Armstrong v Great Southern Gold Mining Company [1911] HCA 29; (1911) 12 CLR 382 (19 June 1911)

Armstrong Plaintiff, Appeallant; and The Great Southern Gold Mining Company, No Liability Defendants, Respondents.

The appellant in this case brought an action in the County Court for damages for injuries alleged to have been received by him by reason of the negligence of the respondents, owners of the mine in which the appellant was employed. The respondents denied negligence, and set up the defences of contributory negligence and also that commonly expressed by the phrase volenti non fit injuria. At the trial the appellant did not content himself with the primâ facie evidence afforded by the rule laid down in sec. 129 of the Mines Act 1897, but offered evidence to show what was the real state of facts and what particular acts of negligence he complained of. The case he made was of the most shadowy character. He said that there was working with him a man named Higgins, an experienced miner, the appellant himself being under the age of 20 years. They were engaged in timbering an old drive, which is admittedly a dangerous work. The appellant's story is that Higgins tapped a stone in the roof of the drive and found it "drummy"—which I suppose indicates that there was a hollow space behind the stone—that he then sent the appellant away to get a prop to put under the stone, that while he was away Higgins went on tapping this dangerous stone and knocking pieces off it with a pickaxe, apparently standing under the stone while doing so, that when the appellant came back Higgins told him to measure what length of prop would be necessary and that while he was measuring the length, Higgins being close beside him, the stone fell and injured both of them. The appellant said that the negligence he complained of was that, when he came back with the prop, Higgins did not warn him not to go under the rock, Higgins himself being there. In cross-examination he said that the mistake Higgins made was in not sounding the rock again after he had been tapping it to see whether it was safe, and that he came to that conclusion a month after the accident. Of course, a story of that sort bears on its face the impress of improbability. It is almost incredible to think that an experienced miner as Higgins was, having found that a rock was so dangerous as to need a prop being put under it, should proceed to hammer at it with a pickaxe. He would be almost certain to bring it down on his own head. That is the story put forward by the appellant. On the other hand, the evidence for the respondents is that the rock Higgins was tapping with a pickaxe was in a different place altogether. The probability of the appellant succeeding in this case was therefore extremely remote, to say the best of it, his story being almost incredible on its face. Other independent evidence was called by the defendants to show that the appellant's story could not be true, and that he was mistaken as to what happened. The learned Judge in summing up to the jury referred to the facts most fully, reading most of the material evidence, and gave the jury directions on the point of contributory negligence to which no exception can be taken in point of form. He also referred to the defence of volenti non fit injuria in a manner which was also unobjectionable in point of form. No objection was taken at the trial to the summing up. The jury gave a general verdict for the respondents. It is much to be regretted that they were not asked to answer specific questions. The appellant asked for a new trial on numerous grounds, but principally upon the ground of misdirection.

