Crowley v Glissan (No 1) [1905] HCA 13; (1905) 2 CLR 402 (9 May 1905)

HIGH COURT OF AUSTRALIA

Crowley Defendant, Appellant; and Glissan Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

9 May 1905

Griffith C.J., and Barton J.

Edmunds for the appellant,

Griffith C.J.

In this case an appeal is proposed to be brought from a decision of the Supreme Court of New South Wales refusing to grant a rule nisi for a new trial upon certain grounds. According to the practice of that Court an application for a new trial is made in two stages. The first is a motion for a rule nisi for a new trial. If that is granted the matter is further considered upon a motion to have the rule nisi made absolute. If the application for the rule nisi is refused, or the rule is granted but discharged on motion to make it absolute, the matter is at an end. On the other band, if the rule nisi is made absolute, there is a new trial. These two steps are, in our opinion, two stages in one proceeding. There is only one judgment of the Court appealed from, viz., that which grants or refuses a new trial, and on the appeal all grounds that were taken by the appellant in the course of the proceedings are open to him. That position is clearly supported by the decision in Maharajah Moheshur Sing v. Bengal Government[1] which was referred to in the case of Nolan v. Clifford[2], and was followed in a later case: Sheonath v. Ramnath[3]. The latter case was an appeal to the Privy Council from the decision of a Judicial Commissioner upholding the award of certain arbitrators, on an application to set aside the award. The Privy Council said, "The appeal is, in effect, to set aside an award which the appellant contends is not binding upon him. And in order to do this he was not bound to appeal against every interlocutory order which was a step in the procedure that led up to the award." The same principle has been applied by the Privy Council in many other cases. The appeal is from the judgment of the Court, which in this case consists partly of an order refusing to grant a rule nisi for a new trial upon certain grounds, and partly of an order discharging a rule nisi granted on certain other grounds.

There is an appeal as of right from the final judgment, and we think therefore that the leave asked for as from an interlocutory judgment, is unnecessary.

Solicitor for appellant, T. J. Purcell.

[1] 7 Moo. Ind. App., 283.

[2] [1904] HCA 15; 1 C.L.R., 429, at p. 431.

[3] 10 Moo. Ind. App., 413, at p. 423.