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[1962] HCA 50
High Court of Australia
1962-07-01
Windeyer JJ
Original judgment source is linked above.
High Court of Australia Dixon C.J. McTiernan, Taylor, Menzies and Windeyer JJ. Nominal Defendant v Hook [1962] HCA 50
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.
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.
This appeal concerns an action for negligence which was brought in the District Court at Lismore to recover damages for injury suffered by the plaintiff in a road accident. The motor vehicle by which the plaintiff was injured was not insured under the Motor Vehicles (Third Party Insurance) Act and the action was therefore brought against the Nominal Defendant appointed pursuant to that Act. The District Court judge found that the injuries suffered by the plaintiff were caused by the negligence of the driver of the uninsured motor vehicle and assessed damages at £4,000, an amount then within the jurisdiction of a District Court. A verdict was therefore given in the plaintiff's favour for that amount. The judge received evidence of oral statements made by the driver of the uninsured motor vehicle to a police constable which might have implied fault on the driver's part. It is a controversial question whether admissions by the driver of an uninsured motor vehicle are admissible against the Nominal Defendant in an action for damages in which it is alleged that the plaintiff was injured through the negligence of the driver: Holloway v. McFeeters [1] .
The Nominal Defendant appealed by notice of motion to the Supreme Court under s. 142 of the District Courts Act. The substantial ground of the appeal was that evidence of the admissions made by the driver of the uninsured vehicle which injured the plaintiff was wrongly received and that such evidence was taken into consideration by the judge in arriving at his verdict. This was a new trial point and the Nominal Defendant sought a new trial of the action generally. Before the Supreme Court the plaintiff took an objection to the appeal which depended on the dismissal by the trial judge of an application for a new trial which the Nominal Defendant made to him immediately after verdict. The learned judges of the Supreme Court, Owen, Brereton and Ferguson JJ., upheld the objection. As regards the ground of the appeal their Honours were of the opinion that it could not, in any event, be sustained because the evidence in question did not materially strengthen the plaintiff's case. They did not find it necessary to resolve the question whether the evidence was wrongly admitted.
The first question in the present appeal is whether the learned judges of the Supreme Court were in error as regards the plaintiff's objection to the appeal. They were of the opinion that the question raised by the objection was governed by two decided cases and that they should follow what was decided in them. The cases are Wilson v. Sunlight Gold Mining Co. [2] and Bullock v. Stewart [3] .
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.
The notice of motion whereby the appeal on the ground of misreception of evidence was brought asked the Supreme Court "to set aside the verdict and judgment (of the District Court in the action) and to grant a new trial of the said action ". This was an application for an order that a new trial of the action be had both on liability and damages. It is important to mention that this appeal was made concurrently with an appeal by the Nominal Defendant against the order of the trial judge refusing the application for a new trial made to him after verdict. The second ground of the latter appeal was: "that his Honour was in error and applied a wrong principle in holding that the amount of damages awarded to the plaintiff was not excessive". This appeal raised a question of law and was within the scope of s. 142. The Nominal Defendant did not proceed with the latter appeal and it was dismissed by the Supreme Court. By proceeding with the appeal on the ground of misreception of evidence and asking for a new trial generally on that ground the Nominal Defendant presented the Supreme Court with a situation well described by making a citation from the judgment in Wilson v. Sunlight Gold Mining Co. [1] : "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. The defendants have cited no authority for the course they are pursuing" [2] .
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] .
For these reasons I think that the learned judges of the Supreme Court were right in upholding the preliminary objection to the appeal to that Court. I therefore do not think it necessary to consider the question of admissibility of evidence raised by the Nominal Defendant before the Supreme Court because it was not brought up for consideration by an appeal which it was right for that Court to entertain. The order of the Supreme Court should, in my opinion, be affirmed.
In November 1959 the respondent was injured when the car in which she was being driven came into collision with another car driven by one, Mervyn Alan Ryan. Ryan's car was an uninsured motor vehicle within the meaning of s. 30 (1) of the Motor Vehicles (Third Party Insurance) Act, 1942-1957 and pursuant to that section the respondent made a claim upon, and subsequently commenced an action in a District Court to recover damages from, the Nominal Defendant appointed under that Act. In the result she secured judgment against the Nominal Defendant in the sum of £4,000. Immediately upon the conclusion of the trial counsel for the Nominal Defendant, contending that the damages awarded were excessive, moved for an order for a new trial on that issue. The application was made under s. 98 of the District Courts Act, 1912-1957 which 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 ". The application was dismissed and thereafter the appellant launched two appeals to the Supreme Court. The first was an appeal from the order which rejected his application for a new trial on the limited issue and the second was an appeal from the judgment based upon the wrongful admission of evidence. In the latter appeal, pursuant to s. 142 of the lastmentioned Act, the appellant sought a new trial generally.
