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Phillips v Ellinson Brothers Pty Ltd

Phillips v Ellinson Brothers Pty Ltd

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Case Copied 21 November 1941 52 min read

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65 CLR 221

PROPRIETARY

RESPONDENT. LIMITED

ON APPEAL FROM THE SUPREME COURT OF Practice (Vict.)-Power of trial judge to enter judgment contrary to verdict of jury

-Rules of Supreme Court 1928 (Vict.), Order XXXVI., r. 32; Order XL., r. 5; Order LVIII., r. 4. Contract-Entire and indivisiblePartial performance-Statute of Frauds-Oral

variation-Statute of Frauds (29 Car. II. c. 3), sec. 4.

Upon an appeal from a judgment of the Supreme Court of Victoria ordered by the trial judge to be entered for the defendant notwithstanding a verdict for the plaintiff returned by the jury :-

Rich and McTiernan JJ. were of opinion that, except upon application made pursuant to leave reserved to move for judgment, a trial judge has no power to order judgment to be entered contrary to the verdict of the jury, and that the appeal should therefore be allowed

Starke and Williams JJ. were of opinion that a trial judge has power to order judgment to be SO entered where there was no evidence to support the jury's verdict, that in the present case there was no such evidence, and that therefore the appeal should be dismissed.

The court being equally divided, the decision of the Supreme Court of Victoria (Martin J.) was affirmed.

Per Starke and Williams JJ.: Where the obligations of a contract of service are entire and indivisible, and the contract is required by the Statute of Frauds to be evidenced in writing, remuneration cannot be recovered for services rendered under it not amounting to a complete performance although there has been a subsequent oral arrangement to accept such sums as a sufficient performance such an arrangement amounts to a variation of the terms of the original contract and not to a mere alteration in manner of performance.

65 CLR 222

APPEAL from the Supreme Court of Victoria.

Eric Granville Murray Phillips entered into an agreement in writing, dated 25th October 1938, with Ellinson Brothers Pty. Ltd., for his employment as its manager from 1st July 1938 till 30th June 1940. The agreement provided, by clause 5, that Phillips should devote at least 160 hours to the business in every period of four weeks; by clause 4, that his remuneration as manager should be a share of the net profits arising from the company's business earned in each of the years during the period from 1st July 1938 to 30th June 1940, which share should be calculated as follows:-I each year he should receive ten per cent of the net profits of the company up to £8,000, and also thirty-three and one-third per cent of any net profits between £8,000 and £15,000, and also forty-five per cent of any net profits over £15,000; and, by clause 9, that if he should without reasonable excuse fail to obey or observe the instructions and orders of the directors or should be unable through illness to perform his duties for a period of four consecutive weeks at any one time or if he for any other reason should…

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.

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Details

Case: [1941] HCA 35
Decision Date: 21 November 1941

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a judgment of the Supreme Court of Victoria. The appellant, Phillips, had sued his former employer, Ellinson Brothers Pty. Ltd., for remuneration allegedly owed under an employment contract. A jury had returned a verdict in favour of Phillips, but the trial judge entered judgment for the defendant company notwithstanding the jury's verdict.

The central legal issues before the High Court were whether the trial judge possessed the power to enter judgment contrary to a jury's verdict, and if so, under what circumstances. Additionally, the court considered whether the appellant had performed his obligations under an entire and indivisible contract of service, and whether an alleged oral variation of the contract was legally effective, particularly in light of the Statute of Frauds.

The High Court was equally divided. Rich and McTiernan JJ. held that, absent specific leave reserved to move for judgment, a trial judge lacks the authority to override a jury's verdict. They reasoned that the proper recourse for a party dissatisfied with a jury's finding, where no such leave was granted, is to seek a new trial from a higher court. Conversely, Starke and Williams JJ. were of the view that a trial judge may enter judgment contrary to a jury's verdict if there was no evidence to support that verdict. They concluded that in this instance, there was no evidence to sustain the jury's finding, and therefore the judge's action was justified.

As the court was equally divided, the decision of the Supreme Court of Victoria was affirmed. This meant that the judgment entered for the defendant company by the trial judge stood, and the appeal was dismissed.

Orders