Jenkins v Lanfranchi - [1910] HCA 24

LANFRANCHI

RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF Practice-Appeal - from Supreme Court of State-Appealable amount-Judiciary

Act 1903 (No. 6 of 1903), sec. 35-Special leave-Appeal as to costs alone- Competency of appeal-Objection taken at hearing-Costs.

In ascertaining the appealable amount under sec. 35 of the Judiciary Act 1903 in the case of a plaintiff who has failed and seeks to appeal to the High Court the test is the amount of the sum which he has claimed and has failed

So, where a plaintiff had obtained a judgment in the Supreme Court for £600 which on appeal to the Full Court was reduced to £500,

Held, that for the purpose of an appeal by the plaintiff to the High Court the adverse judgment was in respect of £100 only, and that an appeal would

Special leave to appeal from a decision of the Supreme Court as to costs alone, where those costs are in the discretion of the Supreme Court, will only be granted in very special circumstances.

Where an objection to the competency of an appeal is not taken until the hearing, the successful objector will not in general be allowed costs.

Appeal from the Supreme Court of Victoria dismissed as being incompetent, and special leave to appeal refused.

APPEAL from the Supreme Court of Victoria.

10 CLR 596

An action was brought in the Supreme Court of Victoria by Flora Jenkins against Margaret Thorpe and Joseph Lanfranchi, in which the plaintiff sought a declaration that the plaintiff was not bound by two several contracts made between her and the defendant Thorpe, and a consequential order for the return of £600 which had been paid to an agent of Thorpe. The defendant Lanfranchi was the assignee of all the rights of Thorpe under the contracts. The action was tried before Madden C.J. During the course of the trial the plaintiff amended her statement of claim, and thereupon the defendant Lanfranchi paid into Court the sum of £500. Madden C.J. gave judgment for the plaintiff against both defendants, declaring the contracts to be void, and directing them to pay to the plaintiff £600, and also the plaintiff's costs of the action, with certain deductions. From that judgment the defendant Lanfranchi appealed to the Full Court, which allowed the appeal with costs, varied the judgment by directing the defendant Lanfranchi to pay £500 instead of £600, and ordered that the parties to the appeal should abide their own costs of the action.

The plaintiff now appealed to the High Court. Dethridge, for the appellant. Bryant (with him Hotchin), for the respondent. There is no appeal as of right in this case, for the only amount involved is £100.

Dethridge. Literally the judgment of the Full Court is a judgment for a sum amounting to £300 within sec. 35 of the Judiciary Act 1903, and an appeal to this Court will lie without leave. If not, the plaintiff should have special leave to appeal. The important question…

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 Jenkins v Lanfranchi

Details

AGLC: Jenkins v Lanfranchi [1910] HCA 24
Case: [1910] HCA 24
Decision Date: 31 May 1910

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The appellant, Flora Jenkins, had sued Margaret Thorpe and Joseph Lanfranchi seeking a declaration that she was not bound by two contracts and the return of £600 paid. The Supreme Court initially found for the plaintiff, ordering the return of £600 and costs. However, on appeal by the defendant Lanfranchi to the Full Court of Victoria, the judgment was varied to order the return of £500, and the parties were ordered to bear their own costs of the action. The plaintiff, Ms. Jenkins, then appealed to the High Court.

The primary legal issue before the High Court was the competency of the appeal. Specifically, the Court had to determine whether the appealable amount, as defined by section 35 of the Judiciary Act 1903, was sufficient to allow an appeal as of right. A secondary issue arose concerning the plaintiff's request for special leave to appeal, both on the substantive matter and on the question of costs awarded by the Full Court.

The High Court, applying established principles for determining the appealable amount, held that for a plaintiff who has failed to recover the full amount claimed, the appealable amount is the sum they failed to recover. In this instance, the Full Court had reduced the judgment from £600 to £500, meaning the plaintiff was prejudiced by £100. As this amount was less than the £300 threshold stipulated in section 35 of the Judiciary Act, an appeal as of right was not competent. The Court also considered the plaintiff's application for special leave to appeal. It refused special leave on the substantive matter, finding no novel or compelling legal grounds. Regarding the costs, the Court reiterated that special leave to appeal on costs alone, particularly when those costs are within the discretion of the lower court, will only be granted in very special circumstances, which were not present here.

Consequently, the High Court found the appeal to be incompetent. Furthermore, it was noted that objections to the competency of an appeal, if not raised until the hearing, generally do not attract costs for the successful objector. Accordingly, the appeal was dismissed without costs.

Orders