Moller v Roy

[1975] HCA 31

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Gibbs, Stephen, Mason, Jacobs and Murphy JJ.

MOLLER v. ROY

(1975) 132 CLR 622

21 August 1975

Practice

Practice—High Court—Appeal from Supreme Court of Northern Territory—Right to appeal—Appealable amount—Judgment given or pronounced for or in respect of sum amounting to $3,000—Appeal on ground of inadequacy of verdict for damages exceeding $3,000 for negligence causing personal injury—Whether sufficient—Northern Territory Supreme Court Act 1961-1973 (Cth), s. 46 (1) (a).

Decisions

August 21.
The following written judgments were delivered :-
BARWICK C.J. The appellant was injured in a collision between a motor cycle he was riding and a motor car driven by the respondent. He sued in the Supreme Court of the Northern Territory and was awarded the total sum of $26,213.02. He lodged an appeal as of right to this Court, claiming that that award was inadequate. He supported the notice of appeal by an affidavit by his solicitor asserting that the judgment against which the appeal is brought is a final judgment given in respect of a claim involving an amount in excess of $3,000. (at p623)

2. The respondent duly lodged a notice of objection to the competency of the appeal, claiming that it was not shown that the sum or matter at issue was or is of the value of $3,000. The objection having been set down for hearing (see O. 70 r. 8 (3)) it came on to be heard by the Court's direction at the same time as the appeal. Argument was heard on the question of competency, and judgment reserved on that matter; the appeal being adjourned pending that judgment. (at p623)

3. Appeals to this Court from the Supreme Court of the Northern Territory are regulated by s. 46 of the Northern Territory Supreme Court Act 1961-1973 (Cth). The terms of the section are substantially the same as those of s. 35 of the Judiciary Act 1901-1973 (Cth). Consequently, decisions of the Court upon that section will be relevant to the decision as to the competency of this appeal. Equally, a decision in this case will be relevant to appeals brought by virtue of the Judiciary Act. (at p624)

4. Section 46, so far as presently relevant, provides:

"46. (1) The High Court has jurisdiction to hear and

determine appeals from every judgment (whether final or interlocutory) of the Supreme Court in a civil matter which - (a) is given or pronounced for, or in respect of, a sum or matter at issue amounting to or of the value of One thousand five hundred pounds (now $3,000 by virtue of the Statute Law Revision (Decimal Currency) Act 1966);

(b) involves directly or indirectly a claim, demand or question to or respecting property, or a civil right, amounting to or of the value of One thousand five hundred pounds (now $3,000 by virtue of the Statute Law Revision (Decimal Currency) Act 1966); . . . (2) Except as provided by the next two succeeding

sub-sections, it is not necessary to obtain the leave of the Supreme Court or a Judge to appeal to the High Court in a civil matter. (3) An appeal does not lie to the High Court from an

interlocutory judgment, except by leave of the Supreme Court or a Judge or of the High Court."

Paragraphs (a) and (b) respectively correspond with s. 35 (1) (a) (1) and (2) of the Judiciary Act. (at p624)

5. In the present case, the judgment for the appellant was "given . . . for . . . a sum . . . " which exceeded $3,000. The opposing contentions are, for the appellant, that this fact suffices; and for the respondent, that it does not suffice to give the Court jurisdiction otherwise than by its leave, and that the appeal as of right is only competent if the appeal itself involves a sum of at least $3,000. The respondent's precise expression of his submission is that the appeal to be competent must involve a claim respecting a civil right of the value of $3,000. (at p624)

6. It must be observed at the outset that s. 46 does not in terms confer rights of appeal. Section 46 gives the Court jurisdiction to hear and determine appeals of the described kind. It is an exercise of the power conferred on the Parliament by s. 122 of the Constitution: see Spratt v. Hermes (1965) 114 CLR 226 and cases cited (1965) 114 CLR, at p 239 . Its counterpart in the Judiciary Act (s. 35) is based on s. 73 of the Constitution. The right to appeal is derived in each instance from the obligation of the Court to exercise the granted jurisdiction, an obligation implied in the grant. (at p625)

7. The form of s. 35 of the Judiciary Act is dictated by the circumstance that s. 73 of the Constitution gives the High Court jurisdiction to hear and determine appeals from "all judgments, decrees, orders and sentences of . . . the Supreme Court of any State", but with such exceptions and subject to such regulations as the parliament prescribes. Section 35 does so prescribe. But it is important to observe that the judgments etc. to which it refers are the judgments to which s. 73 refers. The words "judgments etc." there refer to the formal orders which the Supreme Court may make, whether in the form of a judgment strictly so-called or a decree, order or sentence. That is the accepted meaning of the word "judgment" in such a context as the present. The constitutional reference to such judgments is unqualified: it is not concerned with their subject matter or the reason which has prompted the making of them. There can be no reason, in my opinion, for the word "judgment" to bear any different meaning in s. 35 prescribing exceptions within the meaning of s. 73 from the meaning the word bears in the Constitution. Further, the exception which in relation to a judgment is made by s. 35 is determined by the amount of money for which the judgment was given. (at p625)

