1 C.L.R. 1988January25 • |TRIANTAFYLUDES,P.,MALACHTOS,STyUANfDES,JJ.] GEORGHIOSTSAPPIS ISORROPIMENEZOOTROFELTD., Appellants -Plaintiffs, v. KYRIACOSKALOUDES, Respondent - Defendant. (CivilAppeal No. 6794). 5 Appeal —Refusal tograntexparte application to issuean interlocutory injunction —Whether thenotice ofappeal fromsuchrefusalshould be served on the defendant — Question determined in the affirmative — Such defendant isa 'party» directly affected by the appeal — The CivilProcedure Rules, 0.35, Rules 17,5 and 2. .CivilProcedure —Ex parte applications — The modem practice of an opposed exparte motion. 10 15 20 25 The question that arose for determination in this appeal from a ruling of a District Judge dismissing an ex parte application for an interlocutory injunction iswhether the Notice of appeal should be served on the defendant tothe action or not. Held, {1)An appeal fromarefusaltograntanexparte application liesinvirtueofRule17of0.35of theCivilProcedureRules.ThisRule provides, inter alia, that «the provisions relating to appeals from interlocutory orders shall apply· to such an appeal. Rule 5 of 0.35 applies, also, to interlocutory appeals. The material part provides that the notice of appeal should be served on all parties directly affected bythe appeal.
(2)The word «party»meansa litigantinCourt.Thedefendant isa litigant who in the District Court in an ex parte application for purposes of promptness, convenience and effectiveness is not 'served andisabsent Thefact thatthe morionisexparte oughtflotto be allowed to obscure that there are two parties - the party who moves the Court and the party moved against. The defendant is directly affected by the appeal. Directionsthatnotice of the 'appeal should begiven to the defendant. 45 Isorroplmene Zootrofe v. Kaloudes
(1988)Casesreferredto: Gerling-Konzern Allgemeine Versicherungs A.G. (No. 2) w The Ship«DIMITRAKIS»andAnother
(1976)1 C.L.R.408; Gilloolyv. Gillooly[1950]2AllE.R.1118; Papastratisv. Petrides
(1979)1 C.L.R. 231; 5 Johnsonv. Pole
(1987)1 C.L.R. 311; 77ie Queen v. The Registrar of Greenwich County Court[1885] 15Q.B.D.54; Grapulin v.CartonsandConrugatedPapersPropertyLtd.
(1961)S.R. (N.S.W.)348; 10 PickwickInternationalInc(GB)Ltd. v.MultipleSoundDistributors Ltd. andAnother[1972] 3AllE.R.384. Appeal. Appeal by plaintiff against the ruling of the District Court of Lamaca (Eliades, D.J.) dated the 9th August, 1984 (Action No. 15 2143/84) whereby their ex parte application for an interlocutory order restraining the defendant from selling alienating or parting with the ownership and possession of 25 cows until the final determination of the action was dismissed. A. Andreou, for the appellants. 20 Cur.adv. vuit. TRIANTAFYLLIDES P.: The Decision of the Court will be delivered by Mr.Justice Stylianides. STYLIANIDES J.: The appellant applied by an ex parte application for an interlocutory order restraining the defendant 25 from selling, alienating or parting with the ownership and possession of 25 cows, the ownership of the defendant, until the final determination of the action. The claim of the applicant in the action is for goods (animal fodder) sold and delivered. The District Judge of Lamaca in a well considered Ruling dismissedthisapplication. Hence this appeal. 46 » 1 C.L.R. Isorroplmene Zootrofe v. Kaloudes Styllanldes J. Un the directions of counsel for the appellant neither notice of appeal, nor notice of a date of hearing was served on the defendant. Atthecommencement ofthehearingofthisappealthequestion 5 whether notice of appeal should be served upon the defendant wastaken preliminarily. Counsel for the appellant submitted that, as the proceedings before the District Court were on an ex parte application, the appeal,also,mustpreservethesamecharacterandbeheardinthe 10 absence of the defendant. Ifthe notice of appeal isserved on the defendant and he isallowed totakepartintheseproceedings, the rightsof the appellant would be prejudiced. The defendant may, inthe meantime, after beingserved withthe noticeof thisappeal, take such measures that may derogate the effectiveness of any 15 order that this Court may make in the exercise of itsjurisdiction and thus the appellant would be deprived of the fruits of his success. He argued that rule 5 of Order35of the CivilProcedure Rules, requiring service of the notice of appeal, should be construed as 20 excludingfrom itsapplication appealsinexparteapplications;and thatthedefendant inthiscaseisnot«apartydirectlyaffected bythe appeal»asthe onlyparty inthe proceedings isthe appellant. Order 35, rule 17 provided that when an ex parte application had been refused bythe Court below, an application for asimilar 25 purpose mightbemadetotheCourtofAppealexpartewithin four daysfrom the date ofsuch refusal, orwithinsuchenlarged timeas the Judge of the Court below or of the Court of Appeal might allow. Therefore, no appeal lay, but a similar application could have 30 been made, within thetimeappointed bythe rule,tothe Courtof Appeal. Bythe Rules of Court (No.2), 1953,the said rulewas repealed and substituted bythe present rule which reads:35 «17.Wherean exparte application hasbeen refused bythe Court below, anappeal shall lietothe Court ofAppeal. Such appeal shall be brought withinfour daysfrom the date of the refusal of the Court below or within such enlarged time asa Judge of the Court below or of the Court of Appeal may 47 Styllanidcs J. Isorropimene Zootrofe v. Kaloudes
