Schumacher Mill Furnishing Works Pty Ltd v Smail

The High Court considered an application for special leave to appeal from a decision of the Supreme Court of Victoria. The dispute originated in the Court of Insolvency of Victoria, where the trustee of a deed of assignment sought an order for the delivery of certain machinery. The trustee claimed the machinery was his property by virtue of the assignment and formed part of the assignor's estate, and that the respondent company, Schumacher Mill Furnishing Works Pty Ltd, should deliver it up.

The central legal issue before the High Court was whether the proceedings in the Supreme Court, which arose from a special case stated by the Court of Insolvency, were valid and therefore capable of supporting an appeal. Specifically, the court had to determine if the special case was properly stated under section 32 of the *Insolvency Act 1915* (Vic.), and if the Supreme Court's subsequent decision was properly made.

The High Court held that the special case was not properly stated under section 32 of the *Insolvency Act 1915*. Section 32 authorises the Court of Insolvency to transmit questions of law by way of special case to the Supreme Court. However, in this instance, the Judge of the Court of Insolvency did not determine the facts but instead asked the Supreme Court to decide what order should be made based on the evidence, with the parties agreeing that the Supreme Court could draw inferences of fact. The High Court reasoned that this procedure meant the Supreme Court was not acting under the statutory authority of section 32, but rather as arbitrators. Consequently, the proceedings before the Supreme Court were considered *coram non judice* (before a judge without jurisdiction) except to the extent the parties consented to the court acting as arbitrators, and therefore, no appeal lay to the High Court from the Supreme Court's decision.

Special leave to appeal was refused.