Harold Davies Ex Parte Application For Special Leave To Appeal [1922] SLCA 12 (14 February 1922)

IN HE ITAHOU) AH.TTIUH DAYIES. EX PARTE Al)l'LICA'l'IO:X l•'OR SPECIAL LEAYE '1'0 APPEAL. Spetial f.ea1•e to Appeal .?ranted by Full Cmn·t-Order made di,.ecting .lppellant to yo to Court belou· in order to be put on terms-Omission of Colllw l to apply-Limit of time for .~econcl aj>z>licaiiou for l.ea1•e to tlppeal in cases of lapsed OJ' abandoned appeals. 'fhe fncts of this caHe are sufficiently sot ont in the judgments. The Appellant appeared m person. )Ic·DOXXELJJ, Actin!! J. In this case the would-he Appellant was given SpE-cial JJE'U\e to Appeal h~· the Full Court Rill in~ in .Tanuary, 1920, and the order directed him to ~o to the Court below in order that he might hC' put on terms. He states that, owing to the omission of his Counsel, such application was not made. Any remedy wl1ieh he has against l1is Counsel lies in l1is hands alone in the form of an action . I cannot entertain the ""riew whic·h he puts forward that the full Court can take any steps against the Counsel concerned in respect of the negligence which he alleges. He has urged upon the Court the proviso in section 5 o£ the schedule to thE' Supreme Court ~\mendment Ordinance, 1912/ bul that proviso must be read with the preceding paragraphs of the sedion which relate only 1o the Court below. If a party in that Court who has heen granted Conditional T,eave to Appeal, on condition that:- (a) \Yithin a month of the application he gives security, (b) ITe pays the expenses of the making-up and trans­ mission of the appeal, and (c) He gives notice to other parties, omits to per£Pct those conditions in that month, or allows t.he appeal to lapse or be abandoned, the proviso allows-in certain circumstances-a new application for Lea""re to Appeal to be made. There is nothing in this which governs the case before 11s. Sec·tiom 8 and 9 2 of the schedule limit H1e time for 1 Now Cap. 205. ~hedule, sec. 5, Vol. JI, p. 1438. t Vol. II, p. 1439. 14thFe&ruary, 1922. HAROLD ARTRt'R DAYIES. MCDONNELL, AOTINO J. 20 applications in the Court below to three months and in this Court to six months. The pro,-iso to section 5 must be read in the light of section 8.1 In the case of a lapsed or abandoned appeal the second applicnt .ion under the proviso to section 5 must, I hold, be made within the three months prescribed by section 8. Section 9 1 limit s applications for Leave to Appeal to those, notice of which is given within six months of the decision. For these ren!:ons I hold that the present application must fail. PURCELL, C' .• T. I agree. SAWREY-COOKSON, J. I agree, and only wish to add that if this Courl entertained this npplication for the reasons urged by the applicant it is obvious that an injm;tice would result to the holder of the judg­ ment appealed ag-ainst simply because there would be no limit of time fixed, hcyond whid1 his judg-mPnt would be re\ersed. Time limits haw been fixed and althoug-h it is true that in certain insUm<·Ps tl1e Courts may and should extend the time, there is nothing in the Schedule to the Supreme Court Ordinance which justifies this Court in creating such a manifestly absurd precedent as il is in effect here asked to crcale . The applicant l1as perhaps forgotten the maxim-interest reipublicar ut sit liti11m finis. t Vol. II, p. l.J3!l,