Fisk v Anderson [1915] HCA 7; (1915) 19 CLR 518 (22 February 1915)

HIGH COURT OF AUSTRALIA

Fisk Plaintiff, Applicant; and Anderson and Others Defendants, Respondents.

H C of A

On appeal from the Supreme Court of Victoria.

22 February 1915

Griffith C.J., Barton, Isaacs and Gavan Duffy JJ.

H. Barrett, for the applicant,

Mann, for the respondents, was not called upon.

Griffith C.J.

The present application is in form an application for leave to prosecute an appeal in formâ pauperis and also—not in the alternative—to reduce the amount of or dispense with the security. The time for giving security has long since expired. Before the time expired an application was made to Powers J. to reduce the amount of or dispense with the security. That application was refused. No appeal was brought from his decision, and the time for appealing from it has now expired. Then the present summons was taken out. So far as the application to reduce or dispense with the security is concerned it is res judicata by reason of the decision of Powers J. The only thing left is an application for leave to prosecute an appeal in formâ pauperis. But the security not having been given in due time, the appeal has not been instituted and there is no matter before the Court in which an order can be made. We therefore cannot make the order asked.

We allowed Mr. Barrett to state the facts upon which he relies to show that in some form or other he would be entitled to relief on the appeal if there were no technical difficulty in his way, but he has failed to show a case for granting special leave to appeal.

The summons must therefore be dismissed.

Barton J.

I concur.

Isaacs J.

I concur.

Gavan Duffy J.

I concur.

Summons dismissed with costs.

Solicitor, for the applicant, W. H. Jones.

Solicitors, for the respondents, Dugdale & Creber.