Oertel v Crocker [1947] HCA 40

al from the Supreme Court of South Australia (Full Court): Oertel r, (1947) S.A.S.R. 306, struck out as incompetent.

John Crocker, the landlord of premises let to Alfred srtel, brought an action in the Local Court of Adelaide successfully sought an order for recovery of possession

of the premises. An appeal by the tenant to the Full Court South Australia was dismissed by a majority (Napier C.J. a Ligertwood J., Reed J. dissenting), though there was a conflict judicial opinion as to the precise nature of the tenancy. rent payable was thirty-five shillings per week, and it was e ground that the value of the dwelling house, the subject of t action, exceeded £300. It was, however, conceded that tl value of the tenant's interest in the property was less than amount. The tenant sought to appeal to the High Court right and alternatively asked for special leave to appeal. report is concerned only with the contention that the appeal J as of right.

Pickering (with him C. 4. L. Abbott), for the appellant. An apps lies as of right. The right is conferred by s. 73 of the Constitution Anne to restrictions Severed ue Parliament. Section 35 of th

sub-s. (1), and, if the construction adopted in Beard's Case olor sub-s. au becomes nugatory. The words of a statute sh

(He Ans aaah to eta v. Fraser (3) ; Milne v. James (4); Tipp v. Moore (5); Robert H. Barber & Co. Ltd. v. Simon (6); Webb Hanlon (1) ). Wen

{Dixon J. referred to Western Australian Insurance Co, Ltd. Dayton (8).]

Hogan (with him H. W. Martin), for the respondent. If app lant's contention is correct, an appeal will lie as of right in all matté which are only remotely concerned with land over the value £300. On the true construction of s. 35 of the Judiciary Act it is the claim, demand or question which must be of the value of £300, In essence we are claiming not the freehold but relief from tenant's possession. There is nothing in the decided cases contrary

to the principles laid down in Beard v. Perpetual Trustee Co. Ltd. ( f

Ch.D. 12, at p. 17. (5) (1911) 13 C.L.R. 248, at p. 249.

(3) (1906) 4.C.L.R. (7) (1939) 61 C.L.R. 313, at pp. 320

(4) (1910) 13 C.L.R. 165, at pp. 167, 326, 168. (8) (1924) 35 O.L.R. 355. -

Latnam C.J. This is an appeal brought as of right. Objection "- ©. or A.

has been raised as to the competency of the appeal upon the ground that the order in question is not one which " involves directly or indirectly any claim, demand, or question to or respecting any property or any civil right amounting to or of the value of Three hundred pounds " within s. 35 (1) (a) (2) of the Judiciary Act of the Commonwealth. We are of opinion that there is no appeal as of right in this case and will give our reasons for that opinion at

"The following written judgments were delivered : -

Larnam C.J. The appeal in this matter was instituted as of right. It was objected on behalf of the respondent that the appeal was incompetent because the judgment of the Supreme Court from which the appeal was brought did not satisfy the conditions of the Judiciary Act 1903-1946, The Court upheld the objection, post- poning the statement of reasons.

The relevant provisions of s. 35 are as follows : - " 35 - (1) The appellate jurisdiction of the High Court with respect to judgments of the Supreme Court of a State, or of any other Court of a State from which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall extend to the following judgments _ whether given or pronounced in the exercise of federal jurisdiction or otherwise and to no others, namely :

(a) Every judgment, whether final or interlocutory, which - (1) is given or pronounced for or in respect of any sum or matter at issue amounting to or of the value of

Three hundred pounds ; or (2) involves directly or indirectly any claim, demand, t or question, to or respecting any property or any fe civil right amounting to or of the value of Three

The respondent to the appeal is the owner of a house in Adelaide. He sought to recover possession of the house from the appellant by proceedings in the Local Court at Adelaide. The appellant occupied the house under a written agreement for a term of three years, which expired on 28th January 1942. The special magistrate found that before the expiry of the three-year term a conversation took place between the plaintiff and the defendant to the effect that the plaintiff refused to renew the lease, and that it was agreed that the defendant should remain in possession until the plaintiff __ Wished to return to Adelaide from the West Coast where he was

