Kenny v Hornberg [1963] HCA 34; (1963) 109 CLR 174 (3 September 1963)

HIGH COURT OF AUSTRALIA

KENNY v. HORNBERG [1963] HCA 34; (1963) 109 CLR 174

High Court

High Court of Australia
Owen J.(1)

CATCHWORDS

High Court - Practice - Appeal from Supreme Court of State - Appeal as of right - Amount involved in judgment - Maintenance order in affiliation proceedings - Judiciary Act 1903-1960 (Cth), s. 35 (1) (a) (2) - The Maintenance Acts, 1949 to 1954 (Q.).

HEARING

Brisbane, 1963, September 3. 3:9:1963
OBJECTION to competency of appeal from the Supreme Court of Queensland.

DECISION

OWEN J. delivered the following judgment:-
This is an objection to the competency of an appeal to this Court. (at p175) 2. The case is one in which an order was made under The Maintenance Acts, 1949 to 1954 (Q.) against the appellant for the maintenance of an illegitimate female child of which he was alleged to be the father. The order was for the payment by him of three pounds (3 pounds) a week as from 10th July 1962 and for the payment of fifty pounds (50 pounds) preliminary expenses. (at p175)

3. No time limit was fixed by the order for its determination. An order for review was granted which was heard by the Supreme Court and dismissed by it and it is against that order of dismissal that the appellant now seeks to appeal. (at p175)

4. The objection to the competency of the appeal is that the judgment appealed from does not involve directly or indirectly a question respecting a civil right of the value of 1,500 pounds. (at p175)

5. The appellant has placed before me evidence from an actuary who says that, using the rates of mortality in accordance with the Australian Life Tables and taking an interest rate of five per centum per annum, the present value of a joint temporary annuity of three pounds (3 pounds) per week payable until whichever event first occurs, namely, the expiration of fifteen years from the date of the commencement of the annuity or the failure of the joint lifetime of a female aged nought to the nearest birthday and a male aged forty to the nearest birthday is 1,575 pounds. I should interpolate here that the appellant at the relevant date was aged forty. (at p175)

6. The Maintenance Acts define "child" as being a person under the age of twenty-one years and it is apparent from an examination of the Act that an order made under it may continue in force until a child reaches that age. (at p175)

7. I think it is reasonable to assume that fifteen years is a reasonable period of time to take for the purposes of the actuarial calculation since it is unlikely that a female child would be able to support itself before reaching that age. (at p176)

8. In these circumstances the case seems to me to be in all relevant respects similar to the decision of this Court in Cocks v. Juncken [1947] HCA 16; (1947) 74 CLR 277 notwithstanding the fact that the order there in question was one which was made for a period of eighteen years although it could be varied or discharged during its currency. (at p176)

9. In my opinion the appellant here has an appeal as of right and notwithstanding the very earnest submission made to me by counsel for the respondent I am of opinion that the objection to competency fails and should be dismissed with costs. (at p176)

ORDER

Objection to competency dismissed with costs.