Hope v RCA Photophone of Australia Pty Ltd [1937] HCA 90; (1937) 59 CLR 348 (14 December 1937)

HIGH COURT OF AUSTRALIA

H C of A

On appeal from the Supreme Court of New South Wales.

22 April 1937

Latham C.J., Rich, Dixon and Evatt JJ.

Bavin, for the plaintiff.

Webb, for the defendant.

The following judgments were delivered:—

Latham C.J.

In this matter I am not at all free from doubt, taking the criterion as to the distinction between final and interlocutory orders as stated in Isaacs & Sons v. Salbstein[1] by Pickford L.J.; I have some doubt as to whether this can be regarded as a final order in view of the fact that the judgment for the plaintiff on demurrer gives liberty to amend within seven days, but I am not prepared to dissent from the opinion of my brothers that this is a final order.

Rich J.

I am of opinion that this is a final judgment finally disposing of the dispute between the parties, and there is no doubt, there was no dispute, as to the amount in the appeal being over £300.

I suggest that the motion should be dismissed and the costs of the motion made appellant's costs in the appeal.

Dixon J.

I agree that it is not the decision in the case but the order or judgment which was pronounced that must be considered in deciding whether it is final or interlocutory. In the present case we are dealing with a judgment pronounced in reference to a plea by way of cross-action. To that plea there was a replication, and to the replication there was a demurrer. There was no answer pleaded to the replication to the plea by way of cross-action except the demurrer, and the plaintiff had judgment upon demurrer. The plea by way of cross-action sets up an independent cause of action upon which there may be an independent recovery, and, in my opinion, the judgment in demurrer was a final conclusion which of itself determined the rights of the parties and concluded the cross-action. The fact that the defendant might have amended does not affect the matter, because no amendment was made and none of any use could have been made. No doubt, when liberty to amend is given and exercised, it might prevent such a judgment operating in its prima-facie conclusive form.

As far as the amount involved is concerned, we have a very bare affidavit justifying the appeal. The plea by way of cross-action does not claim any definite sum, and possibly it might have been easy to displace the presumption that arises from the affidavit if the matter had been investigated upon facts; it is not a case in which a named amount is claimed. But no attempt has been made to prove that the amount at stake is necessarily less than £300, and I think that we should give effect to the affidavit as it stands.

I agree that the motion should be dismissed.

Evatt J.

I agree with the view expressed that the judgment sought to be appealed from is a final judgment. Mr. Bavin has argued strongly that every judgment, so long as a judgment upon demurrer, must necessarily be interlocutory. I think he has misunderstood the position and the true position is that stated in Ex parte Bucknell[2] and also in Shields v. Peak[3] , to which Mr. Webb referred, as well as Pagani v. Pagani and Vining[4] . The true position is that a judgment on demurrer may be final or interlocutory; the court has to see the whole issue between the parties, including those portions of the issue contained in the demurrer, together and see whether the judgment on demurrer finally disposes of the dispute between the parties. Applying that principle to this case, it is a very clear case, I suggest, of a final judgment. There is a specially indorsed writ, the plaintiff in his declaration sues upon a hiring agreement, the defendant relies upon a special plea by way of cross-action. It is, as my brother Dixon remarked, an independent claim. On that claim the Full Court has held that it is not consistent in law with the written agreement. Its judgment finally and forever disposed of that claim; it is a claim which evidence shows involves more than £300. I think the case of Cox Brothers (Australia) Ltd. v. Cox[5] , to which Mr. Bavin referred, is quite distinct. This judgment would be regarded as final both under the Judicature practice and also in practice at common law.

I therefore agree with the order proposed.

Appeal dismissed with costs.

Solicitors for the appellant, Joseph J. Jagelman & Son.

Solicitors for the respondent, Minter, Simpson & Co.

H C of A

On appeal from the Supreme Court of New South Wales.

14 December 1937

Latham C.J., Rich, Starke, Dixon, Evatt and McTiernan JJ.

Bavin, for the plaintiff.

Webb, for the defendant.

The following judgments were delivered:—

Latham C.J.