8. It must also be observed that this case, unlike many of those in the reported decisions of the Court, is not one in which the appeal is sought to be brought from the judgment of an appellate court. The intended appeal is from the judgment given on the trial of an action. Further, the appellant was the sole plaintiff in the action: no interests but his own are involved on his side of the record: it is against that judgment which he seeks to appeal. The judgment is final: the question would therefore seem to be whether that judgment satisfies the description in any of the paragraphs of s. 46 (1) in any of their subdivisions. (at p625)

9. Paragraph (a) of the sub-section "relates to cases of appeal against a judgment which affects the liability for or in respect of a sum of money or something of a value amounting to" $3,000 at least. Paragraph (b) refers to judgments which, though not given for a requisite sum or with respect to a matter in issue of the stated value, directly or indirectly involve a claim etc. as described in par. (b); that is to say, "to property or a civil right amounting to or of the value of" $3,000, "and the judgment must directly or indirectly involve some claim, demand or question in respect of such property or civil right". See per Dixon J. in Ridgway v. Lockwood (1938) 60 CLR 732, at pp 738-739 as to s. 35 (1) (a) (1) of the Judiciary Act. (at p625)

10. It is with the first paragraph of the sub-section that we are presently concerned, and to the operation of this paragraph I shall principally confine my observations. (at p626)

11. It is clear, in my opinion, that par. (a) of s. 46 (1) should be read as (i) "every judgment . . . of the Supreme Court in a civil matter which is given or pronounced for a sum of at least $3,000". In my opinion, the words "of at least" should be treated as present in the paragraph after the word "sum" and before the words "or matter", the use of the words "amounting to" being appropriate to convey the notion of "of at least"; and (ii) "every judgment . . . of the Supreme Court which is given or pronounced in respect of matter at issue of the value of $3,000". (at p626)

12. It would seem that, where there is judgment for a sum, it will be the amount of that judgment rather than the matter at issue in the action in which that judgment is given or pronounced, which will determine the right of appeal. So much it seems to me was decided in Allan v. Pratt (1888) 13 App Cas 780 , although, as I shall later point out, the statutory provisions with which that case was concerned, differed significantly from the terms of par. (a). The formula for determining the right of appeal with which the case of Allan v. Pratt dealt will be found in vol. 3 of the Montreal Law Reports, at p. 8. I have been unable to obtain a copy of this volume, but it is apparent from the reasons of Lord Selborne in delivering the judgment of the Privy Council, that the relevant appellate formula must have been akin to, if not identical with, that with which Macfarlane v. Leclaire (1862) 15 Moo PCC 181 (15 ER 462) dealt, i.e. the right of appeal was conditional on the extent of the "matter in dispute" or the "matter in question". The Orders in Council or statutory provisions from which these formulae are derived directly create a right of appeal. (at p626)

13. Where the appellate formula contains the expressions "matter in dispute" and "sum or value appealed for" the right to appeal is determined by the extent of the prejudice which the judgment, against which the appeal is brought, produced to the party seeking to relieve himself of it. The extent of that prejudice will govern the right of appeal. But where it is the amount of the judgment which defines the jurisdiction to hear the appeal, as is the case with par. (a), there is, in my opinion, no room for valuing the appeal or determining the extent of the prejudice produced by the judgment in order to determine whether the appeal is competent. (at p626)

14. Under par. (a) of s. 46 (1), it is the fact of a judgment of such a description which, in my opinion, gives the Court jurisdiction and, in consequence, the litigant, the right to appeal. That jurisdiction exists, in my opinion, whether it be invoked by the defendant or the plaintiff. There could be no doubt that the defendant against whom a final judgment for $3,000 or more was given or pronounced could by appeal seek the exercise of the Court's jurisdiction. (at p627)

15. It has been suggested that the word "judgment" in s. 46 does not refer to the formal order which the Court makes in an action or a suit, but that it refers only to the result which the termination of the proceedings produces for or against a party. It is fundamental to our jurisprudence that an appeal is brought against an order and not against the reasons which support the order. In so saying, I am not unmindful of the somewhat unusual course taken by the Privy Council in Uren's Case, sub nom. Australian Consolidated Press Ltd. v. Uren (1967) 117 CLR 221 . That course was unusual and I am quite sure was not followed in order to set a precedent. The jurisdiction given to the Court by the section is in respect of every judgment; that is to say, the formal order made by a court whether it be called a judgment, decree, order or sentence. There then follows descriptions of the judgments in respect to which the Court has jurisdiction to hear an appeal. Each of these descriptions is separate and it suffices to give jurisdiction if the judgment in question satisfies any one of these descriptions. One of these is that the judgment is given for a sum of money. Another, that it is given in relation to a matter in issue. Another, that it involves a claim etc. to property or a civil right. It is not permissible, in my opinion, by any manner of construction to qualify any one of these descriptions by reference to another of the descriptions. Each is self-contained and independent of the other descriptions; e.g., it is, in my opinion, quite impossible to construe par. (a) as referring to a judgment for the requisite sum where the matter in issue was of the stated value. Yet that I apprehend is what is really suggested when it is said that you may not simply accept that there is jurisdiction to hear an appeal from a judgment for the requisite sum of money. (at p627)

