Case: Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713
Outcome: considered
In Gao v Zhang [2005] VR 380, the applicant sought leave to appeal against the decision of a judge upholding an order of a master that, inter alia , the proceeding be stayed pending payment of costs already awarded against him in the proceeding. Ormiston JA, delivering the decision of the Court of Appeal, observed that such orders were discretionary, and the applicant faced a heavy burden in showing that it was appropriate to grant leave to appeal. However, his Honour observed further that, although the Supreme Court had power to make an order for a stay, dismissal or striking out where orders for costs of interlocutory applications remained unpaid, it did not necessarily follow that whenever costs remained outstanding some such order should be made (at 383). Indeed his Honour considered that it was not appropriate that orders of this kind be adopted as a day-to-day means of recovering costs ordered by the court (at 394). His Honour continued (at 384): "The power to stay a proceeding, to dismiss a proceeding without trial, or to strike out a defence are each powers which, if exercised, in one way or another deny justice to the party affected and ought not to be employed unless it is the only fair way of protecting the interests of the party seeking such an order. The basal principle, frequently adopted, was stated by Dixon J in Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 at [720] when he said, in relation to a striking out application, ...The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped." 12 In this case, I consider that there is sufficient doubt to warrant reconsideration of his Honour's decision. I take this view because: &#8226; although his Honour quite properly made detailed reference to Gao v Zhang [2005] VR 380 in his judgment, and clearly sought to achieve fairness between the parties with respect to his orders, the facts in the present proceedings bear few similarities to those in Gao v Zhang [2005] VR 380 where the Court considered that the conduct of the applicant justified the relevant order. There does not appear to be an element of harassment of the respondents in these proceedings or deliberate conduct by the applicant which warrants condemnation as was found to be the case in Gao v Zhang [2005] VR 380 &#8226; notwithstanding the apparent financial difficulties of the applicant, there is evidence before the Court (including this application before me) which indicates a willingness to prosecute the matter &#8226; while it appears that the applicant in this case has financial difficulties, and has had difficulty raising funds to pay the outstanding costs, the paramount principle as made plain by Dixon J in Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 is that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed &#8226; as pointed out by Ormiston JA in Gao v Zhang [2005] VR 380, costs awards at interlocutory stages in proceedings are common without the continuation of the matter necessarily depending on the payment of those costs prior to trial.