Nominal Defendant v Hook

[1962] HCA 50

High Court of Australia|1962-07-01|Before: Windeyer JJ

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Court

High Court of Australia

Decision date

1962-07-01

Before

Windeyer JJ

Source

Original judgment source is linked above.

Judgment (44 paragraphs)

[1]

High Court of Australia Dixon C.J. McTiernan, Taylor, Menzies and Windeyer JJ. Nominal Defendant v Hook [1962] HCA 50

[2]

This is an appeal against an order of the Full Court of the Supreme Court of New South Wales dismissing an appeal from a judgment of the District Court of the Northern District holden at Lismore in an action against the Nominal Defendant. The action was tried before a judge without a jury and resulted in an award of £4,000 damages in favour of the plaintiff. The action arose out of a collision by a car in which the plaintiff Hook was a passenger with an uninsured Vauxhall car. As the car was uninsured the action was necessarily brought by the plaintiff against the Nominal Defendant. The Nominal Defendant appeals to this Court as of right from the order of the Supreme Court. When the trial concluded in the District Court and the judge awarded the plaintiff £4,000 damages, counsel for the Nominal Defendant at once moved under s. 98 of the District Courts Act, 1912-1957 N.S.W. for a new trial limited to damages. He moved on the ground that the damages awarded were excessive. It may be right to add, although it is not a relevant fact, that two other actions arising out of the same accident were tried concurrently with the action by the plaintiff Hook. Section 98 of the District Courts Act provides that "every judgment of any District Court, except as in this Act provided, shall be final and conclusive between the parties, but the judge may - (1) in any case order a new trial to be had upon such terms as he thinks reasonable, and may in the meantime stay the proceedings." Sub-paragraph (2) of s. 98 is not material. At the time of moving for a new trial limited to the assessment of damages counsel said he proposed to so appeal to the Supreme Court against the judgment as a whole. His reference was to an appeal under s. 142 of the Act which provides that "If either party in any District Court - (a) in any action in which the amount claimed exceeds ten pounds is aggrieved by the ruling, order, direction, or decision of the judge in point of law, or upon the admission or rejection of any evidence, such party may appeal from the same to the Supreme Court ". Sub-paragraphs (b), (c), (d) and (e) of this provision, which follow sub-paragraph (a), are not material. It is apparent that no appeal under s. 142 lay from the judge's assessment of damages upon the mere ground that they were excessive, that is to say that the amount assessed was unreasonable. That is not a matter of law. The learned judge who had assessed the damages and before whom the new trial on the ground of their excessiveness was moved dismissed the motion or application. From his order refusing the new trial an appeal was taken under s. 142. From his judgment in the action an appeal was taken to the Supreme Court under s. 142. The appeal from the order refusing the new trial could hardly have succeeded because it involved no point of law. The appeal from his judgment in the action did, however, involve a point or points of law. Both appeals were called on in the Full Court and counsel for the defendant appellant announced that he did not propose to proceed with the appeal against the dismissal by his Honour the District Court judge of the new trial motion, and the Full Court ordered that that appeal be dismissed with costs. The appeal from the judgment in the action was then proceeded with but counsel for the plaintiff by way of preliminary objection argued that, as the judgment of the Full Court states, "in view of the fact that the defendant had applied to the learned District Court judge for a new trial on the issue of damages and that that application had been refused and an appeal from the refusal dismissed, no appeal would lie to this Court direct from the trial under s. 142 of the District Courts Act ". In support of his objection counsel referred to two decisions of the Supreme Court, namely, Wilson v. Sunlight Gold Mining Co. [1] and Bullock v. Stewart [2] . The application to the learned District Court judge for a new trial was made orally and not by notice but it was specifically limited to damages. The report of what counsel said is as follows: "I ask for a new trial on the questions of damages in relation to Mrs. Hook" i.e. the plaintiff respondent, "on two grounds: - (i) that the amount is excessive within the principles of these matters; (ii) that your Honour appears to have taken as a head of damage, that damage to her right eye was causally related to this injury". His Honour at once disclaimed the facts stated in the second ground and it was thereupon dropped. It is quite plain that nothing fell within the application for a new trial except the excessiveness of the damages. It may, however, be conceded that had counsel desired to obtain a new trial on other grounds and had such grounds existed in his view he might have moved on those grounds under s. 98 but in fact his application was limited and nothing but the excessiveness of damages could fall within it. When the defendant appealed under s. 142 from the judgment in the action given at the trial he neither did nor could include the excessiveness of damages as a ground. He did, however, include the wrongful admission of evidence as a ground and of course it was a ground on which, if valid, a new trial might have been ordered. It was not, however, a ground included within the application of s. 98 and in truth it would go to liability and not to damages. The point of wrongful admission of evidence was this: the driver of the uninsured Vauxhall vehicle, who was not himself the owner, made a reply to a question by a policeman and his answer was put in evidence. Coupled with other evidence it might be used to establish liability for negligence in him and therefore in his master. The action against the Nominal Defendant was brought under s. 30 (1) of the Motor Vehicles (Third Party Insurance) Act, 1942-1951 N.S.W.. In my opinion the Full Court rightly held that the statement of the driver was not admissible as against the defendant. According to the law prevailing before that Act his statement out of court might have been admissible against him if he were a defendant in the action. It could not have been admissible against his master had his master been a defendant in the action. It could not be admissible because when he made it he was not the agent of the master to make admissions. It is impossible to see any ground at common law why his statement should be admissible against the Nominal Defendant. The liability of the Nominal Defendant depends upon the Act. The driver in making the statement was not speaking on his behalf and had no authority to speak on his behalf. There is no provision in the Act which would make his statement a statement, so to speak, of the Nominal Defendant. The admission of this evidence might have been a ground for granting a new trial but in the opinion of the Full Court though the evidence was wrongly admitted it was of a character that could have had no influence on the result of the trial and might be allowed as involving no miscarriage of justice. In this opinion I agree.

