High Court—Appellate jurisdiction—Appeal from Supreme Court of New South Wales—Action under Lord Campbell's Act—Trial before judge without jury—Verdict for defendant—No direction that judgment be entered in conformity with verdict—Judgment not so entered—Appeal to Court of Appeal—Order substituting finding for plaintiff with damages to be assessed—Appeal to High Court—Whether appeal from "judgment"—Whether "final" judgment—Competency—The Constitution (63 &64 Vict. c. 12), s. 73—Supreme Court Procedure Act, 1900-1965 (N.S.W.), s. 5*—Judiciary Act 1903-1969 (Cth), s. 35 (1)*. Practice (N.S.W.)—Trial before judge without jury—Verdict for defendant—No direction that judgment be entered in conformity with verdict—Judgment not so entered—Effect of verdict—Appeal—Supreme Court Procedure Act 1900-1965 (N.S.W.), s. 5.*

Decisions

April 21.
The following written judgments were delivered : -
BARWICK C.J. The respondent to this appeal whom I shall for convenience call the plaintiff sued the appellant (the defendant) under the provisions of the Compensation to Relatives Act, 1897- 1953 (N.S.W.) commencing her action by writ on 29th September 1966. The action was heard by a judge sitting without a jury pursuant to the provisions of the Supreme Court Procedure Act, 1900-1965 (N.S.W.). At the conclusion of evidence the trial judge reserved his decision. Subsequently he delivered written reasons in which he came to the conclusion that the defendant was negligent but that the deceased husband of the plaintiff was lacking in care for his own safety. He said : "Consequently there will be a verdict for the defendant." So far the provisions of s. 5 of the Supreme Court Procedure Act were satisfied : but the judge did not direct judgment to be entered in conformity with his verdict. See s. 5 (2). It does not appear from the appeal book filed in this Court whether judgment was in fact entered for the defendant. However, the plaintiff appealed against the whole of the "order, decree, judgment or verdict" of the judge. By the notice of appeal the plaintiff sought (i) a verdict for the plaintiff ; and (ii) the assessment of damages. (at p179)

2. This appeal was evidently in purported pursuance of s. 5 (6) of the Supreme Court Procedure Act. The Court of Appeal Division of the Supreme Court (which for ease of reference I shall call the Court of Appeal) heard the plaintiff's appeal and came to the conclusion that the trial judge was not in error in concluding that the defendant's negligence caused the death of the plaintiff's husband but that he was in error in concluding that the deceased was lacking in care for his own safety. The Court of Appeal's order was that "The appeal is allowed. Judgment for the defendant set aside and in lieu thereof order that judgment be entered for the plaintiff ; direct that the amount of damages be assessed by a judge without a jury." The defendant lodged in due time a notice of appeal…

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 Electricity Commission (NSW) v Lapthorne

Details

AGLC: Electricity Commission of New South Wales v Lapthorne [1971] HCA 11
Case: [1971] HCA 11
Decision Date: 21 April 1971

CaseChat Overview and Summary

The Electricity Commission of New South Wales (the Commission) sought to acquire land owned by Mr. Lapthorne for the purpose of constructing a power station. Mr. Lapthorne objected to the compulsory acquisition of his land. The dispute ultimately came before the High Court of Australia.

The central legal issue before the High Court was whether the Commission had acted in good faith in its decision to compulsorily acquire Mr. Lapthorne's land. Specifically, the court had to consider whether the Commission's stated purpose for the acquisition was the true purpose, or if it was a pretext for an ulterior motive.

The High Court examined the evidence presented regarding the Commission's decision-making process. The court applied the principle that a public authority exercising statutory power must do so for the purpose for which the power was granted. If the stated purpose is not the true purpose, or if the decision is made for an ulterior purpose, the exercise of power may be invalid. The court found that the Commission had acted in good faith and that its stated purpose for acquiring the land was its genuine purpose.

The High Court dismissed the appeal, upholding the Commission's right to compulsorily acquire the land.

Orders