Delph Singh v Karbowsky

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.