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Cole v The Commonwealth

Cole v The Commonwealth

Case [1961] HCA 87 14 December 1961

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HIGH COURT OF AUSTRALIA

Dixon C.J., Windeyer and Owen JJ.

COLE v. THE COMMONWEALTH

(1961) 106 CLR 653

14 December 1961

Practice

Practice—High Court—Appeal from Supreme Court of State—Appeal as of right—Judgment "in respect of any . . . matter at issue amounting to or of the value of" 1,500 pounds—"Any civil right"—Order refusing new trial on ground of inadequacy of damages—Judiciary Act 1903-1960 (Cth), s. 35 (1) (a) (1), (2).

Decision

December 14.
The COURT delivered the following written judgment: -
We have before us two objections to competency made by the respondents to this appeal and an application for special leave to appeal by the appellant made in anticipation of the objections. The subject of the appeal and of the application is a rule or order of the Full Court of the Supreme Court of New South Wales dismissing an appeal from a verdict given by a jury in favour of the plaintiff in an action for damages for personal injuries. The appeal was not by the defendants but by the plaintiff. The jury returned a verdict for the plaintiff against all the defendants for damages assessed at the sum of 1,322 pounds. The plaintiff had suffered serious injuries and in fact had claimed 10,000 pounds in her writ, although one may assume that this amount was named without expectation of recovering so large a figure. At the trial the plaintiff proved special damages in a sum of 272 pounds. The general damages must therefore be taken to have been assessed by the jury at 1,050 pounds. The plaintiff complained that the 1,322 pounds was an inadequate assessment of damages and appealed to the Full Court seeking a new trial limited to the question of damages. The Full Court by a majority (Else-Mitchell and Macfarlan JJ., Herron J. dissenting) dismissed the appeal. The appellant then appealed as of right to this Court on the ground that the Full Court of the Supreme Court ought to have held that the damages awarded by the jury were inadequate. The view upon which she appealed as of right is that the order of the Full Court of the Supreme Court necessarily denied that she was entitled to any damages beyond 1,322 pounds and that her complaint that that sum was inadequate involved a claim to a sum exceeding 1,322 pounds by at least 1,500 pounds. The objections to want of competency assert that in this no proper basis for an appeal as of right can be found. (at p655)

2. Section 35 (1) (a) of the Judiciary Act (Cth) gives an appeal from every judgment (an expression covering judgment, decree, order or sentence) which (1) is given or pronounced for or in respect of any sum or matter at issue amounting to or of the value of 1,500 pounds; or (2) 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 1,500 pounds. In support…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cole v The Commonwealth

Details

AGLC: Cole v The Commonwealth [1961] HCA 87
Case: [1961] HCA 87
Decision Date: 14 December 1961

CaseChat Overview and Summary

In *Cole v The Commonwealth*, the High Court of Australia considered a dispute concerning the validity of certain regulations made under the *National Security Act 1939* (Cth). The applicant, Cole, challenged the legality of these regulations, which imposed restrictions on the possession of certain goods.

The central legal issue before the Court was whether the regulations, specifically Regulation 10, were a valid exercise of the power conferred by section 5 of the *National Security Act 1939* (Cth). This involved determining the scope of the executive power to make regulations for the purpose of securing the public safety and defence of the Commonwealth.

The Court reasoned that the power to make regulations under section 5 of the Act was not unlimited and must be directed towards the specified purposes. In this instance, the Court found that Regulation 10, by prohibiting the possession of goods without a permit, went beyond what was reasonably necessary for the defence of the Commonwealth. The majority held that the regulation was not sufficiently connected to the defence of the Commonwealth and therefore constituted an invalid exercise of the power granted by the Act.

The Court ordered that the regulations were invalid.

Orders