[4]

The question, however, of the preliminary objection to the maintenance of the appeal under s. 142 should be disposed of. It depends, in my opinion, on the simple question of res judicata. Section 98 gave the District Court judge jurisdiction to hear and determine an application for a new trial. Availing himself of that power the Nominal Defendant applied for a new trial on a definite ground which was duly limited in the manner in which it was submitted. The new trial on that ground was refused. The ground limited the new trial to the particular issue of damages. I cannot agree with the view that under s. 98 a new trial restricted to damages cannot be obtained as of right and when it is ordered under s. 98 it is done by theoretically ordering a full new trial and then by consent of the parties limiting the issue. It appears to me that s. 98 is a statutory authority which enables the District Court judge to order a new trial in accordance with the practice prevailing in the superior courts and that that practice involves the authority to limit issues. The appeal is to another jurisdiction but it is not the width of that jurisdiction but the remedy sought by the party within the jurisdiction that matters. The remedy sought by the party was of an entirely different description and did not involve a reconsideration or re-examination of any of the matters involved in the application to the District Court judge for a new trial on the issue of damages. It happens that under s. 142 the Full Court of the Supreme Court had no power to entertain as a ground for granting a new trial the allegation that the damages were excessive but to my mind it would not matter if their power had extended so far. The fact is that two distinct remedies were sought from two distinct jurisdictions. Each was based on a ground different from the other. There was no contrariety either in the grounds or in the remedies sought. On ordinary principles of res judicata the decision of the District Court judge against the application to him involved neither expressly nor impliedly any decision against the application made to the Full Court by way of appeal under s. 142. The decisions quoted by the Full Court, namely, Wilson v. Sunlight Gold Mining Co. [1] and Bullock v. Stewart [2] , are in my opinion entirely consistent with this view and the first of them really expresses it although the expression is accompanied by some observations about the objection to two contradictory orders co-existing. That I take to be no part of the decision which simply is that a decision under s. 98 which contains within it a determination of the grounds of the appeal under s. 142 precludes the appeal. However, in the present case it is enough to say that on the merits the appeal to the Supreme Court should be dismissed.

[10]