• employed, or the defendant was transferred from Adelaide by hi

employer. The magistrate held that there was an oral agreemen for a term of uncertain duration following upon a term of ye and that, apart from the National Security (Landlord and Te Reg gulatior zie ead of rent under the agreement had the e

at will into a tenancy pats year to year. In view, nowevaell the existence of the National Security (Landlord and Tenant)

year could be implied, but that the tenant had the right to rei in occupation until an order for recovery of possession was in favour: of the landlord under the regulations. After conside questions of relative hardship, as required by the regulations, magistrate made an order for possession. ag Upon appeal to the Full Court the decision of the magistrate | upheld by a majority (Napier C.J. and Ligertwood J., dissenting) (1). The learned judges varied in their opinion. Chief Justice was of opinion that the tenancy was a tenancy year to year, but determinable by notice at any time during year if the plaintiff returned to Adelaide. Reed J. was of opi that the tenancy was a weekly tenancy, or at most a month tenancy, while Ligertwood J. was of opinion that the tenancy a tenancy at will. Upon no view was the term of the tena longer than that of a tenancy from year to year. The rent payable by the defendant was thirty-five shilling week. The dwelling house, possession of which the plaintiff s to recover, was " of the value of £300 and upwards." It is conti for the appellant (defendant) that the judgment of the Supi Court involves directly a claim to or respecting property amount to more than the value of £300, the property being the house ¢ land occupied by the defendant. It is argued that the jud, for the plaintiff, if upheld, entitles him to possession of a proj worth more than £300 and, if the judgment is set aside, the re is that the defendant retains possession of the property. On the other hand, the plaintiff contends that the value of

in contest between the parties is whether or not the defi can continue to occupy the property as a tenant, weekly or mont or from year to year. The value of the tenancy is the diff between the rent of thirty-five shillings per week and the val

lently intended to secure that there shall be an appeal as of ht only in a case of some substance, and the standard of substance (so far as relevant in this ease) is fixed at £300. ona 'he section must be applied in many varying cases. Actions for _ debt or damages are plainly covered by sub-s. (1). In the case of for a debt of, say, £500, or for £500 damages for breach or tort it is plain that there is a sum or matter at ent for the plaintiff for £300 or any greater amount le as of right by the defendant. Judgment for the tiff for-a smaller amount would not be so appealable. Judg- for the defendant would be appealable as of right by the Judgment for the plaintiff for only £100 upon a claim £500 would also be appealable by the plaintiff. Where a judg- is given for the recovery of land or for delivery up of a chattel e land or the chattel is worth more than £300, judgment.

• given or pronounced in respect of any particular sum, but | given or pronounced in respect of a matter at issue amounting nired value, many cases, however, there j is no sum or matter in issue and of the value of £300 may be involved directly or inthe judgment. Sub-paragraph (2) of par. (a) of s. 35 (1) an endeavour to deal with these other cases. The may be a judgment for an injunction, for specific per-

it, or for the issue of a prerogative writ. In these cases the is not given for a sum or matter at issue between the But nevertheless the issue between the parties - described m, statement or question - may be capable of an estimate

e judgment which must involve a claim, demand or tion of particular character. A judgment can involve a | &e only in the sense that it is a judgment with respect to a a claim ke. The appeal must relate to the judgment viewed

words used in s. 35 (1) (a) (2) are substantially the same as i be found in certain Orders in Council relating to the right to the Privy Council. An example can be found in the Council of 9th June 1860 relating to Victoria, which is n Victorian Statutes, vol. IV. (1890), p. 3232. Under there was a right of appeal in two cases - (1) where the nt was given or pronounced for or in respect of " any sum

at issue" above the value of £500, and (2) when the

provisions of s. 35 of the Judiciary Act 1903-1946 are H.C. oF A.

