Uittenbroek v Briggs

[1960] HCA 67

HIGH COURT OF AUSTRALIA

Dixon C.J., Fullagar, Kitto, Menzies and Windeyer JJ.

UITTENBROEK v. BRIGGS

(1960) 103 CLR 175

7 September 1960

Practice

Practice—High Court—Appeal from Supreme Court of State—Appealable amount—"Claim to or respecting any property . . . of the value of 1,500 pounds"—Claims by husband and wife each in respect of personal injuries and on part of husband for loss of consortium—Brought in one action with husband and wife as plaintiffs—Verdicts recovered reduced on appeal—Amount of each verdict reduced by less than 1,500 pounds—Continued reductions in excess of 1,500 pounds—Not permissible reductions in order to achieve appealable amount to sustain appeal as of right—Judiciary Act 1903-1960 (Cth), s. 35 (1) (a) (2).

Decision

September 7.
DIXON C.J. delivered the oral judgment of the COURT: -
We are of opinion that this appeal is incompetent. There were two sums of money dealt with by the judgment of the Supreme Court. It is only by combining the two reductions made in respect of awards of damages that the requisite amount of 1,500 pounds can be reached, but we think that each must be considered separately and that they cannot be combined simply because they are contained in one judgment. (at p176)

2. The action was brought by husband and wife and it was possible to combine the claims in the one action in pursuance of the rule which I presume corresponds to the English rule, Order XVIII, rule 4. It therefore happened that the two awards are contained in the one judgment ; but nevertheless we think, that for the purposes of appeal under s. 35 of the Judiciary Act 1903-1960, they must be considered separately and it is not possible to add them together to make up the requisite sum of 1,500 pounds. (at p176)

3. As to the application for special leave to appeal, we are of opinion that that ought to be refused. There is some uncertainty as to the exact view the Full Court of the Supreme Court took, and we think it is right to say that, if it was their view, as is contended, that the temporal loss of the husband to which Toohey v. Hollier (1955) 92 CLR 618 refers must consist of actual expenditure, that is too narrow a view, but we do not think it is sufficiently clear that they did take that view or that, in any case, it would be a case for special leave to appeal. (at p176)

4. Special leave to appeal will therefore be refused. (at p176)

Orders

Appeal struck out as incompetent. Special leave to appeal refused. The respondent to pay the appellants' costs of and incidental to the preparation of the appeal book.