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High Court of Australia |
ELECTRICITY COMMISSION (N.S.W.) v. LAPTHORNE [1971] HCA 11; (1971) 124 CLR 177
High Court - Practice (N.S.W.)
High Court of Australia
Barwick C.J.(1), McTiernan(2), Menzies(3), Owen(4) and Walsh(5) JJ.
CATCHWORDS
High Court - Appellate jurisdiction - Appeal from Supreme Court of New South Wales - Action under Lord Campbell's Act - Trial before judge without jury - Verdict for defendant - No direction that judgment be entered in conformity with verdict - Judgment not so entered - Appeal to Court of Appeal - Order substituting finding for plaintiff with damages to be assessed - Appeal to High Court - Whether appeal from "judgment" - Whether "final" judgment - Competency - The Constitution (63 & 64 Vict. c. 12), s. 73 - Supreme Court Procedure Act, 1900-1965 (N.S.W.), s. 5* - Judiciary Act 1903-1969 (Cth), s. 35 (1)*.Practice (N.S.W.) - Trial before judge without jury - Verdict for defendant - No direction that judgment be entered in conformity with verdict - Judgment not so entered - Effect of verdict - Appeal - Supreme Court Procedure Act 1900-1965 (N.S.W.), s. 5.*
HEARING
Sydney, 1971, March 24, April 21. 21:4:1971DECISION
April 21.2. This appeal was evidently in purported pursuance of s. 5 (6) of the Supreme Court Procedure Act. The Court of Appeal Division of the Supreme Court (which for ease of reference I shall call the Court of Appeal) heard the plaintiff's appeal and came to the conclusion that the trial judge was not in error in concluding that the defendant's negligence caused the death of the plaintiff's husband but that he was in error in concluding that the deceased was lacking in care for his own safety. The Court of Appeal's order was that "The appeal is allowed. Judgment for the defendant set aside and in lieu thereof order that judgment be entered for the plaintiff ; direct that the amount of damages be assessed by a judge without a jury." The defendant lodged in due time a notice of appeal to this Court from the whole of the judgment of the Court of Appeal seeking - (i) an order allowing the appeal; and (ii) an order setting aside the judgment of the Court of Appeal and in lieu thereof entering judgment in the action for the appellant with costs. (at p180)
3. The defendant filed with the notice of appeal an affidavit from which it could fairly be concluded that the damages upon the assessment directed by the Court of Appeal could not reasonably be less than $3,000. (at p180)
4. An objection to the competence of this appeal was lodged by the plaintiff but subsequently withdrawn. However, upon the defendant's appeal coming on to be heard members of the Court raised the question of the Court's competence to hear the defendant's appeal and to make the orders sought by the notice of appeal. (at p180)
5. I think it profitable first to observe what were the powers of the Court of Appeal in hearing the plaintiff's appeal from the judgment of the Court supposedly entered at the direction of the trial judge. It is quite clear that the findings of a judge sitting without a jury are not findings of the Supreme Court but as s. 5 (1) says "have the effect in all respects as the verdict of a jury". As such they are not in any relevant sense a judgment, see Riley v. Nelson [1965] HCA 62; (1965) 119 CLR 131 . But the trial judge not being as such the Supreme Court is expressly given power by s. 5 (2) to direct judgment to be entered up in conformity with the verdict or finding which he has made. Without such a direction there is no authority either to sign or to enter judgment, s. 5 (2). Section 5 (6) gives a right of appeal against the judgment "so directed by the judge to be entered". It is thus from the entry of the judgment that the Court of Appeal derives jurisdiction to hear an appeal against the judgment. The powers of the Court of Appeal upon any such appeal are purely statutory and are derived from the provisions of s. 5 and s. 7 of the Supreme Court Procedure Act and s. 21 (1) of the Supreme Court Circuits Act, 1900-1965 (N.S.W.). The Privy Council appears to regard the prerogative as large enough to allow the Judicial Committee to hear an appeal though the actual judgment under appeal is not challenged and to permit it to hear an appeal without the statutory restraints which applied to the court from which the appeal is brought. See Australian Consolidated Press Ltd. v. Uren [1967] UKPCHCA 2; (1969) 1 AC 590 ; (1967) 117 CLR 221 ; Woolworths Ltd. v. Stirling Henry Ltd. (1969) 1 AC 113 . In my opinion, the latter case does not impinge upon the decisions of this Court in Riley v. Nelson [1965] HCA 62; (1965) 119 CLR 131 and in the The Commonwealth v. Rhind [1966] HCA 83; (1966) 119 CLR 584 . (at p181)
