A defendant, against whom a v action at nisi prins in the Supreme Court of New South Wales, appli

High Court of Australia|1905-07-01|Before: Barton J

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES,

H.C. oF A. Practice - Leave to appeal - Interlocutory order - Right of appellant to

interlocutory order on appeal from final judgment.

~ Sxpvex, On an appeal from a final judgment of the Supreme Court of a Sh May 9. open to the appellant, without obtai 'or other order, which was a step in the procedure leading up to the Gritsth C1. and Barton J. judgment.

rule was refused on certain grounds, and granted on others ; but on thems to make the rule absolute, it was discharged.

'The defendant, bei jndgment of the Supreme Court and of raising on the appeal the gr to which that Court had decided against him on the application for «ru moved the High Court for leave to appeal from the order of the Supreme refusing to grant a rule nisi on those grounds.

In this case a verdiet for £500 had been obtained by the dent against the appellant in an action for malicious pt in the Supreme Court of New South Wales. The appell on 25th October, 1904, moved the Full Court for a rule

eatin grounds, and refused as to others: Glissam v. Crowley s 4th May, 1905, the Full Court, on motion by the appellant tphave the rule made absolute for a new trial, discharged the rile with eosts (2).

'The appellant, intending to appeal from the order of the Supreme Court of 4th May, 1905, and wishing to raise, on the hearing of the appeal, the grounds as to which the Supreme Court had decided against him on the motion for a rule nist, now moved for leave to appeal from the order of the Supreme Court of 25th October, 1004, m so far as it refused to grant a rule nisi upon the grounds

mentioned, The facts of the case and the nature of the grounds in question, "are not material to this report.

Fimunds for the appellant, moved for leave to appeal, and fered to Nolan v. Clifford (8); Smith v. Neild (4); and High Cnirt Procedure Act, Appeal Rules, sec. L, r. 16.

GnirrrtH C.J. In this case an appeal is proposed to be brought fiom a decision of the Supreme Court of New South Wales refusing

togrant a rule nisi for a new trial upon certain grounds. Accord- ing to the practice of that Court an application for a new trial is made in two stages. The first is a motion for a rule nisi for a new trial. If that is granted the matter is further considered tpn a motion to have the rule nisi made absolute. If the 'application for the rule nisi is refused, or the rule is granted but discharged on motion to make it absolute, the matter is at an end. On the other band, if the rule nisi is made absolute, there is a 'tev trial. These two steps are, in our opinion, two stages in one

ding. 'There is only one judgment of the Court appealed from, viz, that which grants or refuses a new trial, and on the Hel all grounds that were taken by the appellant in the course Wf the proceedings ure open to him, That position is clearly 'pported by the decision in Maharajah Moheshwr Sing v. Bengal

new trial on a number of grounds, The rule misi was granted H.C. or A.

Crowney decision of a Judicial Commissioner upholding the ayani certain arbitrators, on an application to set aside the The Privy Council said, "The appeal is, in effect, to seb aside award which the appellant contends is not binding upon

interlocutory order which was a step in the procedure that led to the award." The same prineiple has been applied by the Pi Council in many other eases. 'The appeal is from the jug

to grant a rule nisi for a new trial upon certain grounds, partly of an order discharging a rule nisi granted on ee other grounds.

'There is an appeal as of right from the final judgment, and ve

(1) 7 Moo, Ind. App., 283. (2) 1 C.L.R., 429, atp. 31, (3) 10 Moo. Ind. App., 413, at p. 423.

At a glance

Court

Decision date

Before

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Judgment (19 paragraphs)

Parties