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High Court of Australia|1917-07-01|Before: Ricu J

about which the Act is solicitous is to see that the Board takes care to get the rabbits eradicated, and that it does not require the Board to select as between owner and occupier the person who is" For these reasons _ I think that the appeal should be allowed.

Ricu J. I agree. Appeal allowed. Order appealed from dis- - charged. Question asked by the case answered in the negative. Respondent to

Solicitor for the appellant, @. IM. Westgarth, Scone, by Garland, Seaborn & Abbott.

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_ sf Euepries 3H COURT OF AUSTRALIA] : fourism TLR 2/ E Holdings» oa carla WORRALL AND ANOTHER APPELLANTS; Res APPLICANTS, ; AND THE COMMERCIAL BANKING COMPANY ; OF SYDNEY LIMITED . | REsPoONDENTS, Prigcania' ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. SS Sypxey, Statute - Statutory rules - Interpretation - Retrospective operation - Prohibition of - Deo appeal - War Precautions (Moratorium) Regulations (Statutory Rules 1916, E Nos. 284, 324; Statutory Rules 1917, Nos. 13, 76, 253), regs. 3, 4, 80. : arto, Tauace an Reg. 80 of the War Precautions (Moratorium) Regulations (Statutory Rules -

1917, No. 253),"which provides that "any determination decision judgment direction order or assessment made or given by any Court in any matter-

arising under these Regulations shall be final and conclusive and without H. C. or A.

appeal," is retrospective so as to include any determination of the Supreme Court of a State made before 28th September 1917, the date on which the regulation was made. «

Appeal from the decision of the Supreme Court of New South Wales: Worrall v. Commercial Banking Co. of Sydney, 17 8.R. (N.S.W.), 457, dis- missed as incompetent.

An application was made to the Full Court of the Supreme Court by James Rhodes Worrall and Sydney Andrew Walker Worrall for an order that the War Precautions (Moratorium) Regulations should apply to a fluctuating advance exceeding £2,000 made by way of bank overdraft by the Commercial Banking Co. of Sydney Ltd. to the applicants, secured by certain mortgages executed by the applicants in favour of the Bank ; and fora declaration that, having regard to the matters mentioned in reg. 4 (5) of those Regulations, it was desirable that such regulation should apply to those mort- gages. The application was heard on 23rd, 27th and 28th August 1917, and on 14th September 1917. the Full Court dismissed the application : Worrall v. Commercial Banking Co. of Sydney (1).

From that decision the applicants now appealed to the High Court.

Maughan (with him J. A, Ferguson), for the appellants.

R. H. L. Innes K.C, (with him F, A, A. Russell and W. A. Parker), for the respondents, took a preliminary objection. Under regs. 2 and 4 of the War Precautions (Moratorium) Regulations the applica- tion for leave might be made either to the Supreme Court or to the High Court, and as the applicants chose to make the application to the Supreme Court they cannot appeal to the High Court (Banks v. Norris (2); In re Knight (3) ). The Regulations deal only with procedural matters (Welby v. Parker (4) ), and reg. 8c will be given a retrospective effect in the absence of any clear indication that it is not intended to be retrospective. See Zollner Lid. v. Municipal

Council of Sydney (5). There is no vested right to an appeal in

(1) 17 S.R. (N.S.W.), 457. (4) (1916) 2 Ch., 1. Q) ID NS.W.LR., 77. (5) 17 S.R. (N.S.W.), 164. (3) 18 NS.W.LR,, 315,

"H.C. or A. such a matter, and the decision in Colonial Sugar Refining Co. vy, 1917. Trying (1) does not apply. [Counsel also referred to Saunders vy.

Worratz Borthistle (2); Parkin v. James (3).] v. E CommerctaL

Bae rele Maughan. Words in an Act which purport to take away a right Lrp. of appeal should primd facie not have a retrospective effect. The taking away of a vested right of appeal is not a matter of procedure Colonial Sugar Refining Co. v. Irving (1). Under the Regulations

as they stood prior to 28th September 1917, when reg. 8c was made,

orders made under reg. 3 were, and orders made under regs. 4 and

8 were not, subject to appeal. On that date the provision taking

away the right of appeal from orders made under regs. 4 and 8 was - repealed. Under those circumstances reg. 8c should not be read as

taking away retrospectively the right of appeal which then existed

in respect of orders made under reg. 3. There is nothing in the

language of reg. 8c which renders such a construction necessary. - There must be plain, clear and unambiguous language in order that a right of appeal which has accrued should be taken away (Dines vy. Gordon (4); Marsh v. Higgins (5); Midland Railway Co. v. Pye (6)). A Statute will not be interpreted retrospectively to a greater extent than is necessary (Reid v. Reid (7) ).

[Isaacs J. The question in every case is what did the Legis- lature intend (Pardo v. Bingham (8); Reynolds v. Attorney-General for Nova Scotia (9) ).] ;

(Counsel. also referred to sec. 11 of the Acts Interpretation Act

1904-1916.] Cur. adv, vult. Dee. 4. The judgment of the Court, which was read by Barton J., was as : follows : -

A preliminary objection has been taken that this appeal is incom- petent. The objection is based on reg. 8c of the War Precautions (Moratorium) Regulations. It raises the question whether that

(1) (1905) A.C., 369, (6) 10 C.B. (N.S.), 179, at p. 191. (2) 1C.L.R., 379. (7) 31 Ch. (3) 2 C.L.R., 315. (8) L.R. 4 35, at p. 739.

