Heydon v Lillis [1907] HCA 73; (1907) 4 CLR 1223 (19 April 1907)

HIGH COURT OF AUSTRALIA

H C of A

On appeal from the Supreme Court of New South Wales.

19 April 1907

Griffith C.J., Isaacs and Higgins JJ.

Dr. Cullen K.C. (Watt with him), for the appellants.

Canaway, for the respondent.

April 12

Griffith C.J.

I can see no reason to doubt the jurisdiction of the Court under sec. 7 of the Supreme Court Procedure Act 1900 to grant the relief for which the plaintiffs ask in this case. Under the practice of the Supreme Court of New South Wales up to that time, which followed the old English common law practice, if a case was set down for trial by a jury, and either party was dissatisfied with the result, the dissatisfied party, if there had been a verdict, might move for a new trial. Later a form of procedure had been adopted by which a verdict was taken, leave being reserved to either party to move to have it set aside or a different verdict or a nonsuit entered. Then the Court in Banco on motion could make the appropriate order. But if no leave was reserved all that the Court could do was to grant a new trial, and if there was no verdict there was nothing to be done but to set the case down again for trial, because nothing could be done except after a verdict, which was the foundation of the procedure. You could not depart from that rule, however plain the right might be, except by having leave reserved. Then the legislature, being no doubt aware of the change that had been effected in the law and practice in nearly all other parts of the British dominions, passed, amongst other enactments, sec. 7, which is in these words: [His Honor read the section and continued:] Bearing in mind the previous defects in the law, which had been remedied nearly everywhere else but in New South Wales, what was the intention of the legislature? Primâ facie, the words are to be construed literally, as they stand. They begin "In any action," and the succeeding words show that the provision is exactly applicable to every case where there has been an attempt to try a case with a Judge or a jury, where there has been a trial; they apply to all cases in which the plaintiff should have been nonsuited, or, on the evidence, the plaintiff or the defendant was entitled to a verdict as a matter of law. These words cover every case. Why then should they be cut down so as to exclude a case in which there has been no verdict? If the jury give a perverse verdict in favour of the defendant, the plaintiff may move to have a verdict entered for him; if they give a perverse verdict in favour of the plaintiff the defendant may have a verdict entered for him. If the plaintiff was entitled to be nonsuited and the Judge refused to nonsuit, the Court may enter a nonsuit. If the Judge ought to have directed a verdict for the plaintiff or the defendant, the Court may order a verdict to be so entered. In every case, except where the jury have failed to agree, the party aggrieved can obtain redress. But it is said that the legislature has not in express words said that this may be done where the jury have not returned a verdict, so that we have an opportunity to defeat the intention of the legislature and insist upon unnecessary and useless further litigation. I can see no reason for limiting the express words of the section in any such manner. I think they give the Court power to enter a verdict whether the jury have been able to agree upon a verdict or not.

Isaacs J.

I entirely agree with what the Chief Justice has said, and only wish to say this. It seems to me that the legislature, in framing that section, intended to give the Full Court at least as much power as a Judge had under the then existing law. He had power, if he thought right, to nonsuit the plaintiff. He would have the right to direct the jury, if the evidence justified that course, to return a verdict for the plaintiff or the defendant as a matter of law, and, if he did not take any of those courses, the legislature conferred the same power upon the Court in Banco. I cannot see, therefore, that there is any necessity for requiring what is, ex hypothesi, an immaterial element, namely, the opinion of the jury. The legislature has not thought fit to introduce any words limiting the power of the Court in this regard, and I therefore do not think the Court is at liberty to introduce any such words into the section.

Higgins J.

I am of the same opinion.

Argument then proceeded on the motion for judgment.

Appeal allowed. Order appealed from discharged. Verdict to be entered for plaintiffs.

Solicitors, for appellants, Makinson & Plunkett.

Solicitors, for respondent, H. C. G. Moss.