Worrall v Commercial Banking Company of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28 (4 December 1917)

HIGH COURT OF AUSTRALIA

Worrall and Another Applicants, Appellants; and The Commercial Banking Company of Sydney Limited Respondents, Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

4 December 1917

Barton, Isaacs and Rich JJ.

Maughan (with him J. A. Ferguson), for the appellants.

R. H. L. Innes K.C. (with him F. A. A. Russell and W. A. Parker), for the respondents, took a preliminary objection.

Maughan.

The judgment of the Court, which was read by Barton J., was as follows:—

Dec. 4

Barton, Isaacs and Rich JJ.

A preliminary objection has been taken that this appeal is incompetent. The objection is based on reg. 8C of the War Precautions (Moratorium) Regulations. It raises the question whether that regulation is to be read retrospectively so as to include a "determination" of the Supreme Court "made" before 28th September 1917, the date of the regulation. That question must be answered by ascertaining the intention of the legislative authority acting under its statutory law. Considerable discussion took place as to whether its provisions forbidding appeal concern "rights" or "procedure." There can be no doubt that the power to "appeal" is a right, and not procedure. Procedure may and generally does surround it, but the central notion of an appeal is undoubtedly a right. Lord Westbury described it thus: "An appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below" (Attorney-General v. Sillem[1]). In Colonial Sugar Refining Co. v. Irving[2] Lord Macnaghten for the Privy Council said expressly that appeal is a right and not procedure.

Therefore, if the matter depended upon that, the objection would fail. But the matter does not depend upon that. The distinction between "rights" and "procedure" is only an aid to interpretation, and not the test. The test is: What did the Legislature mean when its words are read, after giving due weight to every relevant consideration? In Irving's Case[3] the Judicial Committee only entered into consideration of the distinction between "rights" and "procedure" after stating that "the Judiciary Act is not retrospective by express enactment or by necessary intendment." If it had been, inquiry as to the nature of appeal would have been useless. This was the method of approach which the Master of the Rolls preferred in Welby's Case[4]; and see West v. Gwynne[5]. To follow this method, we have the guidance of Lord Hatherley in Pardo v. Bingham[6]. There it is said: "We must look to the general scope and purview of the Statute, and at the remedy sought to be applied, and consider what was the former state of the law, and what it was that the Legislature contemplated." The language of Lord Selborne in Main v. Stark[7], and of Lord Morris in Reynolds v. Attorney-General for Nova Scotia[8], runs in the same direction.

If, doing this, we find that though no express words are found, yet the necessary intendment of the language is retrospectivity, the task is at an end. Necessary intendment only means that the force of the language in its surroundings carries such strength of impression in one direction, that to entertain the opposite view appears wholly unreasonable. (See per Lord Eldon in Wilkinson v. Adam[9].)

The Regulations as they stood prior to 28th September 1917 provided broadly and in various ways for the relief of mortgagors as defined, if they were in default. Among other things it may be observed that by reg. 4, without the leave of the Court, actions commenced even after 20th September 1916, that is, about six weeks before the first Regulations (10th November 1916), were not allowed to continue. Reg. 4 made elaborate provisions (inter alia) for application by the mortgagee to obtain leave to proceed. Sub-reg. 6 said: "The decision of the Court upon an application for leave under this regulation shall be final and conclusive and without appeal." Apart from this provision, the standing provision in the Constitution as qualified by Commonwealth legislation would have permitted appeals in many cases. The Regulations provided, however, that in case of any fluctuating advance exceeding £2,000 by bank overdraft, the Regulations should not apply unless on application by the mortgagor to the High Court or the Supreme Court it were "determined" that they should apply. That provision, however, was in reg. 3, and not in reg. 4, so that the provision for finality did not apply to it. The provision for a mortgagor's application was manifestly an appendage to the exception, and the exception was in substance a part of the provision in reg. 4. Reason points to the desirability of placing both on the same footing, but the bare language did not permit it. Finality as to reg. 8 was attained by expressly applying the finality provision of reg. 4 to it.

On 28th September 1917 the legislative authority placed all these matters on the same footing. It was not done by leaving the old provision to stand, and simply making a new provision applicable as from that date to reg. 3. The course taken was first to repeal sub-reg. 6 of reg. 4, and then enact reg. 8C covering every description of curial decision referred to in the Regulations. Unless reg. 8C includes all decisions formerly covered by the repealed provision made or given up to 28th September, then the ordinary law as to appeals would apply to them, and wherever the prescribed conditions could be complied with an appeal could be had from a decision under reg. 4 or reg. 8. This is so opposed to the unquestionable intent of the legislative authority as to lead to instant rejection. But if reg. 8C includes prior decisions under reg. 4 and reg. 8, it cannot be denied that it includes those under reg. 3, which is an adjunct of those regulations.

The intent of the legislating authority to put all these matters on the same footing, namely, total non-appealability, is quite clear, and in accord with the subject matter, namely, relief to mortgagors hard pressed and unable to meet their engagements, and mortgagees whose debts are left temporarily unpaid, to both of which classes protracted and expensive litigation would be oppressive as well as being a waste of national funds in a time of crisis. This leads to the conclusion that reg. 8C covers the present case, and this appeal should be dismissed as incompetent.

Appeal dismissed as incompetent.

Solicitors for the appellants, Dobbin & Spier.

Solicitors for the respondents, Dibbs, Parker & Parker.

[1] [1864] EngR 352; 10 H.L.C., 704, at p. 724.

[2] (1905) A.C., 369.

[3] (1905) A.C., 369.

[4] (1916) 2 Ch., 1.

[5] (1911) 2 Ch., 1.

[6] L.R. 4 Ch., at p. 740.

[7] 15 App. Cas., 384, at pp. 387-388.

[8] (1896) A.C., at p. 244.

[9] [1812] EngR 144; 1 V. & B., 422.