Field v Commercial Banking Co of Sydney Ltd

IN THE FEDERAL COURT	OF AUSTRALIA	)
1

AUSTRALIAN CAPITAL TERRITORY REGISTRY	)	No. 2 2 of 1977
)

DIVISION

GENERAL

)

On Appsal from

thc Sdprene Co'1l-t

of the Australlan Capltal	T ~ J	r-ltqIy
B E T W E E N :

JAROSLAV KARL JIRONC

Appcllant (Pldmtlff)

- and -

TONY FRANC'IS QUODLING

Rcspondcmt (Defendant)

REASONS FOR JUDGMENT

NIMMO J.

22 .June lO7H

ST. JOEIN

J .

Canbcrra

On 12 October, 1976 Connor J. dellvered ludgmcnt In proceedlnqs

No. S.C.

1424 of 1975 In the Supreme Court of The Austzallan

Capltal Terrltory ln whlch the appellant was the plalntlff

a n d

the respondent was the defendant.

Judqwnt was enterd fol-

the plalntiff In the

sum of $13,533.11.

On 29 October, 1976

the appellant's sollcltors lodged a notlce of appeal ln the

Hlgh Court of Australla on the grounds that the damagcs awardpd

were Inadequate. Certaln dlscusslons tsok place between

tlle

appellant's legal advisers and the Hlgh Court

Rqlstry.

/.?

No further step was taken to prosecute the appeal in the

High Court. Application was made to this Court, by notice

of motion dated

8 November, 1977,

seekmg orders that the appellant

have leave to file

a notice of appeal from the judgment

Connor J. in this Court notwithstandirg that the time limited

by the rules of this Court for filing the notice had elapsed.

This application came on for hearing before St.John

J., and

on 6 Decembel, 1977 that Judge ordered that the appellant

- have leave

tc file a notice of appeal containing

a request

for time to

'>e extended to the date

of flllng. Such a notics

of appeal waF filed: subsequently appeal books were filed

and the matter came on for hearing before this Court in

Canberra on

6 April, 1978.

Counsel for -,he appellant submitted that time for appeal should

be extended to the date of filing

o€ the notice of appeal

and counsel

for the respondent informed the Court that the

respondent dLd not oppose that appllcation provided the Court

regarded itself as having jurisdlctlon to make such an order.

Section 2 4 ( 4 ) of the Federal Court of Australia Act (the Act)

is in the following terms:-

"24.

( 4 )

Where, immediately before the commencing

day, a person has

a right to appeal (otherwise than in

accordance wlth leave or speclal leave referred to

1.n

sub-seckion ( 2 ) ) , or to seek leave

or special leave to

appeal, to the High Court

from a Judgment of the

Supreme

Court of

a Territory given

before the conunenclng day,

that right is, by force of thls sectlon, converted into

a corresponding right to appeal, or to seek leave or

special leave to appeal, to the Court."

. / 3

That Act was assented

oandcame into operatlon on

9 December,

1976 (the commencing day). It is, of course, immediately apparent

that at the time Connor

J. delivered his judgment and during

the 21 days allowed by the High Court Rules for lodgment of

notice of appeal to the High Court, the Federal Court of

Australia was not in existence. The cnly other relevant section

of that Act would appear to be

s.38 where in sub-sec.(l) It

is provlded that subject to any proviaion in that or any other

Act with respect to practice and procedure the practice and

-	procedure of the Federal Court shall 5e in accordance with rules
of Court made under that Act.
Order 6 Rule 1 of the Rules of Court .nade under that Act provides:-

"1. - Appeals

The practice and procedure

of the Court In

its appellate jurisdlctlon under sectlon

of the Act shall be in accordance with Order

70 of the High Court Rules as in force for

the time belng, whlch Order shall apply

mutatis mutandls

so far as ic

1s capable

of appllcation and subject to any direction

of the Court or

a Judge."

These sections appear to us to preser-re the

distinction between

the substantive leg'al right of appeal and the adjectival law

of practice and procedure embodled In rules

of Court. It 1s to

be noted that Sec.24(4) does not qualify the right

of appeal

by stating that the right is limited in its	exercxe by a time
limit.

./4

In the Colonial Suqar Refininq Company Llmited

v Irvlnq

1905 A.C. 369 the judlcial committee of the Privy Council had

to consider whether

a right of appeal to that tribunal given

by Order In Council of 1860 had been removed by the Judiclary

Act 1903. In the advice given: Lord Macnaghten sald at p.372:-

"To deprlve a suitor in

a pending action of an appeal

to a suFerior tribunal which belonged to hlm as

right is

a very dlfferent thlng from regulatlng

procedure.

The nature of

a right of appeal was examined by Isaacs and

Rich JJ. in The Comnonwealth

v Limerick Steamshlp Company

Limited and Kidman and Others (1924) 35 C.L.R. 69. Impllcit

in that judgment,

comencmg at p.82, is the prlnciple that

a right of appeal is

3 matter of substance and not

a matter

of practice and procedure.

Immediately before the commencing day the appellant had

right to appeal to the High Court from the judgment of

Connor J. by virtue of the provislons of s.51 of the

Australian Capital Territory Supreme Court Act

1933 and unless

the filing of the notice of appeal In the Hlgh Court had the

effect of exhausting or extinguishing that right it lssby

force of s.24 of the Federal Court Act,converted into

corresponding rlght to appeal

to this Court. The right of

appeal must include the whole process whereby

a Judgment of

an inferior Court is consldered by an appellate court and

decision reached by that appellate Court. In thls Instance,

rather than exhaust or

extinguish the right of appeal the filing

. ./5

of the notice of appeal in the High Court Registry had

preservative effect. It follows that

in our view we have

jurisdiction to entertain the appeal.

