Skelton v Jones [1961] HCA 83; (1961) 107 CLR 171 (8 December 1961)

HIGH COURT OF AUSTRALIA

SKELTON v. JONES [1961] HCA 83; (1961) 107 CLR 171

High Court

High Court of Australia
Dixon C.J.(1), Kitto(1) and Owen(1) JJ.

CATCHWORDS

High Court - Practice - Special leave to appeal - Application in respect of order of State court granting conditional leave to Privy Council - No federal element - Inappropriateness of exercise of discretion having regard to nature of matter - Special leave refused.

HEARING

Sydney, 1961, December 1, 8. 8:12:1961
APPLICATION for special leave to appeal from the Supreme Court of New South Wales.

DECISION

December 8.
THE COURT delivered the following written judgment:-
This application is for special leave to appeal from an order made by the s. 5 of an Order of Her Majesty in Council dated 2nd April 1909. The Order in Council governs the right of appeal and the procedure for appealing from the Supreme Court of New South Wales to the Privy Council. The defendant in an action in the Supreme Court applies to this Court for special leave to appeal from the order, which gave the plaintiff conditional leave to appeal to the Privy Council from an order of the Full Court of the Supreme Court allowing an appeal from a verdict for the plaintiff. The action was an action for libel which was tried in the Supreme Court and the verdict which the plaintiff obtained at the trial was for 500 pounds damages. The Full Court of the Supreme Court set aside the verdict and entered judgment for the defendant. Section 2(a) of the Order in Council provides that, subject to the provisions of the Rules, an appeal shall lie as of right from any final judgment of the Supreme Court where the matter in dispute on the appeal amounts to or is of the value of 500 pounds sterling or upwards or where the appeal involves directly or indirectly some claim or question to or respecting property or some civil right amounting to or of the value of 500 pounds sterling or upwards. The word "sterling" in an Order in Council made in 1909 did not necessarily mean to distinguish between Australian money and money of the United Kingdom, and the majority of the judges in the Full Court, Evatt C.J. and Wallace J., Ferguson J. dissenting, held that the verdict for 500 pounds, notwithstanding that it was of course expressed in Australian money of account, satisfied the condition of s. 2(a) of the Order in Council. We are asked to give special leave to appeal on the ground that the decision is erroneous. (at p173)

2. No doubt, as the majority of the Court held in The Commonwealth v. Limerick Steamship Co. Ltd. and Kidman [1924] HCA 50; (1924) 35 CLR 69 , the order of the Full Court of the Supreme Court is of a judicial character and falls, therefore, within the wide general meaning of the word "order" in s. 73 of the Constitution. There is, however, nothing of a federal character in the proceedings as there was in that case and in The Commonwealth v. Kreglinger & Fernau Ltd. and Bardsley [1926] HCA 8; (1926) 37 CLR 393; (1926) VLR 310, 331 . The question in the present case is simply whether the Supreme Court exceeded the authority confided to it by the Order in Council to determine in New South Wales whether the conditions laid down to entitle a litigant to appeal to the Privy Council have been fulfilled. The plaintiff could not in the present case have appealed as of right to this Court, the amount involved being of course insufficient. Conceding that we have jurisdiction to intervene in order to re-examine the decision of the Supreme Court as to the application of the Order in Council, it does not seem appropriate that in such a matter we should exercise our discretion to grant special leave to appeal. Cases may arise in which the circumstances may induce us to do so, but this is not one of them. The question is simply one involving the admission of an appeal as of right from the State Court to the Privy Council, and if it is desired to question the correctness of the order authorizing the appeal, it is to the Privy Council that the defendant more properly should address himself and not to this Court. The application will therefore be refused. (at p173)

ORDER

Special leave refused with costs.