16. The section has its difficulties and, properly construed, it may bring to the Court appeals which perhaps it may be thought ought not to be entertained. But the Court is not master of that situation. It is given a jurisdiction and it is bound to exercise it. If the judgment is not for a sum of money but is some other form of order, the question will arise as to what was the matter at issue in the proceedings which it terminated and what is the value of that matter. I should have thought that the matter at issue would be determined by looking at the pleadings or, if no pleadings, to the substance of the proceedings in the court in which the judgment was given. Equally, where it is not a judgment for the requisite sum of money or in respect of a matter in issue of the stated value, it will be necessary to determine whether the judgment or order etc. involves directly or indirectly a claim etc. to property or a civil right of the stated value. (at p628)

17. To state the same conclusion in another way, the scheme of the section, it seems to me, is that first of all a judgment for a money sum is appealable if the sum is sufficient. The Court has jurisdiction in respect of every judgment for a sum of money of the requisite dimension. Failing the judgment being for a money sum, the Court under the first paragraph would be able to examine the value of the matter at issue in the proceedings in order to determine whether jurisdiction exists. The second paragraph is directed more to the collateral effects of a judgment which does not satisfy either of the descriptions of the first paragraph, although it does directly or indirectly involve a claim etc. to property or a civil right of the stated value. (at p628)

18. If it were necessary under par. (a), which I do not think it is, to consider the extent to which the defendant appellant in such a case is prejudiced by the judgment, the amount for which the judgment is given or pronounced answers that question. A plaintiff who has obtained such a judgment may also properly point to the judgment as satisfying the jurisdiction; it is a judgment for a sum of $3,000 or more. In my opinion, no more is necessary to give this Court jurisdiction to hear an appeal by a plaintiff against that judgment. (at p628)

19. If, contrary to my opinion, it were necessary under par. (a) to examine the extent to which that judgment had prejudiced the appellant, difficulties arise in determining the extent of the prejudice. The plaintiff appellant says that judgment is wrong because its award is inadequate. Its amount compared with the amount claimed in the action might well be accepted as indicating the prejudice. It was said in Jenkins v. Lanfranchi (1910) 10 CLR 595, at p 597 that "in the case of a plaintiff who fails he is prejudiced to the extent of the amount he fails to recover". That language may be ambiguous in that it could mean that what the plaintiff has failed to recover is the amount which has been claimed, or it might mean that it is the amount which in the circumstances the plaintiff might reasonably be expected to have been recovered. But, in my opinion, the former was meant. In any case, the latter meaning raises serious practical problems in determining what the action might be expected to yield where general or perhaps unspecified damages are claimed. In an action for debt, the amount claimed might readily determine the extent of the prejudice. But perhaps the same is not so clear in the case of actions for personal injuries. (at p628)

20. In Cole v. The Commonwealth (1961) 106 CLR 653 an appeal was brought as of right against an order of the Full Court of the Supreme Court of New South Wales dismissing a motion for a new trial sought by a plaintiff on the ground of the inadequacy of the verdict for 1,322 pounds which he had recovered. The Court held the appeal to lie as of right. The competence of the appeal seems to have fallen to be considered not under par. (1) but under par. (2) of s. 35 (1) (a) of the Judiciary Act. It was said: "Clearly the Full Court order is not given or pronounced for a sum or matter at issue amounting to or of the value of' $3,000. "Moreover it is difficult to say that it is given or pronounced in respect of a sum amounting to" $3,000 (1961) 106 CLR, at p 655 . These statements fortify my opinion that it was par. (2) and not par. (1) which regulated the competence of that appeal. (at p629)

21. However, later in its reasons, the Court said (1961) 106 CLR, at p 656 : "An order refusing a new trial of a verdict for 1,322 has the double effect of leaving standing a verdict and judgment for 1,322 and denying to the plaintiff any larger amount of damages. Prima facie, therefore, the case falls within the principle regarded by the Court as the basis of pars (1) and (2) " (i.e. including s. 35 (1) (a) of the Judiciary Act), "provided, however, that the plaintiff can show a foundation for the allegation that the excess she claims does involve more than 1,322 by at least 1,500. The plaintiff points in the first instance to the claim in her writ of 10,000, but we need not decide in the present case that a claim in a writ should be given any such absolute effect. We may concede that amounts named in writs may be quite unreal. In the present case it is plain enough, however, that what the plaintiff really seeks to establish by a new trial is a bona fide claim to damages which might readily be assessed at 1,500 more than 1,322 pounds. We may take it, therefore, that in the present case the plaintiff's initial figure on which she founds her prejudice is susceptible of reasonable support." Earlier the Court said (1961) 106 CLR, at p 654 : "The plaintiff had suffered serious injuries and in fact had claimed 10,000 in her writ, although one may assume that this amount was named without expectation of recovering so large a figure." It does not appear from the report of the case what material the Court had for its assertion that "the plaintiff's initial figure" - which perhaps means the amount claimed in the writ - "is susceptible of reasonable support". (at p629)

