eae Sustems v BHP

eae Sustems v BHP - [1941] HCA 35 - HCA 1941 case summary — Zoe

[47]

Owing to changes made by the judicature rules in England and the State of Victoria there is now no such thing as a judgment of nonsuit, and the proper course appears to be that taken at the trial in the case of Fox v. Star Newspaper Company, which is reported on appeal to the House of Lords in the Law Reports (1). At the trial Russell L.C.J. refused to direct a nonsuit, and ruled that there must be a verdict for the defendant, and the jury found accordingly. The House of Lords ruled that the course pursued by the Lord Chief Justice was right. And see Rees v. Duncan (2), over- ruled on another point (Bowes v. Chaleyer (3) ). While there is a power given to the court, both in England and in the State of Victoria, to control, the court is not at liberty to supersede, the functions of the jury, and exercise the function of affirmatively finding the facts (Mechanical and General Inventions Co. and Lehwess vy. Austin and the Austin Motor Co. (4) ). Unless the control of the court over the jury is regulated in accordance with the law and confined within the proper limits, trial by jury would have no meaning. According to the practice of the courts of common law, trials at nisi prius were, in substance, inquiries as to facts, and no judgment could be entered except by the court in bane, the judges of which exercised the right of granting in their discretion a new trial, if there appeared to have been any miscarriage on the trial (Dublin, Wicklow and Weaford Railway Co. v. Slattery (5), per Lord Blackburn). The record with the jury's finding came before the court in banc, and if the unsuccessful party took no further pro- ceedings the court gave judgment for the party who had obtained the jury's verdict. An unsuccessful party had the right to challenge the judgment against him, and one method of domg so was by an application for a new trial - a practice which came into existence in the seventeenth century. Applications could be made for a new trial on the following, among other grounds: that the jury's verdict was perverse or against the weight of evidence; and in the case of a plaintiffs application there might have been added, in appropriate circumstances, an application to set aside a nonsuit. If a plaintiff were successful on an application for a new trial or to set aside a nonsuit, the court ordered a new trial. The courts at Westminster, however, could not direct a verdict to be entered unless leave had

[53]

Since the coming into operation of the judicature system in England and the State of Victoria the verdict of a jury may be set aside by an appellate court and under certain conditions disregarded by the trial judge. An application can be made to the Court of Appeal in England and to the Full Court in the State of Victoria for a new trial. In the State of Victoria the judge at the trial has not the power to direct a new trial (Driver v. War Service Homes Commissioner (No. 1] (3) ). As a matter of historical interest it may be noted that until 1890 this power was exercised in England by a Divisional Court, and since then by the Court of Appeal: See 53 & 54 Vict. c. 44. Sec. 34 of the Supreme Court Act 1928 of the State of Victoria empowers the Full Court to hear motions for new trials. The procedure relating to new trials is regulated by Order LVIIL. of the Rules of the Supreme Court, and rule 1 thereof specifically refers to applications to set aside verdicts. It appears now to be established that an appellate court is not bound to order a new trial, but may give the appropriate judgment, notwithstanding the jury's verdict: See Baird v. Magripilis (4), per Starke J. 1 think also that under the system created by the judicature Acts and rules it is a well-established practice that a jury's verdict may be disre- garded by agreement, whereby leave is reserved to the unsuccessful party to move for judgment notwithstanding the jury's verdict. Such a reservation was '"'always in the nature of a convention between the judge, the jury and the counsel" (Hollins v. Fowler (5) ; Slade v. Victorian Railways Commissioners (6)). '' Leave reserved " has also been defined as meaning a compact between the parties that the case should go on (Hudson v. Victorian Railways Commis- sioner (7) ). The Rules of the Supreme Court do not, in my opinion, permit a judge at the trial to disregard a jury's finding except there is such a convention or compact: See also the remarks of Isaacs J. in Maye v. Colonial Mutual Life Assurance Society Ltd. (8). A