In this matter I am not at all free from doubt, taking the criterion as to the distinction between final and interlocutory orders as stated in Isaacs & Sons v. Salbstein[6] by Pickford L.J.; I have some doubt as to whether this can be regarded as a final order in view of the fact that the judgment for the plaintiff on demurrer gives liberty to amend within seven days, but I am not prepared to dissent from the opinion of my brothers that this is a final order.

Rich J.

I am of opinion that this is a final judgment finally disposing of the dispute between the parties, and there is no doubt, there was no dispute, as to the amount in the appeal being over £300.

I suggest that the motion should be dismissed and the costs of the motion made appellant's costs in the appeal.

Dixon J.

I agree that it is not the decision in the case but the order or judgment which was pronounced that must be considered in deciding whether it is final or interlocutory. In the present case we are dealing with a judgment pronounced in reference to a plea by way of cross-action. To that plea there was a replication, and to the replication there was a demurrer. There was no answer pleaded to the replication to the plea by way of cross-action except the demurrer, and the plaintiff had judgment upon demurrer. The plea by way of cross-action sets up an independent cause of action upon which there may be an independent recovery, and, in my opinion, the judgment in demurrer was a final conclusion which of itself determined the rights of the parties and concluded the cross-action. The fact that the defendant might have amended does not affect the matter, because no amendment was made and none of any use could have been made. No doubt, when liberty to amend is given and exercised, it might prevent such a judgment operating in its prima-facie conclusive form.

As far as the amount involved is concerned, we have a very bare affidavit justifying the appeal. The plea by way of cross-action does not claim any definite sum, and possibly it might have been easy to displace the presumption that arises from the affidavit if the matter had been investigated upon facts; it is not a case in which a named amount is claimed. But no attempt has been made to prove that the amount at stake is necessarily less than £300, and I think that we should give effect to the affidavit as it stands.

I agree that the motion should be dismissed.

Evatt J.

I agree with the view expressed that the judgment sought to be appealed from is a final judgment. Mr. Bavin has argued strongly that every judgment, so long as a judgment upon demurrer, must necessarily be interlocutory. I think he has misunderstood the position and the true position is that stated in Ex parte Bucknell[7] and also in Shields v. Peak[8] , to which Mr. Webb referred, as well as Pagani v. Pagani and Vining[9] . The true position is that a judgment on demurrer may be final or interlocutory; the court has to see the whole issue between the parties, including those portions of the issue contained in the demurrer, together and see whether the judgment on demurrer finally disposes of the dispute between the parties. Applying that principle to this case, it is a very clear case, I suggest, of a final judgment. There is a specially indorsed writ, the plaintiff in his declaration sues upon a hiring agreement, the defendant relies upon a special plea by way of cross-action. It is, as my brother Dixon remarked, an independent claim. On that claim the Full Court has held that it is not consistent in law with the written agreement. Its judgment finally and forever disposed of that claim; it is a claim which evidence shows involves more than £300. I think the case of Cox Brothers (Australia) Ltd. v. Cox[10] , to which Mr. Bavin referred, is quite distinct. This judgment would be regarded as final both under the Judicature practice and also in practice at common law.

I therefore agree with the order proposed.

Appeal dismissed with costs.

Solicitors for the appellant, Joseph J. Jagelman & Son.

Solicitors for the respondent, Minter, Simpson & Co.

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1. (1916) 2 K.B. 139, at p. 148.

2. [1936] HCA 67; (1936) 56 C.L.R. 221, at pp. 225, 226.

3. (1883) 8 S.C.R. (Can.) 579.

4. (1866) L.R. 1 P. & D. 223.

5. [1934] HCA 16; (1934) 50 C.L.R. 314.

6. (1916) 2 K.B. 139, at p. 148.

7. [1936] HCA 67; (1936) 56 C.L.R. 221, at pp. 225, 226.

8. (1883) 8 S.C.R. (Can.) 579.

9. (1866) L.R. 1 P. & D. 223.

10. [1934] HCA 16; (1934) 50 C.L.R. 314.