22. I have made these extensive quotations from this judgment to indicate that the claimed amount could be used by an unsuccessful plaintiff to establish prejudice to the requisite extent: but also to indicate how unsatisfactory it must be in relation to a judgment which satisfies the description in par. (a) to go beyond its amount in an attempt to assess the prejudice it causes either plaintiff or defendant. Both upon the construction of par. (a), and upon consideration of the practical exigencies of the administration of its appellate provisions, in my opinion, no more is required to establish the Court's jurisdiction under par. (a) and the correlative right of appeal than the existence of a judgment for the required sum against which complaint is made, whether by the partially successful plaintiff or the unsuccessful defendant. In each case it is the judgment for a sum which is under challenge by the defendant because it was given at all, or because it is for too much, and by the plaintiff because it is for too little. What might appear to be unsatisfactory in this conclusion stems from the choice of a money sum as part of the criterion of jurisdiction. Evidently it has been thought that the amount of money for which the judgment is given itself indicates such significance in the case as warrants this Court having jurisdiction to hear an appeal against the judgment. (at p630)

23. In my opinion, in so far as the decided cases purport to deal with the situation under par. (a), insufficient attention has been given to the difference between the conditions of jurisdiction under a provision in the terms of par. (a) and the appellate formula in respect of which the Privy Council laid down its test of appealability: and also to the relationship of the two paragraphs. (at p630)

24. Lord Chelmsford's words in Macfarlane v. Leclaire were (1862) 15 Moo PCC, at p 187 (15 ER, at p 465) :

"In determining the question of the value of the matter in dispute upon which the right to appeal depends, their Lordships consider the correct course to adopt is to look at the judgment as it affects the interests of the parties who are prejudiced by it, and who seek to relieve themselves from it by an appeal. If their liability upon the judgment is of an amount sufficient to entitle them to appeal, they cannot be deprived of their right because the matter in dispute happens not to be of equal value to both parties; and, therefore, if the judgment had been in their favour, their adversary might possibly have had no power to question it by an appeal." (at p630)

25. In my opinion, this passage, along with the judgment of O'Connor J. in Amos v. Fraser (1906) 4 CLR 78, at p 87 has been the foundation of the view that in relation to par. (a) "the plaintiff must show prejudice through the order made which sounds in the required sum of money": see Ebert v. Union Trustee Co. of Australia Ltd. (1957) 98 CLR 172, at p 175 . (at p630)

26. It should be observed that O'Connor J. in Amos v. Fraser (1906) 4 CLR 78, at p 87 was not dealing with s. 35 (1) (a) (1) - the counterpart of par. (a) - as he expressly points out and that his citation of Macfarlane v. Leclaire (1862) 15 Moo PCC 181 (15 ER 462) was related to the counterpart of par. (b). It should also be noted that Oertel v. Crocker (1947) 75 CLR 261 ; Ballas v. Theophilos (No. 1) (1957) 97 CLR 186 and Ebert v. Union Trustee Co. of Australia Ltd. (1957) 98 CLR 172 were not cases in which the appeal was against a judgment for a sum of money or a judgment in respect of a matter at issue. Oertel v. Crocker (1947) 75 CLR 261 concerned an order of ejectment: Ballas v. Theophilos (No. 1) (1957) 97 CLR 186 concerned a declaration that an option given by a partnership agreement had been exercised: Ebert v. Union Trustee Co. of Australia Ltd. (1957) 98 CLR 172 concerned the general administration of an estate at the instance of a residuary beneficiary. The competence of the appeals in each of these cases fell to be determined under par. (b) and not at all under par. (a). The judgments or orders involved claims to or respecting property or civil rights. Consequently, in my opinion, the criterion laid down in those cases for determining competence is not applicable to the determination of the competence of an appeal against a judgment for a sum of money, or a judgment with respect to a matter at issue of the necessary value. In this connexion, it is interesting to observe that in Amos v. Fraser (1906) 4 CLR 78 a suit by a remainderman for a declaration against trustees for failure to keep the trust property in repair, was said to be a claim to or respecting property under the equivalent of par. (b): in Jenkins v. Lanfranchi (1910) 10 CLR 595 the appeal was against the order of a Full Court reducing a verdict by $100: Robert H. Barber &Co. Ltd. v. Simon (1914) 19 CLR 24 was an appeal against a winding-up order: Watson v. J. &A. G. Johnson Ltd. (1936) 55 CLR 63 was an appeal against the refusal of a liquor licence: Webb v. Hanlon (1939) 61 CLR 313 related to a petition to a Court of Disputed Returns: in Ridgway v. Lockwood (1938) 60 CLR 732 an appeal was attempted against an order of imprisonment for debt. Pannalal v. P.E. Guzdar and Co. (1925) LR 52 IA 207 was an action to set aside an award by an arbitrator for Rs. 3,900, the appealable formula being the value of the subject matter of the suit or a decree involving a claim to property, in each case of a value of Rs. 10,000. It was said in that case that the "cause of action" did not involve a claim to property. In none of these matters was there a judgment for a sum of money nor, as I think, a judgment respecting a matter at issue of the stated value. Each, it seems to me, had to be referable to the equivalent of par. (b): and, in the case in the Indian Appeals, the appellate formula was in any case significantly different. (at p631)

27. There is therefore no precise decision in this Court which is contrary to the conclusion to which I have come as to the meaning and operation of s. 46 (1) (a). (at p631)