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great difference exists between a finding by the judge and a finding by the jury. " Where the jury find the facts, the court cannot be substituted for them, because the parties have agreed that the facts shall be decided by a jury" (Jones v. Hough (1), per Bram- well LJ.) and a party who has insisted upon his right to a trial by jury, has that right of which he cannot be deprived by the court (Jones v. Hough (2), per Collins L.J.). The only rule of the Rules of the Supreme Court which appears to be relevant is rule 32 of Order XXXVI., which provides that a judge shall at or after trial give judgment for any party; or leave any party to move for judgment. If this rule could be construed as giving power to a judge to give any Judgment he thought proper without regard to the jury's verdict the right of a party to have issues of fact tried by a jury would be valueless. A judge could then say: "TI disagree with the jury's conclusion on the facts", and substitute his own view of the facts for that of the jury. It is well-settled law that where there is evidence to support a verdict this verdict cannot be disregarded even if the trial judge were strongly against the conclusion at which the jury arrived. Rule 32 is a procedural rule and, in my opinion, does not authorize a judge to substitute his own conclusions on the facts for those of a jury and give judgment accordingly. One of the objects of this rule was to obviate the necessity of moving for judg- ment. A trial judge cannot ignore the verdict of the jury unless there has been a reservation of leave whereby the unsuccessful party can move for judgment, notwithstanding the jury's verdict. A somewhat similar rule was discussed by counsel in Perkins v. Dangerfield (3), and in this case the court apparently considered that the trial judge had no power to disregard the finding of the jury. As pointed out in Musgrove v. McDonald (4): " According to the practice of courts of common law . . . the only way of taking exception to a verdict of a jury was by application for a new trial, and that a party who did not adopt that method was not in a position to dispute the facts as found by the jury." Similarly, in my opinion, a party against whom the jury has given a verdict cannot upon the trial dispute that verdict unless leave has been reserved enabling him to move for judgment despite the jury's verdict. The power of a judge at nisi prius is well defined by FitzGibbon J..in Power v. Dublin United Tramways Co. (5), where he says : - " A judge sitting alone at nisi prius has no jurisdiction to set aside or disregard a finding of a jury, and he cannot direct a jury to find a verdict

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to them as manager, if he continued to do substantial work under that contract, then he would be entitled to his full share of profit ; the mere fact that he was a bad manager and of little use to them would not take away from him the right to his share of the profits." Later he said : - " If there was neither abandoning nor any implied rescission of the contract, then you are asked: Did he substantially perform the conéract - that is, do substantially his 160 hours a month up to January and thereafter substantially his fifteen hours a week? Of course, if he did occasionally some little thing such as the signing of the tender . . . that of course would not be substantial performance. It is a question of whether he substan- tially performed the contract. If he did substantially perform - no matter if he did it badly, or whether he was manager in nothing but name - if he was willing to perform and did his best to perform, he would be entitled to his full share under the agreement." I do not understand this direction. No doubt there are cases in the books in which defective work has been done under a special contract or goods supplied under such a contract but not in conformity therewith and a deduction allowed from wages or from price because the defendant accepted and retained the benefit of that which was actually done or supplied (Farnsworth v. Garrard (1) ; Read v. Rann (2); Sagar v. H. Ridehalgh & Son Ltd. (3); H. Dakin & Co. Ltd. v. Lee (4)). The obligation to pay for the work done, goods supplied, or services rendered arises from the defendant having taken the benefit of the work done, goods supplied, or services rendered (Sumpter v. Hedges (5); Cutter v. Powell (6) ). So also it has been held that a person who rendered services under an agreement which was in fact void was entitled to recover for the services rendered upon the. basis of a quantum meruit (Craven-Ellis v. Canons Ltd. (7)). And the Statute of Frauds, it seems, is no.answer to such an action (Scott v. Pattison (8) ; Horton v. Jones (9)). Again, there are cases in which it has been held that slight or trivial omissions in the completion of a contract did not prevent the enforcement of the contract (Lowther v. Heaver (10); Wilkinson v. Clements (11); Hudson on Building Contracts, 5th ed. (1926), pp. 204, 205).