(4) 14 N.S.W.S.C.R., 372. (9) (1896) A.C., 240. (5) 9 C.B., 551. .

regulation is to be read retrospectively so as to include a " deter- H- ©. or A. mination" of the Supreme Court "' made" before 28th September ae 1917, the date of the regulation. That question must be answered Worraxe by ascertaining the intention of the legislative authority acting Coysencrax under its statutory law. Considerable discussion took place as to panne ee whether its provisions forbidding appeal concern "rights" or - Lr. "procedure." There can be no doubt that the power to " appeal" is a right, and not procedure. Procedure may and generally does surround it, but the central notion of an appeal is undoubtedly aright. Lord Westbury described it thus: '' An appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below " (Attorney-General v. Sillem (1) ). In Colonial Sugar Refining Co. v. Irving (2) Lord Macnaghten for the Privy Council said expressly that appeal is a right and not procedure.

Therefore, if the matter depended upon that, the objection would fail. But the matter does not depend upon that. The distinction between " rights " and " procedure " is only an aid to interpretation, and not the test. The test is: What did the Legislature mean when its words are read, after giving due weight to every relevant considera- tion? In Irving's Case (2) the Judicial Committee only entered into consideration of the distinction between "rights " and " pro- cedure " after stating that "the Judiciary Act is not retrospective by express enactment or by necessary intendment." If it had been, inquiry as to the nature of appeal would have been useless. This was the method of approach which the Master of the Rolls preferred in Welby's Case (3); and see West v. Gwynne (4). To follow this method, we have the guidance of Lord Hatherley in Pardo v. Bingham (5). There it is said: ""We must look to the general scope and purview of the Statute, and at the remedy sought to be applied, and consider what was the former state of the law, and what it was that the Legislature contemplated." The language of Lord Selborne in Main v. Stark (6), and of Lord Morris in Reynolds v. Attorney- General for Nova Scotia (7), runs in the same direction.

(1) 10 H.L.C., 704, at p. 724. (5) L.R. 4 Ch., at p. 740. (2) (1905) A.C., 369. (6) 15 App. Cas., 384, at pp. 387-388. (3) (1916) 2 Ch., 1. (7) (1896) A.C., at p. 244.

H.C.or A. Tf, doing this, we find that though no express words are found Lae yet the necessary intendment of the language is retrospectivity,

w~ Z Pt

Worrart the task is at an end. Necessary intendment only means that the

2 force of the language in its surroundings carries such strength

Baxrixc Co. impression in one direction, that to entertain the opposite vi or SYDNEY ij as Lrp. appears wholly unreasonable. (See per Lord Eldon in Wilkinson y

to continue. Reg. 4 made elaborate provisions (inter alia) fo 7 application by the mortgagee to obtain leave to proceed. Sub-reg. 6 said: "The decision of the Court upon an application for leave under this regulation shall be final and conclusive and without appeal." Apart from this provision, the standing provision in the Constitution as qualified by Commonwealth legislation would have permitted appeals in many cases. The Regulations provided, how- ever, that in case of any fluctuating advance exceeding £2,000 by - bank overdraft, the Regulations should not apply unless on applica- tion by the mortgagor to the High Court or the Supreme Court it | were "determined" that they should apply. That provision, however, was in reg. 3, and not in reg. 4, so that the provision for finality did not apply to it. The provision for a mortgagor's - application was manifestly an appendage to the exception, and the exception was in substance a part of the provision in reg. 4. Reason _ ; points to' the desirability of placing both on the same footing, but - the bare language did not permit it. Finality as to reg. 8 was attained by expressly applying the finality provision of reg. 4 to ita

On 28th September 1917 the legislative authority placed all these matters on the same footing. It was not done by leaving the old - provision to stand, and simply making a new provision applicable as from that date to reg. 3. The course taken was first to repeal sub-reg. 6 of reg. 4, and then enact reg, 8c covering every

description of curial decision referred to in the Regulations. Unless H- C. or A. reg. 8c includes all decisions formerly covered by the repealed ite provision made or given up to 28th September, then the ordinary Worrar. law as to appeals would apply to them, and wherever the prescribed Cosnrenoran conditions could be complied with an appeal could be had from a prea decision under reg. 4 or reg. 8. This is so opposed to the unquestion- Lrp. able intent of the legislative authority as to lead to instant rejection. But if reg. 8c includes prior decisions under reg. 4 and reg. 8, it cannot be denied that it includes those under reg. 3, which is an adjunct of those regulations.

The intent of the legislating authority to put all these matters on the same footing, namely, total non-appealability, is quite clear, and in accord with the subject matter, namely, relief to mortgagors hard pressed and unable to meet their engagements, and mortgagees whose debts are left temporarily unpaid, to both of which classes protracted and expensive litigation would be oppressive as well as being a waste of national funds in a time of crisis. This

leads to the conclusion that reg. 8c covers the present case, and this appeal should be dismissed as incompetent.

Solicitors for the appellants, Dobbin & Spier. Solicitors for the respondents, Dibbs, Parker & Parker.

At a glance

Court

Decision date

Before

Source

Judgment (44 paragraphs)

Parties

Cited By (2)