Dempsey v Harris Scarfe Ltd [1969] HCA 43

High Court of Australia Barwick C.J. McTiernan and Windeyer JJ. Dempsey v Harris Scarfe Ltd [1969] HCA 43

ORDER Appeal dismissed as incompetent. No order as to costs.

The judgment of The Court was delivered by Barwick C.J.:—

Sept. 25 Barwick C.J., McTiernan and Windeyer JJ.

This is an appeal brought as of right from a judgment of a judge of the Supreme Court of South Australia sitting alone in the trial of an action brought under the Wrongs Act, 1936-1959, of that State.

With the notice of appeal there was filed in this Court an affidavit made by a member of the firm of solicitors appearing for the appellant, in purported compliance with O. 70, r. 7 (3) of the Rules of this Court. That rule provides as follows:

If the appeal is brought without leave or special leave, then, within the time limited for filing the notice of appeal, an affidavit shall be filed in the appropriate Registry stating facts which show that an appeal lies without leave or special leave, and a copy of the affidavit shall be served upon the parties upon whom the notice of appeal is served.

That affidavit recounted the nature and the course of the action in the Supreme Court, and contained the following paragraph:

6. I am of opinion that an appeal to the High Court lies as of right from the said judgment entered in the Supreme Court of South Australia as aforesaid pursuant to the provisions of s. 35 (1) (a) (2) of the Judiciary Act 1903-1960 in that it is a final judgment involving directly or indirectly a claim respecting a civil right amounting to or of the value of $3,000.

No objection to the competency of the appeal was made by the respondent. Order 70, r. 8 (1), provides as follows:

If a respondent objects to the competency of an appeal, he shall, within fourteen days after service upon him of the notice of appeal, file in the Registry a notice of objection stating briefly the grounds of his objection, and serve upon the appellant a copy of the notice.