judgment " shall involve, directly or indirectly, any claim den ind or question to or respecting property or any civil right amounting to or of the value of £500." These provisions (except as to the amount specified) are the same as those contained in pars. (1) a (2) of s. 35 (1) (a) of the Judiciary Act. In other Orders in Co the words have been varied. (See Bentwich, Practice of the Privy Council in Judicial Matters in Appeals, 3rd ed. (1937), p. 10 - Colonial Appeal Rules - the " matter in dispute " must amount to acertain value : similarly in the Order in Council relating to appeals from the Canadian Provinces - Bentwich, pp. 30 et seq.). In tl case of Victoria and of other States or colonies an appeal now as of right "where the matter in dispute on the appeal amo to or is of the value of £500 sterling or upwards, or where appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of tl value of £500 sterling or upwards": see Victorian Statutes, vol. (1929), p. 888. The words are: "the appeal involves." In Judiciary Act, s. 35, the words are: " the judgment involves. The section makes it necessary to ascertain the claim or dem: made or the question raised (that is, by some person who mak claim - apart from a claim there is no " question "') which is involy in the judgment for the purpose of the appeal. A defendant | such makes no claim ; he resists the plaintiff's claim. But judgm for the defendant in a case is a judgment which is a judgment with respect to the plaintifi's claim, and therefore, in the words of s 35 (1) (a) (2), is a judgment which involves the plaintiff's cl Next, the claim &ce. must be to or respecting property or a et right amounting to or of the value of £300. In Re Robert H. Barber & Co. Ltd. (1) Harvey J. held that the words " amounting to or the value of £300" should be read as attached, not to the wot " property or any civil right," but as qualifying the words " ¢l demand or question." The decision of Harvey J. was, however, reversed on appeal (2). It would be difficult to attach a meaning to the words " any question amounting to or of the vali of £300." Accordingly, the phrase " amounting to or of the val of £300 " should be regarded as qualifying the words " any proper! or any civil right." The question to be asked will be: " is the value of the property to which the claim, demand or questi involved in a judgment relates ?" i.e., the value of the proper far as it is claimed or demanded or a question is raised respectit

"directly or indirectly' a claim &c. of the specified chara (1) (1913) 30 W.N. (N.S.W.) 91. (2) (1914) 19 C.L.R. 24.

| Eager Co. Ltd. (1) the defendant company had been £1 for carrying passengers in a tram-car without obtaining a under the by-laws of the City of Melbourne. Upon an order ~ toreview the Full Court upheld the conviction. The amount directly involved was only £1, but if the company was bound, as had been o take out licences for all its tram-cars the cost to the company 1 have been £2,000 a year. It was held (Kidney v. Melbourne ways and Omnibus Co. Ltd. (2)) that the decision indirectly

Bavlved a claim with respect to property exceeding £500 in value . and that leave to appeal to the Privy Council should accordingly

Ifthe aca can show that if his appeal succeeds the alteration

view was clearly se in Beard v. Perpetual Trustee Co. . (3). Tf, however, he cannot show that this is the case, the y has no right of appeal under s. 35 (1) (a) (2).

The decision in Beard's Case (3) is in accord with the decisions with respect to the provisions of the Orders in Council to reference has been made. ais test pacpted has been the

e 'poked at as it affected the interests of the party who was judiced by it and who sought to relieve himself from it by appeal.

variation is an interest in respect of property or any which interest is of the value of £300. Thus a plaintiff been denied by a judgment the establishment of a right

(4) (1888) 13 App. Cas. 780. (5) (1910) 10 C.L.R. 595.

OF AUSTRALIA. 267 an ies judgment involves a claim &c. indirectly when the judgment 1: ©. ov 4. itself does not directly deal with a claim of the character mentioned, rnd: does do so indirectly. For example, in Kidney v. Melbourne

which is a right to property or to a civil right and which is of the value of £300 has an appeal as of right. A defendant against wh ict a judgment has been given which prejudices him to the extent £300 in respect of a claim made against him to any property civil right also has an appeal as of right.

The decision in Tipper v. Moore (1) is not inconsistent with foregoing statements. In that case the Supreme Court had dee that a will dealing with property worth more than £1,000 was valid and had granted probate. The unsuccessful caveator appealed to the High Court. His interest in the estate of the deceased per: if the will were held to be invalid would have been of a value than £300, but the decision of the Supreme Court involved