(1988)allow, and the provisions relating to appeals from interlocutoryordersshallapply.» Thematter,therefore, isgovernedbytheprovisionsoftherules relatingtoappealsfrom interlocutoryorders. Rule5 ofOrder35applies,alsotoappealsfrom interlocutory 5 orders. The material part thereof provides that the notice of appealshallwithintheappropriateperiodprescribedbyrule2of thisOrder,beservedtogetherwithanoffice copyofthejudgment or order appealed from upon all parties directly affected by the appeal, and it shall not be necessary to serve parties not so 10 affected. Thisrulecorresponds torule2 ofOrder58oftheRulesofthe Supreme CourtobtaininginEnglanduntil1956. InGerling-KonzernAllgemeine VersicherungsA.G. (No. 2)v. TheShip«DMITRAKIS»andAnother,
(1976)1C.L.R. 408,the 15 appellantapplied byexparteapplication for anorderrestraining any dealingwiththe defendant shipunders.32oftheCourtsof Justice Law 1960 (No. 14 of 1960). The trial Judge refused to makesuchanorderexparteandtheplaintiff appealed.TheCourt ofAppeal indetermining whethertheappealshouldbeheardex 20 parte, without giving an exhaustive definition ofwhatis«aparty directlyaffected» byanappeal,inthesenseofrule5ofOrder35, inviewofthecircumstancesandthehistoryoftheproceedingsin that case, decided that the defendants were parties directly affected by the appeal. Reliance was placed by the Supreme 25 Courton Gilloolyv7Gillooly[1950]2AllE.R.1118. InPapastratis v.Pehides
(1979)1C.L.R.231,theappealwas directed against the Order of a District Judge dismissing an ex parte application for interlocutory injunction. Counsel appeared for the defendant inthe action, who inthe meantime had been 30 served with a copy of the writ of summons and the notice of hearingoftheappeal,andappliedtotakepartintheproceedings. Ascounselfortheappellantobjected,afterhearingarguments,the Court, on the authority of Gerling - Konzern Allgemeine Versicherungs A.G. v. The ship «DIMITRAKIS» and Another, 35
(1976)1C.L.R.408,allowedcounselforthedefendanttoappear. This Court in Major ThomasBromleyJohnson v. FelixJohn Clewett Pole,
(1987)1 C.L.R. 311 decided that, in an appeal against an order dismissing an ex parte application for 48 1 C.L.R. Isorrophnene Zootrofe v.Kaloudes Stylianldes J. interlocutory injunction, the defendant isaparty directly affected bythe appeal and heshould be served with a notice of appeal. In the administration of justice the rule audi alteram partem is wellembedded.TheCourt indeterminingdisputes,oringranting 5 a remedy, normally hears both sides. Deviation from this rule is exceptionally permissible asprovided by Law incertain specified cases.Thisisdone mainlyfortheissuepromptly andeffectively of some orders. The word «party»means a litigant inthe Court. (77ieQueen v. 10 The Registrarof Greenwich County Court [1885] 15 Q.B.D. 54, 57; Grapulin v. Cartons & Corrugated Papers Property Ltd.,
(1961)S.R. (N.S.W.)348,atpp.350, 351). Thedefendant isalitigantwhointheDistrictCourtinanexparte application for purposes of promptness, convenience and 15 effectiveness isnotservedand isabsent. In an ex parte application there are two parties -the applicant and the person against whom the remedy issought -though the application isheard inthe absence of the latter. The fact that the motion isexparte ought not to be allowed to 20 obscure that there are two parties - the party who moves the Court, and the party moved against. Itmaybesaid thatinthe early partofthelastcentury, though notusual,itwaspermissiblewiththe partymovedagainstbeingsilentlypresentandtakingno partinthe proceedings unless an injunction was granted, in which case he 25 thereupon moved ex parte to vary or discharge that injunction. Now,underthepresent procedure, thepartymoved againstisnot present and similarly he can move to vary or discharge the injunction when he learnsof it.Themodern practice ofwhat may be termed an opposed ex parte motion, as developed in 30 comparatively recentpractice,wascommended byMegarryJ., as he then was, in Pickwick International Inc (GB)Ltd., v. Multiple Sound DistributorsLtd., and Another [1972] 3 AllE.R. 384. ThisCourt, under rule8, haspower to give anyjudgment and makeanyorderwhichoughttohavebeen madeandtomakesuch 35 further orotherorder asthe casemay require. The defendant isdirectly affected bythe appeal. 49 Styllanldes J. Isorropimene Zootrofe v. Kaloudes
(1988)In view of all the aforesaid the defendant is a party directly affected bythe appeal and heshould be served withthe noticeof appeal. We direct that notice of the appeal should be given to the defendant as respondent and then the appeal to take its normal course. 5 Orderaccordingly. • \ 50