Johansen v City Mutual Life Assurance Society Ltd [1904] HCA 43; (1904) 2 CLR 186 (13 December 1904)

HIGH COURT OF AUSTRALIA

Johansen Plaintiff; and City Mutual Life Assurance Society, Limited Defendant.

H C of A

On appeal from the Supreme Court of Queensland.

13 December 1904

Griffith C.J., Barton and O'Connor JJ.

Hart for the applicant.

The judgment of the Court was delivered by

Griffith C.J.

In this case a great number of questions of fact and of law were raised before the Supreme Court of Queensland. The case is under the appealable amount, and the question is whether we ought or ought not to follow the practice we have already laid down for ourselves of not granting special leave to appeal unless we are of opinion that the case is one of gravity, or involving some important question of law, or affecting property of considerable value; or unless it is a case which is otherwise of public importance, or is of a very substantial character.

As was pointed out by the Privy Council in the recent application by the Daily Telegraph Newspaper Co., in the Daily Telegraph Newspaper Co. v. McLaughlin[1], they would not grant special leave to appeal, even though those conditions I have mentioned existed, if it appeared that the decision sought to be appealed from was plainly right or was unattended with sufficient doubt to justify His Majesty in granting special leave to appeal.

Now, in the present case, it is said that the matter is one of gravity and involves a matter of public interest, but only in the sense, we are told, that the public takes great interest in the case. That is not the meaning of the term as used in our judgment in the case of Dalgarno v. Hannah[2]. It does not affect property of considerable value, and is not a case of public importance, except as between the plaintiff and the defendants, nor is it of a very substantial character.

The only point remaining is, can it be said to involve an important question of law. One question is whether there was any evidence to go to the jury that the assured had repaid a loan of £10. That is a dry question of fact, and the Supreme Court of Queensland was of opinion that there was no evidence of it. It is not the practice of the Privy Council, as was pointed out in McLaughlin's Case, to grant special leave to appeal on mere questions of fact. It is not necessary, therefore, for us to express any opinion on the point here. Another question was whether the defendant company's resident agent at Brisbane had authority to perform functions which by the articles of association of the company are conferred upon the Board; and that again was a question of fact, which the jury found in that instance against the applicant. The only thing that is really left that can be seriously considered, is the question of law that has arisen as to the construction of the defendant's articles of association.

By Article 58 it is provided that all premiums are payable on or before the day or days set forth in the policy, or within one calendar month thereafter, and that in the event of default in payment of any premium, the policy shall lapse and be void; provided that within twelve months after default the Board may renew such policy on such terms as they may deem equitable.

By Article 60 it is provided that a policy shall acquire a surrender value after three years payments have been made, and that the failure or omission to pay the premiums shall not render the policy void as long as the surrender value, as fixed by the Board, is in excess of any loan thereon, and is sufficient for the payment of the premium then due.

Reading these two articles together, the Supreme Court were of opinion that, as the surrender value was not sufficient to cover the amount of the loan and the premium due, Article 58 applied, and the policy lapsed and became void, subject to the proviso that within twelve months the Board might renew on such terms as it deemed equitable. In this case the twelve months had elapsed without the Board doing anything to renew the policy. The short question of law is whether the policy was then dead or void, and we are asked to say that it is important that it should be argued whether the words "within twelve months after default" govern the power of the Board. That does not seem to be a difficult question of law. It may be an important question of law, perhaps, within the rule apparently followed in the Sun Fire Office v. Hart[3], where, although it was a case only of the construction of a clause in a fire insurance policy, the Privy Council granted special leave to appeal on the ground that the same question applied to a great number of other policies. But, supposing that this is an important question of law in the present case, another condition must be found, in the opinion of the Privy Council. In their judgment they said they would not grant such an application "if the judgment from which leave to appeal was sought, was plainly right or unattended with sufficient doubt to justify their Lordships in advising His Majesty to grant special leave to appeal." Applying these words here, the application should not be granted, if the judgment was plainly right or unattended with sufficient doubt to justify us in granting special leave to appeal in a case below the appealable amount. The point of law decided is that the words "within twelve months after default" are to have their natural meaning, and that does not seem to us to be attended with serious doubt. That being the only question in the case of sufficient importance to justify special leave, leave must be refused.

Leave refused.

Solicitor for applicant, E. Pugh, by R. P. Hickson.