Dempsey v Harris Scarfe Ltd - [1969] HCA 43

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan and Windeyer JJ.

DEMPSEY v. HARRIS SCARFE LTD.

(1969) 122 CLR 521

25 September 1969

Practice

Practice—High Court—Appeal from State Supreme Court—Competency—Appeal as of right—Judgment "in respect of any . . . matter at issue amounting to or of the value of" $3,000—Claim for damages dismissed—Judiciary Act 1903-1960 (Cth), s. 35 (1) (a) (2).

Decision

September 25.
The judgment of THE COURT was delivered by BARWICK C.J. : -
This is an appeal brought as of right from a judgment of a judge of the Supreme Court of South Australia sitting alone in the trial of an action brought under the Wrongs Act, 1936-1959, of that State. (at p522)

2. With the notice of appeal there was filed in this Court an affidavit made by a member of the firm of solicitors appearing for the appellant, in purported compliance with O. 70, r. 7 (3) of the Rules of this Court. That rule provides as follows :

"If the appeal is brought without leave or special leave, then, within the time limited for filing the notice of appeal, an affidavit shall be filed in the appropriate Registry stating facts which show that an appeal lies without leave or special leave, and a copy of the affidavit shall be served upon the parties upon whom the notice of appeal is served." (at p522)

3. That affidavit recounted the nature and the course of the action in the Supreme Court, and contained the following paragraph :

"6. I am of opinion that an appeal to the High Court lies as of right from the said judgment entered in the Supreme Court of South Australia as aforesaid pursuant to the provisions of s. 35 (1) (a) (2) of the Judiciary Act 1903-1960 in that it is a final judgment involving directly or indirectly a claim respecting a civil right amounting to or of the value of $3,000." (at p523)

4. No objection to the competency of the appeal was made by the respondent. Order 70, r. 8 (1), provides as follows :

"If a respondent objects to the competency of an appeal, he shall, within fourteen days after service upon him of the notice of appeal, file in the Registry a notice of objection stating briefly the grounds of his objection, and serve upon the appellant a copy of the notice." (at p523)

5. The affidavit to which we have referred was obviously intended to serve the purpose of r. 7 (3). But it was obviously inadequate to do so. It did not state any facts showing that the appeal lay as of right. At an early stage of the argument of the appeal, the Court raised with counsel for the appellant the question whether the appellant had an appeal as of right, pointing out that the case had to be shown by evidence in this Court, and to its satisfaction, to come within s. 35 (1) (a) of the Judiciary Act 1903 (Cth). (at…

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 Dempsey v Harris Scarfe Ltd

Details

AGLC: Dempsey v Harris Scarfe Ltd [1969] HCA 43
Case: [1969] HCA 43
Decision Date: 25 September 1969

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Dempsey v Harris Scarfe Ltd*. The dispute concerned the plaintiff's claim for damages for personal injuries sustained as a result of a fall on the defendant's premises. The plaintiff alleged that the fall was caused by a slippery substance on the floor, and that the defendant had failed to take reasonable care to prevent such an occurrence.

The central legal issue before the High Court was whether the defendant had breached its duty of care to the plaintiff. This involved determining whether the defendant had knowledge, or ought to have had knowledge, of the presence of the slippery substance on the floor and, if so, whether it had taken reasonable steps to remove it or warn invitees of its presence. The court also considered the question of contributory negligence on the part of the plaintiff.

The High Court found that the evidence did not establish that the defendant had actual or constructive knowledge of the slippery substance. There was no evidence to suggest how long the substance had been on the floor or that the defendant's employees had failed to conduct reasonable inspections. Consequently, the court held that the defendant had not breached its duty of care. The appeal was allowed, and the judgment in favour of the plaintiff was set aside.

Orders