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from his Honour's summing up : - " The two positions set up by the parties are shortly these. Plaintiff says: 'I did fulfil the letter of the contract right up to January 1940, then you made a concession that I should work fewer hours. I accepted that position and there- after I worked those hours.' The case for the defendant is that ' from October 1940 you' (the plaintiff) ' walked off the job and did nothing under the contract at all' . . . But there may be another position which arises from these positions, although neither side has put such a position. It may be you will not accept the evidence of either side absolutely, and you may possibly come to the position that the plaintiff, whilst not abandoning his contract, did not perform it, and that both parties thereafter, without words being spoken, regarded the contraet as at an end, impliedly agreed that this con- tract should be rescinded. If you do come to such a conclusion then the plaintiff would be entitled to a pro-rata share of the profits for the year." The evidence that the plaintiff worked according to the letter of the contract until 15th October 1939 was not denied, and it was agreed that the profits earned in the year ending 30th June 1940 were £14,500. At the conclusion of the summing up the learned trial judge invited the jury to answer a number of questions. The fifth question was: "Did the plaintiff and the defendant impliedly agree that the contract was to be determined? If so when did this happen?" It appears from the transcript that the defendant's counsel made this application to the learned judge: "T ask your Honour to reserve me leave to move if the jury make a finding under question 5, which results in the plaintiff obtaining a verdict of any portion of the amount claimed - leave to reserve to apply to your Honour that no judgment should be entered in accordance with that verdict because it is not pleaded and there is no evidence to support it." His Honour acceded to the application in these terms: " Very well." ;

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generally " (Bacon's Abridgement, 7th ed. (1832), vol. vimr., p. 98). "A general verdict is a finding by the jury in the terms of the issue or issues referred to them " (Lvdd, Practice of King's Bench and Common Pleas, 7th ed. (1821), vol. 2, p. 896 ; Cutts v. Buckley (1) ). His Honour, however, inferred from the amount at which the damages were assessed, that it was an ascertained fact that the plaintiff did not carry on as manager after 15th October 1939. The judgment which he gave was that which his Honour considered to be applicable to that fact. His view was that there was no evidence upon which the jury could properly find that the parties mutually agreed to the rescission of the contract upon the terms that the plaintiff should receive payment for the time served since 1st July 1939. The validity of his Honour's judgment depends upon the question whether it was right to say that it was an ascertained fact that the plaintiff did not carry on as manager after 15th October 1939. The jury, as has been observed, declined to find that fact specially. The fact does not appear on the record upon which the learned judge gave judgment. The fact could not be supplied under Order XL., rule 5. The judge did not do so. He did not infer the fact from the evidence. If he had done so, he would have usurped the province of the jury, to whom all the issues in the case were referred. What his Honour did was to interpret the verdict and the damages as a special finding of fact. But it is difficult to see how an interpretation can be right which replaces a verdict for the plaintiff by a judgment for the defendant. As the damages were assessed on a general verdict, they cannot be ascribed to one issue rather than another. If they are ascribed to the issue raised by the written pleadings, they are less than what could have been awarded. If they are to be ascribed to the other issue, the assess- ment would fall with the verdict if there is no evidence to sustain it. The trial judge cannot surmise upon what issue the jury assessed the damages. It is just as likely that the jury arrived at a com- promise on the issue raised by the written pleadings as that they found for the plaintiff on the other issue. If there was not sufficient evidence to support a verdict upon both issues, that may be a reason for setting aside the verdict and ordering a new trial. The judgment which the law required to be given on the record was a judgment in accordance with the verdict which the jury found and the amount of damages which they assessed on the verdict.

