Bayne v Blake [1907] HCA 71; (1907) 4 CLR 944 (15 March 1907)

HIGH COURT OF AUSTRALIA

H C of A

15 March 1907

Griffith C.J.

Knox K.C. and Clive Teece, for the defendants,

H. E. Manning, for the plaintiffs,

Arthur for the plaintiffs

Weigall K.C. for the defendants contrâ.

March 15

Griffith C.J. read the following judgment:?

According to the English practice a stay of inquiries pending an appeal to the House of Lords will not be granted except under very special circumstances: Shaw v. Holland[1] . If there were danger of the necessary evidence being lost by delay, a stay would, no doubt, be refused. The institution of an appeal to this Court operates automatically as a stay of proceedings under the judgment appealed from, unless security is given by the party desiring to proceed. In the present case special leave has been given by the Judicial Committee to appeal from a decision of this Court directing inquiries to be made in the Supreme Court. The appellants desire to proceed with the inquiries pending the appeal, and as proceedings under the judgment of this Court have been stayed until further order they apply for the suspension of the stay. I think that in such cases the analogy of appeals to the High Court should be followed rather than that of appeals to the House of Lords.

At first I was disposed to think that the removal of the stay would not prevent an independent application to the Supreme Court to stay proceedings. But on consideration I think that it would have that effect so far as the pending appeal to the King in Council was relied on as a ground for a stay, although it would not prevent a postponement of proceedings on special grounds.

At present I do not see any sufficient ground for removing the stay. The summons will be adjourned generally with leave to bring it on again if the parties are so advised.

Application refused.

Solicitor, for plaintiffs, F. S. Stephen, Melbourne.

Solicitors, for defendants, Blake & Riggall, Melbourne.

1. (1900) 2 Ch., 305.