Johansen v City Mutual Life Assurance Society Limited [1904] HCA 43

Appeal allowed, with costs against the respondent. Decree nisi for dissolutic of the marriage, with costs, to be absolute in three months. Costs of sui to be paid by co-respondent.

CAW (HIGH COURT OF AUSTRALIA.) JOHANSE! ee ; PLAINTIFF; a CITY MUTUAL LIFE ASSURANCE : SOCIETY, LIMITED... } hs

H.C. or a, Practice - Special leave to aypeal - Grounds for granting - Matter of public interat 1904. - Not granted on mere questions of fact - Judgment appealed from unattended ray) with suficient doubt,

Sypyey, Special leave to appeal to the High Court from a judgment of the Supreme

Dec. 13. Court of a State, in a case involving less than the appealable amount, will at = be granted by the High Court where the questions involved are mere questions

Grn 0.3, of fact, nor, even in a case involving an important question of law, if the

oConmor 3 judgment from which leave to appeal is sought appears to the Court to be 'unattended with sufficient doubt to justify the granting of leave. j

• paty Tiegraph Newopaper Co. Ltd. v. McLaughlin (1 C.L.R., 479); H.C. ov A. {198}, A.C., 776), followed. i : 1904, "Applicaton for special leave to appeal from the judgment of the Supreme - - - 'Court of Queensland ([1904] St. R- Qd., 288), refused. Tesanby, Fs Crry Morvan "Monos for special leave to appeal ine Assi This vas an action brought by the applicant as executrix of {norm Johansen, deceased, to recover £150 and bonuses under a = - - iy of assurance effected by the deceased with the defendants in his own life. At the trial Cooper C.J., who presided, sub- ied to the jury a great number of questions, all of which, with "te exception of two, the jury found in favour of the plaintiff {is Honor, upon the findings of the jury, gave judgment for the 'pintff for £109 13s., the amount to which the jury found that he was entitled. The defendants appealed to the Full Court to have the judgment side on the ground that the findings of the jury in the plain- 'tif' sfavour were against the evidence, or to have judgment entered 'forthe defendants on the ground that the judgment was contrary tolw. | The Full Court, after argument allowed the appeal with costs 'and ordered a new trial (1). "The facts sufficiently appear from the judgment. "Hart for the applicant. An important question of law is involved, affecting insurance companies in general, viz., the con- uction of an article of association: Sun Fire Office v. Hart (2). is also a question of estoppel and of the authority of 'gents: Ruben v. Great Fingall Consolidated and others (3); werstaff v. Rowatt's Wharf Limited (4). 'There is also a ques- narising on the construction of sec. 22 of the Life Asswrance

ing with the decison of a Court of first instance on questions

fact 'The case has aroused considerable public interest and tention in the State.

The judgment of the Court was delivered by Gainer C.J. In this case a great numberof questions of fact and

(1004) St. R. Qa., 2x8, , . (3) (1904), 2K.B., 7 ) W App. Cas., (4) (1896), 2 3

it "ah °F A: of Jaw were raised before the Supreme Court of Queensland,

• • case is under the appealable amount, and the question is whether Jomaxsex we ought or ought not to follow the practice we have already laid. Cry Mervar down for ourselves of not granting special leave to appeal unl Kut SUK. we are of opinion that the case is one of gravity, or involvingsome Lure. important question of law, or affecting property of considerable "value; or unless itis a ease which is otherwise of public importanes,

As was pointed out by the Privy Council in the recent applica tion by the Daily Telegraph Newspaper Co.,in the Daily Telegraph Newspuper Co. v. McLaughlin (1), they would not grant special leave to appeal, even though those conditions I have mentioned existed, if it appeared that the decision sought to be appealed from was plainly right or was unattended with sufficient doubt to justify His Majesty in granting special leave to appeal.