6. An appeal against a judgment directed to be entered by a trial judge may be based either upon a disconformity between the judgment and the verdict or finding of the judge in respect of which it is entered or upon error of the judge in reaching that verdict or finding. Perhaps in some unusual instance the appeal may involve both grounds. The disconformity may be that the verdict or finding ought in law to have resulted in a different judgment. If the ground is the former then s. 5 (9) or s. 7 would authorize the Court of Appeal to give a judgment which did conform with the trial judge's verdict or finding or with the proper legal consequence of that verdict or finding : but if the ground is the latter and the Court of Appeal accepts the view that the findings of fact were erroneous, the Court of Appeal must resort to the powers given by s. 5 (7). In such an event the Court is authorized by that subsection to make its own findings of fact substituting them for those of the trial judge and, in my opinion, thereafter by s. 5 (9) to give a judgment conformable to those substituted findings of fact. (at p181)
7. It is quite clear that the trial judge could not direct judgment to be entered for a plaintiff in an action for negligence unless the damages had been assessed or agreed. If a trial judge determined liability prior to the assessment of the consequential damages, the finding of liability cannot rise even to the level of a verdict until the damages are assessed whereupon of course the statute would authorize the direction to enter judgment. The relevant powers of the Court of Appeal are no larger. Consequently, in my opinion, the Court of Appeal could not give judgment in the action which is not supported by and conformable to either a verdict of the trial judge or a verdict of their own. In this case therefore where damages is of the gist the Court of Appeal could not order judgment in the action to be entered for the plaintiff before the damages had been agreed or assessed. (at p182)
8. In the present case, as I have said, the Court of Appeal came to the conclusion that the trial judge's finding of contributory negligence was erroneous. Accordingly it had need in order to give effect to its own view of the facts to displace the trial judge's verdict and to substitute its own. As a step towards doing so, it had to set aside the judgment of the Court supposedly entered at the direction of the trial judge. It did not assess the damages nor were they agreed. In my opinion, in that state of affairs, the Court had no authority to enter judgment disposing of the cause between the parties : but it had authority to enter its finding and to remit the cause to a judge sitting without a jury for the assessment of damages. When the damages had been agreed or assessed the court could enter a verdict and direct judgment for the plaintiff for the amount of such damages. I would see no objection to the Court of Appeal having substituted for the judge's verdict a finding of their own and ordered an assessment of damages by a single judge, making an order that a verdict and judgment be entered for an amount of such damages when assessed. But even so there would be no judgment of the court till that entry had taken place. (at p182)
9. This Court's jurisdiction to hear an appeal as of right from the Supreme Court depends upon s. 35 of the Judiciary Act 1903-1969 (Cth), that is to say, to hear an appeal from a final judgment of the Supreme Court. A verdict whether of a jury or of a judge of the Court sitting alone is undoubtedly not a judgment of the Court ; nor is it a mere finding of liability in an action of negligence. The situation of course may be otherwise in connexion with Supreme Courts of those States where the judge sits as the Court. The Court of Appeal did not in terms order the entry of a verdict or of its finding but in terms gave judgment for the plaintiff without damages having been assessed. (at p182)
10. Two questions must therefore be resolved, first is the order of the Court of Appeal a judgment of the Supreme Court from which an appeal lies to this Court, and, second, if so, is it a final judgment so as to enable an appeal therefrom to be brought as of right? A conclusion in the affirmative as to the first of these questions would allow of the grant of leave to appeal in this case. However, the appellant declined to move for leave to appeal in the event that the Court decided that it had no appeal as of right. (at p182)