28. Before parting with the appeal, I should add that where an appellate court either refuses a plaintiff a new trial on damages or sets aside a verdict and orders a new trial on damages at the instance of a defendant, the better opinion, I think, is that the competence of the plaintiff's appeal to this Court against the appellate court's order does not fall, in my opinion, to be decided under s. 35 (1) (a) (1) but under s. 35 (1) (a) (2) of the Judiciary Act. In my opinion, the order of the appellate court involves a claim to a civil right, e.g. the right to damages for injuries inflicted by the negligence of the defendant. In that case it is the value of that right which is definitive of the competence of the appeal. That value will not be the market value of the plaintiff's action for damages, but the amount which the plaintiff might reasonably expect to recover, negligence being established. In my opinion, the amount claimed in the writ, prima facie, might be accepted as the value of that right for the purposes of par. (b), unless by evidence it is shown either not to be a bona fide statement of what the plaintiff genuinely expects to recover, or to be wholly unrelated to the extent of the injuries received and which could not reasonably found a verdict for more than $3,000. Unless some such course is taken, the absurdity and inconvenience of hearing an appeal in order to determine whether there is a right of appeal will result. (at p632)

29. It is apparent from what I have said that s. 35 and its counterparts need reconsideration to remove doubt and uncertainty. (at p632)

30. In my opinion, the appeal in this case is competent. The judgment against which it is sought to appeal is for a sum in excess of $3,000. (at p632)

McTIERNAN J. I have read the reasons for judgment of the Chief Justice and I agree in them. (at p632)

GIBBS J. A plaintiff who has obtained judgment in the Supreme Court of the Northern Territory for an amount exceeding $3,000 may appeal as of right to this Court on the ground that the damages awarded were inadequate, without being called upon to establish that the award was insufficient to the extent of $3,000. The words of s. 46 of the Northern Territory Supreme Court Act 1961-1973 (Cth), as amended, seem to me to require that result, inconvenient though it is. I agree with what my brother Mason has said as to the meaning of the words "judgment" and "at issue" as they appear in the section and with the Chief Justice in concluding that no decision of this Court is authority to the contrary. I need add nothing to what appears in other judgments as to the proper construction of the section. (at p632)

2. This case provides another example of the unsuitability of the statutory provisions by which the jurisdiction of this Court is regulated. A court which has the ultimate responsibility for interpreting the Constitution, and for the development of the law throughout Australia, cannot afford to occupy its time with the consideration of cases which raise no questions of substantial importance. If the Court is to be deluged with appeals of no real significance, its efficiency will inevitably be impaired, since the members of the Court will be deprived of that time for depth of study and maturity of deliberation without which a final court of appeal cannot adequately perform its functions. To make the right to appeal depend on the amount of the judgment from which the appeal is brought, or even on the amount in dispute, is a crude and imperfect way of defining the jurisdiction of an appellate tribunal, for it is obvious that a matter involving a large sum of money may be of no legal or social consequence, whereas a matter in which the amount at stake is small may raise issues of the greatest significance. Other more efficient means - such as the restriction of appeals to matters in which special leave to appeal is given - should be adopted to sift out appeals that raise no question that calls for consideration by a final court of appeal. Moreover, it is quite anomalous and undesirable that it should be possible to bring appeals to this Court direct from the decisions of single judges, except perhaps, in cases in which there exists a precedent, binding on courts other than this Court, which it is sought to overturn; one consequence of allowing such appeals to be brought is inevitably that this Court is required to consider matters which could have been satisfactorily disposed of elsewhere. One obvious reform would be to restrict the appellate jurisdiction of this Court to cases that had already been considered by an appellate court, subject to the possible exception already mentioned. Some may see the provisions of s. 73 of the Constitution as a possible obstacle to that course, but those provisions would certainly not render invalid an enactment that no appeals should be brought without the special leave of this Court and if such an enactment were passed it would be possible for this Court to enunciate the principles upon which it would entertain appeals brought direct from single judges. Of course, in the Territories no intermediate court of appeal is at present available but that deficiency could easily be remedied. (at p633)

3. The objection to the competency of the present appeal must, however, be overruled. (at p633)

STEPHEN J. The facts concerning this objection to competency of appeal sufficiently appear in other judgments. (at p633)

2. Section 73 of the Constitution confers upon this Court appellate jurisdiction in the case, inter alia, of the judgments of other federal courts and of State Supreme Courts, but with such exceptions and subject to such regulations as the parliament prescribes. (at p633)

3. By s. 46 of the Northern Territory Supreme Court Act 1961-1973 (Cth) and s. 35 of the Judiciary Act 1901-1973 (Cth) Parliament has prescribed such regulations, by the former in respect of appeals from a particular federal court and by the latter in respect of appeals from State Supreme Courts generally. This present appeal is from a judgment of the Northern Territory Supreme Court but it is convenient to draw attention also to the relevant provisions of the Judiciary Act since par. (a) of s. 46 (1) of the Northern Territory Supreme Court Act, the material paragraph, reproduces, with quite irrelevant although unfortunate minor verbal changes, par. (1) of s. 35 (1) (a) of the Judiciary Act. (at p634)

4. The present objection as to competency of appeal may be determined by reference to no more than par. (a) of s. 46 (1); that paragraph, together with the opening words of the sub-section, reads as follows:

"46. (1) The High Court has jurisdiction to hear and

determine appeals from every judgment (whether final or interlocutory) of the Supreme Court in a civil matter which - (a) is given or pronounced for, or in respect of, a sum or matter at issue amounting to or of the value of $3,000".

