Couneil v 'Nol Pty

Couneil v 'Nol Pty - [1945] HCA 52 - HCA 1945 case summary — Zoe

[112]

greater effect per se than that of a jury. There is no decision within the meaning of s. 39 (2) of the Judiciary Act other than the decision of the Full Court of the Supreme Court. The word " judgment " as used in the State legislation does not refer to a decision of the court but to a judgment entered up on a jury's finding. The legislation puts what more accurately should be described as a finding of a judge in something like the same position as a verdict of a jury. The com- petent court under reg. 60¢ (8) is the Supreme Court in its totality. Roper J. was empowered to enter judgment only if there was not an appeal. Regulations 60D, 60¢ and 60x create a new right to compen- sation and that right is justiciable only in accordance with the Regula- tions (Schweppes Ltd. v. The Commonwealth (1) ). The investiture of the jurisdiction in the Supreme Court to hear a review under the Regulations is made by the Regulations and not by s. 39 (2) of the Judiciary Act. This course is permissible under s. 5 (1) (ac) of the National Security Act 1939-1943. Section 18 of that Act gives the Regulations effect where they are inconsistent with existing law. The words in s. 39 (2) of the Judiciary Act do not mean that, wherever and by whatever means State courts become invested with Federal jurisdiction, such investiture shall be upon the conditions of that sub-section unless there is something to the contrary in the context. The Regulations are special investing provisions and exclude the special provisions of the Judiciary Act. Consistent with all the decisions in respect of s. 39 (2), conditions of the jurisdiction conferred by the Regulations can be imposed which are different from s. 39 (2). An additional circumstance is that reg. 60¢ (8) excludes the original jurisdiction of the High Court. Also, the District Court of New South Wales, which has no juris- diction in an action against the Commonwealth, does not get juris- diction under reg. 60c (8). The District Court would not have jurisdiction under s. 39 (2) by reason of the limitation contained in s. 56 of the Judiciary Act. At common law the entry of a judgment on a verdict is ministerial (Parkin v. James (2)), and the Privy Council has regarded the ministerial judgment entered up on the verdict as not being appealable to it (Nathoobhoy Ramdass v. Mooljee Madowdass (3), Tronson v. Dent (4) ). Section 39 (2) does not take a verdict in the Supreme Court, or a judgment founded upon it, out of the operation of the procedure of the State (he Commonwealth v. Brisbane Milling Co. Ltd. (5) ). Section 5 (1) of the Supreme Court Procedure Act makes the judge's finding no better than a verdict.

[115]

By virtue of s. 5 (2), the direction of a judgment to be entered is the equivalent of signing and the signing is ministerial assimilating completely a judgment directed to be entered by a judge under the Supreme Court Procedure Act to a judgment signed under verdict. The observations in Brisbane Shipwrights' Provident Union y. Heggie (1) have no application to this case, because, by the time a judge came to make the award, he would have determined the facts and directed himself, and any objection to his award would be an objection either to his finding, as being for want of evidence, or an objection to himself in point of law: See Fieman v. Balas (2), McDonnell & East Ltd. v. McGregor (3) and Hazeldell Ltd. v. The Commonwealth (4). The appeal from the decision of Roper J. to the Full Court of the Supreme Court was, by reason of s. 5 (12) of the Supreme Court Procedure Act, in the nature of a motion for a new trial, it was not an appeal in stricto sensu. Alternatively, it was a motion for judgment under the Supreme Court Procedure Act. Under s. 5 (7)-(10), an appeal is a complete re-hearing. Briefly, the Regula- tions invested the Supreme Court. The Supreme Court, when it hears an action under its procedure, has a verdict and a judgment on a verdict ; it has a new trial motion so that when giving to the Supreme Court this jurisdiction with the powers, practice and pro- cedure of that court, the Regulations gave to the Supreme Court the power to entertain what is called an appeal but what is in reality a motion for a new trial or for a judgment on the findings as challenged. Therefore what took place before the Full Court was within the regulation, within its contemplation, and was competent to the Court. This result would follow without the presence in sub-reg. 7 of the word "appeals." The finding of Roper J. was not a decision of the Full Court within the meaning of s. 39 (2) (a). The decision to enter judgment on that finding - assuming Roper J. to have so directed - was not a decision of the Court in respect of which an appeal would lie to the Privy Council. An appeal will not lie to the Privy Council from a judgment entered upon a verdict. On its true construction, s. 39 (2) (a) is limited to decisions of the Full Court after its own internal machinery is exhausted (Kreglinger & Fernau Ltd. vy. The Commonwealth (5) ). Tf the foregoing submissions are not accept- able to the Court, then Brickworks Ltd. request, that it be granted special leave to appeal to this Court.