11. To my mind, the first question to decide in connexion with this Court's competence to hear the defendant's appeal is the meaning of the order made by the Court of Appeal. This construction ought, I think, to be approached so as to give validity rather than invalidity to the Court's order. As I am of opinion that the Court of Appeal had no power to give judgment in the action between the parties before the assessment of the damages, that is to say, judgment either in the sense of that word in the Supreme Court Procedure Act or in the sense of that word in the Judiciary Act, if it is possible consistently with the language used, the decision of the Court of Appeal should be read as doing that which the Court of Appeal could do and not as doing that which it could not do. In my opinion, having looked at the reasons for judgment given by their Honours of the Court of Appeal, the terms in which the Court of Appeal announced its order and the terms of the formal order in which the Court's order was expressed, I think the word judgment as used throughout the relevant parts of the reasons, the pronouncement of the order and the formal order ought to be regarded as having been used in the sense of a finding of liability. In my opinion, it was so intended by their Honours severally in their reasons for judgment. If this construction is put upon the Court's language, the question is whether an order setting aside the judgment supposedly entered at the direction of the trial judge, entering a finding for the plaintiff so far as liability is concerned and ordering the assessment of the damages was a judgment within the meaning of the Judiciary Act. In my opinion, it was not. Further, the order of the Court of Appeal could not be dismembered into some of its constituents so as to treat some part of it as if it had made that order independently of the rest (and the substantive part) of its order. An order of the Court of Appeal merely setting aside a judgment of a court might in some circumstances be regarded as a proper subject of appeal. But, here, the setting aside of the supposed judgment was no more than a mechanical step in the substitution, as I think, of the finding of fact favoured by the Court of Appeal for that formed by the trial judge. The order must be regarded as a whole. So regarded it was, in my opinion, not a verdict and not relevantly a judgment. On that view this appeal is not competent. (at p183)
12. If, however, on the other hand, contrary to my own opinion, the reasons of the judges of the Court of Appeal, the terms of the pronouncement of the Court's order and the terms of the formal order are read literally then, in my opinion, the whole order made by the Court of Appeal could be regarded as a judgment within the meaning of s. 35 of the Judiciary Act. But in that case what this Court could do on the appeal would be very limited. This Court, in my opinion, could only set aside the judgment given by the Court of Appeal and record the finding of fact for the plaintiff with damages to be assessed. It could not, in my opinion, examine that finding : in other words, it could not do anything which the appellant by its notice of appeal asks it to do except as I have indicated. (at p184)
13. But the question remains whether so regarding the order of the Court of Appeal as a judgment of the Supreme Court it was a final judgment of that Court. In my opinion, so regarded, it was relevantly to be described as an interlocutory judgment, an appeal from it being competent only by leave of this Court. It did not dispose of the action nor of any part of it. Where damages are of the gist liability cannot relevantly be divorced from the damages as a separate and independent matter. Cf. The Wagon Mound [1961] UKPC 1; (1961) AC 388, at p425 . (at p184)
14. It is necessary for me in this connexion to make reference to Hall v.
Busst [1960] HCA 84; (1960) 104 CLR 206 . In that case
in an action without
pleadings the
parties had signed a special case for the opinion of the Supreme
Court of
Queensland pursuant
to O. 38 r. 1 of the
Rules of that Court. The question was
as to the enforceability of certain provisions
of a contract. The special
case
provided :
"If the Court shall be of opinion in the affirmative on the
said questions then directions shall be given for the action to
proceed to trial on the issue of damages and the amount
thereof and it may be ordered that the defendant shall pay the
plaintiff's costs of this Special Case. If the Court shall be of
opinion in the negative on the said questions then judgment
shall be entered for the defendant with costs of the action." (at p184)
15. The Supreme Court for the purpose of hearing the special case was
constituted by a judge of the Court who answered the questions
favourably to
the plaintiff and ordered that the action proceed to trial on the issue of
damages, making an order for the costs of
the special case. An appeal from
that order was dismissed by the Full Court of the Supreme Court of Queensland.
