Zimpel v Allard - [1904] HCA 56

DEFENDANT, ALLARD

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF Practice-Special leave to appeal-Jurisdiction of inferior Court -Objection not

taken in that Court-Lying-by-Smallness of amount.

In an action of ejectment in the Local Court the respondent obtained an order under the Small Debts Act of Western Australia (27 Vict., No. 21), for recovery of possession of certain premises of the annual value of not more than £20. The appellant made no objection to the jurisdiction of the Court. The time for issuing execution was allowed to expire. Afterwards the respondent brought an action in the Supreme Court founded on the judgment of the Local Court. The Chief Justice at Nisi Prius held that the judgment of the Local Court was conclusive, and rejected evidence tendered by the appellant to show that the case was not within its jurisdiction. The Supreme Court of Western Australia affirmed his decision. On an application for special leave to appeal from the judgment of the Supreme Court:-

Held, that, even if the Supreme Court was in error in holding that the judgment of an inferior Court could not be disputed unless it had been disputed in the Local Court itself, the discretion of this Court to grant special leave to appeal should not be exercised where so small an amount was involved, and when the appellant had lain by in the Local Court and taken the chance of a judgment in his favour.

Rule in Mayor of London v. Cox 1, applied.

THIS was an application for special leave to appeal from a judgment of the Supreme Court of Western Australia of the 29th August, 1904, affirming the judgment of the Chief Justice at Nisi Prius in an ejectment action, ordering possession to be given

1L.R., 2 H.L., 239.

2 CLR 118

OF A. the respondent. In an action in the Local Court in May, 1903, the 1904.

respondent had obtained an order for the possession of the premises under the Small Debts Act of Western Australia. The time for issuing execution on the Local Court judgment having been allowed to expire, he brought an action of ejectment in the Supreme Court. At the trial before the Chief Justice the respond- ent proved the judgment of the Local Court. The appellant tendered evidence to show that the case was not within the juris- diction of the Local Court, but the evidence was rejected, and judgment was given for the respondent. On appeal, the Full Court affirmed the decision of the Chief Justice.

Alcock, for the appellant. The Supreme Court was in error on three grounds -

1. The judgment of the Local Court was only prima facie evidence. It was not conclusive, and did not amount to an estoppel.

2. The section of the Small Debts Act only applies to yearly tenancies. Here the plaint merely set up a weekly tenure.

3. The Local Court, whose judgment was relied on by the plaintiff in the ejectment action, had no…

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 Zimpel v Allard

Details

AGLC: Zimpel v Allard [1904] HCA 56
Case: [1904] HCA 56
Decision Date: 13 October 1904

CaseChat Overview and Summary

The High Court of Australia considered an application for special leave to appeal in *Zimpel v Allard*. The dispute concerned a claim for a relatively small sum of money, and the central issue on appeal was whether the jurisdiction of an inferior court had been properly exercised.

The primary legal question before the High Court was whether a party who had not raised an objection to the jurisdiction of an inferior court during proceedings in that court could subsequently rely on such an objection to challenge the court's decision on appeal. The Court also had to consider the implications of the "smallness of the amount" in dispute for the granting of special leave to appeal.

The Court held that a party who participates in proceedings before an inferior court without objecting to its jurisdiction is generally taken to have waived any such objection. This principle of "lying-by" prevents parties from standing by and allowing proceedings to continue, only to later challenge the court's authority. The Court indicated that special leave to appeal would not ordinarily be granted in cases involving small sums where no substantial question of law or public importance arises, particularly when the alleged jurisdictional defect could have been cured at first instance.

Special leave to appeal was refused.

Orders