[190]

any issue of fact or amount of damages or compensation pursuant to this Act shall be of the like force and effect in all respects as the verdict or finding of a jury." The section was not introduced by the words " Subject to the provisions of this section " and sub-ss. 2 to 13 were not contained in the Act as originally passed. In Hazeldell Ltd. y. The Commonwealth (1), decided in August 1924, Mr. Justice Isaacs considered s. 5 as it then appeared, in its original form, and pointed out that a trial judge sitting under the Act of 1900 could only give a verdict, and not a judgment of the court. His Honour criticized the effect and operation of the Act in this respect in very pointed language. Soon afterwards, s. 5 was amended by the Parliament of New South Wales by the Administration of Justice Act 1924. This Act added sub-ss. 2 to 13 to s. 5. In my opinion, the object of the amend- ment was to remove the basis of the criticism of Isaacs J., and the amendments, I think, have effectively achieved this object. Sub- section 2 provides that nothing in the section shall authorize judg- ment to be signed on the verdict or finding, but that " judgment may be directed to be entered as provided in this section, and the entry shall have the like force and effect in all respects as the signing of judgment." Sub-section 3 provides that the court may direct judgment to be entered for any or either party, and for that purpose the court may be held and its jurisdiction may be exercised by the judge, and either at or after the trial. This provision, in my opinion, brings about the result that when an order is made by a trial judge sitting in pursuance of the Act the order made is a judgment of the court. Sub-section 5 provides that any,judgment directed by the judge to be entered under the provisions of the section shall, unless there is an appeal as provided in the section against the judgment, have the same force and effect in all respects as the judgment of the court ; and sub-s. 6 provides that any party may appeal to the court against any judgment so directed by the judge to be entered. This last provision clearly differentiates an order made by a judge sitting under the Act from a verdict of a jury. Sub-section 7 provides that the appeal shall be by way of rehearing. Sub-section 9 provides that " the Court may on the appeal give any judgment and make any order which ought to have been given or made in the first instance." These provisions appear to me to be quite inconsistent with the view that the decision of a single judge sitting under the Act has and has only the same operation and effect as the verdict of a jury. If that were the case, the provisions to which I have just referred could not be applied. It would be impossible upon that view for a Full Court ever to allow an appeal in such a case because the only question (1) (1924) 34 CLLR. 442.

[258]

; "i s. 39 (2) of the Judiciary Act 1903-1940, the Commonwealth Parliament, in conferring Federal jurisdiction on the several Courts of the States, imposed conditions and restrictions including a pro- vision that every decision of the Supreme Court of a State shall be final and conclusive except so far as an appeal may be brought to the High Court. '' Now there is only one Supreme Court, though there are several Judges. Sometimes two or more Judges sit together as the Court, in many cases one Judge exercises the jurisdiction of the Court, but in every case the judgment of the Judge or Judges is in law the judgment of the Supreme Court " (Saunders v. Borthistle (3) ). The law of a State may enable a single judge of the Supreme Court to give a judgment which operates as the judgment of the Court unless and until it is displaced by a judgment of the Supreme Court in bane, and it may also give what is, in effect, an appeal from Caesar unto Caesar, by providing for an appeal to the Court in bane from a judgment of the Court given by a single judge. In such a case, a decision by a single judge is only provisionally a decision of the Supreme Court. It becomes one definitely if no appeal is brought to the Court in banc; but, if there is such an appeal, it is the decision of the judges sitting in banc which becomes the decision of the Court. In either case, an appeal lies to the High Court from the decision, which is none the less a decision of the Supreme Court whether it has been allowed to rest as given by a single judge or has proceeded, by reason of an appeal, to the stage of a decision given by the Court in bane (Parkin v. James (4)). When a decision is given in the exercise of Federal jurisdiction, s. 39 (2) (a) of the Judiciary Act prevents an appeal from any decision of the Supreme Court to any tribunal dehors that Court other than the High Court. But I ean see nothing in either the language or the framework of the section which prevents a litigant, who is desirous of obtaining a decision from the Supreme Court exercising Federal jurisdiction, from proceeding within that Court to obtain it by first getting a decision of a single judge, as the initial stage of the process, and then going on, if he finds it necessary, to get a decision of judges sitting in banc as the final stage of the process. No doubt, no appeal lies to any outside