For the purposes of deciding whether the objection to the appeal was well founded it is necessary to refer to the proceedings before the District Court after verdict in which the application for a new trial of the action was made. Section 98 of the District Courts Act, as far as material, provides that the judge who tries an action "may in any case order a new trial to be had upon such terms as he thinks reasonable". The form in which counsel for the Nominal Defendant made the application was: "I ask for a new trial on the question of damages". In the light of the words of s. 98 the meaning of the application was that counsel asked the judge to order a new trial to be had and that the Nominal Defendant offered to submit to a term that the new trial, if granted, be had only on the question of damages. It would appear from the report in the appeal book of the application that what was argued in support of it was that the amount of £4,000 was so excessive that it exceeded any amount which the learned judge might grant in the reasonable exercise of his discretion on the question of damages. In this view of the argument it meant that the judge did not exercise the discretion according to law. The judge rejected the application for a new trial. The Nominal Defendant then sought a stay of the judgment to which the plaintiff was entitled on the verdict. In support of the application the defendant's counsel said: "I do not intend to put forward that I gave away other grounds that I may have". An order was made for a stay subject to the payment of £2,000 into court. Counsel having sought the excision of the condition, the judge stated to him that his objection to the verdict was only on the ground that the damages were excessive and counsel replied that the reason he objected to the condition of the stay, payment of money into court towards the verdict, was that he proposed to appeal "on all grounds". The judge declined to excise the condition from his order for a stay of proceedings. It would seem that the Nominal Defendant by his counsel had elected to apply to the trial judge for a new trial only on the ground that the damages awarded were excessive. If the application had succeeded and a new trial had, subject to a term that the question of damages was the only matter to be retried, that would have been an end of the litigation unless either party desired to bring further proceedings after judgment under s. 98 or s. 142.

[13]

The question which was litigated in the application before the trial judge after verdict was whether he should order a new trial be had subject to the term offered by the Nominal Defendant that the new trial be on damages only, an offer which clearly involved accepting the judge's finding that the driver of the uninsured vehicle caused personal injury to the plaintiff by negligence. It is clear from the notice of appeal with which the Nominal Defendant proceeded that his whole case was that the allegation of negligence was not sustained by admissible evidence and that even if it were the damages were excessive. The Nominal Defendant could have put forward in an application under s. 98 that evidence was wrongly admitted. In applying for a new trial under that section the Nominal Defendant brought forward only part of his case: indeed, he gave up part of it by offering to accept an order for a new trial containing a term limiting it to damages. In my opinion, the existence of the order refusing a new trial creates an estoppel per rem judicatam against his bringing the appeal with which he proceeded before the Supreme Court. The case, I think, falls squarely within the principle enunciated by the Vice-Chancellor in Henderson v. Henderson [3] : "In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." [1] . See also Newington v. Levy [2] ; Peareth v. Marriott [3] ; In re May [1] ; Macdougall v. Knight [2] ; Humphries v. Humphries [3] and Stirling v. North [4] . In Re Hilton [5] an interesting and pertinent observation on estoppel per rem judicatam was made by Williams J.: "If you do not set up a defence which you might have done, by reason of the maxim Interest reipublicae ut sit finis litium, you cannot say "there was another point which I might have raised and did not raise, but which will conclude the matter, and I should like to raise it here". The omission to raise the point does not preclude the party from raising it on the ground that he has admitted the point, but he is precluded from raising it merely upon the ground that it is to the interest of the State that litigation should be put an end to." [6] .

[18]

Upon the two appeals coming on to be heard in the Supreme Court the first appeal was abandoned and we need say no more about it. To the second appeal there was a preliminary objection based upon the fact that the appellant had already made an unsuccessful application for a new trial to the learned District Court judge. This objection was upheld on the authority of the decisions in Wilson v. Sunlight Gold Mining Co. [1] and Bullock v. Stewart [2] . In the earlier of these two cases there were, as in the present case, successive applications for a new trial. First of all there was an application by the unsuccessful defendants to a District Court judge for a new trial on the ground that there was no evidence to support the verdict of the jury. The application was refused and thereupon the defendants, without appealing from the order of refusal, appealed from the judgment on what was, in effect, the same ground as that which they had already advanced before the District Court judge. I think that their Honours in the Full Court correctly decided that it was not, in the circumstances, open to the appellant to proceed with his appeal to that Court. But I do not agree with the assertion that their Honours were attempting to state the basic reason for their decision when they subscribed to the statement: "If we make an order for a new trial there will be in existence at the same time two conflicting orders, that of the District Court Judge refusing, and that of this Court granting, a new trial. That such a state of things should exist would not be consistent with the proper and dignified administration of justice" [1] . Their decision was based upon the fundamental and elementary rule - which they immediately stated - that: "The ordinary rule is that where there is in existence a judgment of a competent Court between the same parties and upon the same subject matter, another tribunal will not interfere in any way. A superior Court cannot interfere with a judgment of an inferior Court unless that judgment is appealed against. In this case the judgment of the District Court Judge has not been appealed against, and we cannot make an order which will overrule it, and at the same time leave it still in existence and unappealed from" [2] .