(at p184)
16. Upon an appeal brought to this Court as of right the Court overruled an
objection as to competence, no reasons being given on
behalf of the Court for
that course. Having so decided, the hearing of the appeal proceeded. Judgment
was reserved and separate reasons
were subsequently delivered, the
participating justices not being unanimous as to the fate of the appeal. After
dealing with the
substantial point involved, Sir Owen Dixon said (1960) 104
CLR, at p 218 :
"An objection was taken to its (the appeal's) competence
on the ground that the order appealed from was interlocutory.
I think that the order was intended as a judgment for the
plaintiff for damages to be assessed and therefore that it is
final in the sense that word bears in s. 35 (1) (a) (2) of the
Judiciary Act 1903-1955 (Cth)." (at p185)
17. No other justice gave any reason for the decision (1) as to the
competence of the appeal nor did any express either agreement
with or dissent
from the passage I have quoted from Sir Owen Dixon's reasons for judgment. (at
p185)
18. I am unable to accept this case as an authority for the proposition that a "judgment" for the plaintiff in an action for negligence in the Supreme Court of New South Wales, is other than an interlocutory judgment until the damages have been determined either by assessment or by agreement ; and, in the latter case, the agreement converted into the record. Putting on one side the question whether the Court, as a court, subscribed to the reasons given by Sir Owen Dixon for thinking the judgment of the Supreme Court of Queensland on the parties' special case was a final judgment in the relevant sense, there are sufficient points of difference between that case and the present to warrant it being distinguished. (at p185)
19. In the first place, damages in the case, which was for breach of contract, were not of the gist as they are in the instant case. Then, the judge of first instance was the court and his order an order of the court. Here, as I have pointed out, it is otherwise, the judge was not the court and his authority was to return a verdict and to direct the entry of a judgment of the court in accordance with it, the verdict not being capable of being given till an amount of damages had been determined. Further, it might be possible in the case of the procedure adopted by the parties to regard the answers to the questions asked by the special case and the consequential order for the assessment of damages as finally disposing of the special case : but not, of course, of the action. Here, if the primary judge had directed that judgment after verdict be entered for the defendant, it would have been a final order disposing of the action. There was no other proceeding which could be treated as a separate proceeding, as I can well understand the special case in Hall v. Busst [1960] HCA 84; (1960) 104 CLR 206 might be regarded. The finding for the plaintiff given by the Court of Appeal without the determination of the damages neither disposed of the action nor of any proceeding within it which could be regarded as a separate proceeding. (at p186)
20. Finally, it seems to me that in a common law system such as prevailed at the relevant time in New South Wales, a judgment entered for the plaintiff in default of appearance or of defence in an action for unliquidated damages is the classical example of an interlocutory judgment. Only after assessment of damages could a final judgment, as upon verdict, be entered. I am unable to accept the conclusion, if applied to such a situation, that because an order for the assessment of damages was intended to be a judgment for the plaintiff for damages to be assessed, the order was a final order within the meaning of s. 35 of the Judiciary Act. (at p186)
21. To sum up my opinion, I would construe the order of the Court of Appeal as an order substituting for the verdict for the defendant given by the primary judge, a finding for the plaintiff in respect of liability, damages to be assessed by a judge sitting without a jury. Such an order, in my opinion, is not a judgment of the Supreme Court from which an appeal can be brought to this Court, either as of right or by leave. (at p186)
22. However, if the order of the Court of Appeal is to be taken literally, that is to say, as an attempt to do that which the Court of Appeal was not authorized by the statute to do, then it may be regarded as a judgment of the Supreme Court, though erroneous, but not, in my opinion, a final judgment. On either view, the present appeal is incompetent. (at p186)
McTIERNAN J. I agree with the conclusion of the Chief Justice that the present appeal is incompetent and with his reasons. (at p186)
MENZIES J. At this point in this proceeding the Court has to decide a question raised not by the parties but by the Court itself, viz. whether or not the appeal which has been instituted lies as of right ; in other words, whether it is an appeal from a final judgment of the Supreme Court of New South Wales : Constitution, s. 73 (ii.) and Judiciary Act, s. 35 (1) (a). (at p186)
