E Ryan & Sons Ltd v Rounsevell [1910] HCA 2; (1910) 10 CLR 176 (12 March 1910)

E. Ryan & Sons Limited Defendants, Appellants; and Rounsevell Plaintiff, Respondent.

This is an application for an order that copy notices of appeal shall be deemed to have been filed in the Supreme Court of South Australia and in the District Registry of this Court in South Australia on 31st January last, or in the alternative, for extension of time for filing these notices. The notice of appeal was served on the respondent on 31st January. That was the last day for serving the notice. Filing the notice copy of appeal and affidavit in the State Court and of the notice copy of appeal in the High Court within the prescribed time were as necessary to complete the appellants' right of appeal as was serving the notice on the respondent. The 31st January was therefore the last day for taking all these steps, and failure as to any one of them is fatal to the appellants' appeal as of right. The date mentioned was in vacation. By Order XLVIII., rule 5, the High Court offices are directed to be open in vacation until one o'clock. After that hour the officers are not bound to accept documents for filing. At three o'clock on that afternoon an officer of the Court was in fact in the office, and the appellants' solicitor's clerk handed him the document for filing. He asked as to the amount of fees required, apparently being ready to pay the amount there and then if he had known what it was. The Supreme Court clerk, who said he was in a hurry to get away to the Treasury, asked him to leave the papers and let the inquiry as to fees stand until next day, which he agreed to do, leaving the documents, with the date of filing blank, in custody of the clerk. On the following day the latter refused to treat the papers as filed on the 31st, and insisted on dating the filing as of the day on which they were officially received and stamped. If the handing in of these documents under the circumstances stated had taken place before one o'clock on 31st January, I should have been disposed to regard the filing as complete on that date, and to hold that the failure to complete by payment of fees and stamping arose rather from the default of the officer of the Court than of the party, and for that default the party on a well known principle of law should not be allowed to suffer: Nazer v. Wade[1], and Evans v. Jones[2]. But the officer was not bound to accept the documents for filing at the time of the day on which they were handed in, and the arrangement to keep them until the following day must be regarded as entirely unofficial, and not as the act of the Court or its officers. I am, therefore, bound to take it that the notice was not filed in the High Court within the prescribed time. The question then arises whether I am justified under rule 7 (1) of the Rules of 12th December 1907 in applying to such a case the provisions of Order XLV., rule 6 which enable the Court or a Judge, in matters within the original jurisdiction of the Court, to enlarge or abridge the time limited by the Rules for doing acts and taking steps in proceedings. After fully considering the matter I am of opinion that I am not justified in so doing. The party who holds the judgment of the State Court has a vested right, which cannot be interfered with until the conditions which give the High Court jurisdiction to review it on appeal have been complied with. The provisions of the Rule of December 1907 relied on cannot on the face of them be brought into operation until there is an "appeal," that is to say, until the case has been brought within the cognizance of the High Court by the filing of the notice as required by the Rules. Until it has been brought to the cognizance of the Court there is no "appeal" in the High Court in respect of the State Court judgment. The decision of the Chief Justice of this Court in Lever Bros. v. G. Mowling & Son[3] is directly in point in that aspect of the case. For these reasons I must dismiss the application, and as the respondent is in no way to blame, the applicants must pay the costs. My order, therefore, is that the application be dismissed with costs.

Solicitors, for the appellants, McInerney, McInerney & Wingrove for W. J. Denny, Adelaide.

Solicitors, for the respondent, Moule, Hamilton & Kiddle for E. E. Cleland, Adelaide.

[1] [1861] EngR 990; 1 B. & S., 728.

[2] 2 B. & S., 45.

[3] [1908] HCA 4; 5 C.L.R., 510.

High Court of Australia

E Ryan & Sons Ltd v Rounsevell [1910] HCA 2; (1910) 10 CLR 176 (12 March 1910)

HIGH COURT OF AUSTRALIA