Re Tooth & Co Ltd

[1978] FCA 10

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O R D E R

e JUDCE(S) ! U K I K G 3PJlE3 : Franki, J.

.	DATE OF ORQ'i3 :	20 February 1978
Date Entered:

t'

- And

FRANiiI J.

20 February 1.978

On 23 December 1977 h i s Konour, Nr. J u s t i c e Joske ,

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a Judge of the Suprene Court o f Xorfolk Island delivered the

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I judgment in the r e l evan t ma t t e r . Kr. Icoakes, the aupellan-t ,

purpor ted to appea l to this court by a not ice of appea l f i l ed

on 23 January 1978. The notice of appeal had not been served

on J. Harvy Holrnes & Son by 14 February 1978. J. Harvy H&es

e: Son, whom I w i l l c a l l t h e a p p l i c a n t , f i l e d a not ice of motion

i n t h i s c o u r t on 14 February 1978 and now seeks tha t t he

appeal be s t ruck out as incompetent o r t h a t a l l tirnes be

shortened to allow t h e m a t t e r t o be heard a t shor t no t ice , o r

t ha t t he appea l sha l l no t ope ra t e a s a s t a y o f proceedings

appealed from unless cer ta in securi ty i s g iven fo r the cos t s of

the appeal and the payment of a judgment debt , toge ther with

i n t e r e s t and costs .

The judgment debt had been obtained i n an act ion

aga ins t the appel lan t and two o thers by t h e a p p l i c a n t i n t h e

Supreme Cour-c of Queensland and had been r e g i s t e r e d i n Korfolk

Is land but had not been sa t i s f ied and it was i n r e s p e c t of t h i s

judgment t ha t the proceedings against the appel lan t har! taken

place in the Norfolk Is land Supreme Court i n which Mr. Jus t ice

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Joske had delivered h i s judgment.

On 23 January 1978 the appellant voluntarily gave

secu r i ty of "00 for the prosecut ion of the appeal . The first

p o i n t f o r me t o c o n s i d e r is whether there i s any appeal

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proper ly ins t i tu ted before this court because I consider I

cannot make orders concerning the conduct of an appeal which

has not been inst i tuted. Under Order 6, r u l e 1 of the ru les

of the Federal Court of Austral ia , the High Court rules must

first be looked at. Order 70, r u l e 4 o f t h e High Court rules

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provides	t ha t an appeal	i s i n s t i t u t e d upon	t h e f i l i n g	o f	a	no t ice
of appeal.

So f a r as is relevant, Order 70, rule 6 provides

1. I

I	tha t no t i ce o f appea l sha l l	be	f i l e d	and served within	21	days
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a f t e r t h e d a t e t h e judgment appealed €rom was pronounced o r

within such further t ime as may be allowed f o r special reasons

upon a summons which, i f no t made wi th in t'ne 21 days, must be made

t o t h e f u l l c o u r t . As to the appea l be ing ins t i tu ted upon the

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f i l i n g of the not ice of appeal , see ".house Fote l s P t y . Lt&

v. Lido Savw P t y . L t d . , l31 t7.L.R. 333.

Order 70, r u l e 8 provides f o r an ob jec t ion to

coTpetency t o be f i l e d w i t h i n 14 days a f t e r s e r v i c e o€ the not ice

of appeal upon the respondent. A t the Time the appl ica t ion

before me was f i l e d , t h e a p p l i c a n t had not been served with the

notice of appeal.. The court has eel-tain powers I n r e l a t i o n t o

non-compliance wir;h t h e r u l e s which a r e t o be found i n t h e r u l e s

of the Federal Court of Australia, Order 6, r u l e 1 and Order 0 ,

r u l e s 2 , 3 and 4 but there i s nothing before me to suppor t any

o rde r i n f avour of the appel lant and I am not prepared to

r e l i eve the appe l l an t from any non-compliance with the ru l e s .

