Noakes, Raymond Brian v. J. Harvy Holmes & Son & Ors [1978] FCA 10

Federal Court of Australia|1978-02-20|Before: And J, Joske J, Dunphy J, Franki J

Fad IN THE FPOPTAL COu?T Cr AUSTRALIA ) 7 ) . VICTORIAN. ..... DISTRICE REGISTRY ) No. VG ....3. of 197% ) . GENERAL ....... 6. DIVISION )

Berwern : ..RAYMQND, BRIAN. NOAKES...... eoeeee NESPONdent-appellant..

ORDER JUDGE(S) MAKING ORDER : Franki, J. . DATE OF ORDER : 20 February 1978 WHERE MADE : SYDNEY .

instituted by virtue of the filing of the notice of appeal supported by an affidavit numbered VG3 of 1978 and filed in the Victorian

. The costs of the applicant of this application be paid by' the appellant.

IN THE FEDFRAL COURT OF AUSTRALTA VICTORIAN - DISTRICT REGISTRY No. V.G. 3 of 1978

GENERAL DIVISION BETWEDN RAYMOND BRIAN NOAKES Respondent- - appellant And J. HARVY HOLMES & SON & ORS.

REASONS FOR JUDGMENT: FRANKI J. DELIVERED: 20 February 1978

a Judge of the Supreme Court of Norfolk Island delivered the judgment in the relevant matter. Mr, Noakes, the appellant, purported to appeal to this court by a notice of appeal filed on 24 January 1978. The notice of appeal had not been served on J. Harvy Holmes & Son by 14 February 1978. J. Harvy Hemes & Son, whom I will call the applicant, filed a notice of motion in this court on 14 February 1978 and now seeks that the

appeal be struck out as incompetent or that all times be shortened to allow the matter to be heard at short notice, or that the appeal shall not operate as a stay of proceedings appealed from unless certain security is given for the costs of the appeal and the payment of a judgment debt, together with interest and costs.

The judgment debt had been obtained in an action against the appellant and two others by the applicant in the Supreme Court of Queensland and had been registered in Norfolk Island but had not been satisfied and it was in respect of this judgment that the proceedings against the appellant had taken place in the Norfolk Island Supreme Court in which Mr. Justice

On 23 January 1978 the appellant voluntarily gave security of 7100 for the prosecution of the appeal. The first point for me to consider is whether there is any appeal properly instituted before this court because I consider I cannot make orders concerning the conduct of an appeal which has not been instituted. Under Order 6, rule 1 of the rules of the Federal Court of Australia, the High Court rules must

first be looked at. Order 70, rule 4 of the High Court rules

provides that an appeal is instituted upon the filing of a notice

So far as is relevant, Order 70, rule 6 provides that notice of appeal shall be filed and served within 21 days after the date the judgment appealed from was pronounced or

within such further time as may be allowed for special reasons

upon a summons which, if not made within the 21 days, must be made

to the full court. As to the appeal being instituted upon the

filing of the notice of appeal, see Whitehouse Hotels Pty. Ltd.

competency to be filed within 14 days after service of the notice

of appeal upon the respondent. At the time the application before me was filed, the applicant had not been served with the notice of appeal. The court has certain powers in relation to non-compliance with the rules which are to be found in the rules of the Federal Court of Australia, Order 6, rule 1 and Order 9, rules 2, 3 and 4 but there is nothing before me to support any order in favour of the appellant and I am not prepared to relieve the appellant from any non-compliance with the rules,

The applicant has not complied strictly with Order 70, rule 8. I was told during the hearing by Iir. McIntyre, who

appeared for the applicant, and who was present in the court at

the time, that his Honour, Mr. Justice Dunphy adjourned

some proceedings for 14 days in the Supreme Court of Norfak Island pending the outcome of this application, and it is clear that the applicant was concerned that the notice lodged by the appellant together with the security lodged would

I consider therefore that the applicant was justified in bringing the proceedings in the way it did and I relieve the applicant from the consequences of non--compliance with any rule in relation to this application. As I have said, the rules require that the notice of appeal should be filed

within 21 days after the date of judgment and this was not done.

I am satisfied that no valid apneal has been lodged by the appellant and I declare no appeal has been instituted by virtue of the filing of the notice of appeal supported by an affidavit of the appellant's solicitor, Mr. Skinner and numbered VG. 3 of 1978 and filed in the Victorian registry of the Court on 23 January 1978. I consider that the applicant was entitled to make the application before me because of the filing of the notice of appeal and the security which had been

lodged and the matters referred to in Mr. McIntyre's affidavit.

