Buzacott & Co Ltd v Cyclone Pty Ltd [1920] HCA 12; (1920) 27 CLR 286 (9 March 1920)

HIGH COURT OF AUSTRALIA

Buzacott & Company Limited Defendant, Appellant; and Cyclone Proprietary Limited Plaintiff, Respondent.

H C of A

On appeal from a Justice of the High Court.

9 March 1920

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

Latham, for the appellant.

Weigall K.C. (with him Owen Dixon), for the respondent.

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

Knox C.J.,

Gavan Duffy and Rich JJ.

We wish to make it clear that we do not deal in any way with any ruling given by our brother Isaacs at the trial, nor do we in any way, except formally, depart from any decision of his. I say "formally," because it is necessary to vacate his judgment in order that there may be a new trial. In this case we think it is eminently desirable that the new trial should take place before our brother Isaacs, the real object of the new trial being that he may inform his mind by fresh evidence on a point raised before him at the first trial and which he then had to decide on less evidence than will be available on the new trial. We express no opinion whatever as to the effect of the new evidence; that is entirely a matter for the trial Judge.

Judgment set aside. New trial granted. Order by consent that the evidence on the former trial be used at the new trial. Defendant to pay the costs of the first trial and of this appeal.

Solicitors for the appellant, Sly & Russell, Sydney, by Hedderwick, Fookes & Alston.

Solicitors for the respondent, Weigall & Crowther.