be expected to be required as a witness should be allowed without a subpoena being issued. No authority was cited to me in which such expenses have been allowed to a suitor conducting his case in person. The case of Anthony v. Walshe, (1888) 22 L.R. Ir., 619, is against such an allowance. There are, in my opinion, some cases of such a character that the party ought primâ facie to be regarded as a probable witness. Such, I think, are cases in which the status or character of the party is involved, and in which it is likely that adverse evidence may be given at the trial as to which his evidence might be beneficial to him. As an instance I may mention the case of a wife made respondent in a divorce suit. I think that the same rule should primâ facie be applied in the case of an election petition in favour of a party claiming or defending the seat for himself, although the nature of the issues raised might be such as to exclude the application of the rule.

In the present case I think that the attendance of the petitioner as a witness was reasonably necessary. In fact, although he was not called as a witness, information was afforded by him during the progress of the trial, which, if the facts supplied by him through his counsel to the Court and accepted by the other side had not been so ascertained, would have had to be proved by witnesses, and an adjournment of the trial might have become necessary.

I think that the recount before the Deputy-Registrar should be regarded as part of the trial. The Deputy-Registrar informs me that the sums allowed are for actual travelling expenses only.

In my opinion, therefore, the objection fails, and, as all the other objections have been over-ruled, the summons to review must be dismissed.

Summons dismissed with costs.

Solicitors for petitioner, B. P. B. Rymer, Melbourne, for Quick, Hyett & Rymer, Bendigo.

Solicitors, for respondent, Blake & Riggall, Melbourne.