1891

FLORINS

v.

THE BANK OF
VICTORIA
LIMITED.

Hodges, J.

by action. I know nothing in the new practice which justifies such a course of proceeding, and it was certainly contrary to the old practice. I was referred to a passage in Daniels' Chancery Practice, but that may refer merely to proceedings taken to set aside a judgment collusively obtained. It may have reference to a variety of cases of that description, but has no reference to this class of action, and even if it had I should be disposed to decide in the face of that authority. In my opinion, to bring an action for setting aside a judgment for non-service of a writ is not a proper course. I therefore make an order. striking out the paragraphs 11, 14, and 15, and so much of 12 as relates to this judgment and to the promissory note.

Solicitor for plaintiff: Chambers.

Solicitors for defendant: Moule & Seddon.

342277

F.C.

1891

April 23, 24.
May 29.

at dook 13 a k T 1 2 3

Miesen Fielding 16+ LR666

RAY v. THE JUSTICES OF MELBOURNE AND WHITNEY.

Justices Act 1890 (No. 1105), s. 128, sub-secs. (2), (9)—Notice of appeal to Court of General Sessions-Service of notice of appeal— Waiver.

By sub-sec. 2 of sec. 128 of Act No. 1105, the appellant is required to give notice of appeal within seven days after the day on which the decision of the court of petty

Rousey u LT 145 sessions is given; by sub-sec. 9 such notice must be served on the respondent

19

8a2123

personally, or on some person at the last-known place of abode of the respondent.

A decision was given in the court of petty sessions on the 29th December 1890. On 5th January 1891 the appellant served a written notice of appeal on a clerk at the detective office. The respondent, who was a detective, did not reside at the detective office, and was not accustomed to go there daily. The respondent did not see, or have knowledge of, the notice of appeal until 27th January 1891. When the appeal came on for hearing before the Court of General Sessions, counsel for the respondent took the objection that there had been no service of the notice of appeal within the meaning of sec. 128, sub-secs. 2 and 9, of Act No. 1105.

Held, that there had been no service of the notice of appeal, and that the respondent had not waived his right to object to such want of service by reason of his appearance.

In re McRae (25 Ch. D., at p. 19) not followed.

SPECIAL CASE.

This was a special case, stated by the chairman of the Court of General Sessions at Melbourne. The following facts were stated in the case :-The appellant was convicted at the court of petty sessions at Melbourne on the 29th December 1890, and he

appealed from that conviction under sec. 127 of the Justices Act 1890, the notice of appeal being dated 5th January 1891. The appeal came on for hearing before the Court of General Sessions on the 18th February 1891. It was proved that notice of appeal intended for the informant (one of the respondents), Whitney, who was a detective, was left with a clerk at the detective office, Melbourne, on the 5th January 1891. The respondent Whitney, who was examined by the appellant's counsel, swore that he was not at the detective office every day in January; that it is the duty of the clerk to hand over all documents to the inspector; that there was no clerk in the detective office who would receive legal process; that he, Whitney, first saw the notice of appeal on 27th January 1891, when he found it in the office, and he at once reported upon it to the inspector, and proceeded to prepare his case for appeal. Service of the notice of appeal upon the clerk of petty sessions was admitted. Counsel for the respondents contended that there was no service on the informant within the meaning of sec. 128, sub-secs. 2 and 9, of the Justices Act 1890. Counsel for the appellant contended that the service by leaving the notice with the said clerk amounted to personal service. The Court held that such service amounted to personal service within the meaning of sec. 128, sub-secs. 2 and 9. The appeal was heard, and the Court upheld the conviction and dismissed the appeal, subject to the special case being stated. This report is confined to the technical question as to service of notice of appeal. The question whether the appellant was rightly convicted of being a rogue and vagabond under sec. 41, sub-sec. 12, of the Police Offences Act 1890, although argued, was not dealt with in the judgment.

Pigott for the respondent-There was no service of the notice of appeal within the meaning of sec. 128 of the Justices Act 1890 (a). The respondent received personal notice of the appeal

(a) “Sec. 128. Where any person is authorised to appeal from the conviction or order of a court of petty sessions to a court of general sessions, he may appeal to such court, subject to the conditions and regulations following :-*** (2) The appellant shall, within seven days after

the day on which the decision of the
court of petty sessions was given, give
notice of appeal by serving on the other
party, and on the clerk of the said court,
notice in writing of his intention to
appeal, and of the general grounds of such
appeal. *** (9) Every notice in writing

F.C.

1891

RAY

v.

THE JUSTICES OF
MELBOURNE

AND

WHITNEY.

F.C.

1891

RAY

ข.

THE JUSTICES OF

on the 27th January, and therefore, unless service on the clerk at the detective office was sufficient, there was no service at all. The fact that the notice ultimately reached the hands of the respondent does not make the service upon the clerk a good notice as from the MELBOURNE day on which the clerk received the same; it can only have effect as from the 27th January, when the respondent first knew of its existence. The detective office was not the place of abode of the respondent, and there is no evidence to show that the clerk who received such notice was "apparently not less than sixteen years old" within the meaning of sub-sec. 9. [Counsel was stopped by

AND WHITNEY.

the Court.]