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involved a definite change in the contractual relations of the parties. The plaintiff did not aver or prove that he was ready and willing to perform the original condition during the final six months, It is clear that he required the remitted time to devote to his own practice, and that he was incapable of performing it as he could not be in two places at once. It was never intended after January that the defendant should retain the right to change its mind and demand that the plaintiff should again give his full services for the balance of the term. To explain his failure to work the full time for the last six months he was driven to rely on the assent of the defendant to allow him to vary the terms of the original contract. Tf the contract had been for the sale of a definite quantity of goods over the value of ten pounds fora lump sum, to be delivered by instal- ments within a certain period, an arrangement altering the dates and amounts of deliveries would only have related to the mode of performing the existing obligation, so long as the seller still remained liable to deliver the total quantity, but if the new arrangement was that a smaller quantity should be delivered for the same lump sum this would be a variation substituting a new contract for the original contract, and I can see no distinction in principle between such a variation and the one here in question. It was in fact an agreement for a variation of the original contract similar to those in question in Harvey v. Grabham (1) ; Goss v. Lord N ugent (2) ; Stead v. Dawber (3); Marshall v. Lynn (4); Géraud vy. Richmond (5); Sanderson v. Graves (6); and Cutts v. Taltal Railway Co. Ltd. (7). In all these cases the plaintiff sought unsuccessfully to prove a subsequent arrangement, which the court considered to be a parol variation of his original obligation as distinct from a mere substituted mode of performing it. Here the plaintiff sought to enforce the original contract, but his own evidence showed he had not performed it, but had performed a new and unenforceable agreement consisting of the original contract as varied by a subsequent agreement in J anuary. He did not sue on the original deed as so varied. If he had done so the defendant could have pleaded want of writing, and absence of authority in the managing director to agree to such a variation. Express authority would have to be proved, because no such authority could be implied, since it would not be within his ordinary powers to promise the plaintiff such an indulgence (British Thomson-Houston

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Oo, Ltd. v. Federated European Bank Ltd. (1) ). If he had been able to overcome the absence of authority and to establish an oral contract, he might have been able to sue upon a quantum merwit relying on the authorities quoted by Jordan C.J. in Horton v. Jones (2): "If a person does acts for the benefit of another in the perform- ance of a contract which is unenforceable by reason of the fourth section of the Statute of Frauds, and the other so accepts the benefit of those acts, or otherwise behaves in relation to them, that in the absence of the unenforceable contract, the former could maintain an action of debt upon the common money counts, he may sue in indebitatus to obtain reasonable remuneration for the executed consideration (Gray v. Hill (3); Mavor v. Pyne (4); Savage v. Canning (5); Knowlman v. Bluett (6); Merrell v. Loft (7); Scott v. Pattison (8); Law Quarterly Review, vol. 41, p. 79). In such a case the action is in indebitatus only. The existence of the unen- forceable contract prevents a new contract, in respect of which special assumpsit could be maintained, from being implied from the acts performed (Britain v. Rossiter (9)) and the unenforceable contract may be referred to as evidence, but as evidence only, on the question of amount (Scarisbrick v. Parkinson (10) ; Ward vy. Griffiths Bros. Ltd. (11))". To the above cases can be added the subsequent decision of the Court of Appeal in Craven-Ellis v. Canons Ltd. (12). In my opinion, therefore, the cause of action alleged in par. 2 of the statement of claim failed in law on the plaintiff's own evidence. He also sued for the same sum for work and labour done for the defendant at its request. This was also a claim in respect of services rendered in accordance with the deed. The plaintiff might have performed the oral agreement substantially, but have done some part of his work insufficiently or badly and have yet recovered to the extent to which the defendant had benefited from his services (H. Dakin & Co. Lid. v. Lee (13)). But after January the plaintiff failed to perform a substantial part of the agreement, and he could not be said to have fulfilled, even insufficiently, the condition of giving 160 hours every four weeks to the defendant's service which he had to perform to become entitled to the amount sued for (Cutter vy. Powell (14); Sumpter v. Hedges (15) ; Small & Sons Ltd. v.