that there was a matter at issue between the parties of the valu of over £300 and that therefore there was an appeal as of 1i The judgment directly determined claims to property of a val exceeding £300. The only case which is in my opinion clearly irreconcilable the general current of authority is Milne v. James (2) where it held that the fact that the value of land in respect of which plaintiff claimed an easement was the crucial matter in determ whether a judgment for the defendant involved a claim &c. to respecting property of the value of £300. The prejudice to tl appealing plaintiff was said not to be the relevant measure of This case is, I think, inconsistent with prior cases (e.g., Jenkins vy. Lanfranchi (3) ) and with subsequent cases (e.g., Beard's Case ic )) and should not, in my opinion, be followed. Thus the effect of s, 35 depends upon the claim, denn 0 question in relation to which the judgment is given, and whieh | the matter for determination upon the appeal. J In the present case the title of the plaintiff to the freehold ei land is not in dispute. It is not a subject matter of claim, dem or question. The value of the freehold is therefore irrelevant fc the purpose of determining whether there is an appeal as of right. What is in dispute is whether the defendant has any and, if s what interest as a tenant. The judgment of the Supreme © is a judgment with respect to the claim of the plaintiff for poss and to the claim of the defendant to retain possession against plaintiff. The value of the possession under the tenancy is t relevant matter in applying s. 35.

Sranne J. The Court struck out this appeal on the ground that was incompetent.

vas an appeal from a judgment of the Supreme Court of South ia which dismissed, by a majority, an appeal from an order

• Local Court of Adelaide directing that possession of certain y be given to the respondent by a certain date. claimed that the judgment of the Supreme Court was ble to this Court pursuant to the provisions of the Judiciary 1946, s. 35 (1) (a) (2). material that section provides that the appellate juris- this Court with respect to judgments of the Supreme

tory, which involves directly or indirectly any claim, or question to or respecting any property or any civil amounting to or of the value of £300, but so that an appeal brought from any interlocutory judgment except by 'of the Supreme Court or the High Court. he words of s. 35 (1) (a) (2) were adopted, I should think, from Order in Council making provision for appeals as of right to vy Council from final orders of the Supreme Courts of the ian Colonies or States (see the Orders in Council relating to 9th June 1860, printed in a note to the Supreme Court ), s. 231, in the 1890 edition of the Statutes, and 23rd 1911, printed at the end of the Supreme Court Act 1928 ¢ 1928 edition of the Statutes). appellant here does not suggest that he is the owner of the 'pl y the value of which exceeds £300, as is admitted. At est, claims that he is a tenant from year to year of the property a weekly rental of thirty-five shillings payable by monthly

year of the tenancy, subject however to the provisions of nal Security (Landlord and Tenant) Regulations, Part U1. conceded during the argument that the value of such a ld not, and did not, amount to the value of £300. was contended that as the property exceeded in value the peal was as of right whatever might be the value lant's tenancy (see Amos v. Fraser (1); Tipper v. (2) and ec with this case Skinner v. Trustees Executors cy Co, Ltd. (3) ).- But in Amos v. Fraser (4) O'Connor J. did

not agree with this interpretation of the Judiciary Act. He that the measure of the value was the appellant's right in 1 property (see the report (1) and Beard vy. Perpetual Trustee Ltd. (2) ). ;

are equiv: ae to Aa expression: "some proprietary right'." TI meaning, he added, was consistent with the cases he feat refi to and showed that the test was whether the person applyin,

£500 (see Macfarlane v. Leclaire (4); Allan v. Pratt (5) ).

Dixon J. This appeal was struck out as incompetent on the ground that the order of the Supreme Court of South Aus from which it was sought to appeal did not involve any ¢l ene or se aaah to or espa ae any property or civil

concerning s. 35 (1) (a) (2) of the Fudiciary Act which earlier cas appear to illustrate and, the matter having been well and fi argued by counsel for the appellant, it was thought better to té the opportunity of stating our reasons in writing.

who was prejudiced by it, and who sought to relieve himself n it by appeal." It is this difference of view that the facts of the present case seemed to bring to an issue. ss

The appeal was from an oder of the Supreme Court dis an appeal from a judgment, order or determination of the Court of Adelaide to the effect that the respondent should reco possession from the appellant of a dwelling house and should a mesne profits.

(1) (1906) 4 O.L.R. (2) (1918) 25 (3) (1919) V.L.R.

