Nominal Defendant v McGowan [1961] HCA 78; (1961) 106 CLR 643 (4 December 1961)

HIGH COURT OF AUSTRALIA

NOMINAL DEFENDANT v. McGOWAN [1961] HCA 78; (1961) 106 CLR 643

District Courts (N.S.W.)

High Court of Australia
Dixon C.J.(1), McTiernan(2), Taylor(3), Menzies(4) and Windeyer(5) JJ.

CATCHWORDS

District Courts (N.S.W.) - Limitation of jurisdiction as to amount recoverable - Extension of such jurisdiction subject to condition - Verdict for amount greater than that claimed - Amendment of amount claimed not permissible - Verdict unreasonable - Whether judgment may be entered for amount claimed - District Courts Act, 1912-1958 (N.S.W.), ss. 41, 46, 98, 142, 144, 145.

HEARING

Sydney, 1961, November 8; December 4. 4:12:1961
APPEAL from the Supreme Court of New South Wales.

DECISION

December 4.
The following written judgments were delivered: -
DIXON C.J. This is an appeal from an order of the Supreme Court of New South Court was by the Nominal Defendant in an action brought in the District Court by the plaintiff who in the result recovered judgment for 3,000 pounds. The trial in the District Court was by jury and after the verdict there was an application to the District Court judge for a new trial. This was refused on 8th April 1960 by the District Court judge who thereupon gave judgment for the plaintiff for 3,000 pounds. The notice of appeal to the Supreme Court is from this decision and it asks for an order that both the judgment for the plaintiff for 3,000 pounds entered on 8th April 1960 and the order of the learned District Court judge of the same day refusing a new trial of the action be set aside and that a new trial of the action be granted limited to the question of damages. (at p645)

2. The action was one for damages for bodily injury caused by the use of a motor vehicle the identity of which and of the driver could not be established notwithstanding due search. The action was instituted on 6th March 1959 at a time when by virtue of the District Courts (Amendment) Act, 1955-1958 (N.S.W.) (No. 22 of 1955 and No. 11 of 1958) the temporary provisions substituted for s. 41 and s. 46 remained in force. By s. 41, as then substituted, the jurisdiction of the District Court extended to every claim or cause of action cognizable on the common law side of the Supreme Court. By s. 46 (1), as substituted, where the claim exceeded 1,000 pounds the defendant might within a prescribed time give notice that he objected to the action being tried in the District Court and where such a notice was given the judge was bound to order that the action be transferred to the Supreme Court. In Ex parte George Pearse Pty. Ltd.; Re O'Flynn (1960) SR (NSW) 667; 77 WN 440 it was held that after the prescribed time for objecting had passed the plaintiff could not obtain an amendment of his summons increasing the amount of his claim. (at p646)

3. In the present case the plaintiff had claimed the sum of 3,000 pounds damages. The defendant did not object within the prescribed time, or at all, to the action being tried in the District Court. At the trial the jury found a verdict for 7,000 pounds for the plaintiff. This created an obvious difficulty. It appears that the learned judge was himself clearly enough of opinion that the estimate of damages at 7,000 pounds was excessive and was an award which, independently of any limitation of jurisdiction, could not stand. The defendant applied for a new trial as under s. 98 of the District Courts Act, 1912-1958 (N.S.W.). It would appear that at the time of the application no judgment had been entered for the plaintiff and the plaintiff objected that under s. 98 (1) no application could be made to a District Court judge for a new trial prior to the entering of judgment. The correctness of this objection seems to be extremely dubious. However, the application for a new trial and an application for judgment were disposed of upon the same day as already stated, namely 8th April 1960. The learned District Court judge on that day refused the application for a new trial and entered judgment for 3,000 pounds. Upon the authority as it would seem of Cresswell v. Jones (1912) 106 LT 797; 28 TLR 395 he adopted the view that he was at liberty to reduce the amount to be awarded to the jurisdictional limit of 3,000 pounds from the amount actually expressed in the jury's verdict of 7,000 pounds. It is important to keep entirely distinct the two reasons why the plaintiff could not have judgment for 7,000 pounds. One of course was that she had claimed in her summons only 3,000 pounds and the claim could not be amended. The other was that independently of that the amount was so excessive that the verdict would not stand in any case. It is said that the learned judge did not determine and indeed could not determine by way of definitive decision that the verdict of 7,000 pounds was an excessive award in respect of the injuries sustained but however that may be it is plain that that was his opinion and his opinion seems clearly to be well founded. He was, however, of opinion that an award of 3,000 pounds, although high, might be sustained and on that ground he took the course of entering judgment for the sum of 3,000 pounds. If the appeal is treated as an appeal under ss. 142, 144 and 145 of the District Courts Act, 1912-1958 from the judgment, the authority of the Supreme Court to deal with the judgment rests on sub-s. (3) of s. 145 and is either to order a new trial on such terms as it thinks fit or to order judgment to be entered for either party and to make such order as to costs as it might think proper. If the matter be treated as an appeal from the order refusing a new trial possibly the jurisdiction, although arising under the same sub-section, may be limited to ordering or refusing a new trial. The distinction, however, does not matter because the notice of appeal covers both orders which were made upon the same day. (at p647)

