Morton v Walker

The applicant, Henry Edgar Morton, the Surveyor of the City of Melbourne, sought special leave to appeal to the High Court from a decision of the Supreme Court of Victoria. The dispute concerned alleged irregularities in the construction of certain buildings by the respondent, Augustine William Walker, a builder. The core of the matter was whether a document purporting to be a certificate from official referees was sufficient under section 13 of the Melbourne Building Act 1849 to deem the buildings a nuisance requiring abatement.

The legal issue before the High Court was whether the document presented as a certificate by the official referees met the requirements of section 13 of the Melbourne Building Act 1849. Specifically, the court had to determine if the certificate validly certified that the buildings were constructed contrary to the Act's provisions, thereby deeming them a nuisance, or if it improperly certified a matter of law rather than fact.

The High Court held that the certificate was "plainly bad" because it certified to a matter of law, not a matter of fact. Section 13 of the Act required the official referees to certify to the factual existence of irregularities in the building. The document in question, however, stated that the referees "decide and determine that the said buildings are nuisances requiring to be abated," which was an interpretation of the law rather than a finding of fact regarding the construction. Consequently, special leave to appeal was refused.