Peacock v DM Osborne & Co - [1907] HCA 42

D. M. OSBORNE &CO. AND ANOTHER

DEFENDANTS, Practice-Appeal to High Court from Supreme Court of State-Cause remitted to

Supreme Court-Stay of proceedings by Supreme Court-Duty of Supreme Court-Judiciary Act 1903 (No. 6 of 1903), sec. 37. MELBOURNE,

When the High Court, on the hearing of an appeal from the Supreme Court Sept. 12, 13.

of a State, has remitted the cause to the Supreme Court for the execution of the judgment of the High Court pursuant to sec. 37 of the Judiciary Act 1903, the Supreme Court is authorized to make any order for the purpose of executing the order of the High Court, but not to make an order which has the effect of preventing or obstructing the execution of that order.

Where, therefore, a cause was remitted to the Supreme Court for an inquiry as to damages, an order by the Supreme Court staying proceedings as to the inquiry was, on appeal to the High Court, discharged.

Judgment of à Beckett J. reversed.

APPEAL from the Supreme Court of Victoria.

In an action brought in the Supreme Court of Victoria by Walter Chamberlain Peacock against D. M. Osborne &Co. and the International Harvester Co. of America, the judgment was given for the defendants with costs: Peacoelc v. D. M. Osborne &Co. 1.

1(1906) V.L.R., 375; 27 A.L.T., 207.

4 CLR 1565

On appeal by the plaintiff to the High Court, judgment was ordered to be entered for the plaintiff, and the cause was remitted to the Supreme Court of Victoria for an inquiry as to damages: Peacock v. D. M. Osborne &Co. 1.

The order of the High Court, SO far as it related to remitting the cause to the Supreme Court, was drawn up as follows :-

And it is hereby ordered that this action be remitted to the Supreme Court of the State of Victoria and that the further consideration of this appeal be adjourned and that either party be at liberty to apply to this Court as he or they may be advised."

The case was subsequently set down by the plaintiff for further consideration in the Supreme Court of Victoria, and an inquiry as to damages was held before the Chief Clerk of the Supreme Court of Victoria, who reserved his decision.

Special leave to appeal to the Privy Council from the judgment of the High Court having been obtained, on an application in Chambers on behalf of the defendants, àBeckett J. ordered that all further proceedings in the Supreme Court in relation to the inquiry as to damages directed by the judgment of the High Court should be stayed until further order, but that the plaintiff should be at liberty to proceed with the taxation of his costs of the action in the Supreme Court, and that the amount of such costs when SO taxed should be paid by the defendants to the plaintiff or his solicitors upon security being given to refund the amount thereof…

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.

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Details

Case: [1907] HCA 42
Decision Date: 13 September 1907

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from an order made by à Beckett J. of the Supreme Court of Victoria. The original dispute was between Walter Chamberlain Peacock (the plaintiff) and D. M. Osborne & Co. and the International Harvester Co. of America (the defendants). The High Court had previously heard an appeal from the Supreme Court of Victoria, reversed the original judgment for the defendants, entered judgment for the plaintiff, and remitted the cause to the Supreme Court for an inquiry as to damages. Subsequently, à Beckett J. made an order staying proceedings in the Supreme Court concerning the damages inquiry, pending a further appeal to the Privy Council.

The primary legal issue before the High Court was whether the Supreme Court of Victoria had the authority to make an order staying proceedings that had been remitted to it by the High Court for the execution of the High Court's judgment. Specifically, the court had to determine the scope of the Supreme Court's power under section 37 of the Judiciary Act 1903 when a cause is remitted to it for the execution of a judgment of the High Court.

The High Court, in allowing the appeal, reasoned that while the Supreme Court is authorised to make orders for the purpose of executing a judgment remitted to it by the High Court, it does not have the power to make an order that obstructs or prevents the execution of that judgment. The court held that an order staying proceedings, even if technically within the formal power of the Supreme Court, is an order that ought not to be made as it is inconsistent with the duty to execute the High Court's judgment. The judgment of à Beckett J. was reversed, and the order appealed from was discharged.

Orders