[320]

Wituiams J. - Lhe Minister of State for the Army v. Parbury Henty & Co. Pty. Ltd - The Minister of State for the Army v. Carrier Air Conditioning Ltd. - As these two appeals have been heard together and raise the same question of principle, although they differ in their facts, they can be conveniently disposed of in the same judgment. Each company was dispossessed of premises, which it was occupying for the purposes of its business, under the authority conferred upon the Minister by reg. 54 of the National Security (General) Regulations and had to make new arrangements to carry on that business else- where. Hach company was dissatisfied with the amount of com- pensation awarded by the Central Hirings Committee, and applied to have the loss and damage which it had suffered, and for which it was entitled to be compensated under reg. 60D, assessed by a Com- pensation Board. The Minister, being dissatisfied with the amounts awarded by the Board, applied to the Supreme Court of New South Wales to have the assessments reviewed. The reviews came on for hearing before Roper J., who reduced the amounts awarded by the Board, whereupon the companies appealed to the Full Court of New South Wales, no objection being taken by the Minister to the com- petence of the appeals, and in each case the Full Court restored the award of the Board. The Minister then appealed to this Court against the orders of the Supreme Court, no ground being taken in the notice of appeal that the Full Court was incompetent to entertain the appeals from Roper J. When the appeals came on for hearing in this Court, counsel for the Minister raised the point for the first time that the Full Court was incompetent and submitted that he was entitled to have the appeals allowed with costs and the orders of the Full Court set aside with costs. He relied on two recent decisions of the House of Lords, Benson v. Northern Ireland Road Transport Board (1) and Westminster Bank Ltd. v. Edwards (eae ate the effect of upholding the point would be to restore the orders of a Roper J. so as to make them unappealable, the point would have considerable practical importance, but since, in the circumstances, it would be proper to grant the companies special leave to appeal, it becomes somewhat academic. But the decisions cited would appear to constrain the Court to consider it, although, if it succeeded, the question of the proper order for costs would require consideration.

[340]

The established principle upon which compensation should be assessed is to ascertain the value of the property taken to the person dispossessed (Horn v. Sunderland Corporation (1)), and for this purpose to estimate what sum a reasonably willing vendor could have expected a reasonably willing purchaser to pay, if he had been willing to sell his proprietary interest with all its existing advantages and future possibilities on the date of dispossession. In the present case, each company was occupying the premises of which it was dispossessed for the purposes of its business. In the case of Parbury Henty & Co. Pty. Ltd., it is not disputed that it was paying the full rental value of the premises at Grace Building, so that as lessee it was fully compensated by the Minister's indemnity. But the premises had the additional existing value of being so situated and equipped that it was an advantage to the company to occupy them and carry on its business there. In the case of Carrier Air Conditioning Ltd., the Minister carved a temporary slice in the nature of a lease out of its proprietary interest in the Bourke Street property for which compensation would be payable in the nature of rent. These premises also had the additional value that they were so situated and equipped that it was an advantage to the company to occupy them and carry on its business there. The right to com- pensation arises at the moment of acquisition, just as the proprietary right of the owner of property upon a voluntary sale is converted into a right to receive the purchase money when the contract is made. The amount of compensation, being a matter of assessment, can, like damages, be calculated in the light of any subsequent facts to the extent to which they throw light upon the items of value which can properly be taken into account in the calculation, having regard to the circumstances existing at the date of acquisition (Australian Apple and Pear Marketing Board v. Tonking (2); McCathie v. Federal Commissioner of Taxation (3) ). Tn the present case it would have been reasonable for the companies, as willing sellers of the proprietary interests acquired by the Minister, to have claimed, not only for the value of the proprietary interests so acquired, but also for what can be compendiously called the expenses of removal into premises at least as commodious and congenial, taking a broad view of the matter, as those of which they were dispossessed. If, instead of moving into such premises, the company moved into less commodious premises, it would be the Minister and not the company which would benefit, if the claim which could reason- ably be made for the expenses of removal was thereby reduced. If

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Judgment (360 paragraphs)

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