(at p634)

5. The mode of regulation selected by parliament, legislating under the power conferred by s. 73 of the Constitution, has been to attach to the exercise of appellate jurisdiction within par. (a) a monetary minimum, failing which jurisdiction will only exist if one or other of the remaining paragraphs, including that relating to special leave, is or becomes applicable. The paragraph applies this monetary minimum to two distinct situations, dealt with in two limbs; the first limb concerns judgments "for . . . a sum . . . amounting to . . . $3,000", the second concerns judgments "in respect of . . . a . . . matter at issue . . . of the value of $3,000". (at p634)

6. In the first limb the monetary minimum relates directly to the amount of the judgment; if the judgment be for a money sum in excess of that amount one looks no further, an appeal will lie from it and there is nothing to restrict the identity of the appellant, who may be either the unsuccessful defendant or a plaintiff who claims to be entitled to a greater sum than was awarded by the judgment. Neither under this limb nor under the second limb need a value be placed upon the extent of prejudice sustained as a result of the judgment or upon possible advantage to be derived by the intending appellant from an appeal; it is the judgment sum, or, in the second limb, the value of the matter at issue of which the judgment is in respect, which must satisfy the test of amount. (at p634)

7. The second limb is however, in other respects, quite different in its operation; the monetary minimum still applies but it is unrelated to the judgment; instead it is to the "matter at issue" that the monetary minimum relates. The judgment must be one in respect of a matter at issue of a value of at least $3,000; the judgment may be for less than that sum but if the "matter at issue" has a value in excess of it the second limb is satisfied. (at p635)

8. The judgment from which the present appellant, a successful but dissatisfied plaintiff, seeks to appeal is a judgment in his favour for damages in a sum of over $26,000. It follows that, on the view which I have expressed of the construction of par. (a), appellate jurisdiction would clearly be attracted under the first limb of that paragraph and the respondent's objection to competency would fail. (at p635)

9. Are there any reasons which would preclude me from adopting this view? I think not; they would have to be quite compelling ones having regard to what seems to me to be the clarity and simplicity of the language of the first limb of par. (a) and to the unequivocal way in which the facts of this appeal conform to that language. The source of such reasons might be found either in decisions of this Court or, conceivably, in consequences of the view which I have expressed which might be thought to be so unreasonable as to suggest that such could not have been the legislative intent. The latter does not, I think, here arise. The delineation of the threshold of appellate jurisdiction by reference to the amount of the judgment or to the value of the matter at issue is open to criticisms of a policy nature, both because it will, in particular instances, fail to reflect the financial significance which the appeal may have for an appellant and, on more general grounds, because a monetary criterion is scarcely the most appropriate measure of the suitability of any appeal for hearing by this Court. However, neither in s. 46 nor in s. 35 of the Judiciary Act is the criterion of money value confined to the first paragraph, it extends also to the second paragraph and its adoption must be accepted as a clear legislative policy. In the second paragraph it may not be so prone to produce an arbitrary result, unrelated to the significance of the appeal to the parties, but nevertheless nothing savouring of gross unreasonableness emerges from the adoption of the quite literal interpretation which I would give to the first paragraph of s. 46. (at p635)

10. I turn then to examine the state of the authorities in this Court. Reported decisions of this Court upon s. 35 of the Judiciary Act are very numerous and it may be observed in passing that perhaps no civil litigation is less socially worthwhile than jurisdictional litigation, that is, litigation as to the extent of a court's jurisdiction; it contributes nothing towards the primary function of the judicial process, the final resolution of disputes between parties; all that it does is to resolve doubts engendered by the state of the law itself. Where limits of jurisdiction are the creation of statute law an abundance of jurisdictional litigation reflects the ill-defined nature of those statutory limits and their need for revision; s. 35 is a case in point; unchanged in substance since its enactment in 1903 by the first Commonwealth Parliament, jurisdictional litigation involving its terms has resulted in over fifty reported decisions of this Court, even if there be excluded from the tally all those cases concerned only with the often elusive distinction between final and interlocutory judgments as well as those relating to the criteria for the grant of special leave. (at p636)

11. Despite the large number of decisions on the section there is none which deals with the first limb of the first paragraph in the context of a direct appeal to this Court from a judgment at first instance. There are much dicta concerning the general approach to be adopted in applying the monetary limits specified in the section; the Court has not infrequently touched upon the operation of the first paragraph only to dispose of it as inapplicable before turning to the more relevant provisions of the second paragraph. In some of such cases dicta expressed in terms applicable to both paragraphs occur although neither the facts nor the argument then before the Court were such as to bring out the distinctions between them, distinctions which may not be obvious without the aid of fact situations which serve to focus attention upon them. Moreover, as the Chief Justice has pointed out in his reasons for judgment in this case, the appellate formulae in respect of which the Privy Council has laid down its own test of appealability have had great influence in shaping these dicta. I would, with respect, adopt all that the Chief Justice has said concerning the inappropriateness of that test if it be sought to be applied to the first paragraph of the section and especially to the first limb of that paragraph. There are in any event peculiar difficulties surrounding dicta in the case of these sections; any statement of purportedly broad application may very easily fail to take account of some of the very many different circumstances to which the various parts of the section are applicable; since the first two paragraphs themselves contain a number of limbs, each having a distinct and different operation, this factor, when combined with the great variety of circumstances to which they may have to be applied, renders the making of any statement of broad principle, accurate for all cases, most difficult. (at p636)