The language of the relevant provision of s. 142 is somewhat unusual; it 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 either by special case or upon notice of motion, as hereinafter provided". Both appeals were taken upon notice of motion and the material ground stated in the second appeal was that the learned District Court judge was in error in allowing evidence to be given of statements by the driver of the uninsured motor vehicle. Upon any such appeal the Supreme Court may either order a new trial, on such terms as it thinks fit, or may order judgment to be entered for either party (s. 145 (3)).
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] .
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.
The respondent, however, maintained that the appellant was at liberty to seek more extensive relief in an application to the District Court judge pursuant to s. 98. He might, it is said, have raised the question of the wrongful admission of evidence and, on that ground, he might have sought a new trial generally. It is then contended that, having failed to do so, any further application to the Supreme Court for a new trial was barred. I can see no reason why we should hold that because the appellant made a limited application to the only tribunal competent to deal with it and did not, as was open to him, seek relief of a more general character on all available grounds, he was on that account precluded from appealing from the judgment to the Supreme Court on the ground that evidence had been wrongly admitted. So to hold would, I think, be quite inconsistent with the rather special provisions with which we are concerned. It is not suggested that it was open to the appellant to make successive applications to a judge of the District Court; here the question is not whether the appellant was at liberty to make successive applications to the same tribunal but whether his right under s. 142 was barred by an order made in an application which could not have been made under that section and which could be made only to a District Court judge. In my view, the appeal to the Supreme Court was competent and the matter was not governed by the decisions in the cases referred to.
This conclusion means that there is raised for our examination the question whether the learned District Court judge was in error in admitting the evidence to which the appellant takes exception. More particularly the question is whether statements made by Ryan shortly after the accident were admissible in the proceedings, taken as they were, against the Nominal Defendant. The statements were of a colourless character and I agree with the Full Court that their admission could not, in the circumstances, have had any influence on the trial. On the view which their Honours took they found it unnecessary to determine whether or not the evidence was admissible but the problem was given some consideration by the Court in two appeals associated with this matter. But the question was not resolved. However, their Honours suggested that a majority of the Court in Holloway v. McFeeters [1] were of the opinion that such evidence was admissible but I doubt if this correctly represents the view then expressed. The evidence which had been tendered in evidence in that case was clearly receivable as part of the res gestae even if not as an admission binding upon the Nominal Defendant (see per Dixon C.J. [2] and the observations in Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle [3] ). On this basis it tended to prove a fact which, as the majority said, "the jury were entitled to take into account in weighing the probabilities". It is, of course, true that the majority pointed to some considerations which might, perhaps, be thought sufficient to justify the view that the evidence, if it were capable of constituting an admission, was binding upon the Nominal Defendant as such but they did not decide the point.
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.
I have had the advantage of reading the judgment of Taylor J. and I agree with it. I would merely say for myself that I have no doubt that s. 98 of the District Courts Act, 1912-1957 authorizes a judge of the District Court to grant or refuse an application for a new trial limited to the question of damages and that the refusal of the application which the unsuccessful defendant made here and the dismissal of the appeal against that refusal decided nothing beyond this, namely, that the quantum of damages awarded at the trial did not of itself warrant the granting of a new trial on that issue. In consequence the way was open for the Full Court, upon an application under s. 142 of the Act, to determine whether or not there should be a new trial of the action as a whole on the ground that evidence had been wrongly admitted. I would find no inconsistency between the decision of the judge of the District Court refusing an order for a new trial limited to damages on one ground and an order of the Full Court ordering a new trial without limitation on an entirely different ground, notwithstanding that upon the new trial the question of damages would have to be decided afresh. I was for a time disposed to think that the decisions in Wilson v. Sunlight Gold Mining Co. [1] and Bullock v. Stewart [2] did lay down a general rule that the Full Court would not entertain an application under s. 142 while an order of the judge of the District Court refusing an application under s. 98 stood except an appeal from that order, but I am prepared to adopt the view that, notwithstanding the generality of some of the language used, these decisions are limited to cases where a party is attempting to re-litigate in the Full Court, otherwise than upon appeal, what has already been decided by a judge of the District Court under s. 98.
This case turns on the effect of s. 98 and s. 142 of the District Courts Act, 1912-1957 N.S.W.. Both sections are in essentials in the same terms as they were (then ss. 72 and 94) in the original District Courts Act, 1858 of New South Wales. Counsel for the appellant said that, in operation, the two provisions had consequences that he described as "curious". But the policy of the Act is plain. It is that a District Court is to dispose finally of the cases which come before it, except that where more than ten pounds is involved there is an appeal to the Supreme Court, but only on a point of law. Applications for new trials and for setting aside judgments obtained irregularly and fraudulently are to be made to the District Court judge, not to a superior court. They are to be disposed of finally in the District Court unless they involve some question of law. That is the effect of ss. 98 and 142. These are derived ultimately from the English County Courts Act passed before the Judicature Acts. They thus still reflect the fundamental common law distinction between a motion for a new trial and an appeal to correct error of law. An application for a new trial was made to the court from which the judgment issued. An appeal on a question of law was by bill of exceptions and error and was a proceeding in a superior court. The two forms of remedy were up to a point alternatives at common law, as are ss. 98 and 142. If this be remembered, some difficulties, I think, disappear. An application under s. 98 may be made for error in law or error in fact. An appeal under s. 142 lies only for error in law. The two remedies are thus not complete alternatives. And in operation they are not necessarily mutually exclusive.
