Whitehouse Hotels Pty Ltd v Lido Savoy Pty Ltd

[1974] HCA 38

HIGH COURT OF AUSTRALIA

Menzies, Gibbs and Stephen JJ.

WHITEHOUSE HOTELS PTY. LTD. v. LIDO SAVOY PTY. LTD.

(1974) 131 CLR 333

22 October 1974

High Court

High Court—Practice—Appeal—Notice of appeal—Institution of appeal—Notice to be filed and serviced within 21 days of date of judgment—Notice filed within time but served out of time—High Court Rules, O. 70, rr. 4*, 5, 6**. * Order 70, r. 4 of the High Court Rules provides: "Every appeal shall be instituted by the filing of a notice of appeal in the manner prescribed in rules 5 and 6 of this Order." ** Order 70, r. 6 provides: "(1) The notice of appeal shall be filed and served in the manner prescribed by the last preceding rule (a) within twenty-one days after—(i) the date when the judgment appealed from was pronounced . . ."

Decision

Oct, 22.
THE COURT delivered the following written judgment:-
On 21st August 1974 the Full Court of the Supreme Court of Victoria pronounced a judgment dismissing an appeal brought by the appellant company from a decision given in the Supreme Court by Dunn J. in favour of the respondent. From this judgment of the Full Court the appellant desired to appeal. On 11th September 1974 an notice of appeal, and an affidavit stating facts which showed that an appeal lay without leave or special leave, were brought to the appropriate registry of this Court for filing. The affidavit had been sworn before a commissioner of the Supreme Court of Victoria and when it was pointed out by an officer of the registry that such commissioner was not a person empowered to administer oaths for the purposes of this Court within O. 39, r. 7 the affidavit was taken away to be re-sworn. The notice of appeal was, however, filed. Because of the absence of the deponent it was not possible to re-swear the affidavit until the following day; this was done and the affidavit was filed on 12th September 1974. On the same day the notice of appeal and affidavit were served on the respondent. The notice of appeal had not been served on the day on which it was filed because it was believed by the appellant's solicitors that the affidavit had to be served with it. (at p335)

2. In these circumstances the respondent has objected to the competency of the appeal on the ground that

"Service of the notice of appeal was outside the time prescribed by O. 70 r. 6(1)(a)(i) in that the said notice was delivered to the office of the solicitors for the respondent herein on 12th September 1974 being twenty-two days after the date when the judgment appealed from was pronounced."

This objection has been set down for hearing. The appellant submits that the appeal was properly instituted but in the event that this argument should be rejected, applies for leave, or alternatively, special leave, to appeal from the judgment of the Full Court. (at p335)

3. The question that then arises is whether an appeal is instituted if a notice of appeal is filed, but not served, within the time prescribed by the rules. Order 70, r. 4(1) provides as follows: "Every appeal shall be instituted by the filing of a notice of appeal in the manner prescribed in rules 5 and 6 of this Order." Rule 5 by sub-rr. (1) and (2) prescribes the manner of the filing of a notice of appeal, and by sub-rr. (3), (4) and (5) deals with its service. Order 70, r. 6 provides as follows:
'(1) The notice of appeal shall be filed and served in the manner prescribed by the last preceding rule -
(a) within twenty-one days after - (i) the date when the judgment appealed from was pronounced; . . . (b) within such further time as is allowed by a Justice upon application made to him by summons issued within the period of twenty-one days referred to in the last preceding paragraph. (2) Notwithstanding Order 60, rule 6, the summons mentioned in the last preceding sub-rule shall be issued within the period of twenty-one days fixed by that sub-rule, and, in the computation of that period, the time of the vacations shall be included but the Full Court for special reasons may at any time give special leave to appeal subject to any conditions which appear just." (at p335)

