Dalgarno v Hannah [1903] HCA 1

REPORTS OF CASES

DETERMINED BY THE

HIGH COURT OF AUSTRALIA

DURING THE YEAR 1903.

{HIGH COURT OF AUSTRALIA.]

« DALGARNO ' i ; : 7 : ., APPELLANT ; DEFENDANT, ' AND HANNAH . 5 u : é é : . RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Special leave to appeal—Rule upon which the Court will act in granting leave—Juris- H.C. or A. diction of Court to entertain appeals from judgments pronounced before its 1903. establishment—Appeal from judgment of the Supreme Court of New South —~ Wales exercising federal jurisdiction pronounced before passing of Judiciary Nov.6, 10,11. Act 1903 (No. 6 of 1903), secs. 35, 39—Right of appeal by virtue of the Constitu. — _ tion of the Commonwealth, secs. 71, 73—Claims against the Commonwealth Act Gritith, CI.

1902 (No. 21 of 1902), secs. 3, 6, 7- Conte

Whether an appeal will lie to the High Court from a judgment of a Court exercising federal jurisdiction pronounced before the passing of the Judiciary Act : Quere.

'The jurisdiction of the High Court is conferred by the Constitution and not by the Judiciary Act.

'The Constitution (see. 73) imposes no restriction as to amount upon appeals from judgments of the Supreme Courts of the States in the exercise of federal jurisdiction,

'The rule laid down by the Judicial Committee in Prince v. Gagnon (8 A.C.,

103, at page 105), as to granting special leave to appeal in cases below the appeal- able amount adopted.

The plaintiff had obtained a verdict for £200 damages in an action for negligence against the defendant, sued as nominal defendant on behalf of the

H.C. oF A.

1903. —— Hannan v DaLGaRno.

HIGH COURT [1903.

Commonwealth. The defendant appealed to the Full Court of New South Wales, and on 20th Angust, 1903, that Court, in the exercise of the federal jurisdie- tion conferred upon it by the Claims against the Commonwealth Act 1902, dis- charged the defendant's Rule Nisi for a New Trial, with costs. On 25th August in the same year the Judiciary Act 1963 was passed, and on 15th October following, the High Court granted to the defendant special leave to appeal from the decision of the Supreme Court of New South Wales. The plaintiff moved to rescind the order granting leave on the grounds (1) that the Court had no jurisdiction to entertain the appeal inasmuch as the judgment appealed from was pronounced before the passing of the Judiciary Act, and the case did not fall within those enumerated in sec. 35 of that Act as cases in which appeals might be brought from such judgments ; and (2) that the case was not of such a nature as to justify the Court in granting special leave to appeal even if it had jurisdiction. It was not clear whether the judgment appealed from had proceeded upon a supposed general rule of law or upon the special facts of the case.