Memorandum by the Chief Justice on Clause 2.
69
The use of the "matter in dispute" in this clause, which I had not noticed when I wrote my letter to His Excellency, removes part of the difficulty to which I alluded, because it makes the appeal depend on the amount of the judgment and not on the amount of the original claim, and therefore both parties will be on the same footing with regard to the appeal.
But there is still one case which I think requires consideration. An action for damages is brought, claim, say - $10,000. Judgment is given for defendant. Is the matter in dispute $10,000? presumably yes; and plaintiff can appeal.
But if judgment is given for $500, is the defendant not to have leave to appeal? In this case the plaintiff also might wish to appeal. What is the value of the "matter in dispute"? If it is $10,000 the defendant ought to have the right to appeal also. But if it is not, is it intended that a man who has had a large claim brought against him based on a right which he contests, not to have the leave to appeal against the decision which has confirmed the right, but not the plaintiff's estimate of damages.
I think it should be definitely stated whether "matter in dispute" covers the costs which the unsuccessful litigant may have to pay which may exceed the appealable value - e.g. where judgment has been for the defendant with costs.
30th November, 1908.
(sd.) F. H. Piggott.