66

Forlonge for the appellant-Personal service does not mean service on the person himself; if an appellant within the prescribed time takes steps to effect service on a party, and that party afterwards gets notice, that will be sufficient. Such notice has relation back to the time when the agent or clerk was actually served. Place of abode" does not mean the place of residence: that was a question of fact which it was for the court below to decide, and it was decided in the appellant's favour. The detective office was the proper place to serve this notice; it was practically the respondent's place of business, and a place of business is equivalent to a place of abode: Mason v. Bibby (b). Whether there was good service or not, it was a mere irregularity, and has been waived by appearance Moore v. Prest (c); Paley on Convictions, p. 97.

Counsel also referred to Reg. v. Heron, exparte Mulder (d); Reg. v. Hughes (e).

Pigott in reply-The question of proper service goes to the jurisdiction, and the respondent had a right to appear and take the objection: Gracie v. Shire of Tullaroop (f). There cannot be a

required by this section to be given by an
appellant shall be in writing, signed by
him, or by his solicitor on his behalf, and
may be served by delivering the same to
the respondent personally, or to some
person at the last-known place of abode
of the respondent, apparently an inmate
thereof, and apparently not less than
sixteen years old, or in any other manner

directed by any justice, in case he is
satisfied that service as hereinbefore pro-
vided cannot be promptly effected."
(b) 2 H. & C. 881.
(c) 1 A.J.R. 151.

(d) 10 V.L.R. (L.) 314.
(e) 4 Q.B.D. 614.
(f) 12 V.L.R. 664.

waiver in criminal cases, and even if there could be there was no
waiver on this occasion. The enactment in the Justices Act is not
for the benefit of the informant, but for the benefit of the public.
The Act makes this notice a condition precedent to the right of,
appeal; the non-service is not a mere irregularity, it goes to the
jurisdiction of the Court to deal with the case.
Mere appearance

cannot be taken to be a waiver: Dixon v. Wells (g).

Counsel referred to the following cases :--Reg. v. Glamorganshire (h); Park Gate Iron Co. v. Coates (i); Peacock v. The Queen (k); Fleming v. Essendon Council, etc. (l); In re McRae (m).

Cur, adv. vult.

HOOD, J., delivered the judgment of the Court [HIGINBOTHAM, C.J., HOOD and MOLESWORTH, JJ.]. The appellant, Thomas A. Ray, was, on the 29th December 1890, convicted by the court of petty sessions, Melbourne, under sec. 41, sub-sec. 12, of the Police Offences Act 1890, of being a rogue and vagabond, and he appealed from that conviction to the Court of General Sessions, at Melbourne, under the provisions of the Justices Act 1890. The appeal came on for hearing on the 18th February 1891, when counsel appeared on each side, and it was proved that the notice of appeal intended for the respondent, Whitney (who was the informant, and who is a detective), was left with a clerk at the detective office, Melbourne, on the 5th January 1891. Whitney was not at the detective office every day in January, and he first saw the notice of appeal on the 27th January, when he found it in the office, and at once reported upon it to the inspector and proceeded to prepare his case for the appeal. There was no clerk in the detective office who would receive legal process, but it was the duty of the clerks to hand all documents to the inspector. The counsel for the respondents then contended that there was no service of the notice of appeal on the informant within the meaning of sec. 128, sub-secs. 2 and 9, of the Justices Act 1890. For the appellant it was contended that the service by leaving the notice with the said clerk amounted to personal service within

F.C.

1891

RAY

v.

THE JUSTICES OF
MELBOURNE

AND
WHITNEY.

F.C.

1891

RAY

v.

THE JUSTICES OF
MELBOURNE

AND

WHITNEY.

Hood, J.

the meaning of the sub-sections referred to, and the Court of
General Sessions so held. The appeal was then proceeded with,
but ultimately a case was stated for the determination of this
Court. This decision, if it amounts to saying that there was
personal service within seven days after the conviction, is clearly
wrong, and it was so admitted on the argument before us, but it
was urged that the point was waived by the appearance of counsel
for the respondents. This view was not presented to the Court of
General Sessions, and we doubt if it ought now to be entertained;
but assuming that it is open to the appellant, we are unable to agree
with it. In Enders v. Rouse (n), this Court laid down the general
principles as to what conditions may be waived, and the distinction
was there pointed out between provisions which are directory only,
compliance with which may be waived by the parties, and provisions
which are mandatory or imperative, and which cannot be waived.
Under the former class are included acts required by Statute to be
done merely for the benefit of one of the parties to litigation, and
we think that the notice of appeal in this case comes within that
class, and therefore that the respondent might have waived service
of such notice. The question then arises as to whether there is
here any evidence of waiver. The respondent, upon the appeal
being called on in General Sessions, appeared by counsel, and
apparently immediately put the appellant to proof of service of
notice of appeal; in other words, he appeared, and at once took the
objection that there was no proper service, this being the first
opportunity afforded him for taking that objection. How can this
action on his part be construed into any waiver of the objection?
Before there can be any waiver there must be something equivalent
to an agreement, with knowledge of the objection, to have the case
argued notwithstanding: Cooke v. Coward (o). Waiver is consent
and there must be

to dispense with notice: Selwyn v. Garfit (p);
steps taken inconsistent with the theory set up by the objector:
Fry v. Moore (q). An act, to amount to waiver, must be one which
is inconsistent with the idea that the party is still going to rely
on the condition: Davis v. Dougall (r); or it must be some

(n) 11 V.L.R. 827.

(0) 1 W. & W. (L.) 148.

(p) 38 Ch. D., p. 284, per Bowen, L.J.

(q) 23 Q.B. D. 395.

(r) 15 V.L.R., pp. 432, 433, per Hodges, J.