4. In Cresswell v. Jones (1912) 106 LT 797; 28 TLR 395 a Divisional Court consisting of Phillimore and Bray JJ. dealt with a dilemma which has a prima facie similarity to that which faced the District Court judge in the present case. The plaintiff had brought an action in the County Court upon causes of action in contract and fraudulent misrepresentation for a sum of money which might apart from jurisdiction have been 101 pounds; but to bring his case within the jurisdiction of the County Court he abandoned 1 pound. At the trial the jury awarded him 110 pounds and the question before the Divisional Court was whether it was possible to enter judgment for 100 pounds according to his claim upon the verdict. It seems to have been a case where there was no doubt that the plaintiff might properly have been awarded 110 pounds in a jurisdiction which was not limited in respect of amount and the learned judges of the Divisional Court considered that in the circumstances it was competent for the County Court, acting on the verdict for 110 pounds, to enter judgment for 100 pounds, the amount to which the jurisdiction was limited. The case is not well reported and it may be thought that it is not made completely clear why their Lordships considered that the verdict might be treated in the manner described. But there is no reason to think that the amount awarded by the jury was not divisible or that there was any doubt as to the validity of the verdict or the propriety of the amount awarded independently of the jurisdictional objections. While the appeal to the Supreme Court in the present case was pending that Court decided a case possessing some similar features, namely Devlin v. Conpress Printing Ltd. (1960) 78 WN (NSW) 1011 . It was a decision in which upon a claim for unliquidated damages in the District Court the particulars of claim stated the damages as 2,000 pounds but the jury returned a verdict for 4,000 pounds. On a new trial motion in the District Court before the learned presiding judge his Honour held that 4,000 pounds was an award which was unreasonably high and therefore, independently of objections based on jurisdiction, could not be sustained but that a verdict for 2,000 pounds would not have been unreasonable. He therefore dismissed the new trial motion and entered judgment for 2,000 pounds, the amount claimed in the summons. Upon appeal the Full Court of the Supreme Court held that the course taken was proper, citing among other things the case of Cresswell v. Jones (1912) 106 LT 797; 28 TLR 395 . (at p648)

5. In the Full Court of the Supreme Court in the present case Owen J. and Manning J. delivered separate judgments. Brereton J. concurred in the judgment of Owen J. Both judgments expressed difficulty in accepting the correctness of the decision in Devlin v. Conpress Printing Ltd. (1960) 78 WN 1011 but their Honours considered that they should follow that case, leaving it to this Court to deal with its correctness if occasion arose. In my opinion the decision on the point in question was not correct but I shall express my reasons rather in relation to the facts of the present case. In the present case the jury gave a verdict for 7,000 pounds which from no point of view was sustainable. It was an award of an amount which was unreasonable and therefore on ordinary principles regulating the verdicts of juries could not stand as a determination of the quantum of damages. Unlike the verdict of the jury in Cresswell v. Jones (1912) 106 LT 797; 28 TLR 395 it was not an award of an amount to which, apart from jurisdiction, the plaintiff was entitled. It could not be said of it that, inasmuch as it was a sum of money to which the plaintiff was entitled, part of it could be awarded to him in a jurisdiction which was limited by reference to amount recoverable. It is a total sum to which in point of law the plaintiff was not entitled. It no doubt may be considered true that it necessarily contained some lesser sum to which the plaintiff ultimately would become entitled, but before he could be so entitled the amount of that lesser sum must be fixed by a competent tribunal and awarded to him. In an action tried by jury the court is not a competent tribunal to fix the damages recoverable: only a jury would be competent to do so and no jury had determined the amount at 3,000 pounds or any other sustainable amount. In other words, the jury's verdict, quite independently of a limitation of jurisdiction, was entirely abortive and could not operate as a determination of what was due to the plaintiff or any part of it. (at p648)

