//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[1961] HCA 87
High Court of Australia
1961-07-01
Owen JJ, Macfarlan JJ, Herron J
Original judgment source is linked above.
High Court of Australia Dixon C.J. Windeyer and Owen JJ. Cole v The Commonwealth [1961] HCA 87
ORDER Objections to competency overruled with costs.
The Court delivered the following written judgment: -
We have before us two objections to competency made by the respondents to this appeal and an application for special leave to appeal by the appellant made in anticipation of the objections. The subject of the appeal and of the application is a rule or order of the Full Court of the Supreme Court of New South Wales dismissing an appeal from a verdict given by a jury in favour of the plaintiff in an action for damages for personal injuries. The appeal was not by the defendants but by the plaintiff. The jury returned a verdict for the plaintiff against all the defendants for damages assessed at the sum of £1,322. The plaintiff had suffered serious injuries and in fact had claimed £10,000 in her writ, although one may assume that this amount was named without expectation of recovering so large a figure. At the trial the plaintiff proved special damages in a sum of £272. The general damages must therefore be taken to have been assessed by the jury at £1,050. The plaintiff complained that the £1,322 was an inadequate assessment of damages and appealed to the Full Court seeking a new trial limited to the question of damages. The Full Court by a majority (Else-Mitchell and Macfarlan JJ., Herron J. dissenting) dismissed the appeal. The appellant then appealed as of right to this Court on the ground that the Full Court of the Supreme Court ought to have held that the damages awarded by the jury were inadequate. The view upon which she appealed as of right is that the order of the Full Court of the Supreme Court necessarily denied that she was entitled to any damages beyond £1,322 and that her complaint that that sum was inadequate involved a claim to a sum exceeding £1,322 by at least £1,500. The objections to want of competency assert that in this no proper basis for an appeal as of right can be found.
Section 35 (1) (a) of the Judiciary Act Cth gives an appeal from every judgment (an expression covering judgment, decree, order or sentence) which (1) is given or pronounced for or in respect of any sum or matter at issue amounting to or of the value of £1,500; or (2) involves directly or indirectly any claim, demand, or question, to or respecting any property or any civil right amounting to or of the value of £1,500. In support of the objections it is pointed out that the order of the Full Court and not the verdict of the jury or the judgment based on the verdict is the judicial order appealed from and it is that which must fulfil the conditions laid down by s. 35 (1) (a) (1) or (2). It is further pointed out that under par. (1) the order must be given or pronounced for or in respect of a sum or matter at issue, etc. Clearly the Full Court order is not given or pronounced for a sum or matter at issue amounting to or of the value of £1,500. Moreover it is difficult to say that it is given or pronounced in respect of a sum amounting to £1,500. It is after all a refusal of an order for a new trial, at which new trial a sum exceeding £1,322 by at least £1,500 would or might be in contest. As to par. (2) it is urged that the claim to a further amount of damages is not a claim, etc. to a civil right or a claim, etc. respecting a civil right. The position which the Court has taken with reference to these paragraphs is explained in Oertel v. Crocker [1] , in Ballas v. Theophilos [No. 1] [2] and in Ebert v. The Union Trustee Co. of Australia Ltd. [3] . In the lastnamed case the general rule was briefly stated: "It still remains generally true that the plaintiff must show prejudice through the order made which sounds in the required sum of money" [4] . We have not, of course, in any of these cases deserted the literal words of the two paragraphs but the principle upon which the paragraphs proceed has been explained by the Court as being that the appellant must by the order of which he complains have been prejudiced, with respect to the rights he asserts or the liabilities he denies, to an extent which amounts to or may be estimated as involving £1,500. In the present case it is true that what the appellant was denied by the order was a new trial limited to the question of damages. The new trial in itself is a remedy for the recovery of the damages claimed or some damages in respect of the claim. It does not itself amount to a sum of money nor can it be evaluated directly in a sum of money. But to deny a new trial in which it is sought to recover damages or greater damages than already awarded is to deny finally the only remedy for the purpose and therefore does prejudice the plaintiff in respect of his claim for the greater amount of damages. If that claim can be considered to involve £1,500 it should follow that an appeal against the order lies as of right. An order refusing a new trial of a verdict for £1,322 has the double effect of leaving standing a verdict and judgment for £1,322 and denying to the plaintiff any larger amount of damages. Prima facie, therefore, the case falls within the principle regarded by the Court as the basis of pars. (1) and (2), provided, however, that the plaintiff can show a foundation for the allegation that the excess she claims does involve more than £1,322 by at least £1,500. The plaintiff points in the first instance to the claim in her writ of £10,000, but we need not decide in the present case that a claim in a writ should be given any such absolute effect. We may concede that amounts named in writs may be quite unreal. In the present case it is plain enough, however, that what the plaintiff really seeks to establish by a new trial is a bona fide claim to damages which might readily be assessed at £1,500 more than £1,322. We may take it, therefore, that in the present case the plaintiff's initial figure on which she founds her prejudice is susceptible of reasonable support.
It is necessary, however, to return to the words of s. 35 (1) (a) (1) and (2). Why cannot it be said that an order refusing a new trial upon which damages might be assessed at an amount exceeding by £1,500 the amount recovered on the first trial is not given or pronounced in respect of matter at issue amounting to or of the value of £1,500? Ex hypothesi the matter at issue is at least £1,500. Why is not the order given or pronounced in respect of that matter? There seems no good reason for restricting the interpretation of the words so as to exclude such a case. Again, is it right that the words of par. (2), "any civil right", exclude a claim to a new trial to establish a money sum? The words "civil right" are wide: indeed their ambit is not easily defined. Doubtless it is true that the words of par. (1) seem to go directly to money sums and it may be argued that par. (2) is not intended to overlap par. (1). But the words which follow "any civil right" are "amounting to or of the value of". "Amounting to" seems to refer to the actual expression of a civil right in a money sum, while the words "of the value of" suggest estimation. There seems no adequate reason to restrict the words "civil right" so as to exclude a money sum or a remedy for a money sum.
In the result the order appealed from in the present case seems to fall fairly within s. 35 (1) (a). On that ground the objections to competency should be overruled with costs. It follows that it is unnecessary to deal with the application for special leave to appeal.
Cole
The Commonwealth