Cole v The Commonwealth [1961] HCA 87

High Court of Australia Dixon C.J. Windeyer and Owen JJ. Cole v The Commonwealth [1961] HCA 87

ORDER Objections to competency overruled with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 14 Dixon C.J., Windeyer and Owen JJ.

We have before us two objections to competency made by the respondents to this appeal and an application for special leave to appeal by the appellant made in anticipation of the objections. The subject of the appeal and of the application is a rule or order of the Full Court of the Supreme Court of New South Wales dismissing an appeal from a verdict given by a jury in favour of the plaintiff in an action for damages for personal injuries. The appeal was not by the defendants but by the plaintiff. The jury returned a verdict for the plaintiff against all the defendants for damages assessed at the sum of £1,322. The plaintiff had suffered serious injuries and in fact had claimed £10,000 in her writ, although one may assume that this amount was named without expectation of recovering so large a figure. At the trial the plaintiff proved special damages in a sum of £272. The general damages must therefore be taken to have been assessed by the jury at £1,050. The plaintiff complained that the £1,322 was an inadequate assessment of damages and appealed to the Full Court seeking a new trial limited to the question of damages. The Full Court by a majority (Else-Mitchell and Macfarlan JJ., Herron J. dissenting) dismissed the appeal. The appellant then appealed as of right to this Court on the ground that the Full Court of the Supreme Court ought to have held that the damages awarded by the jury were inadequate. The view upon which she appealed as of right is that the order of the Full Court of the Supreme Court necessarily denied that she was entitled to any damages beyond £1,322 and that her complaint that that sum was inadequate involved a claim to a sum exceeding £1,322 by at least £1,500. The objections to want of competency assert that in this no proper basis for an appeal as of right can be found.