Crisp & Gunn Co-operative Ltd v Hobart Corporation [1963] HCA 55

High Court of Australia McTiernan, Taylor and Windeyer JJ. Crisp & Gunn Co-operative Ltd v Hobart Corporation [1963] HCA 55

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Nov. 21 McTiernan, Taylor and Windeyer JJ.

This is an appeal from a judgment of the Supreme Court of Tasmania (Crawford J.) by which an action brought by the appellant to recover compensation for the compulsory acquisition of certain of its land in Melville Street, Hobart, was determined. The amount originally claimed by the appellant was approximately £180,000 and in the result the learned trial judge entered judgment for £31,500 and directed the respondent to pay the costs of the action. Upon this appeal the appellant challenges the adequacy of the award on a number of grounds and, alternatively, claims that judgment should have been entered for it for £50,000 which sum the respondent had paid into Court. At the outset of the argument we were informed that if the alternative claim, which raises particular questions of law, should succeed the appellant would not be disposed to pursue and would abandon its claim to any sum in excess of that amount. In the circumstances we considered it to be in the interests of the parties that we should deal first of all with the arguments on this aspect of the appeal.

The Rules of the Supreme Court pursuant to which the payment in was made (O. XXIV) were for all material purposes in the same form as O.XXII of the Rules of the Supreme Court of Judicature as they existed prior to 1933. However, some little time after judgment was entered in the action the Tasmanian Rules were amended to bring them into line with the modern English Rules and we are told that they now incorporate the "radical change in the practice of payment into Court" (Annual Practice 1963, p. 531) which was effected by the 1933 amendments in England. Some of the radical changes then made were that, thereafter, no statement of the fact that money had been paid into Court was to be inserted in the pleadings, except in actions to which a plea of tender before action was pleaded or in which a plea under the Libel Acts of 1843 and 1845 had been filed, and that, thereafter, the fact of payment in was to be made known to the plaintiff by a notice in the prescribed form whilst, in 1948, the Rules were further amended by deleting the requirement that a notice of payment in should specify whether it was made with or without a denial of liability. Accordingly, the modern rules do not draw any distinction between payments in with a denial of liability and payments in without any such denial and in all cases costs are in the discretion of the Court. It seems clear that under the Rules as they stand at present a payment into Court is not in any circumstances to be taken as an admission of liability to the extent of the payment in (Bonitto v. Fuerst Bros. & Co. Ltd. [1] ). But it is equally clear that under the English Rules as they stood prior to 1933 the issue which arose after payment into Court without a denial of liability, and, therefore, with an admission of liability, was whether the amount paid in was sufficient to satisfy the cause of action in respect of which it was paid in. Speaking of the difference between a payment into Court with a denial of liability and a payment into Court without any such denial the Court of Appeal, in Davies v. Rustproof Metal Window Co. Ltd. [1] said: "There is, however, the material difference that, if money is paid in with an admission of liability, it follows that liability is admitted up to the amount paid in and judgment cannot be given for less, which is not the case where it is paid in with denial of liability" [2] . Later in Harrison v. Liverpool Corporation [3] Lord Greene M.R., with whom Goddard L.J. (as he then was) and Du Parcq L.J. agreed, said: "There is one further matter to which I should refer. As the result of an amended defence and an amended payment into court, the defendants paid into court the sum of £50 with an admission of liability. Nevertheless, Stable J., declined to give judgment for £50, and gave judgment only for £45.10.0, the result of that, of course, being very important in respect of costs. In my opinion, Stable J., ought to have followed what was said in this Court in Davies v. Rustproof Metal Window Company Limited" [1] and thereafter his Lordship referred to the passage which we have just cited. The observation of the Court of Appeal in the earlier case was, in its application to the Rules as they stood in 1944, disapproved of in Bonitto's Case [1] . "It is" said Viscount Simon "a mistake to suppose (as was suggested in the judgment of the Court of Appeal in Davies' Case [1] and repeated in Harrison v. Liverpool Corporation [4] ) that "if money is paid in with an admission of liability, it follows that liability is admitted up to the amount paid in and judgment cannot be given for less"." But, he added, "that was, no doubt the effect of the previous Rules, before they were displaced in 1933" [1] . This latter view is strictly in accordance with authority in this country and, in particular with the decision in Spencer v. The Commonwealth [1] —a case which we have selected because it was an action for compensation for the compulsory acquisition of the appellant's land. In that case a sum of money had been paid into Court without a denial of liability pursuant to rules which were in all relevant particulars identical with both the Tasmanian Rules and the English Rules prior to 1933 and judgment was given in the first instance for a lesser sum. On appeal judgment was entered for the appellant for the amount paid into Court. Griffith C.J. observed: "In the present case the defence contained nothing to limit the effect of the payment into Court. It follows that the plaintiff's cause of action in respect of which the payment was made was admitted. No case was cited to us in which it has been expressly decided that the admission involved in a plea of payment into Court is an admission of liability to the full amount paid in, but in all the cases cited this seems to have been taken for granted. In any view the plaintiff became entitled to receive the money as soon as it was paid in, and nothing has since occurred to disentitle him to it, unless the finding of the learned Judge has that effect. The only issue for trial raised by the joinder of issue was whether the sum paid into Court was or was not enough to satisfy the plaintiff's claim. It was, therefore, not material to consider whether it was more than enough. If it was not enough, the plaintiff would be entitled to damages ultra, if it was, he was entitled to no more than he already had. I am, therefore, of opinion that the plaintiff is entitled to recover at least the amount paid into Court" [2] . Barton J. and Isaacs J. in separate judgments expressed the same view. If, therefore, there was in this case an effective payment into Court without a denial of liability then the appellant was entitled to have his compensation assessed at a sum at least equivalent to the amount paid in.