ON APPEAL FROM THE SUPREME COURT OF Evidence-Nuisance-Conflict of evidence-View by judge-What constitutes
Limits on use of-Experiment or demonstration-Supreme Court Rules 1939 (Vict.) O. 50, r. 3. MELBOURNE,
A motion picture exhibitor, who had, by deed, the right of exclusive use Feb. 23, 25,
and occupation of portion of a municipal town hall at certain times, for the purpose of exhibiting therein motion pictures, brought an action against the SYDNEY,
municipality for nuisance and breach of a covenant to be implied in the deed. April 14.
He alleged that noise created by bands &. playing at dances and other functions conducted in a portion of the hall which had not been demised to him, namely, the supper room, gave rise to substantial interference with the use of his premises. At the completion of the evidence at the hearing, counsel for the defendant suggested to the trial judge that he should visit the hall and witness " a practical demonstration" The trial judge agreed with this suggestion, and visited the hall, by arrangement and accompanied by counsel for both parties, on an occasion when motion pictures were being exhibited and a dance was in progress in the supper room. Counsel for the plaintiff did not acquiesce in the demonstration being regarded as part of the material before the court, nor did any consultation take place between counsel for the parties before the demonstration with a view to arranging that the noise produced at the demonstration would be similar to that complained of. No evidence was given after the demonstration that the noise heard by the trial judge was similar to that complained of. In his judgment the trial judge said that, if he had been at liberty to treat the demonstration as evidence, he would not have believed that the band had been the nuisance it had been represented to be, and he would have had no confidence in the plaintiff's evidence, but, as he was not SO at liberty, he accepted the plaintiff's evidence
and found accordingly that the noise complained of did amount to a nuisance. The Full Court of the Supreme Court of Victoria allowed an appeal from this judgment on the basis that the trial judge was at liberty to use the results of his 'view' for the purpose of determining the credibility of the conflicting
Held, that whilst the trial judge was entitled to have a view of the locus, he had in fact gone further and witnessed an experiment or demonstration,
course which should not have been followed except with the concurrence of both parties, or pursuant to a direction under O. 50, r. 3 of the Rules of the Supreme Court 1939. The trial judge was at liberty to use the results of his view for the purpose of understanding the questions raised, to follow the evidence and to apply it, but not to put the result…
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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AGLC
Scott v Numurkah Corporation [1954] HCA 14
Case
[1954] HCA 14
Decision Date
CaseChat Overview and Summary
The appellant, a motion picture exhibitor, brought an action against the respondent municipality, alleging nuisance and breach of an implied covenant. The appellant leased a portion of the municipal town hall for exhibiting motion pictures, but claimed that noise from dances held in an adjacent supper room substantially interfered with his use of the premises. The dispute centred on the extent to which noise from the supper room constituted a nuisance or a breach of the lease agreement.
The central legal issue before the High Court of Australia was the proper use and limitations of a trial judge's "view" of a locus in quo, particularly when that view involved a demonstration or experiment. The court was required to determine whether the trial judge had erred in his approach to the evidence gathered during his visit to the town hall, and whether the Full Court of the Supreme Court of Victoria had correctly overturned his decision based on its interpretation of the rules surrounding a judicial view.
The High Court held that while a judge is entitled to a view to understand and apply evidence, they cannot use the results of a view, especially one involving a demonstration conducted without the full concurrence of both parties, as evidence in place of sworn testimony. The trial judge's visit to the town hall, which included witnessing a dance band and a motion picture screening, went beyond a mere view and constituted an experiment. The court found that the trial judge had erred by considering the demonstration as potentially discrediting the plaintiff's evidence, as he was not at liberty to use conclusions or impressions gained from such a demonstration as evidence, particularly when the conditions of the demonstration were not proven to be similar to those complained of.
Consequently, the High Court allowed the appeal, set aside the order of the Full Court of Victoria, and ordered a new trial. The court determined that it was too uncertain how the trial judge's findings might have been affected by a legitimate use of a view, necessitating a fresh examination of the evidence. The costs of the appeal to the Full Court were to be paid by the plaintiff, while the costs of the High Court appeal were to be paid by the defendant, with liberty to apply for a set-off.