Rankin v Palmer [1912] HCA 95; (1912) 16 CLR 285 (12 December 1912)

HIGH COURT OF AUSTRALIA

H C of A

On appeal from the Supreme Court of New South Wales.

12 December 1912

Griffith C.J., Barton and Isaacs JJ.

Loxton K.C. (with him Harriott), for the respondent, in support of the motion.

Clive Teece, for the appellant, to oppose.

Loxton K.C., in reply.

Griffith C.J. delivered the judgment of the Court:?

Barton and Isaacs JJ.

Griffith C.J.

The rule upon which this application is founded was introduced for the purpose of doing justice, not injustice, between parties. If an appellant, having obtained a stay of proceedings by giving notice of appeal and lodging security, does not go on with diligence to prosecute the appeal, he might inflict hardship upon the respondent. But, when there is no reason to suppose that the appellant does not intend to prosecute the appeal, the mere fact that by a slip he has failed to set the appeal down for hearing on the proper day, that slip having no effect whatever by way of putting off the hearing of the appeal, it does not follow, although the appellant has made a slip, that a respondent, who has suffered no loss, should be allowed to set it up in order to gain some pecuniary advantage to himself.

In this case the appeal could not, under any circumstances, come on for hearing before these sittings. If the hearing is delayed at all, it will only be by the time occupied in hearing this motion. Under these circumstances the motion will be dismissed without costs.

There is another motion to set aside an order obtained ex parte to extend the time for lodging the transcript and to dispense with the printing of certain exhibits. There is no ground whatever for setting aside that order. The respondent is in no way aggrieved by it. The motion to set it aside should not have been made, and should be dismissed with costs.

Motions dismissed accordingly.

Appeal allowed. Decree varied by omitting the direction to the defendant to pay the £516 10s., and substituting an order that the defendant do, within 14 days after written notice given to him at the address of his solicitor by the respondent of any demand heretofore made or hereafter to be made upon Cross or his estate in respect of the several payments of sixpence per share in the pleadings mentioned, procure the release or discharge of his estate from such claims either by payment or otherwise.

Solicitor, for the appellant, J. M. Proctor.

Solicitors, for the respondent, Perkins, Stevenson & Co.