C. D.
H. During
for the Appellant.
E. S. E. Betts
for the Respondent.
The following judgments were
delivered: -:
MACQUARRIE, J.
On this appeal coming on 'for
hearing, Mr. Betts raised a
preliminary objection that thi8
Court had no jurisdiction to
hear the appeal, firstly, on the
ground that the Court below had
no power to grant an exten8ion
of time to appellant to apply
for final leave to appeal after
the time limited by the rules
had expired a8 it had done; and
secondly, that, even if it had
such power, the application by
appellant for the exten8ion of
time and the order granting the
exten8ion were made
ex parte
and were therefore of no effect.
In my opinion the objection
succeeds on the second ground.
After considerable discu8sion it
was agreed that the order
granting time of December 12th
which was alleged to have been
made
and cancelled
(which does not appear on the
record) was to be ignored and
the matter to be treated as
though the order granting time
made on December 21st was the
order under discussion. Mr.
BettI'! argued that this order
having been made
ex parte
was ineffective.
In my opinion, such an order
affecting both partie8 could
only be made on notice to the
respondent so as to give him an
opportunity of objecting
(See
O. 49 r.
3 as applied by Rule 30 of the
Court of Appeal Rules, and
Evennett v. Lawrence 46 L.J.
Ch. 119).
The question which remains to be
decided therefore is whether the
order was made
ex:
parte
or on notice. Such a question
would appear to be one which
should be easily answered, but
the circumstances here are a
little peculiar. The Court below
having cancelled the order of
December 12th and ordered notice
to be given to Mr. Betts, Mr.
During served a notice upon Mr.
Betts,
dated I9th December, of hearing
on the 20th, on which day
respondent's solicitor, Mr.
Betts, attended for the purpose
of.
objecting that the notice was
irregular as not being long
enough
The matter was adjourned to the
following day when Mr. During
objected Mr. Betts, right to be
heard whereupon the latter asked
that this be noted and that he
would take no part in the
hearing.
The
Judge then made an order on
appellant's affidavits granting
fourteen days time. This
order-page 40 of the record is
in form an order on an ex
parte motion, and, in view
of this fact, confirmed by the
judgment of the same ,Judge on
an application made later on to
set aside the order, when he
says" It is true that the order
was made ex parte," I
find myself bound to hold that
the order was made ex parte,
in spite of the argument of
Mr. During to this Court that
Mr. Betts appeared and chose to
decline to take part in the
hearing. It has to be borne in
mind that Mr. During himself
adopted the attitude of one
moving ex parte and
obtained an order as above
stated. It is, I think, not
possible to hold, as he
strenuously argued, that
respondent's solicitor was in
the position of one to whom due
notice of a motion had been
given for the purpose of
enabling him to make any
objection to the application-the
subject of the motion which he
might wish to make.
This being so, the motion was
one made in effect without
notice to the respondent and
therefore for the reason above
stated, ineffective. It follows
that the order made is equally
ineffective and that the
appellant has failed to comply
with the rules as to obtaining
formal leave to appeal. It is
unnecessary therefore to
consider the first ground.
In my opinion the appeal should
therefore be dismissed with
costs.
STROTHER STEWART, J.
I concur.
BROOKE, J.
I adopt the view that the order
granting extension of time was
made ex parte and for
this reason was ineffective.
Evennett v. Lawrence 46 L.J.
Ch. UH is clear on the point
that no such application can be
entertained
C.1: parte.
The order would affect both
parties and the other side must
be given an opportunity of
objecting' which in this ease
was not afforded to the
respondent. The rules of Court
governing appeals must be
strictly observed.
