Murray v Munro - [1906] HCA 25

DEFENDANT, MUNRO

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Appeal to High Court - Special leave - Rescission - Question of fact involved-

Estoppel by delay - -Reference of cause to arbitration by Judge-Directions to arbitrator-Mode of taking exception to rulings of law-Time for taking SYDNEY, May 2, 3, 4.

An action at nisi prius was referred by the Judge to an arbitrator. By the order of reference the Judge directed that a plea of the defendant should be treated by the arbitrator as a plea of payment of part. The arbitrator entered upon the reference, and no objection was taken by the defendant to the Judge's direction. The arbitrator having made an award in favour of the plaintiff, a verdict was entered accordingly. The defendant then moved for a new trial, upon the ground that the rulings and directions in the order of reference were wrong. The Supreme Court held that the defendant was estopped by his delay from taking objection to the Judge's rulings, and refused to grant a new trial.

3 CLR 789

Special leave to appeal to the High Court from this decision was granted, but was rescinded on the hearing of the appeal on the ground that the inference to be drawn from the conduct of the defendant was one of fact to be drawn from the circumstances, and that having been decided against the defendant by the Supreme Court, the only matter involved in their decision was a question of fact, and the case was not one in which special leave to appeal should be given.

Semble, that the proper course for the defendant to have adopted under the circumstances, if he complained of the Judge's direction to the arbitrator, was to have objected to the direction at the time, and, if his objection was over- ruled, to have moved summarily to have the judgment upon the award set aside, or to have moved for a new trial on the ground of misdirection. If the order of reference was by inadvertence wrongly drawn up without the defend- ant having an opportunity of objecting at the time, he should have applied to the Judge to have it amended. If a party, when he has the opportunity of objecting, lies by and thereby puts the other party in a worse position, the Court in the exercise of its discretion may properly refuse to allow him to take the objection afterwards.

Special leave to appeal from the decision of the Supreme Court, Munro V. Murray, 22 N.S.W. W.N., 113, rescinded.

APPEAL from a decision of the Supreme Court of New South Wales.

The issues in this action were referred by the Judge at nisi prius to an arbitrator with certain directions as to the effect to be given to the pleadings. No objection was taken by the defendant at the trial to the Judge's direction. The arbitrator entered upon the reference and made an award in favour of the plaintiff. Upon…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Murray v Munro

Details

AGLC: Murray v Munro [1906] HCA 25
Case: [1906] HCA 25
Decision Date: 4 May 1906

CaseChat Overview and Summary

The High Court of Australia granted special leave to appeal in the matter of *Murray v Munro*. The dispute concerned an application for rescission, with the core of the appeal revolving around questions of fact and the application of estoppel by delay. The proceedings involved a reference to arbitration by a Judge, who also provided directions to the arbitrator.

The legal issues before the Court included the proper mode of taking exception to rulings of law made by an arbitrator and the time within which such objections must be raised. The Court was required to consider whether the appellant had effectively waived their right to object to the arbitrator's rulings due to their conduct and the passage of time.

The Court's reasoning focused on the principles of estoppel, particularly as they apply to arbitration proceedings. It was held that a party who participates in arbitration proceedings without timely objection to the arbitrator's rulings, especially after having had the opportunity to take exception, may be estopped from later challenging those rulings. The Court considered the implications of the appellant's delay in raising objections and their engagement with the arbitration process.

Orders