1910. DECISIONS OF THE SUPREME COURT OF QUEENSLAND. [IN THE FULL COURT.] In re FRACKELTON v. McQUEEN AND OTHERS. Costs-Solicitors undertaking to pay all costs payable by defendants An action was brought by the plaintiff against certain persons constituting the Presbytery of Brisbane, a tribunal of a voluntary religious association, for one cause of action, and another action was brought against certain persons who were appointed to represent the Presbytery of Brisbane and the General Assembly of Queensland respectively. These actions were consolidated, and after trial, judgment was given against all the defendants, who were ordered to pay the plaintiff's costs. An application for a stay of proceedings pending an appeal to either the Full Court of Queensland or the High Court of Australia, was granted on the solicitors for the defendants "undertaking to pay all costs which, by the judgment of the Court of Appeal, are made payable by the defendants, or either of them, to the plaintiff.” On appeal to the Full Court, that Court held that the first action was not competent, as no civil right of the plaintiff had been infringed, but gave judgment for the plaintiff in the second action, and, inter alia, ordered the defendants to pay to the plaintiff his costs of the appeal, such costs to be recoverable only out of the property (if any) of the General Assembly and the Presbytery respectively, and not against the defendants or any individual member of those bodies personally. The judgment of the Full Court was, in almost every particular, upheld by the High Court. The plaintiff demanded payment of the costs of the appeal to the Full Court from the solicitors who had given the undertaking. They denied any liability, and 1909. Full Court. Chubb J. 1 F. C. on application by summons to Cooper C.J., an order was made that the solicitors In re FRACKELTON should pay these costs, and, by consent, that they be paid into Court pending v. MCQUEEN AND OTHERS, In re A SOLICITOR. an appeal. On appeal to the Full Court from this order, Held, that the language of the undertaking was wide enough to cover the costs of the appeal to the Full Court; but that the Full Court never intended, and did not order the defendants to personally to pay any costs; that the obligation of the solicitors to pay costs was not greater than that of their clients, and as the clients had not been ordered personally to pay any costs, a fortiori the solicitors had incurred no liabilty on their undertaking. APPEAL FROM AN ORDER OF COOPER C.J. The plaintiff brought an action claiming a declaration and an injunction against The Right Rev. James McQueen and twenty-one other persons nominatim, the members of the Presbytery of Brisbane of the Presbyterian Church of Australia, in the State of Queensland. He subsequently brought another action, claiming a declaration, and consequential relief against certain persons who, by an order of Cooper C.J., under O. III, r. 10, were appointed to defend the action on behalf of the members of the General Assembly and the Presbytery of Brisbane. The parties appearing as defendants were stated in the pleadings to be-The Right Reverend William Sweyn MacQueen, the Moderator of the General Assembly of the Presbyterian Church of Australia, in the State of Queensland, and The Reverend Richard Kerr (members of the said General Assembly), sued on their own behalf and on behalf of all other members of the said General Assembly, and The Reverend Andrew Gillison and George Hall (members of the said Presbytery), sued on their own behalf and on behalf of all other members of the said Presbytery. These actions were consolidated, and at the trial of the consolidated actions (1) Cooper C.J. ordered that judgment be entered for the plaintiff, and that the plaintiff recover against the defendants respectively his costs of the actions to be taxed. Immediately after judgment had been delivered, the defendants applied for a stay of proceedings pending appeal. What took place on this application was recorded in the note book of the learned Chief Justice as follows:-" Macgregor asks for a stay of proceedings pending an appeal. Graham makes a similar application. Macgregor undertakes to prosecute the appeal (1) 1909, St. R. Qd. 89. without delay. Graham ditto. Solicitors personally in both cases undertaking to pay whatever costs are found to be due. Proceedings stayed accordingly." The Registrar's note of the matter was :-" On application of Macgregor and Graham, counsel for defendants in both actions. Stay of proceedings granted pending appeal. Counsel undertaking to prosecute appeal without delay, and solicitors personally undertaking to pay whatever costs are found ultimately against the defendants." The formal judgment was settled before the Registrar, counsel for all parties being present. The material part of this judgment is as follows :-" And this Court doth further order and adjudge that the plaintiff do recover against the defendants respectively his costs of these actions to be taxed, and, by consent, this Court doth further order and adjudge that the execution of this judgment be stayed pending an appeal to be prosecuted by the defendants before the sittings of the Full Court of Queensland, to be held in the month of December, 1908, or before the first sittings of the High Court of Australia, to be held at Brisbane after the thirtieth day of October, 1908, the solicitors for the defendants, by the counsel for the defendants, undertaking to pay all costs which, by the judgment of the Court of Appeal, are made payable by the defendants, or either