E Ryan & Sons Ltd v Rounsevell - [1910] HCA 2

E. RYAN &SONS LIMITED

DEFENDANTS, ROUNSEVELL Practice-Appeal from Supreme Court of State-Filing notice of appeal in High 1910.

Court - Extending time-Rules of the High Court 1903, Part 1., Order XLV., r. 6; Part II., Section I., r. 5; Section V., r. 1. MELBOURNE,

On the last day for filing in the High Court a copy of the notice of appeal from the Supreme Court of a State, which was within vacation, when under the Rules of the High Court 1903, Part I., Order XLVIII., r. 5, the offices of the High Court are open until one o'clock, a clerk of the appellants' solicitor attended at the High Court offices at three o'clock in the afternoon, handed to an officer of the High Court a copy of the notice of appeal for filing, and asked what the amount of the fees was. The officer asked the clerk to let the inquiry stand over until the next day. The clerk agreed to do so, and left the copy of the notice of appeal, with the date of filing blank, in the custody of the officer. On the following day the clerk paid the fees, but the officer refused to treat the copy as having been filed on the preceding day and dated the filing as of the later day.

Held, that the copy of the appeal was not filed within the prescribed time. Rule 1 of Section v. of Part II. of the Rules of the High Court 1903 does not apply in such a case, and, therefore, the High Court cannot under Part I., Order XLV., r. 6, enlarge or abridge the time for filing the copy of the notice of appeal. SUMMONS. In an action in the Supreme Court of South Australia, brought by William Benjamin Rounsevell against E. Ryan &Sons Ltd., judgment was given by Homburg J. on 10th January 1910 for the plaintiff. The defendants, desiring

10 CLR 177

to appeal to the High Court from this decision, on 31st January H. served notice of appeal on the plaintiff. On the same day, which was within the vacation, at 3 o'clock in the afternoon a clerk to E. RYAN &the defendant's solicitor attended at the office of the High Court in South Australia, which was also the office of the Supreme Court of South Australia, and handed to an officer of the High Court, who was also an officer of the Supreme Court, copies of the notice of appeal for filing in each Court, and asked that officer the amount of the fees payable, apparently being ready to pay them if he knew the proper amount. The officer asked the clerk to let the inquiry as to fees stand over until the next day. The clerk agreed to do SO and left the copies of the notice of appeal, with the date of filing blank, in the custody of the officer. On the following day the clerk attended and paid the fees, but the…

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.

Continue reading E Ryan & Sons Ltd v Rounsevell

Details

AGLC: E Ryan & Sons Ltd v Rounsevell [1910] HCA 2
Case: [1910] HCA 2
Decision Date: 12 March 1910

CaseChat Overview and Summary

This case involved an appeal from a judgment of the Supreme Court of South Australia. The defendants, E. Ryan & Sons Ltd., sought to appeal to the High Court against a decision given in favour of the plaintiff, William Benjamin Rounsevell. The dispute centred on whether the defendants had complied with the procedural requirements for filing their notice of appeal within the prescribed time.

The legal issues before the court were whether the copy of the notice of appeal had been effectively filed on the last day for filing, and if not, whether the High Court had the power to extend the time for filing. Specifically, the court had to determine if the actions of the defendants' solicitor's clerk on the final day for filing constituted a valid lodgement of the documents, particularly given that it occurred after the prescribed closing time for High Court offices during vacation.

O'Connor J. held that the copy of the notice of appeal was not filed within the prescribed time. His Honour reasoned that under the High Court Rules 1903, the offices were only required to be open until one o'clock in the afternoon during vacation. The clerk's attendance at three o'clock was after this time, and the officer was not bound to accept the documents. The subsequent arrangement to defer the inquiry about fees was considered unofficial and not an act of the Court. Furthermore, O'Connor J. determined that Rule 1 of Section V. of Part II. of the Rules of the High Court 1903, which allows for the enlargement or abridgement of time, did not apply in this situation because an appeal had not yet been properly brought before the High Court by the requisite filing.

Consequently, the application was dismissed. The defendants, E. Ryan & Sons Ltd., were ordered to pay the costs of the application.

Orders