SOUTH AUSTRALIA. Practice-High Court-Appeal from Supreme Court of State.--Appealable amount
Judgment for landlord for recovery of possession of property--Property worth over £300-Tenant's interest worth under £300- Whether appeal as of right to High Court-Judiciary Act 1903-1946 (No. 6 of 1903-No. 10 of 1946), 8. 35
of the premises. An appeal by the tenant to the Full Court of
South Australia was dismissed by a majority (Napier C.J. and Ligertwood J., Reed J. dissenting), though there was a conflict of judicial opinion as to the precise nature of the tenancy. The rent payable was thirty-five shillings per week, and it was common ground that the value of the dwelling house, the subject of the action, exceeded £300. It was, however, conceded that the value of the tenant's interest in the property was less than that amount. The tenant sought to appeal to the High Court as of right and alternatively asked for special leave to appeal. This report is concerned only with the contention that the appeal lay as of right.
Pickering (with him C. A. L. Abbott), for the appellant. An appeal lies as of right. The right is conferred by S. 73 of the Constitution subject to restrictions imposed by Parliament. Section 35 of the Judiciary Act 1903-1946 detracts from the rights SO conferred and should be strictly construed, SO that there shall be the minimum interference with the existing rights (In re Cuno 1 ). The strongest case against me is Beard v. Perpetual Trustee Co. Ltd. 2. But sub-s. (2) of S. 35 must give rights additional to those conferred by sub-s. (1), and, if the construction adopted in Beard's Case (2) is followed, sub-s. (2) becomes nugatory. The words of a statute should be given their literal meaning, unless this results in an absurdity. (He also referred to Amos v. Fraser 3; Milne v. James 4; Tipper V. Moore 5; Robert H. Barber &Co. Ltd. v. Simon 6; Webb V. Hanlon 7 ).
[DIXON J. referred to Western Australian Insurance Co. Ltd. V. Dayton 8.]
Hogan (with him H. W. Martin), for the respondent. If appel- lant's contention is correct, an appeal will lie as of right in all matters which are only remotely concerned with land over the value of £300. On the true construction of S. 35 of the Judiciary Act it is the claim, demand or question which must be of the value of £300. In essence we are claiming not the freehold but relief from the tenant's possession. There is nothing in the decided cases contrary to the principles laid down in Beard v. Perpetual Trustee Co. Ltd. (2).
1(1889) 43 Ch.D. 12, at p. 17.
2(1918) 25 C.L.R. 1.
3(1906) 4 C.L.R. 78.
4(1910) 13 C.L.R. 165, at pp. 167,
5(1911) 13 C.L.R. 248, at p. 249.
6(1914) 19 C.L.R. 24.
7(1939)…
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 Oertel v Crocker
Sign in free to access the full text
Details
AGLC
Oertel v Crocker [1947] HCA 40
Case
[1947] HCA 40
Decision Date
CaseChat Overview and Summary
The case of Oertel v Crocker concerned an appeal to the High Court of Australia from a judgment of the Supreme Court of South Australia. The dispute originated in the Local Court of Adelaide, where the respondent landlord sought possession of a dwelling house from the appellant tenant. The Supreme Court had dismissed the tenant's appeal from the Local Court's order for possession. The rent payable was thirty-five shillings per week, the value of the dwelling house exceeded £300, but the value of the tenant's interest was conceded to be less than that amount. The appeal to the High Court was brought as of right, with an alternative request for special leave to appeal.
The central legal issue before the High Court was whether the judgment of the Supreme Court involved "directly or indirectly any claim, demand, or question to or respecting any property or any civil right amounting to or of the value of Three hundred pounds," as stipulated by section 35(1)(a)(2) of the Judiciary Act 1903-1946, thereby conferring a right of appeal to the High Court. The appellant contended that the judgment, by entitling the landlord to possession of a property worth over £300, met this threshold. The respondent argued that the value of the freehold was irrelevant, and only the value of the tenancy, which was less than £300, should be considered.
The High Court, by majority, upheld the objection to the competency of the appeal as of right. The Court reasoned that the phrase "amounting to or of the value of £300" in section 35(1)(a)(2) qualified "any property or any civil right," not the "claim, demand, or question." Therefore, the critical question was the value of the property or civil right to which the claim, demand, or question related, as affected by the judgment. The Court held that the judgment in this case concerned the tenant's right to possession under the tenancy, not the freehold interest. As the value of the tenant's interest in the property was not shown to be £300 or more, the appeal did not lie as of right. The Court's reasoning emphasised that the value of the interest of the appellant, which would be affected by the appeal, was the relevant measure for determining the appealable amount.
The High Court ordered that the appeal be struck out as incompetent.