or any of them to the plaintiff." On appeal to the Full Court, the judgment of the learned Chief Justice was varied (inter alia) by deleting the order as to costs, and the Full Court ordered the defendants to pay to the plaintiff his costs of the appeal, such costs to be recoverable only out of the property (if any) of the General Assembly of the Presbyterian Church in Queensland and the Presbytery of Brisbane respectively, and not against the defendants, or any individual member of these bodies personally (1). The defendants appealed to the High Court of Australia, which varied the judgment of the Full Court only by omitting the word "mandamus " therefrom, and ordered the defendants to pay the costs of the appeal to the High Court. After the termination of the litigation, the costs of the appeal to the Full Court were taxed, and the plaintiff requested the solicitors for the defendants to pay the (1) 1909, St. R. Qd. 89 at pp. 158, 159. F. C. In re FRACKELTON v. MCQUEEN AND OTHERS, In re A SOLICITOR. F. C. In re FRACKELTON v. MCQUEEN AND OTHERS, In re A SOLICITOR. costs, but they refused to do so, contending that no costs, other than the costs of the trial, were ever discussed, nor was it in contemplation of either party that the undertaking should extend beyond the costs of the trial. The plaintiff thereupon appealed on summons to Cooper C.J. in Chambers, who ordered that the solicitors should forthwith pay these costs in pursuance of their undertaking given at the trial, and, by consent, that the money be paid into Court pending an appeal. On this application affidavits by counsel and solicitors for each party were filed, together with the above extracts from the notes taken by the Chief Justice and the Registrar. The affidavits showed that there had been some misunderstanding as to the meaning of the words used on the application for a stay of proceedings, the plaintiff's counsel considering that the undertaking extended to all costs which the Court of Appeal should order, and the defendant's counsel stating that the undertaking was given for all costs of the trial for which the defendants should be held to be personally liable. From the order of Cooper C.J., the solicitors appealed to the Full Court, on the grounds that the order was contrary to the evidence and weight of evidence, and contrary to law. O'Sullivan A.G. and A. D. Graham, for the appellants: As a general rule, an undertaking extends only to the costs of the action, and is given to stop an execution, and this undertaking did not, and was never intended to extend further. If the undertaking is wide enough to embrace the costs awarded by the Appeal Court, as the order of the Full Court attaches no personal liability to the defendants, no liability exists on the undertaking, for the undertaking extends only to personal liability, and defendants personally were ordered to pay no costs; the solicitor's liability is not higher than, or different from, that of his client. By the deletion of the order as to costs, the undertaking also disappeared. Lilley and Wassell, for the respondent: The undertaking is wide enough to cover costs of appeal. It must be construed strictly against the parties giving it. Burrell v. Jones (1), Iveson v. Connington (2). If the undertaking had not been accepted, (1) 1819, 3 B. & Ald. 47. (2) 1823, 1 B. & C. 160. F. C. v. MCQUEEN AND OTHERS, In re A SOLICITOR. the costs would have been paid into Court by the defendants in their representative capacity, for they were sued in such, and In re FRACKELTON would have been available. They also cited Hall v. Ashurst (1), Harper v. Williams (2), Re Woodfin and Wray (3), Tharrett v. Trevor (4), Re C. (5). The Court will order a solicitor to pay money which it thinks he ought to pay. In re a Solicitor, Ex parte Hales (6), Re Hilliard (7). 8th September, 1909. C.A.V. CHUBB J.: This is an appeal from an order made at Chambers by the Chief Justice, directing Messrs. Atthow & McGregor, the solicitors of the defendants, in these consolidated actions, personally to pay to the plaintiff his costs of the appeal (taxed at £466 15s. ld.) of the defendants to the Full Court against the judgment delivered by His Honour in the actions. The judgment was in favour of the plaintiff, and by it the defendants were ordered to pay to the plaintiff his costs of the actions. Counsel for the defendants immediately applied to the learned Chief Justice for a stay of execution, pending appeal, which was granted on an undertaking as to costs given by the solicitors for the defendants upon the meaning of which the parties are now at variance. Affidavits by the counsel and solicitors on both sides, and the notes of the Chief Justice, and of the Registrar, of the terms of the undertaking, have been read to the Court. The controversy is whether the undertaking unconditionally agreed to pay the plaintiff's costs of the appeal to this Court. If the matter stood there, some difficulty might be experienced in deciding that question. Fortunately, we are relieved of that difficulty, because the formal judgment of the Court, which was afterwards drawn up and issued by the Registrar, was settled by counsel for both parties, and it embodies the stay and the terms on which it was granted in these words, " And by consent, this Court doth further order and adjudge that the execution of this judgment be stayed, pending an appeal to be prosecuted by the defendants before the sittings of the Full Court of (1) 1833, 1 Cr. & M. 714. (5) Solicitors' Journal, 12th Dec., 1909. (6) [1907] 2 Q.B. 539. (7) 1845, 14 L.J. Q.B. 225. Chubb J. |