COURT OF APPEAL.

New Zealand Times, Volume XL, Issue 6891, 23 May 1883, Page 3

COURT OF APPEAL.

Tuesday, May 22. (Before their Jloiers tin! Chief Justus-, M

Justice Gillies, ami Mr Justice Willi no-'.) ROONEY V. UNION run AND MARINE INSURANCE COMI'AN/ Of NEW 7,K I, AND. Thin waa a rule nisi nht >by the pi iHi-iff in the Supremo Conn, (Janterlmry Hi-'i let anil moveil into the Court of Appeal, e-»liii on the defendants to ahow cause why an r obtained by him, extending the time to move for a now trial, ahould not bo set aside on the grounds (1) that no notice waa given to the plaintiff of tho defondanta' intention to apply for tho order; (2) tbit the aaid application waa made, and tho order waa granted ex parto ; (3) that the granting of the order waa to tho prejudice of the plaintiff.-,’ rights. Tho plaintiff had, at Timarn, on the loth December, 1882, obtained a verdict for £so'’, On tho 220 d December tho defendants net down a notice of motion for a rule nisi for a now trial. No rule waa then obtained ; but an order was taken out by the defendant without notice, and served on the plaintiff next day, extending the time to move until the first Bitting of the Court in Banco in January then next. On tho 10th January a fresh notice paper was filed by the defendant, and a rule was then obtained by him for a new trial, returnable on tho 24th January, a copy of winch rule was nerved on tho 13th. On the 20th January the plaintiff act down his motion, and on tho Ist February obtained the rule mol to rociml the order extending time to move, which now came on for argument. Mr George Harper, for tho defendants, showed cause. No attempt was made to obtain an ex parte order extending the time to move, but a motion for now trial was made, and the Court granted an order extending time to move. This order was a useless oue ; there was no need of it, and it really only amounted to an adjournment of tho motion. Tho Regulao Generales of 1877 do not require that application for extension of time should bo made on notico ; even if they do, service of tbo notice within the fourteen days does not prejudice the plaintiff’s rights. Under the practice in England, where mistakes have occurred through not moving in time, the Court will, ovou after judgment entered, allow tho case to go on upon terms. It has been decided by Mr Justice Williams that notion of intention to move is necessary. Smart v. Btogden, 0.8. &F. G., 145. Under the rules of 1873, on the cases Mcßride v. Brogden, 3 N.Z. App. Gas. 271 ; Webb v. National Bank, 3 N.Z. App, Gas. 335, there is a strong analogy between the English Hides of Hilary Term 1853 and the rules of this Court. Ernblin v. Hartnell, 12 M & W 830 ; Doe d. Duncan v. Edwards, 7 Dow I’.C. 547 ; Lloyd v. Berkowitz, Iti M & W 31 ; ElUby v. Moore, 22 I.J. G.l’. 253 ; Doe d. Witty v. Carr, 1C G-B, 117 ; Hliaw v. Condon and Lancashire Railway Company, 14 L.T.R. 023 ; I’igott v. Kemp, 2 Dowl 20. . Mr Joynt for tho plaintiff : The Court is bound by what appears on tho face of the case. The provisions of rule 490 apply, and notice of intention to move tor a rule extending tho time, was necessary, (tils Honor the Chief Justice : There are rules and orders which, from their nature, may be applied for ex parto ; is not the rule of 1877 a special rulo, to which rule 490 does not apply !) No ; the rules of 1877 are n part of the general practice. No proceedings in the regular course of an notion can bo ox parto, unless tho rules expressly say so. Rule 490 also contemplates an affidavit; bore there was none, In England, the rules as to moving have to be strictly observed. Wheeler v. Whitmore 4 Dowl 235; Cooper v. Lloyd 6 C.B. N.S. 520. On principle, apart from the practice of the Court, the order was not properly obtained, ns it affected the legal status of the plaintiff. In Webb v. National Bank (übi. sup.) the motion for the now trial had been properly initiated. Smart v. Brogden was rightly decided. In re Hammersmith rent charge, 19 L.J. Ex. GO j Everrett v. Lawrence 4 Cb. Uiv. 139. The Court will not prejudice a party’s right without allowing him to bo heard. Ex parte Franca in re Korap.L.E. 5 Ch. App. 16 ; ex parto Pitt in re Gosling 20 Ch. Div. 308. (His Honor the Chief Justice : How do we know that Mr Justice Johnston did not grant the rule nisi beyond tho time, under special circumstances 1) But there are none ; and tho rules must bo strictly read. No affidavits as to special circumstances were filed, although there was ample time to do so. If the Court listens to an argument of that kind, there is no use for the rule at all. His Honor the Chief Justice, in delivering judgment, said : I am bound to say I regret tho°oouclusion at which I am forced to arrive, and that is that the order extending the time to move was an order which could not he made ex parte. It may be, and no doubt it is true, that the defendant moved only for a rule nisi, and that an order extending the time to move was granted instead ; but be accepted the order, and I think that order —seeing that the operation of tho rule of 1877 was to suspend execution'—was an order which could only be tnado ou notice. That was not done ; and tho Court ought not to have made the order, nor should the defendant have accepted it. It has been tho well-recognisod practice in this district, and I believe in others, that the distinction between formally making tbo motion for new trial and getting it postponed, or for moving to extend the time, is this, that execution is stayed by the extension and not by tho postponement. Tbe next question is whether this order having been granted and acted upon, and having been acted upon so far that it was served upon the plaintiff, we can treat the rule nisi as standing upon any other basis than of this order. It is true the rule is drawn up without any reference to the order, but I nevertheless think that, as there is no suggestion that the rule nisi waa granted on any other ground, wo should bo justified in assuming that it was made under this order extending tho time to move. That being so, I say, and say it with regret, that tho rule nisi was improperly obtained, and must be set aside. Mr Justice Gillies : I entirely concur with Ida Honor the Chief Justice. It seems simply a technical question, and as tho procedure under which it has occurred is now repealed, and it cannot affect future procedure, nor become a precedent, there is no necessity for mo to give the reasons for my opinion at length. Mr Justice 'Williams : I agree with what has been already said by the other members of the Court. I cannot distinguish this case from Smart v. Brogden, and as my views upon the question are thoroughly explained in that case, I see no reason to repeat them. Plaintiff’s rulo allowed, with costs. Defendants rulo discharged with costs, except costs of argument of tho rule.