2. The facts are that in an action in the Supreme Court of New South Wales under the Compensation to Relatives Act, 1897-1942 (N.S.W.), the Court, comprised of a justice sitting alone, found for the defendant on the footing that, although it had been negligent and its negligence had contributed to the death of the deceased, he himself had been guilty of contributory negligence, which, then, was a complete defence. (at p187)
3. It does not appear that his Honour the learned trial judge did, in accordance with the Supreme Court Procedure Act, 1900-1965 (N.S.W.), s. 5 (2) and (3), direct the entry of a judgment in accordance with these findings or that judgment was ever formally entered. Nevertheless, the unsuccessful plaintiff appealed to the Court of Appeal against the whole of the "order, decree, judgment or verdict". The Court of Appeal ordered as follows : "that the appeal is allowed, judgment for the defendant set aside and in lieu thereof order that judgment be entered for the plaintiff ; direct that the amount of damages be assessed by a judge without a jury". The order was made because, in the opinion of the Court of Appeal, differing from the learned trial judge, the defendant had at the trial not proved contributory negligence on the part of the deceased. (at p187)
4. The first question now to be decided is whether the order made by the Court of Appeal is a judgment of the Supreme Court of New South Wales ; if it is, the second question is whether it is a final judgment. (at p187)
5. The first question, of course, has nothing to do with whether or not the Court of Appeal should have disposed of the appeal as it did ; it is rather whether, in disposing of the appeal as it did, that Court made an order. To this I would give an affirmative answer. Despite possible irregularities there was an appeal instituted in the Court of Appeal by the party now concerned to maintain its order. That appeal was presumably pursuant to s. 5 (6) of the Supreme Court Procedure Act. Upon that appeal the verdict or finding of the learned trial judge in the action, which "had like force and effect in all respects as the verdict or finding of a jury" (Supreme Court Procedure Act, s. 5 (1)), was open for review and it was reviewed. The appeal so instituted was a rehearing and the Court of Appeal had the same powers as the judge to make findings of fact and to assess damages (Supreme Court Procedure Act, s. 5 (7)). After hearing the appeal, the Court of Appeal made the order already set out, which, inter alia, set aside the judgment against which the unsuccessful plaintiff had appealed and ordered that judgment be entered for the plaintiff. The Court did not, however, exercise its power to assess damages but directed "that the amount of damages be assessed by a judge without a jury". Another, and perhaps a more regular course, would have been to have set aside the judgment for the defendant and then to have stood the appeal over for further consideration after an assessment of damages directed to have been made by a judge without a jury : see Supreme Court Procedure Act, s. 5 (8). This it is not necessary to decide. The form of order actually made, although it may be of some importance in determining whether or not the order was a final or merely an interlocutory judgment, is not of significance in deciding whether or not the Court of Appeal made an order. It seems to me that it did. To set aside a judgment for the defendant and to direct that judgment be entered for the plaintiff requires an order ; indeed, even if it be thought that a judge hearing an action as the court can make a determination without making an order, I would nevertheless think that an appeal court can act only by making an order, even if what it does is to direct the entry of a verdict or to assess damages. If the Supreme Court makes an order, that order is appealable in this Court pursuant to s. 73 (ii.) of the Constitution, but subject to the provisions of s. 35 of the Judiciary Act. (at p188)
6. I do not think that the decisions of this Court in Riley v. Nelson [1965] HCA 62; (1965) 119 CLR 131 , or in The Commonwealth v. Rhind [1966] HCA 83; (1966) 119 CLR 584 , have any bearing upon the determination whether the Court of Appeal made an order in the circumstances here set out. If, however, it were to be thought that they have, those decisions would, in my opinion, now have to be reconsidered in the light of the later decision of the Privy Council in Woolworths Ltd. v. Stirling Henry Ltd. (1969) 1 AC 113 . Such reconsideration is not, I think, necessary in this case in the course of determining that the order appealed from is a judgment of the Supreme Court of New South Wales. It cannot, as I see it, be anything else. (at p188)
7. It is, I think, a more difficult question whether the order of the Court
of Appeal is a final judgment, because clearly enough
it does not dispose of
the action but purports to commit the assessment of damages to a single judge.
