Nominal Defendant v McGowan [1961] HCA 78

High Court of Australia Dixon C.J. McTiernan, Taylor, Menzies and Windeyer JJ. Nominal Defendant v McGowan [1961] HCA 78

ORDER Appeal allowed with costs. Order of the Supreme Court set aside. In lieu thereof appeal to the Supreme Court from the District Court allowed with costs. Judgment and order of the District Court discharged. Order that a new trial of the action be had limited to the question of damages.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 4 Dixon C.J.

This is an appeal from an order of the Supreme Court of New South Wales dismissing an appeal from the District Court. The appeal to the Supreme Court was by the Nominal Defendant in an action brought in the District Court by the plaintiff who in the result recovered judgment for £3,000. The trial in the District Court was by jury and after the verdict there was an application to the District Court judge for a new trial. This was refused on 8th April 1960 by the District Court judge who thereupon gave judgment for the plaintiff for £3,000. The notice of appeal to the Supreme Court is from this decision and it asks for an order that both the judgment for the plaintiff for £3,000 entered on 8th April 1960 and the order of the learned District Court judge of the same day refusing a new trial of the action be set aside and that a new trial of the action be granted limited to the question of damages.

The action was one for damages for bodily injury caused by the use of a motor vehicle the identity of which and of the driver could not be established notwithstanding due search. The action was instituted on 6th March 1959 at a time when by virtue of the District Courts (Amendment) Act, 1955-1958 N.S.W. (No. 22 of 1955 and No. 11 of 1958) the temporary provisions substituted for s. 41 and s. 46 remained in force. By s. 41, as then substituted, the jurisdiction of the District Court extended to every claim or cause of action cognizable on the common law side of the Supreme Court. By s. 46 (1), as substituted, where the claim exceeded £1,000 the defendant might within a prescribed time give notice that he objected to the action being tried in the District Court and where such a notice was given the judge was bound to order that the action be transferred to the Supreme Court. In Ex parte George Pearse Pty. Ltd.; Re O'Flynn [1] it was held that after the prescribed time for objecting had passed the plaintiff could not obtain an amendment of his summons increasing the amount of his claim.