The appl icant has not complied s t r i c t l y with Order 70,

r u l e 8. I was told during the hear ing by T k . XcIntyre, who

appeared for -the applicant, and who was p resen t i n the cour t a t

t h e t m e , tha t his Honour, Nr. J u s t i c e Dunphy adjourned

some proceedings for 14 days i n t h e Supreme Court of I\!or€&

Island pending the outcome of t h i s a p p l i c a t i p n , and it is

c l e a r that the app l i can t was concerned that the notice lodged

by the appel lan t toge ther with the securibl lodged would

a f f e c t the' appl icant ' s pos i t ion .

I cons ide r t he re fo re tha t t he app l i cmt was

j u s t i f i e d i n b r i n g i n g t h e p r o c e e d i n c s i n t h e way it d i d s n d I

r e l i eve the app l i can t from the consequences of non-compliance

wi-t'n any the ru les requi re tha t the not ice of appea l should r u l e i n r e l a t i o n t o t h i s aFpl icat ion. As I have sa id ,

be € i l ed

wlthin 21 days a f t e r t h e dat,e o€ judgment and th i s was not done.

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I am s a t i s f i e d tha t no v a i i d a p p a l h a s been lodged

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by the appel lan t and I dec lare no appeal has been inst i tuted

by v i r t u e of t h e f i l i n g of t he no t i ce of appeal supported by an

a f f i d a v i t o f t h e a p p e l l a n t ' s s o l i c i t o r , Mr. Skinner and

numbered VG. 3 of 1976 and. f i l e d i n t h e V i c t o r i a n r e g i s t r y o f

the Court on 23 January 1978. I cons ider tha t the appl icant

was e n t i t l e d t o make the appl icat ion before me because of the

f i l i n g of the not ice o f appeal and the secu r i ty which had been

lodged and t h e m a t t e r s r e f e r r e d t o i n W. I k I n t y r e ' s a f f i d a v i t .

I order t ha t the appel lan t , Raymond B r i m Noakes pay

the cos t s of the appl icant , J. I!arvy Holmes & Son of t h i s

appl ica t ion . I add tha t this judgment is, of course, without

p re jud ice to	any	appl ica t ion which the appel lan t	may	seek t o
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make f o r s p e c i a l l e a v e t o a p p e a l o u t of time.

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O R D E R

l

Date Entered:

On 2 1 December 1977 h is I ~ o ~ o I I ~ , Mr. Just ice Josl te ,

a Judge of judgment i n the the Suprene Court o f Morfo1:c I s land de l ivered the

relevant matter. Mr. Noakes, the appel lan t ,

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purported t o appeal t o t h i s c o u r t by a not ice of appea l f i l ed

i on 23 January 1978. The not ice o f appeal had not been served

on J. Harvy Holmes & Son by 14 February 1978. J. Marvy H&es

8: Son, whom I w i l l c a l l t h e a p p l i c a n t , f i l e d a not ice o€ motion

i n t h i s c o u r t on 1b February 1973 and now seeks tha t the

appeal be s t ruck out as inconpetent o r t ha t a l l times be

shor tened to a l low the mat te r to be heard a t s h o r t n o t i c e , OF

t ha t the appea l sha l l no t opera te as a s t a y of proceedings

appealed from u n l e s s c e r t a i n s e c u r i t y is given f o r t h e c o s t s of

the appeal and the payment of a judgnent debt, together w i t h

i n t e r e s t and cos ts .

The judgment debt had been obtained i n an act ion

aga ins t the appel lan t and two o thers by t h e a p p l i c a n t i n t h e

Supreme Court of Queensland and had been r e g i s t e r e d i n Norfolk

I s l and b u t had not been sa t i s f ied and it was i n r e s p e c t of this

judgment that the proceedings a&ainst the appel lan t hac? taken

place in the Norfolk Is land Supreme Court i n which Mr. J u s t i c e

Joske had delivered his judgment.

, . b

i On 23 January 1973 the appel lant voluntar i ly gave

secu r i ty o f $100 f o r the prosecut ion of the appeal . The first

poin t f o r me t o c o n s i d e r is whether There i s any appeal

proper ly ins t i tu ted before this court because I consider I

cannot make orders concerning the conduct of an appeal which

has no'. been i n s t i t u t e d . Under Order 6, r u l e 1 of the ru l e s

of the Federal Court of Aus t ra l ia , the High Court rules must

first be looked at. Order 70, r u l e 4 o f t h e High Court rules

!

provides that an appeal	i s i n s t i t u t e d upon	the	f i l i n g o f	a	no t ice
of appeal.

