Beard v Perpetual Trustee Co Ltd [1918] HCA 31; (1918) 25 CLR 1 (13 June 1918)

Beard Plaintiff, Appellant; and The Perpetual Trustee Company Limited Defendants, Respondents.

In our opinion clauses 1 and 2 of sec. 35 (1) (a) of the Judiciary Act 1903 are framed for the purpose of allowing an appeal to a litigant who is able to show that he or those whom he represents would be pecuniarily benefited to the extent of £300 if his appeal were wholly successful. Clause 1 deals with judgments given or pronounced in respect of any sum or matter at issue amounting to or of the value of £300. Such a judgment, whether it affirms or denies the right of the claimant to succeed, must bring the unsuccessful party within that category. He must be worse off by at least £300 than he would be if he appealed and were wholly successful in his appeal. Clause 2 deals with judgments which are not in terms given or pronounced as provided in clause 1 but which involve directly or indirectly the determination of any claim, demand or question amounting to or of the value of £300, that is to say, any determination which so prejudicially affects the litigant wishing to appeal as to make him worse off by at least £300, than he would be if he appealed and were wholly successful in his appeal. It is claimed for the appellant in this case that the judgment in the action declares him to be entitled to the beneficial interest in a policy of life insurance of a value greater than £300, and that the decree made by the Supreme Court of New South Wales on appeal from that judgment deprived him of the benefit of that declaration. If this were all, the case would in our opinion come within the provisions of clause 1: the matter at issue would be of the value of £300. The appellant might have sought a declaration that the insurance policy in question was his property without making any reference to his grandmother's will. Had he been ultimately unsuccessful in such a proceeding, the question of election would never have arisen. Had he been successful, he might properly have made his election after he had established his title, but the fact that he could not take a benefit under his grandmother's will unless he chose to acquiesce in the dispositions contained in that will with respect to the policy or, in the alternative, compensated those who would have benefited by such dispositions, would have been irrelevant in considering the value of the matter at issue between the parties. But the appellant did not pursue that course. For his own purposes he desired to have two independent questions determined in one litigation, and he sought and obtained a judgment under which he was entitled to have an assignment of the policy only after he had made compensation to those whose pecuniary interests under his grandmother's will would be affected by his taking such assignment. The value of the matter at issue is to be determined for the purposes of the proposed appeal by ascertaining how much better off he would be pecuniarily if the original judgment stood than he would be under the decree made by the Supreme Court of New South Wales. He has not sought any alteration in the original judgment, and had he done so it is clear that we could not make any order more favourable to him than that judgment in view of the pleadings and the claim he made before the trial Judge. In this view of the case he has not discharged the onus of showing that he comes within the provisions of sec. 35, because he has not, and we think could not, show that an assignment of the policy to him on condition of his paying the prescribed compensation would leave him a balance of £300, or indeed any balance. The amount of that compensation is the value of the interest in the policy which would have been taken by the beneficiaries under the will, and that cannot be less than the value of the interest which the plaintiff would have in such policy if he were under no obligation to make compensation to such beneficiaries.

I agree that the appeal is incompetent. Sub-sec. 1 (a) of sec. 35 of the Judiciary Act is founded on the importance to the would-be appellant of the issue decided against him.

In pars. 1 and 2 of the sub-section that importance is counted in terms of money, £300; in par. 3 it is represented by the nature of the case itself, as affecting his personal status. But as the importance of the matter to the appellant is the governing consideration, it is clear that an unconditional claim to property is very different for appeal purposes from his claim to the same property fettered with a condition which reduces the value of that property to him.

In the present case the claim to the policy (assuming its present value to be a fixed sum) is not a claim simpliciter, but is a claim to the policy of that value less what has in the circumstances to be given by way of compensation to those affected by the appellant's election. The balance, if any, is the true claim, and that is the only measure of the importance of the claim to the appellant.

It is unnecessary to consider whether the appellant's case falls under par. 1 or par. 2 of the sub-section: the same measure of value for determining the question of the right of appeal applies to both paragraphs. The rule is that "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." The words of the sub-section are adapted from the Order in Council, 13th November 1850, making provision for appeals from the decisions of the Supreme Court of New South Wales. Cases in the Privy Council on similar words are also based on the principle that the appealable value is the value of the contested matter to the appellant: Allan v. Pratt[1]; Mohideen Hadjiar v. Pitchey[2]; Manley v. Palache[3]; Radha Kunwan v. Reoti Singh[4].

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

[2] (1893) A.C., 193.

[3] 73 L.T., 98; 11 R., 566, at p. 568.

[4] (1916) 38 Ind. Rep. (All.), 488.

High Court of Australia

Beard v Perpetual Trustee Co Ltd [1918] HCA 31; (1918) 25 CLR 1 (13 June 1918)

HIGH COURT OF AUSTRALIA