Pearson v Arcadia Stores Guyra Limited No 2 - [1935] HCA 42

THE ARCADIA STORES, GUYRA, LIMITED RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Practice-State Supreme Court-Decretal order-Injunction-Appeal to High Court-

Breach of injunction-Application for writ of attachment-Order appealed from Stay of execution-High Court Rules 1928-1931, Part II., sec. III., r. 22-High Court Procedure Act 1903-1933 (No. 7 of 1903-No. 63 of 1933), secs. 33, 38-- Judiciary Act 1903-1933 (No. 6 of 1903-No. 65 of 1933), sec. 86.

The respondent applied for leave to issue a writ of attachment against the appellant for his contempt in carrying on a business contrary to a decretal Dixon, Evatt order made by the Supreme Court of New South Wales. An appeal to the High Court against the decretal order had been duly instituted.

Held that the issue of a writ of attachment was precluded by rule 22 of sec. III. of Part II. of the High Court Rules.

Order of the Supreme Court of New South Wales (Nicholas J.) discharged.

APPEAL from the Supreme Court of New South Wales.

Upon an originating summons brought by Arcadia Stores, Guyra, Ltd., the Supreme Court of New South Wales, in its equitable jurisdiction, made a decretal order restraining Oscar Randolph Pearson from carrying on business as a produce merchant within

53 CLR 588

A. fifty miles of the post office at Guyra until 18th March 1937. From

that decretal order Pearson appealed to the High Court as of right under sec. 35 (1) (a) (2) of the Judiciary Act 1903-1933. The appeal was duly instituted. Pearson claimed that by reason of having

GUYRA, LTD.

instituted the appeal he was entitled to ignore the injunction until [No. 2]

the appeal had been determined. He relied upon rule 22 of sec. III. of Part II. of the High Court Rules, made in pursuance of the authority contained in sec. 33 of the High Court Procedure Act 1903-1933. Rule 22 provides When an appeal has been duly instituted, the execution of the judgment appealed from shall be stayed. The High Court or a Justice or the Supreme Court of the State whence the appeal is brought or a Justice thereof may never- theless give leave to prosecute the judgment upon the party desiring to prosecute it giving security to the satisfaction of the proper officer of the High Court or of such Supreme Court to abide the decision of the Court on the hearing of the appeal."

An application was made to the Supreme Court on behalf of Arcadia Stores, Guyra, Ltd. for leave to issue a writ of attachment against Pearson for breach of the injunction. In affidavits it was admitted that the decretal order was properly served on Pearson and that he was carrying on business in breach of that order. The applicant, however, admitted that in doing SO he was not acting contemptuously but was acting upon the advice of his legal advisers to the effect that the operation of the injunction was stayed pending the determination of 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.

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Details

Case: [1935] HCA 42
Decision Date: 13 June 1935

CaseChat Overview and Summary

The respondent, Arcadia Stores, Guyra, Limited, sought leave to issue a writ of attachment against the appellant, Oscar Randolph Pearson, for contempt of a decretal order made by the Supreme Court of New South Wales. This order had restrained Pearson from carrying on business as a produce merchant within a fifty-mile radius of Guyra until March 18, 1937. Pearson had duly instituted an appeal to the High Court against this decretal order and contended that this appeal automatically stayed the operation of the injunction. The Supreme Court, per Nicholas J., granted leave to issue the writ, holding that a writ of attachment was a process to enforce obedience to an order, not to execute it, and therefore was not stayed by the appeal.

The High Court was required to determine whether the institution of an appeal to the High Court automatically stayed the execution of a decretal order, specifically an injunction, and whether a writ of attachment for breach of such an injunction constituted "execution" within the meaning of the relevant High Court Rules. The appellant argued that rule 22 of Part II, Section III of the High Court Rules, which states that "the execution of the judgment appealed from shall be stayed" upon the due institution of an appeal, precluded the issue of a writ of attachment. The respondent contended that a writ of attachment was a process for enforcing obedience and punishing contempt, distinct from the execution of the judgment itself, and thus was not stayed by the rule.

The High Court, in a joint judgment, held that the distinction drawn by Nicholas J. between enforcing an order and executing a judgment was not well-founded. The Court reasoned that historically, equitable decrees, like common law judgments, required enforcement, and writs of attachment were considered a means of executing such decrees by compelling personal obedience. The Court found that process of enforcement, including writs of attachment, was regarded as a means of executing the decree. Consequently, the Court concluded that rule 22 of the High Court Rules, which stays the execution of a judgment upon appeal, applied to the issue of a writ of attachment in this context.

The order of the Supreme Court of New South Wales was discharged. The High Court ordered that the appellant be at liberty to carry on his business pending the determination of the appeals, subject to certain conditions including the appointment of joint receivers and the furnishing of weekly accounts. The costs of the motion before Nicholas J. and the costs of the appeal to the High Court were to be taxed and set off against the costs for which the appellant was liable in the main appeal.

Orders