6. In Watt v. Watt (1905) AC 115 the question before the House of Lords was whether their Lordships should sustain a long-standing practice prevailing, as it was said, in the Court of Appeal on the authority of Belt v. Lawes (1884) 12 QBD 356 of reducing, with the consent of the plaintiff, an excessive amount of damages awarded by a jury to a sum fixed by the Court of Appeal. The House of Lords determined that the practice could not be sustained because in an action of tort tried before a jury nothing but the determination of the jury can determine the quantum of damages. Lord Halsbury said: "Assume it to be the constitutional view that a person can only have damages assessed against him for a tort, what right has a Court to intervene and say that damages which in its judgment are appropriate shall be the amount assessed against him? The only judgment by a jury is one which the Court itself by the hypothesis says is unreasonable and excessive. Has not the defendant a right to say, 'I refuse to have judgment assessed against me by a Court? The law gives me a right to a jury, and how does the fact that a jury have already found a verdict against me, which you decide cannot be allowed to stand because it is unreasonable and excessive, displace my right to have the verdict of a jury upon the question?'" (1905) AC, at p 120 . (at p649)

7. In the present case, on the simple ground that no computation of damages had been made which could be sustained as an expression of the plaintiff's right to receive and of the defendant's liability to pay damages in any specified amount, I do not see what basis there was for entering a judgment against the defendant. The defendant in the present case appeals upon the ground that he has been made liable to a sum of 3,000 pounds by the judgment pronounced in the District Court without any verdict which could sustain such an award; there is, in other words, nothing behind the judgment for 3,000 pounds pronounced against him by the learned District Court judge which in an action tried by jury could enable the judge to enter such a judgment. Of the decision in Cresswell v. Jones (1912) 106 LT 797; 28 TLR 395 it is necessary to say very little. It must, I think, be limited to cases where the amount awarded by the jury is correct in the sense that, but for the limitation upon jurisdiction, the amount would be recoverable by the plaintiff. On that footing the jury as a tribunal of fact has ascertained the amount to which the plaintiff is entitled as against the defendant and the reduction of that amount is based entirely upon jurisdictional grounds. So far as, if at all, Cresswell v. Jones (1912) 106 LT 797; 28 TLR 395 went beyond this principle I cannot see that it can be sustained and because the decision in Devlin v. Conpress Printing Ltd. (1960) 78 WN (NSW) 1011 did go beyond that principle I think it should be overruled. (at p649)

8. In the result I think that the judgment and order of the District Court should be set aside and in lieu thereof a new trial of the action should be ordered, limited to the assessment of damages. (at p649)

McTIERNAN J. The appellant calls into question the judgment which the trial judge, his Honour Judge Levine, entered and his order refusing a new trial. The amount of damages, 7,000 pounds, found by the jury exceeded the statutory limit of the jurisdiction of the Court. The statutory maximum which the respondent could recover by a judgment in the action was 3,000 pounds, that being governed, under the provisions of the statute, by the amount claimed in the summons. Such amount was 3,000 pounds. The appellant did not consent to the reduction of the amount found by the jury to 3,000 pounds. It is argued for the appellant that by entering a judgment for the latter amount the trial judge usurped a function of the jury, which was to assess the amount of damages which the respondent should recover. In my opinion, the true position is that the trial judge entered judgment for a portion of the amount of 7,000 pounds found by the jury. The amount of 3,000 pounds for which he entered judgment was not the result of an assessment of damages made by himself. He simply entered judgment for as much of the amount of damages found by the jury as was within the statutory limit of the jurisdiction of the District Court in the case. The excess, namely 4,000 pounds, was not recoverable at all in the action. The trial judge refused an application for a new trial of the issue only of damages, for the reason that having regard to the evidence of the injury suffered by the respondent, the amount of the judgment, 3,000 pounds, was not out of proportion to the injury. I agree with his conclusion. (at p650)

2. The trial judge expressed an opinion that the amount of 7,000 pounds was out of all reasonable proportion to the injury, but it was not the reason for his refusing to enter judgment for that amount: the reason was that 7,000 pounds exceeded the statutory limit. He did not reduce the amount to 3,000 pounds and enter judgment for that amount to give effect to an opinion which he formed that such amount was the proper measure of damages for the injury; as I have stated the trial judge was concerned only to enter judgment for so much of the amount of 7,000 pounds as was within the limit of the Court's jurisdiction. His view that 3,000 pounds was not excessive damages was not, as I apprehend the matter, his reason for entering judgment for that amount: it was his reason for refusing an application for a new trial to be limited to the question of damages on the ground that judgment was entered for an excessive amount. (at p650)

