Scott v Numurkah Corporation

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.