Boese v Farleigh Estate Sugar Co Ltd [1919] HCA 35; (1919) 26 CLR 477 (25 July 1919)

HIGH COURT OF AUSTRALIA

Rudolph Boese Plaintiff, Appellant; and The Farleigh Estate Sugar Company Limited Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Queensland.

25 July 1919

Isaacs, Gavan Duffy and Rich JJ.

Feez K.C. (with him Drake), for the appellant.

Real, for the respondent.

The judgment of the Court, which was read by Isaacs J., was as follows:—

July 25

Isaacs, Gavan Duffy and Rich JJ.

This is an appeal from the judgment of the Full Court of Queensland reversing a decision of Judge O'Sullivan in the District Court at Mackay. The respondent is a sugar-mill owner; and the appellant sued in the Petty Sessions Court at Mackay for £33 15s. 8d. for cane supplied by him, claiming that amount on the basis of commercial cane sugar content of 12.01 per cent. The defence was that he was entitled to be paid only on the basis of commercial cane sugar content of 11.962 per cent. The contest arose in this way:—Before the award of 1917 was made, the appellant and several other cane-growers, including one Powell, had agreed to form one group for the coming season, and accept payment on the basis of collective analysis. But Powell, whose output was extensive and whose cane was of particularly high sugar content, was dissatisfied with having to average it with other cane. A clause, however, was inserted in the award enabling him and others having large areas under cultivation to be paid on individual analysis. The award, when made, also contained a clause empowering and directing groups to be formed, and in that case each member of the group would be paid on a group analysis. The contest between the parties, both before the Magistrate and afterwards on appeal from him to the District Court, was whether Boese was a member of a group whose cane as a totality gave a c.c.s. content of 11.962 per cent. That depended on whether Powell was or was not a member of the group. The District Court held in favour of the 12.01 claim. The Supreme Court, on appeal, held in favour of the 11.962 contention, but in order to reach that conclusion had to determine as a fact that Powell was not a member of the group, and that the plaintiff Boese was a member of the group composed of all the cane-growers other than Powell. On the question of law the Court said: "We think that on the publication of the award the mill-owner and the sugar-cane growers were entitled to exercise their rights thereunder, notwithstanding any previous arrangement or agreement, and that groups formed prior to the operation of the award were not groups under that award until the members thereof had expressly by agreement or impliedly by conduct constituted themselves into a group or continued to remain as such thereunder or were formed into one by the mill-owner." We agree with that statement of the law. The Court then proceeded to apply the facts. They examined the evidentiary facts supplied to them by the District Court Judge, and came to their own conclusions upon them. They held that Powell, although he had, before the award was made, arranged to become a member of the group under the award, yet had, after the making of the award, retired from the group and had been paid on the basis of individual analysis, and further that, on the occasion of a prosecution under sec. 14 of the Regulation of Sugar Cane Prices Act, the Magistrate had held that Powell was not a member of the group, and had fined the Company £100 for not paying him on individual analysis. The Court also arrived at the conclusion that the plaintiff and others had, by their conduct, agreed to constitute themselves a group independently of Powell. This at once raises a serious question of jurisdiction. The District Courts Act 1891 contains two distinct provisions for appeals to the Supreme Court. One class relates to cases where the District Court acts in original jurisdiction (secs. 144 to 149). There an appeal is given to the Supreme Court whereby the Supreme Court is empowered to draw certain inferences of fact as well as to determine the law. The other is given in cases of District Court appellate jurisdiction wherein the District Court is made the final tribunal of fact, the appeal to the Supreme Court being given by way of case stated, and on the facts therein set out the Supreme Court may express its opinion on questions of law, and according to that opinion may affirm, amend or reverse the decision of the District Court (sec. 159).

This case comes within the latter category. The law as to such cases is set out fully in Merchant Service Guild of Australasia v. Newcastle and Hunter River Steamship Co. [No. 1][1], followed in Schumacher Mill Furnishing Works Proprietary Ltd. v. Smail[2]. The relevant law is so fully stated there that it is unnecessary to repeat it now.

It may, however, be observed that the scope of sec. 159 had been already properly stated by the Full Court of Queensland in Stenhouse v. Forth[3]. There Real J., for the Court, says[4]:—"The only appeal given to this Court from a decision by a District Court upon the hearing of an appeal from justices is that given by sec. 159 of the District Courts Act 1891, which provides that the Judge may state in the form of a special case for the opinion of the Supreme Court any question of law arising on the facts of the case. This power of appeal applies only to questions of law. Unless a right of appeal is given by Statute, no appeal can be entered, and consequently on questions of fact the decision of the District Court Judge is final."

The position is, then, that the Supreme Court had no function of finding facts—including in that the drawing of inferences. They could only (as we can only) accept the facts stated expressly or impliedly by the District Court Judge in the case stated by him. It is true that in the case he stated, the learned District Court Judge appended a mass of material including the original plaint, the judgment of the Magistrate, the evidence taken, his own judgment, and the case stated. Very much of what is stated is not only immaterial but unauthorized. And, what is more important to the result, the requirements of sec. 159 of the District Courts Act are not satisfied. Some of the essential facts are wanting. It is not stated whether after the award was made requiring groups to be formed, there was or was not a group formed in fact, expressly or tacitly; nor is it stated whether, if a group was in fact formed after the award, Powell was a member of it. It is stated that before the award was made, all the growers, including Powell, agreed to form a group, and certain facts are stated from which a tribunal authorized to draw deductions and inferences of fact might or might not conclude as to the two essential facts referred to. But the conclusions as to those facts are not stated either explicitly or implicitly. And, that being so, the appellate tribunal cannot cure the defect.

It is impossible to find in the case stated any statement that the District Court found as a fact, either (1) that no group was formed after the award, in which case it might be that the appellant would be entitled, if he properly claimed it, to a basis of 14 per cent. c.c.s. content; or (2) that a group was formed after the award including Powell, in which case the question would arise whether, in view of the attempted withdrawal of Powell, the appellant was entitled to a basis of 12.01 per cent.; or (3) that a group was formed after the award not including Powell, in which case the appellant would be entitled only to a basis of 11.962 per cent. Nor is it to be found stated whether, as suggested in argument, the agreement of the appellant and others before the award to form a group was on the basis that Powell, among others, was to be a member.

All these matters are left undetermined in fact, and therefore cannot be pronounced upon in law. The only course that was open to the Supreme Court, and is now open to us, is to remit the case to the District Court to state the facts—the ultimate facts and not the evidentiary facts—clearly and explicitly, and return the case so stated to the Supreme Court for adjudication in accordance with the provisions of sec. 159 of the District Courts Act.

Appeal allowed. Judgment of the Supreme Court discharged. Case remitted to the District Court for statement of the facts, and then for transmission to the Supreme Court for its opinion on any question of law arising upon the facts so stated.

Solicitors for the appellant, Gorton & Hartley, Mackay, by Tully & Wilson.

Solicitors for the respondent, S. B. Wright & Wright, Mackay, by Atthow & McGregor.

[1] [1913] HCA 76; 16 C.L.R., 591.

[2] [1916] HCA 11; 21 C.L.R., 149.

[3] (1908) S.R. (Qd.), 226.

[4] (1908) S.R. (Qd.), at p. 228.