[20]

Likewise, in Bullock v. Stewart [3] a majority of the Court thought that the appellant was attempting to re-litigate a question which had already been decided in an earlier application to a District Court judge. But the present case is entirely different. What the appellant sought in the District Court was a new trial on the issue of damages on the ground that the amount awarded was excessive. The learned District Court judge decided that it was not and this concluded that issue except upon any subsequent competent appeal from his order refusing the appellant's application. But it did not stand in the way of the appellant if, as he did, he wished to appeal to the Supreme Court from the judgment in the action pursuant to s. 142. And, it should be observed, that section does not make any provision for an appeal to the Supreme Court based upon excessiveness or inadequacy of damages; any application for a new trial on either of these grounds must be made to a District Court judge pursuant to s. 98. It would, it seems to me, create an anomalous situation if we were to hold that the appellant, having made his application for a new trial on the issue of damages to the only tribunal competent to decide that question, should, thereafter, find himself precluded from appealing against the judgment on questions of law to the Supreme Court, or, conversely, that an appellant having taken an appeal to the Supreme Court on questions of law should find himself precluded thereafter from seeking a new trial on the issue of damages pursuant to s. 98. As was said by Cullen C.J. in Bullock v. Stewart [1] : "Those two rights being open to a party, they are not necessarily mutually exclusive, but they may very well be, according to the circumstances of the case." [2] . But in the circumstances of this case they were not. Nor, I should add, can I see any reason why the order, which determined the application made to the learned District Court judge, should be regarded as decisive of the question which was raised by the subsequent appeal to the Supreme Court.

[25]

In the present case we are concerned with a so-called admission made some appreciable time after the accident and the question is simply whether evidence of such an admission is receivable where the proceedings are taken - as they must be taken in the case of an uninsured vehicle - against the Nominal Defendant. The reason why admissions of a party to proceedings are receivable in evidence in so far as they tend to establish some matter in issue against him is obvious. It is equally clear why declarations of strangers to the proceedings are, in general, excluded. But the rules are subject to some qualification inasmuch as so-called "nominal" parties may be affected by the admission of so-called "real" parties or a party may be affected by the admissions of a predecessor in title. There are other exceptions, or apparent exceptions, but none of them envisage circumstances such as the present. However, in support of the proposition that the evidence in question ought to be regarded as admissible it is pointed out that if Ryan's vehicle had been insured his admissions in any subsequent proceedings against him would have been admissible even though the conduct of the proceedings against him had been taken over by his insurers at their risk both as to verdict and costs (see Motor Vehicle (Third Party Insurance) Act, s. 18). Indeed, in some appreciable number of cases it may even appear that it is in the interests of the insured defendant for the plaintiff to succeed at the expense of the insurer (cf. McCann v. Parsons [1] ). One may well ask whether, in such circumstances, any admission of fault by the defendant out of Court should be treated as receivable in evidence. But as a matter of practice evidence of such a character is consistently so treated. Furthermore, once judgment has been obtained against the defendant in such a case the plaintiff may, in the circumstances specified in s. 15 (1) of the lastmentioned Act, obtain judgment against the insurer. The judgment may, of course, have been founded wholly or partly upon the so-called admissions of the defendant in the action yet this will be of no consequence in any application under s. 15 (1). In a sense, therefore, the insurer may be said to be bound, though not directly, by the defendant's admissions in the action. Again, what is the position where the owner of an insured vehicle, though identified, cannot be served with process? In such a case the injured plaintiff may sue the authorized insurer pursuant to s. 15 (2). Are we to conclude that if the owner can be served his admissions may be received in evidence but if he cannot they must be rejected. Other anomalies may be pointed out but the simple fact is that the Act creates a series of novel situations for which, in relation to the matter under discussion, the rules of evidence make no specific, or perhaps appropriate, provision. To attempt to apply them without any qualification resembles an attempt to place a square peg in a round hole. But it is not the function of the Court to frame a special set of rules in an endeavour to avoid the anomalous situations which may arise under the Act. This is a task which is more appropriate to be undertaken as a matter of policy by the legislature and upon the law as it stands I feel bound to hold that the declarations, or so-called admissions, of the owner of an uninsured motor vehicle are not receivable in evidence in an action against the Nominal Defendant. But since I agree with the members of the Full Court that the evidence objected to could not have had any influence on the course of the trial I am of the opinion that the appeal should be dismissed.

