Porta v Hauser [1919] HCA 54; (1919) 27 CLR 192 (20 October 1919)

HIGH COURT OF AUSTRALIA

Porta Defendant, Appellant; and Hauser Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

20 October 1919

Isaacs, Gavan Duffy and Rich JJ.

Dethridge, for the appellant.

A. H. Davis, for the respondent, objected that an appeal did not lie as of right.

Dethridge asked for special leave to appeal.

The judgment of the Court, which was delivered by Isaacs J., was as follows:—

Isaacs, Gavan Duffy and Rich JJ.

We do not think that any special circumstance either of law or of fact has been shown which would justify us in granting special leave to appeal, and therefore in the exercise of our discretion we cannot grant special leave.

As to the costs, we think that an application to strike out the appeal should have been made earlier before the full costs of the appeal had been incurred, and, therefore, although we give costs to the respondent, we direct these costs to be limited to the costs of a simple motion to strike out the appeal as incompetent, which might have been made earlier after notice of appeal had been given.

We also desire to say with reference to the absence from the appeal book of any reasons of the Chief Justice from whom appeal is sought to be brought, that it is extremely inconvenient for an appeal book to be furnished without such reasons, and it is the duty of the appellant to apply to the Judge or Judges of the Court below in order to obtain from him or them such reasons as were given at the time. We presume that reasons are in ordinary practice given by the tribunal by which the judgment is pronounced.

Appeal dismissed with costs limited to the costs of a motion to strike out the appeal as incompetent.

Solicitors for the appellant, Corr & Corr.

Solicitor for the respondent, J. R. Thompson.