I order that the appellant, Raymond Brian Noakes pay the costs of the applicant, J. Harvy Holmes & Son of this application, I add that this judgment is, of course, without prejudice to any application which the appellant may seek to

[lo] NHEINL INO. ssssocttQasssnal andenteeee lo JU THN FEDURAL COURT OF AUSTRALTA dye 7 ) a es VICTORIAN. ..... DISTRICT RFCISTRY ) No. VG ....4. of 197% ) « GENWBAL ...... 1... DIVISION )

ORDER JUDGE(S) MAKING ORDER : Franki, d. DATE OF ORDER : 20 February 19738 WHERE MADE : SYDNEY

1 Declare no valid appeal has been lodged and no appeal has been

instituted by virtue of the filing of the notice of appeal supported by an affidavit numbered VG3 of 1978 and filed in the Victorian Registry of tre Court on 23 January 1978,

. The costs of the applicant of this application be paid by the appellant. .

IN THE FEDPRAL COURT OF AUSTRALIA VICTORIAN. _ - S - sdDISTRICT_RFGISTRY No. V.G. 3 of 1978 GENERAL DIVISION

BETWEEN RAYMOND BRIAN NOAKES Respondent- - appellant And J. HARVY HOLDS & SON & ORS.

a Judge of the Supreme Court of Norfolk Island delivered the judgment in the relevant matter. Mr. Noakes, the appellant, purported to appeal to this court by a notice of appeal filed on 23 January 1978. The notice of appeal had not been served on J. Harvy Holmes & Son by 14 February 1978, J. Harvy Hdmes & Son, whom I will call the applicant, filed a notice of motion in this court on 14 February 1978 and now seeks that the

On 23 January 1978 the appellant voluntarily gave security of *100 for the prosecution of the appeal. The first point for me to consider is whether there is any appeal properly instituted before this court pecause t consider I cannot make orders concerning the conduct of an appeal which has not been instituted. Under Order 6, rule 1 of the rules of the Federal Court of Australia, the High Court rules must first be looked at. Order 70, rule 4 of the High Court rules

provides that an appeal is instituted upon the filing of a notice

So far as is relevant, Order 70, rule 6 provides that notice of appeal shall be filed and served within 21 days after the date the judgment appealed from was pronounced or within such further time as may be allowed for special reasons upon a summons which, if not made within the 21 days, must be made to the full court. As to the appeal being instituted upon the filing of the notice of appeal, see thitehouse Hotels Pty. Ltd.

Order 70, rule 8 provides for an objection to competency to be filed within 14 Gays after service of the nctice of appeal upon the respondent. At the time the application before me was filed, the applicant had not been served with the notice of appeal. The court has certain powers in relation to non-compliance with the rules which are to be found in the rules of the Federal Court of Australia, Order 6, rule 1 and Order 9, rules 2, 3 and 4 but there is nothing before me to support éeny order in favour of the appellant and I am not prepared to relieve the appellant from any non-compliance with the rules.

The applicant has not complied strictly with Order 70, rule 8. I was told during the hearing by iir. McIntyre, who

appeared for the applicant, and who was present in the court at

the time, that his Honour, Mr. Justice Dunphy adjourned

some proceedings for 14 days in the Supreme Court of Norfdk Island pending the outcome of this application, and it is clear that the applicant was concerned that the notice lodged by the appellant together with the security lodged would

I consider therefore that the applicant was justified in bringing the proceedings in the way it did and I relieve the applicant from the consequences of non-compliance with any rule in relation to this application. As I have said, the rules require that the notice of appeal should be filed

within 21 days after the date of judgment and this was not done.

I am satisfied that no valid appeal has been lodged by the appellant and I declare no appeal has been instituted by virtue of the filing of the notice of appeal supported by an affidavit of the appellant's solicitor, Mr. Skinner and numbered VG. 3 of 1978 and filed in the Victorian registry of the Court on 23 January 1978. I consider that the applicant was entitled to make the application before me because of the filing of the notice of appeal and the security which had been

lodged and the matters referred to in Mr. McIntyre's affidavit.

I order that the appellant, Raymond Brian Noakes pay the costs of the applicant, J. Harvy Holmes & Son of this application, I add that this judgment is, of course, without

prejudice to any application which the appellant may seek to

make for special leave to appeal out of time. | Tee trie tintentsend ia Fe tone copy of the Roasons for Judgment herein of his Fonour

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Judgment (56 paragraphs)