ON APPEAL FROM THE SUPREME COURT OF Appeal-High Court-Leave to appeal-Interlocutory judgment of State Court
Principles governing grant of leave-Judiciary Act 1903-1934 (No. 6 of 1903- No. 45 of 1934), sec. 35 (1).
Principles in accordance with which applications under sec. 35 (1) of the Judiciary Act 1903-1934 for leave to appeal against an interlocutory judg- ment of a State Court should be determined, stated.
APPLICATION for leave to appeal from the Supreme Court of New South Wales.
The Commercial Banking Co. of Sydney Ltd. brought an action in the Supreme Court of New South Wales against Norman Charles Bucknell for moneys lent by the plaintiff to the defendant by way of overdraft and for interest and charges thereon to the amount, in all, of £2,272 15s.
The defendant pleaded that the plaintiff's claim was barred by the Statute of Limitations.
At the hearing of the action before Stephen J. and a jury, the plaintiff relied upon a letter written by the defendant and bearing date 20th December 1933 as an acknowledgment of the debt sufficient to take the case out of the Statute of Limitations, but the plaintiff was nonsuited on the ground that its right of action was barred by the statute.
An appeal by the plaintiff was upheld by the Full Court of the Supreme Court on the ground that the letter constituted a sufficient acknowledgment to take the case out of the Statute of Limitations, the nonsuit was set aside and a new trial ordered: Commercial Banking Co. of Sydney Ltd. v. Bucknell 1.
The defendant applied to the High Court for leave to appeal from that decision, and, in his affidavit in support, submitted that leave should be granted because not only was an important point of law involved, but, also, the decision of the Full Court in effect concluded the action in favour of the plaintiff.
Monahan K.C. (with him Wesche), for the applicant, agreed that, in the event of the appeal for which leave was sought being dismissed, judgment should be entered in favour of the plaintiff for the amount claimed with interest thereon to date of judgment at the rate claimed.
LATHAM C.J. Leave to appeal is granted subject to the condition consented to by Mr. Monahan on behalf of the applicant. Reasons for the granting of leave in an application of this nature will be given later.
THE COURT delivered the following written judgment :- This is an application for leave to appeal from an interlocutory order. The plaintiff claimed £2,272 15s. and interest. The plaintiff was nonsuited, the learned trial judge holding that the claim was barred by the Statute of Limitations. The plaintiff appealed, and the Full Court, holding that there was a sufficient acknowledgment to take the case out of the statute, ordered a new trial. The result,
[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.
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AGLC
Ex parte Bucknell [1936] HCA 67
Case
[1936] HCA 67
Decision Date
CaseChat Overview and Summary
The applicant, Norman Charles Bucknell, sought leave to appeal to the High Court from an interlocutory judgment of the Supreme Court of New South Wales. The underlying dispute involved a claim by The Commercial Banking Co. of Sydney Ltd. for moneys lent, to which Mr. Bucknell had pleaded the Statute of Limitations. The plaintiff had been nonsuited at trial, but the Full Court of the Supreme Court set aside the nonsuit and ordered a new trial, finding a letter from the defendant constituted a sufficient acknowledgment of the debt to overcome the statute.
The primary legal issue before the High Court was the principles governing the grant of leave to appeal from an interlocutory judgment under section 35(1) of the Judiciary Act 1903-1934. Specifically, the court considered when leave should be granted for an interlocutory order that, in practical effect, finally determines the rights of the parties, as was contended in this case. The court also addressed the distinction between leave to appeal and special leave to appeal, and the general policy of presuming against appeals from interlocutory orders.
The Court reasoned that while interlocutory orders are generally not subject to appeal without leave, an exception exists where such an order, by its nature or practical effect, finally determines the controversy between the parties. In this instance, the order for a new trial was considered to have this effect because the only defence relied upon by the defendant was the Statute of Limitations, and the Full Court's decision on the acknowledgment letter effectively resolved that defence in favour of the plaintiff. The Court emphasised that leave to appeal from an interlocutory order should not be granted as a matter of course, and that it would not grant leave if it held a clear opinion adverse to the success of the proposed appeal.
Leave to appeal was granted in this case, subject to a condition agreed to by the applicant. This condition stipulated that if the appeal were dismissed, judgment would be entered for the plaintiff for the full amount claimed, with interest. This condition was imposed to prevent the useless expense of a new trial if the appeal failed, given that the interlocutory order had effectively determined the substantive issue.