12. The occasions for these dicta generally called for no close analysis of the first paragraph and certainly not of what I have described as its first limb, in which the monetary minimum imposed has no necessary connexion whatever with the monetary extent of prejudice sustained by or possible advantage to be derived by an intending appellant. However in Ridgway v. Lockwood (1938) 60 CLR 732 , Latham C.J. did describe the object of the legislature in enacting the first paragraph in terms with which the views which I have expressed are consistent. He in effect distinguished between the two limbs, describing in turn the second and then the first limb, when he said that that paragraph limited appeals "to cases where judgments affect the liability of a party in relation to a matter at issue of that amount, or may either impose a liability of that amount upon a person, or relieve a person from liability to that amount" (1938) 60 CLR, at p 737 . His description of the first limb, that an appeal lies if the effect of the judgment is to impose liability for the monetary minimum upon a person or is to relieve him from such liability, draws attention to the fact that it is the judgment, and not the possible value to the appellant of his appeal, which must meet the test of amount. So in the present case it is unnecessary to value the appellant's prospects on the appeal, it is enough that the judgment under appeal should "impose a liability of that amount upon a person", in this instance the respondent, not the appellant. In that case Dixon J. also considered the first paragraph, which he described, in terms akin to those used by the Chief Justice, as relating "to cases of appeal against a judgment which affects the liability for or in respect of a sum of money or something of a value amounting to 300 pounds at least" (1938) 60 CLR, at p 738 . Rich and McTiernan JJ. agreed. (at p637)

13. The observations of the Chief Justice in his present judgment concerning cases which contain dicta apparently not in accord with the views which I have here expressed, cases which rely extensively upon appellate formulae applicable to Privy Council appeals, with which observations I agree, make it unnecessary for me to do more than mention three specific cases. They concern judgments sought to be appealed from as of right and which involved money sums. The first is Uittenbroek v. Briggs (1960) 103 CLR 175 and of it I need say only that at first sight it would seem to have involved, in the case of the male appellant, a judgment for two sums of damages, 7,500 for personal injuries and 1,000 for loss of his wife's consortium, together well in excess of the monetary minimum; yet it was held that no appeal as of right lay. However that was a case of an intended appeal not from the judgment at first instance but from the judgment of an intermediate appellate court, the Western Australian Full Court, and an examination of the record discloses that the defendant had, in his successful appeal to the Full Court, confined his appeal to the award of 1,000 damages for loss of consortium. Thus the judgment sought to be appealed from, that of the Full Court, related only to that sum of 1,000, which it reduced by 900 to a total of only 100. On any view of par. (1) the male appellant's appeal was therefore not competent. (at p637)

14. The second decision is that of Jenkins v. Lanfranchi (1910) 10 CLR 595 . It, too, involved a denial of competency where there had been a small reduction by an intermediate appellate court of a judgment in favour of a plaintiff which was itself in excess of the monetary minimum. The reasons of the Court do not contain any close analysis of s. 35; incompetency was said to arise because "the amount at issue, in the words of s. 35 of the Judiciary Act 1903" was less than the then monetary minimum (1910) 10 CLR, at p 597 . To paraphrase any part of s. 35 as concerned with "the amount at issue" may be open to question; the judgment goes on to apply the Privy Council criteria earlier referred to and concludes that the intending appellant's prejudice was limited to the small amount by which his original judgment had been reduced by the intermediate appellant court. Whatever may be said of this decision as an application of s. 35 (1) (a) (1) , which it must, I think, have been, it is distinguishable from the present case of a direct appeal from the judgment of a primary judge. (at p638)

15. The last case calling for specific mention is that of Dempsey v. Harris Scarfe Ltd. (1969) 122 CLR 521 . There competency was denied to an intended appeal from the dismissal by the primary judge of a plaintiff widow's claim under the Wrongs Act. The present Chief Justice, in delivering the judgment of the Court, described the appeal as clearly not falling within s. 35 (1) (a) (1) because it "could not properly be said by an unsuccessful plaintiff that the judgment against him had been given or pronounced for or in respect of any sum or matter at issue. There had not been a sum or matter at issue in the action within the meaning of s. 35 (1) (a) (1) " (1969) 122 CLR, at p 523 . Clearly enough there was there no judgment, as there is in this case, satisfying the monetary minimum called for by the first limb of par. (1) and reliance could not therefore properly be placed upon that limb; any light which that decision may cast upon the scope of the second limb, relating to a matter at issue of the requisite value, is not relevant to the instant case. (at p638)

16. Adopting as I have all that the Chief Justice has said in his reasons for judgment concerning previous decisions of this Court, concerned essentially with par. (2) of s. 35 (1) (a), I do not regard the view of par. (1) which I have expressed at the outset of this judgment as being at variance with precedent authority; I think, on the contrary, that that view may be applied to the present case without doing violence to precedent. (at p638)

17. I wish also fully to associate myself with what is said by the Chief Justice concerning the meaning of the word "judgment" in s. 35 of the Judiciary Act and in the present s. 46 and with his Honour's more general remarks and those of my brother Gibbs concerning the need for reconsideration of the present form of s. 35 of the Judiciary Act and its counterparts in allied legislation. (at p639)

