Jenkins v Lanfranchi [1910] HCA 24; (1910) 10 CLR 595 (31 May 1910)

HIGH COURT OF AUSTRALIA

Jenkins Plaintiff, Appellant; and Lanfranchi Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

31 May 1910

Griffith C.J., O'Connor, Isaacs and Higgins JJ.

Dethridge, for the appellant.

Bryant (with him Hotchin), for the respondent.

Dethridge.

Griffith C.J.

It is objected that this appeal, which is from a judgment of the Supreme Court of Victoria, is incompetent because the amount at issue, in the words of sec. 35 of the Judiciary Act 1903, does not amount to the value of £300. The plaintiff, who is the appellant, recovered in the Supreme Court judgment for £600. On the defendant's appeal to the Full Court that amount was reduced to £500.

The rule for determining what is the appealable amount is laid down in Allan v. Pratt[1], in which the previous case of Macfarlane v. Leclaire[2] was referred to. Lord Selborne said:—"The judgment is to be looked at as it affects the interests of the party who is prejudiced by it, and who seeks to relieve himself from it by appeal."

In the case of a judgment against a defendant he is prejudiced to the extent of the amount given against him. In the case of a plaintiff who fails he is prejudiced to the extent of the amount he fails to recover. In this case that amount is £100. It is quite clear therefore that the amount is less than £300, and that an appeal to this Court does not lie without special leave.

Mr. Dethridge asks for special leave to appeal, but in order to have special leave he would have to invoke a novel doctrine which has never been suggested by any text writer, and which seems to me to be as wanting in reason as in authority. There is no ground for granting special leave.

Then Mr. Dethridge asks us to grant special leave to appeal in view of the decision of the Full Court on the question of costs. The Supreme Court having reduced the amount of the judgment also directed that each party should abide his own costs. The amount of the costs was in the discretion of the Court, and it is not an uncommon thing in some circumstances to order each party to pay his own costs. In fact what we are asked to do is to review the discretion of the Supreme Court. Some circumstances are pointed out which go to suggest that the measure dealt out to the plaintiff was a rather hard one. But I do not know of any instance in which an appellate Court has reviewed a decision of the Court appealed from on a mere question of costs within the discretion of the Court. Therefore, although the Court has formally jurisdiction to entertain an appeal when only the costs are in question, it would require a case of very extreme circumstances to justify us in interfering when there is no other foundation for the appeal.

The appeal, therefore, is incompetent, and the proper order is to dismiss it.

It has been pointed out that where an objection as to the competency of an appeal is only taken when the case comes on, it is only allowed without costs, on the ground that if the objection had been taken sooner the other party would not have been put to the expense of preparing for the hearing. No notice of this objection was given—on the contrary, notice of cross-appeal was given. Under all the circumstances we think we should dismiss the appeal without costs.

O'Connor J.

concurred.

Isaacs J.

concurred.

Higgins J.

concurred.

Appeal dismissed.

Solicitors, for the appellant, Lawson & Jardine, for E. H. Tuthill, Bendigo.

Solicitors, for the respondent, Cohen & Herman, for Cohen, Kirby & Woodward, Bendigo.

[1] 13 App. Cas., 780, at p. 781.

[2] [1862] EngR 406; 15 Moo. P.C.C., 181.