Connolly v Macartney [1908] HCA 64; (1908) 7 CLR 48 (9 October 1908)

HIGH COURT OF AUSTRALIA

Connolly and Others Appellants; and Macartney and Others Respondents.

H C of A

On appeal from the Supreme Court of Victoria.

9 October 1908

Griffith C.J., Barton, O'Connor and Isaacs JJ.

Cohen, for the appellants.

Hayes, for the respondent Jane Macartney.

Davis, for other respondents.

Weigall K.C., for the respondents trustees of the will of Kesterson.

The judgment of the Court was delivered by Griffith C.J.

Griffith C.J.

Barton, O'Connor and Isaacs JJ.

Rule 8 of Order XVI. of the Rules of the Supreme Court 1906 provides that:—"Trustees, executors, and administrators may sue and be sued on behalf of or as representing the property or estate of which they are trustees or representatives without joining any of the persons beneficially interested in the trust or estate, and shall be considered as representing such persons; but the Court or a Judge may, at any stage of the proceedings, order any of such persons to be made parties either in addition to or in lieu of the previously existing parties." That rule does not affect the substantive rights of parties interested, but is merely a rule for convenience of procedure. The present appellants were the beneficiaries under a will, the executor of the will having been made party to a pending suit to represent their interest.

A judgment adverse to the appellants having been given by the Supreme Court, they desired to appeal to this Court. The executor, who nominally represented them, refused to appeal. Then they applied to the Supreme Court to be made parties to the action in order to give them a locus standi to come to this Court. Hood J. dismissed the application with costs.

It appears to us that they were entitled to the order ex debito justitiæ. They are the parties interested, and they are entitled to have recourse to this Court, and, if any technical difficulty was in the way of their assertion of that right, it was the duty of the Supreme Court to remove it. The only possible difficulty was that the judgment of the Court had been pronounced. I doubt whether that is sufficient in the abstract, even when the order is a final order, a fortiori when the proceeding is merely incidental to administration. But in the present case neither of those things comes in the way, for the order had not been drawn up, and until an order is drawn up the Court can correct it. So that the Supreme Court had jurisdiction at the date of the application to make the appellants parties to the action, and we think they were entitled ex debito justitiæ to be made parties.

The appeal will therefore be allowed and the order of the Supreme Court will be discharged. By consent the costs of all parties will be paid out of the general corpus of the estate, including the costs of the application to Hood J.

Appeal allowed. Order appealed from discharged.

Solicitors, for appellants: Abbott & Beckett.

Solicitors, for respondents: N. J. Casey; W. H. Lewis; J. B. Kiddle.