LAW REPORT.

New Zealand Police Gazette, Volume XXXIX, Issue 8, 4 March 1914, Page 139

LAW REPORT.

(“New Zealand Law Report,” Vol. xxxiii, page 88.) [S.C. In Banco, Invercargill.—(Williams, J.) — sth Sep-

TEMBER, 1913

Crowe v. Me Watt

Practice —Appeal from Justices —Notice of Appeal—Failure to serve within Time prescribed—Last Day Supreme Court Holiday—The Acts Interpretation Act, 1908, Section 24 (a) —When Non-compliance excused.

The notice of appeal required to be given under section 303 of the Justices of the Peace Act, 1908, is not a proceeding in the Supreme Court, and is therefore not subject to the rules of the Court. If, therefore, the last day for giving the notice required by the section falls on a day which is a Supreme Court holiday, but is not a holiday within the Acts Interpretation Act, 1908, the provisions of section 303 have not been complied with.

The term “ holiday ” under the Acts Interpretation Act, 1908 (section 24 (a)), points to a holiday observed by the public.

The provisions of section 303 are mandatory, unless compliance therewith is excused by reason of the default of the respondent, or unless the appellant, after doing all in his power to comply with the section, is prevented from so doing by the absence or conduct of the Magistrate.

Appeal from the decision of G. Cruickshank, Esq., S.M., at Invercargill. The facts are sufficiently stated in the judgment.

A. B. Haggitt, for the respondent

Notice of appeal was not served within the time prescribed by section 303 of the Justices of the Peace Act, 1908. Compliance with that section is mandatory : Edwards v. Roberts ([lß9l] 1 Q.B. 802): Foss v. Best ([1906] 2 K.B. 105). Service on the respondent’s solicitor was not sufficient unless the appellant could show that every effort had been made to find the respondent, and the latter was evading service: Syred v. Garruthers (E.B. & E. 469); Gloucester Local Board of Health v. Chandler (32 L.J. M.C. 66) ; Teddington Urban District Council v. Yile (70 J.P. 381); Rust v. St. Botolph’s, Bishopsgate, Churchwardens, &c. (94 L.T. 575). It is also a condition precedent to an appeal that a recognizance should be given within seven days, as prescribed by section 302. This has not been complied with. See Reg. v. Glamorganshire Justices (24 Q.B.D. 675).

J. S. Neave, for the appellant:— The provisions of sections 303 and 304 are not mandatory. A similar provision occurs in section 100 of the Resident Magistrates’ Court Aot, 1867, but in Matheson v. Aitken (7 N.Z. L.R. 94, at p. 100), it was held that compliance with the section could be excused. The Court has a discretionary power to waive compliance with sections 302 and 303. The last day of the statutory period was a Supreme Court holiday.

Haggitt, in reply : The decision in Matheson v. Aitken (7 N.Z. L.R. 94, at p. 100) was given on the ground that there was no default on the appellant’s part. There the section could not be complied with because of the absence of the Magistrate. The Magistrate was present in Invercargill on the day in question, and was availabla for all purposes. Williams, J.: —

The question is whether the appellant has complied with the provisions of section 303 of the Justices of the Peace Aot. That section requires an appellant to give notice in writing, within seven days of the conviction or the making of the order by the Magistrate, of his intention to appeal and of the matter - and grounds thereof. In this case that notice was given not within the seven days, but on the day following the seven days. The last day of the seven days was the 21st of May, which is a Supreme Court holiday, but is not a public holiday or a holiday in the Magistrates’ Court. The Acts Interpretation Act says that where anything has to be done within a certain number of days, and if the time limited for any proceeding expires or falls upon a holiday, the time so limited shall be extended to, and such thing may be done on, the day next following which is not a holiday. The 21st of May is not a holiday within the meaning of the Acts Interpretation Act. Giving notice of appeal by one litigant to another is not a proceeding in the Supreme Court, and is not subject to the rules of the Supreme Court. The term

“holiday ” points to a holiday observed by the public, and the 21st of May is not su,ch a holiday. There was, therefore, in this case non-compliance with section 303 of the Justices of the Peace Act.

The question then arises whether section 303 is mandatory. The case of Matheson v. Aitken (7 N.Z. L.R. 94) did not decide that section 303 was not mandatory. That case was decided on the authority of two English cases, Waterton v. Baker (L.R. 3 Q.B. 173) and Francis v. Dowdeswell (L.R. 9 C.P. 423). I think that the judgment of Mr. Justice Brett in the latter case shows more clearly than any other the principle upon which a section corresponding to section 303 should be interpreted. Mr. Justice Brett was dealing with section 14 of the English Act, 13 & 14 Viet., c. 61, which requires that notice of appeal, with the grounds of appeal and the security, must be lodged within ten days*after the decision is made known. That is similar to section 303. [His Honour here referred to the judgment in the above cases.] If the notice had not been served in time through the act or default of the respondent, or where the Magistrate cannot be found or is absent, and the appellant does all he can to comply with the statute, then and then only, according to the principles mentioned by Mr. Justice Denman in Francis v. Dowdeswell (L.R. 9 C.P. 423), the appellant is excused. If the respondent by his action prevents the appellant from performing the duty required by the Act, then it is the respondent’s fault and not the appellant’s that the appellant has not performed the duty. In such a case the appellant is excused. So, if the Act requires something to be done before a Magistrate, and the appellant does what he can but is unable, either through the absence of the Magistrate or the conduct of the Magistrate, to do what the Act requires, the appellant is excused. The maxim “ Actus curiae nemini facit injuriam ” applies. I can find no case in England or in New Zealand where the appellant in any other circumstances is excused from strict compliance with the statute. This Court has no general jurisdiction to dispense with the provisions of the statute. The cases cited by Mr. Haggitt bear this out. The case of Anderson v. Reid (86 L.T. 713), where in the course of the argument all the cases are referred to, shows under what circumstances compliance may be dispensed with. I am quite satisfied, so far as section 303 is concerned, that the appellant was out of time. I have great reluctance to give effect to such an objection, but the matter is one involving an important principle, and I am afraid that I have no jurisdiction. Appeal dismissed. Costs, £2 2s.

[Solicitor for the appellant: J. S. Neave (Invercargill).] [Solicitors for the respondent: Watson and Haggitt (Invercargill).]