Rule 188 of the County Court Rules 1891 provides that "an application for a new trial ...; may be made either to the Court or a Judge ...; if application be not made at the trial notice in writing, setting out the grounds thereof, must be left with the Registrar ... and a copy of such notice must be served upon the opposite party ... within seven clear days after the day of trial." The notice, as a matter of fact, took the form of a summons and was not served until the eighth day after the date of the verdict. Objection was taken on the summons coming on for hearing that the notice was out of time. It was contended for the appellant that it was not out of time because the interpretation clause of the Rules said that "clear days shall mean that in all cases in which any particular number of days is prescribed for the doing of any act, or for any other purpose, the same shall be reckoned exclusive both of the first and of the last day." That definition is, however, preceded by the introductory words "if not inconsistent with the context or subject matter." The term "clear days" may be regarded as a well known term in law with a well known interpretation which has existed for more than half a century. When reference is made to "clear days" in a rule for the protection of another party, it is a minimum. When the rule is for the advantage of the party who is to take action, it may be a maximum. In either case it denotes a limit. When it is a minimum, two days, one before and one after the period, are determined by it. But, when you talk of doing a thing within a period of a certain number of days, it is quite clear that the end of the last day is the furthest limit. It is impossible to say that a thing required to be done within seven days is done within seven days if done on the eighth day, and it is impossible to make any alteration of the limit by adding the word "clear." In such a context the interpretation clause cannot apply, and a notice served on the eighth day would be too late. So that the notice given here was out of time, and the learned Judge could not have proceeded with the hearing of the application unless the time was extended. He had, however, power under r 424 to enlarge the time. He was asked to do so and refused. He said that he was satisfied that the appellant had no substantial ground of complaint, and that he thought there had been no misdirection, and on the whole he refused to exercise his discretion under the rule. On appeal to the Full Court they were inclined to think that the summing up had not been altogether satisfactory with regard to the defence of volenti non fit injuria, but they declined to interfere with the discretion of the Judge of the County Court to refuse to enlarge the time. Now application is made to this Court, and we must first consider whether the time should be enlarged. It would be rather an extreme thing if, after the County Court and the Supreme Court had refused to enlarge the time, we were to review the discretion of both Courts. There is also the further point, that it is doubtful whether the Supreme Court or this Court has any jurisdiction to interfere with the exercise by the County Court Judge of his discretion. The argument put by Lord Esher M.R., in Ex parte Stevenson[1], shows the extreme inconvenience of permitting an appeal in such a case, because it would amount to this, that the Court on the appeal, in order to determine whether the time should be enlarged, would have to ascertain whether if it were enlarged the plaintiff would be entitled to a new trial. So that the Court on every such appeal would have to inquire into the whole merits of the case. The result would be that the rule limiting the time would be a nullity. I express no concluded opinion upon the point, but I think it extremely doubtful whether we have jurisdiction.

Supposing that we have jurisdiction, I think there are good grounds why we should not extend the time. In the first place, I have very great doubt whether the learned Judge of the County Court had jurisdiction to entertain an application for a new trial on the ground of misdirection where objection was not taken to the direction at the time. It is said that the Court held that there was jurisdiction to do so in Handley v. London, Edinburgh and Glasgow Assurance Co.[2]. I doubt whether it was so held, because, as I pointed out in Brown v. Lizars[3], the case was not so much one of misdirection as whether or not the defendant was entitled to a verdict. Attention was also called to the case of Holford v. Melbourne Tramway and Omnibus Co. Ltd.,[4] in which Cussen J. expressed an opinion entirely inconsistent with the practice of this Court, and, so far as I know, that of all the Australian and English Courts as to the necessity for taking an objection to a misdirection at the trial if a new trial is afterwards to be asked for. This is not an occasion on which it is necessary to go into the subject for the purpose of laying down the law on the point, but I doubt very much whether Handley v. London, Edinburgh and Glasgow Assurance Co.[5] is good law since Brown v. Dean[6], decided last year. As at present advised the two cases seem to me to be irreconcilable. Under these circumstances, supposing that we have jurisdiction to review the refusal of the County Court Judge to enlarge the time, I think we ought to have regard to the apparent facts of the case, and that, if the appellant would have only a problematical and infinitesimal hope of success in the event of a new trial, we ought in mercy to the parties to refuse to enlarge the time. For myself, I doubt whether a verdict for the appellant could have stood. I can see no ground, therefore, for reviewing the discretion of the Judge of the County Court, if we have power to do so. I think the appeal should be dismissed.

[1] (1892) 1 Q.B., 609, at p. 611.

[2] (1902) 1 K.B., 350.

[3] [1905] HCA 24; 2 C.L.R., 837, at p. 848.

[4] (1909) V.L.R., 497; 29 A.L.T., 112.

[5] (1902) 1 K.B., 350.

[6] (1910) A.C., 373.

High Court of Australia

Armstrong v Great Southern Gold Mining Company [1911] HCA 29; (1911) 12 CLR 382 (19 June 1911)

HIGH COURT OF AUSTRALIA