3. His Honour relied upon Cresswell v. Jones (1912) 106 LT 797; 28 TLR 395 to support his entering judgment for 3,000 pounds. It is argued for the appellant that the decision affords no justification for the course which the trial judge took, for the reason that the amount of the jury's verdict was not only in excess of the statutory limit of jurisdiction but also unreasonably large. Indeed it was argued that the verdict was so excessive as to be a "nullity". Phillimore J. said in Cresswell v. Jones (1912) 106 LT 797; 28 TLR 395 : "It seems to me that the question of jurisdiction in the County Court is determined by s. 56 of the County Courts Act, 1888, and that any action in which not more than 100 pounds is claimed can be commenced and heard in the County Court. The present action was, therefore, properly commenced to recover 100 pounds. The jury, however, returned a verdict they were not entitled to find, which is, perhaps, some evidence that they did not regard the case in a proper manner and might be a ground upon which it could possibly be argued that the verdict was against the weight of evidence. But it does not affect the question of the jurisdiction of the County Court, and I think that a verdict which only sins by way of being in excess of the sum which may be recovered in the County Court may be reduced by the learned judge to such a verdict as the jury could properly give. I am therefore of opinion that the learned judge was not wrong in law in reducing this verdict to 100 pounds". These words extend beyond the case of a mere excess of jurisdiction: they apply to a case in which the verdict of the jury is such that there is ground for infering that they did not properly perform their duty. In my view, the decision in Cresswell v. Jones (1912) 106 LT 797; 28 TLR 395 supports the action of the trial judge in entering judgment for 3,000 pounds. The decision of the Full Court of the Supreme Court of New South Wales in Devlin v. Conpress Printing Ltd. (1960) 78 WN (NSW) 1011 . on a similar point was in my opinion right. (at p651)

4. It does not seem to me that there is opposition between the course taken by the trial judge in entering judgment for 3,000 pounds and any principle laid down in Watt v. Watt (1905) AC 115 : the circumstances in that case are not, in my view, comparable with those in the present case. In that case, the Court of Appeal whose judgment was over-ruled, in effect sought to substitute its opinion on the quantum of damages for that of the jury. As I have said above, the trial judge in the present case did not usurp the jury's function. He merely gave judgment for as much of the amount of damages found by the jury as was within the limit of the jurisdiction of the Court as to amount. Compare observations by Lord Macmillan in Avery v. London & North Eastern Railway Co. (1938) AC, at p 619 with regard to scaling down damages awarded by a jury in excess of a statutory maximum imposed by the Employer's Liability Act, 1880 so as to keep within it. I would dismiss this appeal. (at p651)

TAYLOR J. According to the decision in Ex parte George Pearse Pty. Ltd.; Re O'Flynn (1960) SR (NSW) 667; 77 WN 440 judgment in the action between the parties in the District Court could not have been entered for any amount in excess of 3,000 pounds, that being the amount claimed by the respondent who was the plaintiff in the action. But the jury returned a verdict for the plaintiff for 7,000 pounds. Upon an application for a new trial this verdict was held to be excessive and the substantial question which arises is whether that verdict, which could not, in any circumstances, have supported a judgment for 7,000 pounds, was capable of supporting a judgment for such lesser sum as the plaintiff happened to claim - and which was, therefore, within the jurisdiction of the Court - and which the learned trial judge considered to be within the limits of a reasonable award. That is to say, if the plaintiff had claimed 5,000 pounds, or some other sum less than 7,000 pounds was it open to the judge to consider whether the amount claimed was reasonable and then to enter judgment for that amount? Quite clearly if the plaintiff had claimed 7,000 pounds there must have been a new trial. So also, even on the reasoning of the learned trial judge, there must have been a new trial if a lesser sum had been claimed which, nevertheless, exceeded, in his Honour's opinion, the limits of a reasonable award. According to his Honour, however, the verdict was sufficient to support a judgment for the amount claimed if, as he did, he considered that amount to be within those limits. But in my view the abortive verdict was incapable of providing a basis for a judgment for any amount. The reasons of the Chief Justice make this quite clear and I agree that the appeal should be allowed. (at p652)

MENZIES J. I agree with the reasons and conclusion of the Chief Justice. (at p652)

WINDEYER J. I agree in the judgment of the Chief Justice. (at p652)

ORDER

Appeal allowed with costs. Order of the Supreme Court set aside. In lieu thereof appeal to the Supreme Court from the District Court allowed with costs. Judgment and order of the District Court discharged. Order that a new trial of the action be had limited to the question of damages.