Zimpel v Allard [1904] HCA 56

Held, that, even if the Supreme Court was «in error in holding that the judgment of an inferior Court could not be disputed unless it had been disputed in the Local Court itself, the discretion of this Court to grant special leave to appeal should not be exercised where so small an amount was involved, and

when the appellant had lain by in the Local Court and taken the chance of a judgment in his favour.

HIS was an application for special leave to appeal from a udgment of the Supreme Court of Western Australia of the 9th August, 1904, affirming the judgment of the Chief Justice at \isi Prius in an ejectment action, ordering possession to be given

H.C. or A. the respondent, In an action in the Local Court in May, 1903, thy

respondent had obtained an order for the possession of the premisg. under the Small Debts Act of Western Australia. The time for issuing execution on the Local Court judgment having allowed to expire, he brought an action of ejectment in the Supreme Court. At the trial before the Chief Justice the respond. : ent proved the judgment of the Local Court. The appellant tendered evidence to show that the case was not within the juris. diction of the Local Court, but the evidence was rejected, and judgment was given for the respondent. On appeal, the Full Com affirmed the decision of the Chief Justice.

Alcock, for the appellant. The Supreme Court was in error on three grounds : - a

1. The judgment of the Local Court was only primé facie evidence. It was not conclusive, and did not amount to a2. The section of the Small Debts Act only applies to yearly tenancies. Here the plaint merely set up a weekly tenure.

3. The Local Court, whose judgment was relied on by the plaintiff in the ejectment action, had no jurisdiction to trya question of title to land.

The ground rent is £19 10s. per year, but the appellant bought out the previous tenant, and paid £290 for the tenancy. The Court has jurisdiction only in cases coming within the section: Frieni y. Shaw (1). In this 'case a premium had been paid, and the section confers jurisdiction only where there is no such fine 0

premium. This tenancy, also, was a weekly one, and did 1 come within the section.

(GrirritH C.J - Why was not this point raised in the Court 7]

The order of a Local Court is never final and conclusive i ejectment: Campbell v. Loader (2); Hudson v. Walker (3). evidence was tendered to show that, as there at was no relationship

(1) 20 Q.B.D., 374, (2) 3H. & C., 520. (3) 41 L.J. (Ex)

Grirrira C.J. - On ° what grounds can this be said to be a H.C. or A.

question of public importance 2] On the question of the jurisdiction of the Local Court, Chew v.

Per Curiam - We think that this application should not be decided ew parte. Notice of motion must be given to the

plaintiff. The case came before the Court again on 13th October.

Alcock, continuing : Where the judgment of an inferior Court is in question, the plea must allege that it was a Court of competent jurisdiction :

Pilkington, for the respondent. The amount involved is only 7s. 6d. per week, and no question of public importance arises. [He was stopped. ]

Alcock, in reply. The amount of the ground rent is immaterial. The defendant gave £290 in 1898 for the lease. Although the ground rent may be small, the premises may be very valuable. The actual market value is the test. Elston v. Rose (4); Hodson v. Walker (5). On the question of the validity of a magistrate's decision where he has jurisdiction over the subject-matter, he cited Thompson v. Ingham (6).

Grirrita C.J. This is an application for special leave to appeal from a decision of the Full Court. The case, according to the evidence, is one involving property worth, according to the most favourable valuation, about £20 a year, the difference between the annual value and the rent. The question of law which Mr. Aleoek desires to raise is whether the judgment of the Local Court 1s conclusive for the purpose of founding an action of ejectment. Of course, there is no doubt that the judgment of the Local Court

(1) 8 Exch., 249, (4) L.R., 4Q.B., 4 (2) 1 Cr. M. & R., 302, Gs LR; 7 bs

at) guts 2H. L., 239, per Willes, J., (6) 19 LJ., Q.B., 189.

H. ©. or A. is not conclusive, except in matters within its jurisdiction, 'The 1904. Jearned Judges of the Supreme Court seem to have thought that al the jurisdiction of the Local Court could not be disputed unless it os had been disputed in that Court. It is not quite clear that

• that was their view, but if it was, it is inconsistent with the case of Mayor of London v. Cow (1). In the present case it appears

that, before the Local Court itself, the jurisdiction of that Court

was not disputed. A purely technical point was taken upon

which the present appellant failed. He appealed to the Supreme

Court, and failed there; and, in consequence of the delay which

had oceurred, the order made by the Local Court could not be enforced. Proceedings were then taken in the Supreme Court,

The question for us is whether, supposing the Supreme Court to

have made a mistake in regard to the law governing the effect of judgments of inferior Courts, this Court should give leave to

appeal ina case where so small an amount is involved. The application is, in effect, to be allowed to impeach the verdict of

the Local Court on the ground of want of jurisdiction. True,

the appellant was, at one time, entitled to impeach the judgment on that ground. So any party isentitled to impeach a judgment of an inferior Court by way of prohibition if it exceeds its juris- diction. But this right may be lost. In the case of the Mayor of London vy. Cox, which embodies the whole law of prohibition, the rule was stated by Mr. Justice Willes as follows QQ2): - " Where, however, the defect is not apparent, and depends upon some fact in the knowledge of the applicant which he had an opportunity of bringing forward in the Court below, and he has thought proper, without excuse, to allow that Court to proceed to judgment without setting up the objection, and without moving fora prohibition in the first instance, although it should seem that the jurisdiction to grant a prohibition in respect of the right of the Crown is not taken away, for mere acquiescence does not give Jurisdiction, yet, considering the conduct of the applicant, the importance of making an end of litigation, and that the writ, though of right, is not of course, the Court would decline to inter- pose, except perhaps upon an irresistible case, and an excuse for the delay, such as disability, malpractice, or matter newly come to

'the knowledge of the applicant. The objection in such cases is, H. C. or A. that the applicant comes too late ; not, as here, that he comes too as soon; and the cases cited at the bar as to applications after Zimperr,

sentence are therefore inapplicable." That is the rule that applies 4)". np, to taking objection to jurisdiction by way of prohibition. Appli- cations to this Court for special leave to appeal are not granted as of course. We think that the analogy of the rule just stated may very well be applied when special leave is asked for the purpose of raising an objection which would not have been allowed to be taken by way of prohibition, especially when the value of

the property involved is sosmall. For these reasons we think the

Solicitor, for appellant, #. Morley Alcock. Solicitor, for respondent, J. M. Speed.

H. E. M. (HIGH COURT OF AUSTRALIA.] GOODE . : z ; ; : 7 : . APPELLANT; PLAINTIFF, AND BECHTEL . ; : : . : : . RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF WESTERN AUSTRALIA.

Arbitration - Jurisdiction of arbitrator - Setting aside award - Grounds for setting H. C. or A.

aside, ea. Asa general rule an arbitrator is a judge of law as well as of fact, and his Pa decision cannot be objected to on the ground that he misconceived the law, Oct ig8

' Judgment of the Full Court of Western Australia (6 W.A. L.R., 86) reversed, a meet and the award of the arbitrator restored. beh on