Delph Singh v Karbowsky - [1914] HCA 30

DELPH SINGH KARBOWSKY Practice-High Court - Appeal from Supreme Court of a State-Security for costs

-Extension of time for.giving-Jurisdiction-Special leave-Security not given through default of solicitor-Rules of the High Court 1911, Part I., Order LIII., r. 6; Part 11., Sec. III., r. 12; Sec. V., r. -Judiciary Act 1903- 1910 (No. 6 of 1903-No. 34 of 1910), sec. 5-High Court Procedure Act 1903 May 11, 13. (No. 7 of 1903), secs. 35, 37.

Compliance with the provisions of the rules in Section III. of Part II. of the Rules of the High Court 1911 as to giving security on instituting an appeal from the Supreme Court of a State is a condition precedent to the coming into existence of a cause in the appellate jurisdiction of the High Court.

The words 'procedure of the Court in its Appellate Jurisdiction" in rule 1 of Section v. of Part II., relate only to interlocutory proceedings in an appeal

18 CLR 198

which has been duly instituted; and therefore rule 6 of Order LIII. of Part I., which authorizes the Court or a Justice to enlarge or abridge the time for doing any act or taking any proceeding limited by the Rules, and provides that the enlargement may be made even after the expiration of the time originally allowed or limited, does not apply to the time limited by rule 12 of Section III. of Part II. for giving security for the costs of an appeal.

Held, therefore, by Griffith C.J., Barton and Gavan Duffy JJ. (Isaxcs and Rich JJ. dissenting), that there is no jurisdiction in the High Court or a Justice thereof to extend the time prescribed by rule 12 of Section III. of Part II. for giving security for the costs of an appeal from the Supreme

E. Ryan &Sons Ltd. v. Rounsevell, 10 C.L.R., 176, approved. By the fault of the solicitor of a party desiring to appeal to the High Court from the decision of the Supreme Court of a State, security for the costs of the appeal was not given within the prescribed time although sufficient money for that purpose had been supplied by the party to his solicitor within that

Held, by Griffith C.J., Barton and Gavan Duffy JJ. (Isaacs and Rich JJ. dissenting), that under the special circumstances of the case special leave to appeal should be granted. REFERENCE.

A suit in equity was brought in the Supreme Court of New South Wales by Delph Singh against Victor Karbowsky and James Alexander Smith in which the plaintiff claimed that, under an agreement between him and the defendant Karbowsky, he was entitled to a half share in the world's rights to a certain inven- tion patented by the defendant Karbowsky. The action was heard before A. H. Simpson C.J. in Equity, who found that no such agreement as was alleged had been made, and accordingly gave judgment for the defendants with costs.

On 18th December 1913 the plaintiff gave notice of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1914] HCA 30
Decision Date: 13 May 1914

CaseChat Overview and Summary

The case of Delph Singh v Karbowsky involved an appeal from a decision of the Supreme Court of New South Wales. The plaintiff, Delph Singh, had sought a declaration of a half share in the world's rights to an invention patented by the defendant, Victor Karbowsky, based on an alleged agreement. The Supreme Court found no such agreement existed and entered judgment for the defendants with costs. Delph Singh then sought to appeal this decision to the High Court.

The primary legal issue before the High Court was whether it had the jurisdiction to extend the time for the appellant to provide security for the costs of the appeal, particularly when the failure to provide security within the prescribed time was due to the default of the appellant's solicitor. A secondary issue was whether special leave to appeal should be granted under these circumstances.

A majority of the High Court, comprising Griffith C.J., Barton and Gavan Duffy JJ., held that compliance with the rules regarding the time for giving security for costs was a condition precedent to the institution of an appeal in the High Court's appellate jurisdiction. They reasoned that Rule 6 of Order LIII. of the High Court Rules, which allows for the enlargement of time, did not apply to the time limit for giving security as stipulated in Rule 12 of Section III. of Part II. of the Rules. This was because Rule 1 of Section V. of Part II., which makes the rules of the Court's original jurisdiction applicable to its appellate jurisdiction, was interpreted as relating only to interlocutory proceedings in an appeal that had already been duly instituted. Consequently, the majority found no jurisdiction to extend the time for giving security. However, they granted special leave to appeal due to the very special circumstances of the case, including the solicitor's default. Isaacs and Rich JJ. dissented, arguing that the right of appeal was vested and that the security requirement was procedural, with the rules allowing for extensions.

The Court ultimately granted special leave to appeal. The plaintiff's solicitor was ordered to pay the costs of the motion and the reference within fourteen days of taxation. The notice of appeal was to be given within seven days, and security was to be lodged within fourteen days thereafter. The plaintiff was to bear the costs of the application.

Orders