(5) (1888) 13 App. Cas. 780. (6) (1941) 15 A.Lat. 221, at p. 22%

_ was nothing to show or even suggest that the value to him of his oecupation of the house so far exceeded the rent that his claim to continue in occupation at that rent possessed a value of £300 or

0 But the value of the fee simple of the dwelling, of which "respondent was owner, exceeded £300, It was therefore said on the appellant's behalf that the order of the Local Court and the of the Supreme Court affirming it fell within s. 35 (1) (a) (2) involved directly or indirectly a claim, demand or question to

respecting property amounting to or of the value of £300. In accordance with this view the affidavit filed with the notice of appeal for the purpose of showing that the order was one from which an appeal lay as of right said simply, and correctly, that it was a final af order in respect of an action for the recovery of the possession of 'a certain tenement which was of the value of £300 and upwards. In my opinion the attempt to give to s. 35 (1) (a) (2) an operation wide enough to include such a case does violence to its real intention. _ 'The contention must in the end depend on the word " respecting " and it appears to me to give to that word a much more indefinite Meaning than it bears in the context. What the parties each , is possession, the one to retain it and the other to obtain it. i subject of the possession is the house and land. The operty" in the house and land, the estate in fee-simple, is is worth £300 and upwards. But that is not the subject of claim, demand or question. 1e word " respecting " is used to require a connection between the claim, demand or question and the valuable property or civil sht, and, as it is used in addition to the word " to," it must be a nnection which that word does not cover. But it seems to me obvious that the connection must be close, immediate or mate and that the connection between a mere claim to posses- . of a thing and the full property therein, which alone possesses juired value, is too tenuous and distant. vo things may be conceded. In the first place, I agree that tically the words " amounting to or of the value of " are

they immediately follow and not the words " claim demand

tion." The latter are too far back in the sentence as well propriate. The second thing that may be conceded "respecting" is attached to the words " claim " nand." It may be that in the expression " claim demand on to or respecting " the word "to" cannot be attached

to and qualify the words "any property or civil right" ~

The appellant occupied the dwelling at a weekly rent. There H- ©: 0 A.

272 HIGH COURT H.C. or A. to " question." You can hardly speak of "any question to cal property." But it does not follow that correspondingly the ister es respecting " is attached only to " question " and not to " ». demand." But, conceding so much, I think that the clai Gece dcpiandiurisraeetpaete ee et right or legal property of th Dixon J. required value before it can fall within the true meaning of

expression " claim demand or question to or respecting any prope or any civil right amounting to or of the value of £300" as used the sub-paragraph. The principle of a provision limiting the j of appeal by reference to the amount involved must go to_ prejudice measured in money suffered by parties adversely aff by the judgment. And that seems to be the policy of sub-pars. (1 and (2), of s. 35 (1) (a).

The parallel provisions of the various colonial and provi statutes and Imperial Orders in Council defining rights of to the Privy Council are variously expressed, but for the most they have been thus interpreted and applied. In Allan v. Prat Lord Selborne agreed in principle with the rule, which had alre been laid down, " that the judgment is to be looked at as i the interests of the party who is prejudiced by it and who se relieve himself from it by appeal." He continued: "If th to be a limit of value at all, that seems evidently the right prin on which to measure it." -

In perhaps the earliest case on the subject in this Court, Amos Fraser (2) O'Connor J., after quoting the language of s. 35 (1) ( said : - "' There are two ways in which that sub-section may read, viz., that if the property is of the value, or the civil right is the value, of £300, no matter what the value of the claim ma an appeal lies. I do not think that is the proper interpretati It would lead to very great absurdities. The other interpr: tation is that the claim, demand, or question must in itself involve dirt or indirectly the value of £300, That I think is the right int tation of the section. That is to say, in any case in which, directly or indirectly, the claim of the appellant involves a right in re of property which right is in itself of the value of £300, an aj lies. In other words, the measure of value is to be the value of appellant's right in the property." The grounds of his Honour' decision do not appear to be those given by Griffith C.J. my opinion they express the general principle upon which provision proceeds, though some qualifications or reservatio be necessary, and to these I shall afterwards refer.