However, in Hall v. Busst
[1960]
HCA 84; (1960)
104 CLR 206 , this Court overruled an
objection to jurisdiction based on the ground that an order which the Full
Court of
the Supreme
Court of Queensland affirmed was not a final order, and
Dixon C.J., in stating the Court's reason for so doing,
said
(1960) 104 CLR,
at p 218 :
"An objection was taken to its competence on the ground
that the order appealed from was interlocutory. I think
that the order was intended as a judgment for the plaintiff
for damages to be assessed and therefore that it is final in the
sense that word bears in s. 35 (1) (a) (2) of the Judiciary Act
1903-1955 (Cth)." (at p189)
8. It seems to me that it was the decision of the Court in that case that a
judgment for the plaintiff for damages to be assessed
is a final order within
the Judiciary Act, s. 35 (1) (a) (2). The order appealed against here, be it
right or wrong, is such an order.
(at p189)
9. In my judgment, therefore, the appeal now before the Court is from a final judgment of the Supreme Court of New South Wales and, it not being in question that the judgment is within s. 35 (1) (a) (1) and (2) of the Judiciary Act, I consider that the appeal lies as of right and that it should be heard. (at p189)
OWEN J. In my opinion the order made by the Court of Appeal Division of the Supreme Court should be regarded as a "judgment" within the meaning of s. 35 of the Judiciary Act, even though it took a form which may not have been justified by the powers vested in that Court. The question then arises whether that "judgment" was final or interlocutory only. In my opinion it should be regarded as an interlocutory judgment since it is not until the damages are assessed that there can be any final judgment in the case. The position is similar to that which would arise had a judgment been entered for the plaintiff in default of defence to a claim to recover unliquidated damages. Such a judgment would be interlocutory only. (at p189)
2. I am of opinion therefore that the appeal is not competent. (at p189)
WALSH J. The Court of Appeal Division of the Supreme Court of New South Wales heard an appeal which had been brought to it by the present respondent. She had been the plaintiff in an action tried by a judge of that Court without a jury and he had found a verdict for the defendant. It does not appear from the material before this Court that his Honour directed judgment to be entered, but the Court of Appeal and the parties treated the appeal to that Court as being an appeal pursuant to s. 5 (6) of the Supreme Court Procedure Act, 1900-1965. The Court of Appeal reached a different conclusion from that of the trial judge on the question whether or not the dedeased man, in respect of whose death the action was brought, had been guilty of contributory negligence. The Court agreed with the conclusion of the trial judge that there had been negligence on the part of the defendant causing the death of the deceased. The action was brought by the present respondent on behalf of herself and two young children. (at p190)
2. The Court of Appeal made an order in the following terms:
"IT IS ORDERED this day that the Appeal herein be and
the same is hereby allowed AND IT IS FURTHER ORDERED
that judgment for the respondent be set aside and in lieu thereof
it is ordered that judgment be entered for the appellant AND
IT IS FURTHER ORDERED that the amount of damages be assessed
by a Judge without a jury AND IT IS FURTHER ORDERED that
the costs of the appellant of and incidental to this appeal and
the trial be paid by the respondent". (at p190)
3. At present we are concerned only to decide whether there was, within the
meaning of s. 35 (1) (a) of the Judiciary Act 1903-1969
(Cth), a "judgment"
(which by definition in s. 2 includes "any judgment decree order or sentence")
of the Supreme Court and, if so,
whether it was a final or an interlocutory
judgment. In my opinion, the answers to these questions do not depend on
determining whether
or not the Court of Appeal acted within its powers in so
far as it ordered that judgment be entered for the present respondent.
