Schumacher Mill Furnishing Works Pty Ltd v Smail [1916] HCA 11; (1916) 21 CLR 149 (23 March 1916)

HIGH COURT OF AUSTRALIA

The Schumacher Mill Furnishing Works Proprietary Limited Appellants; and Smail Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

23 March 1916

Griffith C.J., Barton, Isaacs and Rich JJ.

J. R. Macfarlan, in support of the motion.

Dixon (by permission of the Court),

The judgment of the Court, which was delivered by Griffith C.J., was as follows:—

Griffith C.J.,

Barton, Isaacs and Rich JJ.

These proceedings seem to have been entirely misconceived. The Insolvency Act 1915, by sec. 32, authorizes the Court of Insolvency upon the request of any party to a proceeding to "transmit any question of law by way of special case to the Supreme Court which shall have full power to determine the same." In the present case, the learned Judge of the Court of Insolvency decided no question of fact, but sent to the Supreme Court a special case asking them to determine what judgment he ought to enter on facts which he did not find, and stating that the parties agreed that the Supreme Court might draw any inferences of fact. Such a case is not a proceeding under the section at all. The facts were not found. The proceedings before the Supreme Court were coram non judice except so far as the parties consented to the Court acting as arbitrators. It is impossible to grant special leave to appeal from a decision given under such circumstances.

Special leave to appeal refused.

Solicitors for the appellants, Haden Smith & Fitchett.

Solicitors for the respondent, Sabelberg & Gummow.