(1) (1888) 13 App. Cas. 780, at p.781. (2) (1906) 4 C.L.R. 78, at pp. 87-

judgment dismissing a suit for a declaration of right to a

) of land and a wall thereon together valued at £290. The claimed an easement of support over the wall; and the ney in amount or value was made up of £15 damages to the ne by the beams of the defendant's structure resting thereon. 'The reasons given for the decision appear in the end to come down to the view that the defendant's claim or assertion amounted to a of the plaintiff's dominion over his property, and that con- ly the declaration of right and the damages which the had unsuccessfully sought together made up the required . But there are passages in the reasons not easy to reconcile vith the principle which O'Connor J. had adopted (2). Moreover, r 'is some doubt of the application of the principle to the facts. it is not clear that there was any intention to depart from the le. This observation may certainly be made of Western m Insurance Co. Ltd. vy. Dayton (3). It seems that the

dv. Perpetual Trustee Co. Ltd. (5) it was formulated with elaboration as if to establish it as the doctrine of the Court. in the earlier case of Tipper v. Moore (6) and perhaps in . Barber & Co. Lid. v. Simon (7) the value of the subject f the litigation was made the test, rather than the interest 'appellant therein or the amount of the prejudice he would under the judgment. In Webb v. Hanlon (8) in a passage I eat, I discussed s. 35 (1) (a) (2) and the consistency of Moore (6) with Beard y. Perpetual Trustee Co. Ltd. (5). the opinion, to which I adhere, that the course of decision gainst construing the provision as authorizing an appeal as of it against an order which, while it stands, does not prejudice the extent of £300 proprietary or other rights to which any mn or persons would be entitled if the order had not been made sought by the party appealing had been made. ons of the Court in Watson v. Johnson (9) and in Lockwood (10) tend to support this view, although per- earlier of the two cases at all events might have been le same Way on any view of the sub-paragraph.

CLR. 165. (914) 19 CLR. 24. C.LR., at pp. 87-88. (8) (1939) 61 C.L.R. 313, at pp. 326- wR. 355. 327. . (9) (1936) 55 C.L.R. 63. (10) (1938) 60 C.L.R. 732.

Lilne v. James (1) @ decision was given admitting an appeal #- ©: oF A.

It is to be noticed that it is the judgment, not the appeal or subject matter, of the suit or proceeding which must under par. (1) be given or pronounced for or in respect of any sum or matter at issue amounting to or of the value of £300, and under par. (2) mus involve a claim, demand or question to or respecting any property or civil right of that amount or value. In this respect it resembles the second paragraph of s. 110 of the Indian Code of Civil Procedure: see Udoychand Pannalal v. P. EB. Guzdar & Co. (1). That it the judgment and not the subject matter of the suit may be of much importance where the subject of controversy in the suit is of more than the required value but the order, being, for example, of an interlocutory character, happens not itself actually to involve a claim demand or question to or respecting the subject of contro versy in the suit. :

Both because of the form of s. 35 (1) (a) (1) and (2) and for reasons of substance, it is necessary to qualify the statement that tl appellant must be worse off by £300 than he would be if the judgm had not been given or if he obtained the relief he seeks in the appet One qualification or. reservation that must be made is where appellant occupies a representative capacity or is suing in another right or as a representative party or in interests which go beyond his own private right. For example, if a will has been pronounced against and the order affects the interests of beneficiaries to 1 prescribed value, the executor, though not a beneficiary, may have a right of appeal. Again, suppose under a rule correspondit to Rules of the Supreme Court, Order 16, r. 32 (England) a rep! sentative is appointed of an unascertained class. Might he not come within s. 35 (1) (a) (2) ? EB

Then if the order sought by the appellant necessarily and of own force established rights of more than the required value, appellant having a sufficient locus standi, it may be a questi whether that might not be enough even if the appellant's om interest did not reach the standard. For example, a benefit seeks an order for the replacement of a trust fund by a Must his own interest in the amount to be replaced be more t £300? That is perhaps a question which we must leave outstan For the possible justification of the decision in Tipper v. Moore | lies in the view that, if the appellant were able to invalidate # will, he thereby established the title of all the next of kin and their collective interests amounted to more than £300. .

Perhaps, too, it is wise to make a reservation for some of situations which may conceivably arise in cases of prohibition a

(1) (1925) L.R. 52 L.A. 207. (2) (1911) 13 O.L.R. 248.

But, generally speaking, I think that a satisfactory 4-©- oF A- be found if the prejudice sustained by the appellant 17,

judgment bs considered or the advantage which he might Pest, i Spd Daeg Cnocken.

© "Appeal struck out as incompetent. Application for special leave refused. No order as to

appellant, Pickering, Cornish and Lempriere - the respondent, B. J.C. d& L. M. Hogan and Hugh