Brickwood v Young [1904] HCA 36; (1904) 2 CLR 74 (28 November 1904)

HIGH COURT OF AUSTRALIA

Brickwood Appellant; and Young and Others, and the Minister for Public Works of New South Wales Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

28 November 1904

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

Rich, for the applicants (respondents other than the Minister for Public Works).

Harvey, for the appellant.

Rich in reply.

The judgment of the Court was delivered by

Griffith C.J.

This Court is not inclined to give effect to merely technical points in any case, and in the present case the appellant has shown his bonâ fides by giving security three months earlier than by the rules he was bound to do. He need not have given security until next month, December, and he could then have set the appeal down for hearing at the next sittings of the Court, held two months after that time, but, owing to his own expedition in giving security at the earliest possible moment instead of the latest, it became necessary, technically, to set it down for the present sittings, although the appellant seems not to have thought it necessary to do so. The appeal appears to have been brought bonâ fide, and security to have been given at the earliest possible moment, and, if the appellant had done what he was strictly bound to do, he would have set the appeal down on 7th November. It would then have come into the list for these sittings after all the cases now on the paper, so that the respondents really lose nothing in substance, if we allow the appeal to be set down now. Mr. Harvey offered to set it down for these sittings, and there is no objection to that on the part of the respondents. Under these circumstances, following the practice of the Court of Chancery, and also, indeed, of the Courts of Common Law, which, in similar cases, were accustomed to allow the appellant to have time, requiring him to give an undertaking to "speed the cause," we think that the proper order to make in this case is that, the appellant undertaking to set the appeal down for these sittings, the application be dismissed, the appellant to pay the costs of the motion.

If we were very strict, and insisted on the rigid observance of the rules in these matters, it would probably result in a want of uniformity in the practice, as the expedition required in Sydney and Melbourne would be very much greater than in the capitals of the other States in which sittings are held. In some of these the Court sits only twice, and in some only once, in the year.

Rich asked to have the payment of the costs made a condition precedent to the entertaining of the appeal.

Griffith C.J.

It is not usual to make such an order, and there is no special reason for making it in this case.

Application dismissed upon the appellant undertaking to set the appeal down for the present sittings. Appellant to pay the costs of the application.

Solicitors for the applicant, Perkins and Fosbery.

Solicitors for respondent (appellant), A. W. E. Weaver.