Green v Worley [1915] HCA 63; (1915) 20 CLR 418 (20 September 1915)

HIGH COURT OF AUSTRALIA

Green and Another Plaintiffs, Appellants; and Worley Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

20 September 1915

Griffith C.J., Gavan Duffy and Rich JJ.

J. R. Macfarlan (with him Owen Dixon), for the appellants.

Pigott (with him Power), for the respondent.

Macfarlan, in reply.

Griffith C.J.

From the reasons given by the learned Judges of the Supreme Court it appears that they were of opinion that the evidence given for the plaintiffs did not establish the estoppel which was necessary to the success of their case. Cussen J. appears to have had in his mind what Bowen L.J. said in Low v. Bouverie[1]:—"An estoppel, that is to say, the language upon which the estoppel is founded, must be precise and unambiguous. That does not necessarily mean that the language must be such that it cannot possibly be open to different constructions, but that it must be such as will be reasonably understood in a particular sense by the person to whom it is addressed." The learned Judges were of opinion that the language upon which the appellants now rely did not establish an estoppel, especially having in view the fact that the plaintiff, who gave evidence, did not commit himself to it in the witness-box.

But, even if the learned Judges were wrong in their conclusion on the facts, no question of law is raised. At most, the question is what is the proper inference to be drawn from the evidence, which is itself a question of fact. I cannot help thinking that special leave to appeal must have been granted by this Court per incuriam, and I think that it should be rescinded. I should like to add that I entirely agree with the decision of the Supreme Court upon the merits.

Gavan Duffy J.

I agree that in the circumstances the special leave to appeal should be rescinded.

Rich J.

I agree.

Special leave to appeal rescinded. Appellants to pay costs of appeal.

Solicitors, for the appellants, Gillott, Moir & Ahern.

Solicitors, for the respondent, Scheele & Scheele.

[1] (1891) 3 Ch., 82, at p. 106.