Under s. 98 a new trial may be granted by the District Court judge on any ground of fact or of law that would justify a common law court in banc granting a new trial of an action that had been tried at nisi prius. But a new trial cannot be granted on a ground that would entitle the party to judgment. That is to say, an objection that would lead an appellate court to reverse a decision and enter judgment for the appellant cannot be made a ground for a new trial: Astor v. Barrett [1] ; Barnes v. Aspray [2] . Appeal, not new trial, is the proper remedy in a case of that sort.
It was argued for the respondent - regardless of the decisions of Jordan C.J. in Willis v. David Jones Ltd. [3] and of Cussen J. in Holford v. Melbourne Tramway and Omnibus Co. [1] - that a District Court judge has no power to grant a new trial limited to the amount of damages. I need say no more than that, in my opinion, this contention was fully answered in those cases.
Turning to s. 142. It enables an appeal from the District Court to the Supreme Court by a "party aggrieved by the ruling, order, direction, or decision of the judge in point of law, or upon the admission or rejection of any evidence". There is no appeal on an issue of fact. An allegation that damages were excessive or inadequate raises a question of fact, not of law. So that no appeal lies to the Supreme Court on that ground alone: Henderson v. Clifford Watmough [2] ; Shave v. J. W. Lees (Brewers) Ltd. [3] . The appellant seemed to feel this as a grievance. But it is perfectly consonant with principle. An objection that damages awarded are excessive or inadequate (that there was some damage not being in dispute) is an allegation that the verdict was against the weight of the evidence, not an allegation that there was no evidence to sustain it.
An appeal lies under s. 142 from the decision of a District Court judge granting or refusing a new trial but only on a point of law, that is to say on the ground that he made some mistake in law or failed to apply correct legal principles when considering the application for a new trial: Murdoch v. Durning [1] ; Tolman v. Commissioner for Main Roads [2] .
What happened in this case was that upon the learned District Court judge announcing his award, the defendant's counsel at once said: "I ask for a new trial on the question of damages ". Counsel also stated that an appeal would be instituted on other grounds. The transcript shows that he was using the word "appeal" properly, that is as meaning a motion under s. 142, as distinct from the application under s. 98 for a new trial of the issue of damages. His Honour took it that the application to him was only for a new trial of the damages, and that other objections were to be the grounds of an appeal to the Supreme Court. This was not only what it appears counsel intended; it was, I consider, the right attitude for his Honour to adopt. He could deal with the objection that the damages were excessive. The Supreme Court could not. He would have had jurisdiction to hear also an application for a new trial on the other ground, namely that he had wrongly admitted certain evidence. But he was not asked to do this. Moreover, as it had been said that his decision to admit the evidence was to be the subject of an appeal, it was not desirable for him to entertain an application for a new trial on the ground that he had misdirected himself as to that matter. The situation seems to resemble that which occurred at common law if after a bill of exceptions had been tendered the court was moved to grant a new trial. It would not do so upon the point of law upon which the bill of exceptions was tendered, or, it seems, on any other point that might have been included in it. But a new trial could be granted on some other point such as excessive damages: Fabrigas v. Mostyn [3] ; Adams v. Andrews [1] . In this case the learned judge treated the new trial application as limited to the question of damages as counsel asked. Not surprisingly, since what was said was only that his assessment was beyond the bounds of reason, he rejected the application.
After his Honour had dealt with this application for a new trial of the damages two notices of appeal were filed in the Supreme Court. The first, Number 226 of 1960, stated that the Supreme Court would be moved "to set aside the order of his Honour refusing a new trial and to grant a new trial limited to damages only". The grounds taken were that his Honour was in error in refusing the application for a new trial, that he had applied a wrong principle in holding that the damages were not excessive and "awarded damages for matters which were not proved to have been properly the subject of damages".
The second notice of appeal, Number 227 of 1960, stated that the Supreme Court would be moved "to set aside the verdict and judgment and to grant a new trial of the said action or to enter a verdict for the defendant ". The first three grounds taken were that his Honour was in error in allowing certain evidence and rejecting other evidence. These were matters of law which could properly be made the subject of an appeal under s. 142. The other three grounds taken were that his Honour's verdict was "against the evidence and the weight of the evidence"; "was perverse"; and that "the evidence of contributory negligence was such that it could not reasonably have been disregarded". These three grounds raised only questions of fact and could not sustain an appeal under s. 142.
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.
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.
In the result, therefore, I think that the Supreme Court was mistaken in deciding that the appeal to it failed on the preliminary objection taken. But this appeal fails because the admission of the evidence of the police constable's statement does not justify the granting of a new trial.
Nominal Defendant
Hook