Now, in the present case, it is said that the matter is one of gravity and involves a matter of public interest, but only in the sense, we are told, that the public takes great interest in the case, That is not the meaning of the term as used in our judgment in the ease of Dalgarno vy. Hannah (2). It does not affect property of considerable value, and is not a case of public importance, except as between the plaintiff and the defendants, nor is it of a very substantial character.

The only point remaining is, can it be said to involve an im portant question of law. One question is whether there was any evidence to go to the jury that the assured had repaid a loan of £10. That is a dry question of fact, and the Supreme Court of Queensland was of opinion that there was no evidence of it. It is not the practice of the Privy Council, as was pointed out in MeLaughlin's Case, to grant special leave to appeal on mere questions of fact. It is not necessary, therefore, for us to express any opinion on the point here. Another question was whether the defendant company's resident agent at Brisbane had authority to perform functions which by the articles of association of the company are conferred upon the Board; and that again was @ question of fact, which the jury found in that instance against the applicant. The only thing that is really left that can be

«ly considered, is the question of law that has arisen as to "jjeeostraetion of the defendant's articles of association.

[Article 58 it is provided that all premiums are payable on Jefore the day ov days set forth in the policy, or within one 'ulendar month thereafter, and that in the event of default in nent of any premium, the policy shall lapse and be void; id that within twelve months after default the Board may such policy on such terms as they may deem equitable. By Article 60 it is provided that a policy shall acquire a er value after three years payments have been made, and iat the failure or omission to pay the premiums shall not render te policy void as long as the surrender value, as fixed by the 'urd, is in excess of any loan thereon, and is sufficient for the pyment of the premium then due.

Beading these two articles together, the Supreme Court were sfopinion that, as the surrender value was not sufficient to cover theamount of the loan and the premium due, Article 58 applied, ai the poliey lapsed and became void, subject to the proviso that. rithin twelve months the Board might renew on such terms as it ened equitable. Tn this ease the twelve months had elapsed with- sat the Board doing anything to renew the policy. 'The short 'gestion of law is whether the policy was then dead or void, and we tasked to say that it is important that it should be argued mlether the words " within twelve months after default" govern tlepower of the Board. That does not seem to be a difficult fim oflaw. It may be an important question of law, perhaps, mithin the rule apparently followed in the Swn Fire Office v. Aart (1), where, although it was a case only of the construction tfachause in a fire insuranee policy, the Privy Council granted 5 leave to appeal on the ground that the same question Hel'to1a great number of other policies. But, supposing that 'San Important question of law in the present case, another on must be found, in the opinion of the Privy Council. thet judgment they said they would not grant such an tion "if the judgment from which leave to appeal was Dis a Plainly right or unattended with sufficient doubt to ir Lordships in advising His Majesty to grant special

H.C. oF A. leave to appeal." Applying these words here, the appli 1904. should not be granted, if the judgment was plainly right or Jouaxses tended with sufficient doubt to justify us in granting special leay

ur Morea # appeal in a ease below the appealable amount. 'The point

Lire Assor- law decided is that the words "within twelve months after

"Tress, " default" are to have their natural meaning, and that does seem to us to be attended with serious doubt. That being only question in the ease of sufficient importance to justify

Solicitor for applicant, #. Pugh, by R. P. Hickson.

ON APPEAL FROM THE SUPREME COURT OF 4 NEW SOUTH WALES.

nding up - Stay of common law action - Appeal - Question 1904. ¢ fact - Power of High Court to make such order aa the Supreme Court ead ~ have made - Variation of decree by consent, Syoxey, Atk sill Dai6, Tnan appeal from the decision of a Judge of first instance on a questa

turns on the credibility of witnesses, who have beet

ae subjected to cross-examination, and the Judge, having had the opportunity CeriC2, Seeing and hearing the witnesses, has deliberately come to a conclusion as t# Oconee, which side

has given the correct version, the Court of Appeal will not disturb

'unless itis clearly satisfied that the finding was wrong. 7

ppeal consent, the High Court may Aecree appealed from so