So f a r a s i s relevant, Order 70, r u l e 6 provides

t h a t n o t i c e of appeal sha l l be f i l e d and served within 21 days

a f t e r t h e d a t e t h e judgment appealed f rom was pronounced o r

within such further t ime as may be allowed fo r spec ia l r easons

upon a summons which, i f no t made wi th in t'ne 2 1 days, must be made

t o t h e f u l l c o u r t . A s to the appea l be ing ins t i tu ted upon the

f i l i n g of the notice of appeal, see Khitehouse lbtels Pty. L td .

v. L ido Savoy P-Ly. L , & 131 C..I . t i . 333.

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Order 70, r u l e 8 provides for an objec t ion to

co%npetency t o be f i l e d w i t h i n 1 4 Cays a f t e r s e r v i c e o€ t he nc t i ce

of appeal upon the respondent. A t the t ime the appl icat ion

before me was f i l e d , t h e a p p l i c a n t had not been served with t h e

not ice o f appeal. The cour t has c e r t a i n powers i n r e l a t i o n t o

non-conpliance with the rules which a r e t o be found i n t h e r u l e s

of the Federal Court of Australia, Order 6, r u l e 1 and OrSer 3 ,

r u l e s 2, 3 and 4 but there i s no th ing bdore me t o suppo?~ ecy

order in favour of the appel lan t and I am not prepared to

r e l i eve the appe l l an t from any non-compliance with the rules.

The aFplicant has not com2lic.d s t r l c t l y with Order 70,

r u l e 8. I was told during the hear ing by Xr. McIntyre, who

appeared for the appl icant , and who was p r e s e n t i n t h e c o u r t a t

tize t ime, that h is Honour, Xr, J u s t i c e Dunphy adjourned

some proceedings f o r 14 days i n t h e Supreme Court. o f Morfd'c

Island pending the outcome of t h i s a p p l i c a t i p n , and it i s

c l e a r that the app l i can t was concerned that the not ice lodged

by the appel lan t toge ther with the securi ty lodged would

a f f e c t the' a p p l i c a n t ' s p x i t i o n .

I cons ider therefore tha t the appl icant vas

j u s t i f i e d i n b r i n g i n g t h e p r o c e e d i n g s i n t h e way it d i d znd I

re l i eve the app l i can t Prom the consequences of non-compliaice

with any r u l e i n r e l a t i o n t o this appl ica t ion . As I have s a j d ,

t h e r u l e s r e q u i r e t h a t t h e n o t i c e of appeal should be f i l e d

v i t h i n 21 clays a f t e r t he da t e o f Judgment and th i s was not done.

I am s a t i s f i e d t h a t no valid ap3eal has been lodged

by the appe l l an t and I declare no appeal has been inst i tuted

! by v i r t u e o f t h e f i l i n g o f t h e n o t i c e o f appeal suyported by an

a f f i d a v i t of t h e a p p e l l a n t ' s s o l i c i t o r , I3r. Skinner and

numbered VG. 3 of 1978 and f i l e d i n t h e V i c t o r i a n r e g i s t r y of

the Court on 23 January 1978. I cons ider tha t the appl icant

was e n t i t l e d t o make the appl icat ion before me because of the

f i l i n g of the notice of appeal and the secu r i ty which had been

lodged and the mat te rs re fer red to in Mr. NcIntyrc ' s a f f idavi t .

I o rde r t ha t t he appe l l an t , Raymond Brian Noakes pay

the cos t s o f the appl icant , J. Rarvy Holmes & Son of t h i s

appl ica t ion . I add that t h i s judgment is , of course, without

pre judice t o any appl ica t ion which the appel lan t may	seek t o
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make f o r s p e c i a l l e a v e t o appeal out of time.

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A s s o c l a t e