4. The words of O. 70, r. 4, understood in their natural meaning, do not make the institution of an appeal depend on the service of the notice of appeal. The rule expressly states that an appeal shall be instituted by the filing of the notice; its words may be compared with those of r. 6 of s. 1 of Pt II of the Appeal Rules which were repealed and replaced by the present rules and which provided that "upon such service and filing the appeal shall be deemed to be duly instituted." Of course, O. 70, r. 4 speaks of filing in the manner prescribed in rr. 5 and 6 and those rules deal, not only with the manner of filing, but also with the service of notices of appeal. However, it is impossible to regard the service of a notice of appeal as part of the procedure of filing it and the provisions of rr. 5 and 6 that deal with service cannot be understood as prescribing the manner of filing a notice of appeal. Some difficulty of construction is caused by the provisions of O. 70, r. 6(1)(b) and r. 6(2) which suggest that if a notice of appeal is not filed within time, and no application for an extension of time is made in accordance with r. 6(1)(b), special leave to appeal may be necessary. However, the words of O. 70, r. 4 are clear and unambiguous and even if read in the context provided by O. 70, r. 6(2) cannot mean that an appeal is instituted only upon the due service of a notice of appeal. If, as O. 70, r. 4 states, an appeal is instituted by the filing of a notice, an application for special leave to appeal could never be necessary if the filing had been effected in the manner prescribed by rr. 5 and 6; an application under O. 70, r. 6(2) would therefore only be appropriate where the notice of appeal had not been filed within the time or in the manner prescribed. (at p336)

5. Upon the proper construction of the rules, once a notice of appeal is filed within time and in the proper manner, an appeal is instituted. If the notice of appeal has not also been served within the prescribed time there will have been a failure to comply with the rules. In such a case the appellant might apply under O. 64, r. 2 to be relieved from the consequences of non-compliance with the rules, or the respondent might apply in accordance with O. 64, r. 3 to set the proceedings aside for irregularity. However, subject to the power of the Court to set aside, amend or otherwise deal with the proceedings, the non-compliance will not render the appeal void unless the Court or a Justice so directs: O. 64, r. 1. (at p336)

6. It may be that the reason for the distinction drawn between the filing and the service of a notice of appeal is that it will normally always be possible to file a notice within time but not always possible to serve it. Whether or not this is so, the words of the rules in their present form indicate that it is the filing, and not the service, of the notice that commences an appeal. (at p336)

7. We were properly pressed with the decision of this Court in Vilenius v. Heidegar (1962) 36 ALJR 200 , the report of which suggests that this Court took the view if a notice of appeal was filed but not served within time no appeal was instituted. However, an examination of the transcript of argument in that case reveals that the appellant, who had not served his notice of appeal within time, applied for special leave to appeal and that in argument counsel for all parties assumed that special leave was necessary and that no one discussed the effect of O. 70, r. 4. The Court (Kitto, Windeyer and Owen JJ.) appears to have assumed that it was appropriate to make application for special leave but held, for the reasons given in the report, that special leave should be refused. The transcript further reveals that the Court, having refused special leave, then heard argument as to what should be done with the appeal itself, since the appeal had been set down for hearing and entered on the list for the sittings. Counsel for the respondent asked that the appeal should be struck out as incompetent but the Court refused to make such an order, and Kitto J. said: "It was not incompetent. It was competent enough but it was not carried out in conformity with the rule". In the event the appeal was dismissed. The only conclusions that can logically be drawn from the orders made by the Court in that case are that it was decided that an appeal had been instituted (because if it had not, an order for dismissal would have been inappropriate), but that special leave to appeal was nevertheless necessary, because the notice had not been served within time. (at p337)

8. For the reasons we have given, if the Court in that case intended to hold that an appeal is instituted notwithstanding a failure to serve a notice within time, we would agree with that conclusion. However, it seems difficult to reconcile a decision that an appeal had been instituted with the view that it was proper to entertain an application to grant special leave, for if an appeal was on foot special leave to appeal would not have been required. Since the effect of the rules was not discussed in argument or in the reasons given for the decision, we cannot regard Vilenius v. Heinegar as a satisfactory authority and do not feel bound to follow it. In any case, as we have indicated, upon examination it does not appear to be an authority that supports the view that the present appeal is incompetent. (at p337)

9. If an application had been made under O. 64, r. 2 we should have considered it appropriate in the circumstances already mentioned to relieve the appellant from the consequences of its non-compliance with O. 70, r. 6. However, no such application has been made, and since no application has been made to set the proceedings aside for irregularity it seems convenient to make no order and let O. 64, r. 1 have its effect. The result of that rule will be that the appeal is not avoided by the failure to effect service within time. The objection to competency will be overruled. (at p337)

Orders

Objection to competency overruled with costs.