GEORGE WRIGHT (APPELLANT) V. WISE, CAFFIN, AND COMPANY (RESPONDENTS)^ (Before their Honors the Chief Justice, Mr Justice Johnston, Mr Justice Gillies, and

Mr Justice Williams.) This was an appeal from a decision Mr Justice Richmond granting an interim injunction against the appellant, defendant in the Court below, for publishing or selling in the colony a work entitled “Wright’s Australian and American Commercial Directory and Gazetteer,” which, it was alleged, consisted almost exclusively of extracts from a work belonging to the plaintiffs, and published in Now Zealand, called “ Wise and Co.’s Kew Zealand Directory.” Mr Travers and Mr Brandon, jam, for the appellant ; For the purposes of this appeal it may bo assumed that the appellant’s work was pirated from the respondents. The question which it is proposed to discuss is, whether, without an entry of the book at Stationers' -Hall under the 5 & 6, Vic. Cap. ‘ls, an action can be brought for infringement of copyright. Whatever the legislation of a colony may be, it must not be repugnant to the provisions of an Act of the Imperial Parliament in force in the colony, Tho Act of 64, Georgo 111, cap. 156, which was in force before the present Act, was the brat Act by which the benefit of copywright was extended to tho colonies, and under that Act registration at stationers’ Hall was not necessary. But the Act of 5 & 6 Vic cap 45—which is expressed to be iu force throughout Her Majesty’s dominions —does make that entry a condition precedent to the right of bringing an action, and mnst be averred. The New Zealand Copywright Ordinance, 1842, was passed in tho, same year, but anterior to the English Act. There are dicta by sofne of the Judges in Kentledge v. Lowe, L.K. 3 H.L., to the effect that the English Act is not in force in the colonies, except to a limited extent, but those observations are merely obitio dicta ; they are in no respect necessary to the decision of tho case, and are not binding on this Court. The respondent’s directory is in evidence, and it purports in its title-pngo to have been published in England, as well as New Zealand ; as an English publication, then, it requires registration at Stationers’ Hall, and, not being registered, is not protected. The further argument of tho case was then adjourned until to-day. After the conclusion of this cr.sc, the case of Arden v. Boy, from Taranaki, will be heard.