Hargrave v Reid

[1914] HCA 76

19 C.L.R.]

OF AUSTRALIA.

[HIGH COURT OF

AUSTRALIA.]

HARGRAVE AND ANOTHER.

Appellants;

Defendants,

REID . .

Respondent.

Plaintiff,

ON APPEAL FROM THE SUPREME COURT

OF

SOUTH

AUSTRALIA.

Local Court of South Australia—Appeal to Supreme Court—Question of law—

H C. OF A.

Findiriijs of fact—Bemitting Case to Local Court for information as to findings

1914.

— Local Courts Act 1886 (S.A.) (Â'o. 386), secs. 70, 75, 128.

Sydney,

Sec. 70 of the Local Courts Act 1886 provides that if either party in any cause in a Local Court of a specified nature “ shall be dissatified with the

Dec. 3.

-------

determination or direction of the said Court on a point of law, . . . such Griffith C.J.,

iSc^^cs dtiicl

party may . . .

appeal to the Supreme Court, and such appeal shall be Gavan Duffy J.J.

in the form of a rule or order,” &c.

Sec. 75 provides that “the argument

upon motion to make any such rule or order absolute . . . shall take place before the Supreme Court, and the Court shall examine the plaint and defence, and the evidence, if any, taken at the trial before the Local Court, and the ruling of the Judge or Special Magistrate, and if the Court shall be of opinion that although the ruling objected to may not have been strictly according to law, yet that substantial justice had been done between the parties, they shall discharge the rule or order . . . ; but, if it shall appear to the said Court that there was no cause of action, . . . they may order such judgment or nonsuit to be entered as justice may require, or that a new trial be had.” Sec. 128 provides that “ on the hearing or trial of any cause or proceeding which is subject to appeal . . . at the request of either party the presiding Judge or Special Magistrate shall make a note of any question of law raised at such hearing or trial, and of so much of the facts in evidence in relation thereto as he shall deem material, and of his decision thereon, and of the decision of the cause or matter, and shall . . . furnish a copy of such

HIGH COURT

[1914.

H.C. OF A. evidence or note, . . . and lie shall sign sucli copy, and the copy so signed

1914. shall be used and received on the hearing of any appeal or application to the Supreme Court.”

H

argrave

V.In an action in the Local Court for trespass to the plaintiff’s liouse and for

Reid.wrongfully removing therefrom B., a person who was under the plaintiff’s care, the plaintiff’s evidence was to the effect that the original entry was unlawful and the defendants’ evidence to the effect that it was not unlawful. A question of law was raised as to whether the unlawful removal of B. rendered the tres­ pass wrongful ab initio, and a note was taken by the Special Magistrate as provided by sec. 128 of the Local Court,i Act 1886. The Local Court having given judgment for the plaintiff, on the hearing of a rule nisi for a new trial or for judgment for the defendants the Supreme Court, thinking that the judgment of the Local Court was ambiguous as to whether they believed the evidence of the plaintiff or that of tlie defendants as to the original entry, asked the Local Court whether they liad found either way, and, on being informed that they had believed the evidence of the plaintiff, discharged the rule nisi.

Held, that special leave to appeal to the High Court should be refused.

Special leave to appeal from the Supreme Court of South Australia refused.

Application for special leave to appeal.

An action was brought in the Local Court of Adelaide, South Australia, by Susanna Reid against Arthur Albert Hargrave and Ruby Trix Hargrave, his wife, in which the plaintiff alleged that on or about 1.5th February 1914 the defendants wrongfully broke and entered upon the land and house of the plaintiff and removed therefrom one Mary Bennett, who had been placed with the plaintiff bjr the husband of Mary Bennett for the purpose of being boarded, lodged and nursed by the plaintiff for reward to the plaintiff; that such entry and removal wei'e without the permission of the plaintiff; and that the defendants had since such removal kept Mary Bennett away from the care of the plaintiff and prevented the plaintiff from boarding, lodging and nursing her. The plaintiff claimed £49 19s. as damages. At the hearing there was contradictory evidence as to the circumstances connected with the entry of the defendants into the plaintiff’s house. The plaintiff’s version was, shortly, that in response to a knock at the door she opened it, whereupon the defendants, without her invitation and in spite of her protests, entered. The version of the defendants was that when the door was opened they were invited by the plaintiff to enter the house and did so.