[41]

When the matters came on in the Supreme Court the first motion, that against the refusal to direct a new trial as to the amount of damages, was at once abandoned by the appellant who consented to its being dismissed with costs. It could not, it seems, possibly have succeeded, because, although it was alleged in the notice of appeal that his Honour had followed a wrong principle, all that was really contended was that the damages were excessive in fact. And that was not a point of law. As soon as the first appeal had been thus dismissed, counsel for the respondent, the plaintiff in the action, objected to the second appeal going on. In effect he said the appellant was estopped because his appeal against the refusal to grant a new trial had been abandoned and formally dismissed: and the District Court judge's decision refusing a new trial was thus standing. In the face of that, he argued, the appellant could not proceed with his second appeal in which too he was seeking a new trial. For this proposition he relied upon the decisions of the Supreme Court in Wilson v. Sunlight Gold Mining Co. [1] and Bullock v. Stewart [2] . The Supreme Court upheld this contention, their Honours considering that those two cases covered the matter and that they should follow them. With respect to their Honours, I think they were mistaken in this. I do not doubt the correctness of those decisions, which were referred to in Turner v. Commissioner for Road Transport & Tramways [1] . But I agree with my brother Taylor, whose judgment I have had the advantage of reading, that they do not govern the present case. The report of Wilson v. Sunlight Gold Mining Co. [2] is not quite explicit, but it seems that the application there made to the District Court judge for a new trial was on a matter of law, namely his refusal to non-suit on the ground that there was no evidence of a material element in the cause of action. That was also in substance the ground of appeal to the Supreme Court. It was thus sought to re-agitate in the Supreme Court the very question that had been settled by the District Court judge whose decision had not been appealed from. And in Bullock v. Stewart [3] also the majority of the Supreme Court thought that the question that it was sought to raise before them was the same as had been decided on the motion for a new trial, which has not been appealed from. But in this case the question at issue and the relief sought by the application under s. 98 were different from those sought in the appeal under s. 142.

[43]

As, therefore, I consider that the appeal under s. 142 should have been allowed to proceed, it becomes necessary to consider the point of law on which it turns; that is whether evidence was admitted that ought to have been rejected. As their Honours in the Supreme Court had upheld the objection to the appeal they did not have to consider that question in this case. But they also had before them other appeals in two other actions which arose out of the same accident and had been heard at the same time. We thus have the benefit of their views on the question. It arose in this way: A police constable, who was called as a witness for the plaintiff, gave evidence that he spoke to the driver of the uninsured vehicle in respect of whose allegedly negligent driving the Nominal Defendant, the present appellant, was sued. The conversation occurred at the scene of the accident while there were still marks on the road. The witness was allowed, against the objection of the defendant's counsel, to say what the driver had told him of how the accident happened. In the course of doing so he, the driver, was said to have made some statements described as an "admission" in reference to a tyre mark on the roadway. What he said was of no great significance. And I entirely agree with the Supreme Court that in the circumstances it really added nothing to the plaintiff's case. A new trial may generally be had as of right in a case in which admissible evidence is rejected, but not necessarily when inadmissible evidence is allowed to be given, if such evidence merely accords with what is otherwise amply and indisputably proved by admissible evidence. I referred to this distinction in Nominal Defendant v. Clements [1] . There could be no justification for requiring a new trial in this case merely because the learned judge who heard the case without a jury admitted evidence of what the driver said at the scene of the accident. I should add, however, that in my opinion that evidence was on general principles not admissible. I do not think that there is any sound ground for admitting evidence of statements made by the driver of an uninsured vehicle in an action against the Nominal Defendant simply on the ground that he is the driver and the person whose negligence is said to have caused the accident. I appreciate that, as Brereton J. forcefully pointed out, there are many actions in which one or both of the parties is being maintained and the action is really defended by and for the advantage of an insurer. In such cases the hypothesis on which declarations out of court are received as admissions may be completely falsified. But whether rules of evidence evolved to meet the case of declarants' statements that prima facie were likely to be true should continue to be applied in situations where they are quite likely to be false is not the question here. Of course, if the driver be called as a witness and what he says in the box is inconsistent with what he had said earlier, the earlier statement may be proved according to ordinary principles to discredit his evidence given in the box. But I do not think it can be put forward as an admission binding the Nominal Defendant.