Therefore,
I think it is not necessary to decide that question. But to my mind
it is not at all clear that, under its powers to direct "judgment
to be
entered for any or either party" and to "make such further or other order as
the case requires", the Court was not authorized
to direct judgment to be
entered for the plaintiff in this case : see s. 5 of the Supreme Court
Procedure Act and see also s. 21K
of the Supreme Court and Circuits Act,
1900-1969 and r. 9 of the Court of Appeal Rules. In s. 5 of the Supreme Court
Procedure Act
there is no provision that a judgment for a plaintiff in an
action for damages must be a judgment in which the amount of damages
is stated
and the concept of a judgment for a plaintiff, given or entered in such an
action prior to the assessment of damages, is
not, and was not when these
provisions were enacted, a novel concept. But I do not pursue this question
since, as I have stated,
I do not think it is necessary to decide it now. I
should say however that, in my opinion, the orders made by the Court of Appeal
ought to be considered for present purposes according to the terms in which
that Court expressed itself and not upon the footing
that the Court, in
ordering that judgment be entered for the plaintiff, intended to make findings
of fact and to do no more than
that. (at p190)
4. On the question whether or not the order of the Court of Appeal is a judgment of the Supreme Court of New South Wales I agree with the reasons given by Menzies J. in his judgment herein for the conclusion that it is such a judgment. (at p190)
5. On the further question whether it is a final or an interlocutory judgment I should have been disposed, if the matter had not been governed by a previous decision of this Court, to conclude that it is an interlocutory judgment. In Light v. William West and Sons Ltd. (1926) 2 KB 238, at p 241 it was said of a somewhat similar order that it was interlocutory in part and final in part. But for the purposes of s. 35 (1) (a) of the Judiciary Act, it seems necessary to decide in respect of the order as a whole whether it is final or interlocutory. In addition to ordering that the appeal be allowed and to making an order as to costs (as to which parts of the order no problem concerning its character would arise), the Court ordered that judgment be entered for the plaintiff and that the amount of damages be assessed by a judge without a jury. In Hall v. Busst [1960] HCA 84; (1960) 104 CLR 206 an objection to the competency of the appeal was overruled by the Court and Dixon C.J. (1960) 104 CLR, at p 218 said that the order from which the appeal was brought "was intended as a judgment for the plaintiff for damages to be assessed" and that, therefore, it was final in the sense that word bears in s. 35 (1) (a) of the Judiciary Act. In my opinion, that decision applies to the present case. I am not able to find any sufficient reason for distinguishing it. Having examined the Rules of the Supreme Court of Queensland in force at the relevant time (in particular, O. 38 thereof) I think that there is room for debate on the question whether the order of the primary judge in that case ought to have been regarded as being intended as a judgment for the plaintiff for damages to be assessed. But, in my opinion, the judgment given in the present case may properly be given that description and this Court has decided that such a judgment is final within the meaning of s. 35 (1) (a). I do not think that in this case I should review the correctness of that decision. (at p191)
6. Therefore, I am of opinion that the appeal before the Court is an appeal from a final judgment of the Supreme Court and that the appeal lies as of right. (at p191)
ORDER
Appeal dismissed with costs as incompetent.
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