19 G.L.R.]

OF AUSTRALIA.

During the liearing counsel for the plaintitF raised the question R-

of A.

of law whetlier the Six Carpenters' Case (1) applied, and the

Special Magistrate who presided took a note of that question of Hargrave

V.

law. At the close of the evidence the magistrates gave judg­

Reid.

ment for the plaintiff for the amount claimed, and in delivering judgment they said in reference to the entry by the defendants : “ They procured admission to the plaintiff’s house by stating ‘ We liave come to see Mrs. Bennett,’ wdien they well knew it was only part of a trick to take her away, and the male defendant later informed the plaintiff, ‘ We have come to take Mrs. Bennett for a drive.’ Having induced the plaintiff to believe that .state­ ment the defendants removed Mrs. Bennett to the cab, and just prior to driving off the male defendant stated that they did not intend to bring Mrs. Bennett back. . . . The entrance was obtained and the removal of Mrs. Bennett effected by wil­ fully misleading statements. No hint was given of the real intentions until the patient was on the point of being driven off in the cab.” They, however, made no express finding as to which of the stories as to the entry they believed.

On the application of the defendants a rule nisi was granted by the Supreme Court calling upon the plaintiff to show cause why the judgment should not be set aside and a new trial had, or why judgment should not be entered for the defendants on the grounds {inter alia) that the plaintiff had no cause of action, that there was no evidence to support the judgment, and that the judgment was bad in law.

On the return of the order nisi the Full Court, after hearing argument, re.served their decision. Subsequently in the presence of counsel the Court intimated their intention to remit the case to the Local Court with a request that the magistrates should state whether as part of the basis of their judgment tliey came to a finding, and if so what finding, as to which of the conflicting stories was true. Counsel for the defendants asked for an oppor­ tunity of discussing the power of the Full Court to remit the case as proposed, but no opportunity was afforded to counsel to do so, and the case was remitted accordingly. The magistrates in reply stated that they had found that the plaintiff’s version

(1) 8 Rep., 146a.

HIGH COURT

[1914.

H.C. OF A. true. Thereupon the Full Court discharged the rule nisi,

1914. and in the course of delivering judgment they said that their

Haeqbave reason for referring the case back to the Local Court was that

V.

Reid.the judgment of the Local Court was ambiguous as to whether

they found as a fact that either the version of the plaintiff or that of the defendants as to the entry was correct, and that it seemed to them to be doubtful whether if the defendants’ version was correct the judgment could be sustained.

From that decision the defendants now applied for special leave to appeal.

Flannery, for the applicants. An appeal from the Local Court only lies as to a question of law (sec. 70 of the Local Cotirts Act 1886), and the point of law must be raised at the hearing and the Special Magistrate must take a note of it (sec. 128). The only question of law raised in this case was as to the applicability of the Six Carpenters’ Case (1), that is to say, whether the wrongful act of the defendants in removing Mrs. Bennett from the plaintiff’s care rendei’ed their original entry into the plaintiff’s house unlawful. The materials before the Supreme Court were all that were necessary for the determination of that question of law, and the Supreme Court had no jurisdiction to remit the case to the Local Court in order to obtain a new finding, and then, that finding being favourable to the plaintiff, to decide the case apart from the question of law which had been raised.

The Court refused special leave.

Special leave to appeal refused.

Solicitors, for the applicants, Knox tfe Hargrave, Adelaide, by

Stephen, Jaques & Stephen.

B. L.

(1) 8 Rep., 146a.