18. I would disallow the present objection to competency; I regard the appeal as competent within s. 46 (1) (a) of the Northern Territory Supreme Court Act. (at p639)

MASON J. The notion that an appeal from a judgment of $3,000 or more, in which the appeal involves a sum in issue of $100 or less, can be brought as of right to the ultimate court of appeal in Australia is so extraordinary as to require rejection unless the language of the statute admits of no other construction. That is why I have been reluctant to accept a construction of s. 46 (1) (a) of the Northern Territory Supreme Court Act 1961, as amended, which would enable an appeal as of right to be brought to this Court against every judgment for $3,000 or more even if the sum in issue in the appeal is less than that amount. (at p639)

2. However, I see no alternative but to give to the word "judgment" as it appears in s. 46 its accepted legal meaning, that is, the formal order made by a court which disposes of, or deals with, the proceeding then before it - see Reg. v. Ireland (1970) 126 CLR 321, at p 330 ; Lake v. Lake (1955) P 336, at pp 343-344 . Any other view would, I think, disregard the similarity between the provisions of s. 46 and those of s. 35 of the Judiciary Act which are so obviously based on the provisions of s. 73 of the Constitution where the word "judgments" is used in the same sense. (at p639)

3. The words "at issue" give meaning to their antecedent "matter" and should be read as relating exclusively to it and as having no application to the word "sum" in relation to which they appear to be inappropriate. (at p639)

4. I agree with the Chief Justice in thinking that the course of decision in this Court is not inconsistent with this view. I therefore agree with his conclusion that the appeal is competent. (at p639)

5. It is, however, opportune to say that this decision, taken in conjunction with other matters, shows all too clearly that it is high time that the appellate jurisdiction of this Court was reshaped. In this respect, since writing this judgment, I have had the opportunity of reading the observations made by Gibbs J. concerning the appellate jurisdiction of this Court. I wish to state that I entirely agree with them. (at p639)

JACOBS J. I appreciate the force of the submission that what is meant in s. 46 (1) of the Northern Territory Supreme Court Act 1961-1973 by the word "judgment" is that part only of the order of the court against which the appeal is brought, that the appellant here does not appeal against the judgment in the sense that he claims that no such sum should have been adjudged to be payable but that the appeal is against the judgment in so far as it was adjudged that no sum in excess of the sum awarded was payable. This construction has the advantage that the test of jurisdiction propounded by the section would be the value of the sum or matter in issue in the court below which is the subject of the appeal. The section would not be concerned with anything which may have been litigated in the lower court but which is not the subject of the appeal. This construction would result in a consistency of legislative purpose in relation to both paragraphs of the subsection. However, it is a view of the section which places a weight upon the words "appeals from every judgment" which they can only bear with difficulty. It would be a construction not applicable to the similar but not identical provisions of s. 35 of the Judiciary Act 1903 and I have finally concluded that it should not be adopted. I therefore agree with the other members of the Court in the view that an appeal lies against any judgment which is in the form of an order for payment of not less than $3,000. I join in the expression of the view that the regulation of the appellate jurisdiction of this Court needs reconsideration by the parliament. (at p640)

MURPHY J. This is an objection to competency of an appeal from a judgment of the Supreme Court of the Northern Territory. The appellant, injured in a collision between his motor cycle and a car driven by the respondent, was awarded damages of $26,213.02 for personal injury. (at p640)

2. The appellant lodged an appeal as of right to this Court on the ground that the amount of damages was inadequate. The respondent then lodged a notice of objection to the competency of the appeal. (at p640)

3. The question is whether the appeal comes within the words of s. 46 of the Northern Territory Supreme Court Act 1961-73 (as amended by the Statute Law Revision (Decimal Currency) Act 1966). Section 46 is as follows:

"46. (1) The High Court has jurisdiction to hear and

determine appeals from every judgment (whether final or interlocutory) of the Supreme Court in a civil matter which - (a) is given or pronounced for, or in respect of, a sum or matter at issue amounting to or of the value of three thousand dollars;

(b) involves directly or indirectly a claim, demand or question to or respecting property, or a civil right, amounting to or of the value of three thousand dollars; . . . (2) Except as provided by the next two succeeding

sub-sections, it is not necessary to obtain the leave of the Supreme Court of a Judge to appeal to the High Court in a civil matter. (3) An appeal does not lie to the High Court from an

interlocutory judgment, except by leave of the Supreme Court or a Judge or of the High Court." (at p641)

4. There are numerous decisions, not all reconcilable, on similar provisions in s. 35 of the Judiciary Act 1903-1973 and s. 51 of the Australian Capital Territory Supreme Court Act 1933-1973. (at p641)

5. If s. 46 of the Northern Territory Supreme Court Act is looked at apart from previous decisions, the application of its words in this instance is quite clear. The previous decisions of the Court do not seem to me to require a conclusion which departs from that clarity. (at p641)

6. In my view, this is plainly (in the words of the section) an appeal from a judgment of the Supreme Court in a civil matter which is given or pronounced for a sum amounting to $3,000. (at p641)

7. The appeal therefore falls within s. 46 (1) (a) and is competent as of right. (at p641)

8. The objection should be overruled. (at p641)

Orders

Objection to competency overruled.