Turning now to the present applicatior for an extension of the time for the filing of the notice of rppeal in this Court to

the date

of the filing of the notice, Order

7 0 Rule 6 of the

High Court Rcles provides for the extension of tlme by

a Justice

on app1icatiL.n made within the period

of 21 days and further the

Full Court for special reasons may at any time give special leave to appeal on any conditions which appear just. In

addition Order

64 provides that non compllance with the rules

does not render proceedings void unless the Court or

a Justice

directs and the Court or

a Justice :,lay relieve a party of the

,consequences of non campliance.

Having regsrd to the steps recited above which the appellant

has taken to preserve his right	of appeal we have no hesltatlol
in granting his appllcation.

Proceeding now to deal with the merits of that appeal the lear.1ed

trial Judge awarded damages under the following headings and

in the following amounts:-

(a) Past loss of earnings

9,862.76

(b)

Medical

expenses

llke

and

940.35

1,230.00

future

the

1,500.00

damages

General

(d)

. ./6

The appellant was injured in

a motor vehicle accident on

13 February, 1975.

For some period thereafter, whlch, on the

evidence, is not clear, he suffered from the effects of physical

injuries which rendered him unfit for his pre-accldent occupation.

At the time of the hearing he was still not working and the

difficult question for the learned trlal Judge was whether

or not his failure to work was the result of the inluries

sustained in the accident and thelr sequelae,

or whether the

neurosis and depression from which he suffered, was brought appellant ana his Honour was presented with medical evidence,

on by factore which were no concern to the defendant.

some in oral

form, which was the subject of

cross-exammaticn,

and some in written form which was not. On one medical

ISSUS

there was corcplete clarity. By at least September,

1975 there

was no detectable physical defect preventing the plaintiff

from working. It appears clear that no-one concerned with

the medical management of the appellant up untll the trial

had recommenc'ed psychiatric treatment. Dr. Long, who described

hlmself as

a general physiclan, sald that physically there was

no reason

bhy the appellant could not return to work. Addltloaally

he said that he had no psychiatric skills but

It could be that

with psychiatric treatment rapid cure of the appellant could

effected. Dr. Madew. whose specialty, if any, was not mentioned, gave evidence of the appellant's morbid dlsposltlon before the accident and chat a brain scan negated signiflcant brain damage.

That medical practitioner also expressed the

opmion that the

appellant should return to his former state of health. Dr.

F . Hammett, who was apparently

a specialist physician, gave

a written report on the Woden Valley Hospital notepaper dated

September, 1976.

The concluding sentences are:-

"The emotional component

of his Illness appears quite

marked and he has had

a number of soclal problems that

have cor,trlbuted to hls stress.

I note that he

1s not

having cny psychiatrlc treatment and In my opinion he

is well enough to be worklng.

A Dr. Andrews reported that the appellant's marrlage was

broken up

abmt the time

dthe accldent and his wife was on

a cruise overseas (apparently on her

own) just prlor to the

accldent.

Dl. Andrews' recommendations were in the

following

terms :

"I recommend that he

be seen by a psychlaCrist and

feel that his present problems require psychlatric

attention. If his depression 1s successfully treated

I feel that he would be quite capable In the physical

sense of returning to his previous employment."

A Dr. Robbie, whose letterhead would indlcate he was

a speclallst

psychiatrist, gave

a report to the effect that the appellant

was depressed and anxious and that the anxiety "may well be

in part ascrllxd to his accident but che depression can be

placed firmly at the door of his falled marrlage". He also

recommended psychlatric treatment.

, The appellant's counsel submitted that the learned trial

Judge's finding that the appellant would return to work after

10 weeks treatment by

a psychiatrist was too short. Bearing

in mind that the onus is on the appellant to prove

his damag

and that the appellant adduced no evldence from expert

./a

psychiatrists as to the length of treatment necessary or any other psychiatric aspect of the appellant's condltlon we think such a submission, in these circumstances, does not lack temerity.

It was clearly within the learned trizl Judge's province to fix some time durlng which psychlatric treatment should sufflce an3 there being no guidance afforded in the appellant's case, the fixing ten weeks cannot, we think, be successfully crlticised

on the basis that it

is too short. 11. could be asserted wlth

equal force that the perlod was too long. His Honour had to

do his best with

a case which was nut carefully presented

far as prognosis

of the appellant's condition was concerned.

It was submitted also that

$1,500 was an madequate award of

;

general damages. The argument advanced was that, If the

plaintiff was entitled to the total

loss of wages for the

whole period he was off work the general damages merlted a more generouz award. Ignorlng whether it would be legitlmate

to endorse tl-is approach (an assumption of correctness In one

item of damages used to attack another item) it

1 s

clear

that there

w z s abundant evidence that the appellant's

lo s of

amenities was not attributable only tc hls accldent inluries.

Parts of that evldence have already been quoted. Further It

would appear that the learned trlal Judge in awardlng

a full

loss of wages may well have taken the -Jiew that although

the plaintiff's failure to return to work (after

a certain tlme)

was not attributable to the accident It was reasonable of the

plaintiff not to return as hls failure

so to do was attributable

.to lack of psychlatrlc treatment.

. .

We see no merit in the submissions made. The learned trial

Judge had a difflcult task. Nothlng put to us lndicates

departure from legal principle or lack of care.	The appeal
is dlsmissed with costs.

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WILllOUt

1 - . .,

[1978] FCA 46

22 Jun 1978