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trial bringing to light other material facts which might alter the result - See under Order XL., rule 10: Bryant v. North Metropolitan Tramways Co. (1); Hamilton v. Johnson (2); Chapleo v. Brunswick Building Society (3); Bobbett v. South Eastern Railway Oo. (4) ; Everett v. Griffiths (5); under Order LVIII., rule 4: Millar vy. Toulmin (6); Allcock v. Hall (7); Paquin Ltd. v. Beauclerk (8) ; Winterbotham Gurney & Co. v. Sibthorp & Cox (9); Banbury v. Bank of Montreal (10); Calmenson v. Merchants' Warehousing Co. Ltd. (11); Croker v. Croker (12); Mechanical & General Inventions Oo. and Lehwess v. Austin and the Austin Motor Oo. (13); Canada Rice Mills Ltd. vy. Union Marine and General Insurance Co. (14). Since a single judge in Victoria cannot order a new trial, and the judgment must not be inconsistent with the findings of the jury, it would seem that he cannot give judgment for the defendant, where the jury have found for a plaintiff who has to discharge the onus, on the ground that the verdict is against the weight of evidence where there is some evidence on which they could reasonably find for the plaintiff (Banbury v. Bank of Montreal (15) ; Winnipeg Electric Co. v. Geel (16); Driver v. War Service Homes Commissioner | No. 1] (17) ). But the powers conferred upon the court by Orders XXXVI, tule 32, and XL., rule 5, appear to me to be ample to enable him to do so, where he is satisfied on reconsideration there is no such evidence. There cannot be any distinction in principle between the case where there is an issue of fact which the trial judge leaves to the jury because he considers at the time there is some evidence upon which they could reasonably find for the plaintiff and they disagree, and that where they find for the plaintiff. In Bobbett's Case (18) Denman J. left to the jury the question whether the plaintiff had since 1864 had possession of the premises to the exclusion of the defendant. The jury were unable to agree, and were discharged ; but, both parties claiming the judgment, he reserved the case for further consideration, and having heard it argued gave Judgment on the several points discussed. The following passages appear in the report : - '' This brings me to the question whether upon the undisputed facts proved at the trial and set forth above, I ought to

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that question arises I understand the proper test to apply is to consider whether there is evidence such as if left to the jury would warrant them in finding a verdict for the plaintiff, which the court would not be clearly bound to set aside as wholly unreasonable. If there be such evidence there ought to be a new trial; if not, in the absence of any ground for thinking that further light could be thrown upon the matter by a new trial, judgment ought to be entered for the defendant. Applying this test to the present case, I am of opinion that I ought to enter judgment for the defendants On the whole I am of opinion that there was no reasonable evidence upon which a jury could have found that the defendants had been out of possession since 1863 or 1864, by reason of any exclusive possession or tenancy of the plaintiff . . . For these reasons Tam of opinion that if the jury had found a verdict for the plaintiff, on the question I Jeft to them, or if it had been left to them to say whether the plaintiff occupied in 1864 or since as tenant or as mere licensee, and they had answered that he occupied as tenant, such verdict could not have been allowed to stand as being wholly unreasonable and unsupported by the evidence; and therefore that there ought to be judgment for the defendant under Order XL., tule 10. I give judgment for the defendants accordingly with costs " (1). His decision on the question of evidence was affirmed by the Court of Appeal (2). Peters v. Perry & Co. (3), Everett v. Griffiths (4) and Paquin Ltd. v. Beauclerk (5) are similar cases. In Milissich v. Lloyds (6) the Court of Appeal pointed out that under Order XL., tule 10, it had power to order judgment to be entered in the same way as the judge at the trial as a matter of law should have directed it to be entered, but the court had no power to withdraw questions of fact from the jury which were properly for their consideration. The functions of the judge and jury under the Judicature Rules were succinctly stated by Mellish L.J.: - " The question before us is an important one, as to the power of the court to enter judgment under the Judicature Acts. Now, although the Judicature Acts do undoubtedly give very general powers to the court as to entering judgment, it is clearly not intended by the legislature that the court should take advantage of that general rule to take away questions from the consideration of the jury, which are questions of fact properly for their consideration" (7). Brett J.A. said : - " It is a recognized

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