Smith v McKeough - [1953] HCA 43

McKEOUGH

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT

OF QUEENSLAND. Practice-Trial of action by jury-All issues raised on pleadings not put to jury-

Substantive issues-Conduct of case-Inferences of fact not inconsistent with findings of jury-Power of appellate tribunal-The Judicature Acts 1876 to 1921 BRISBANE,

(Q.) (40 Vict. No. 6-12 Geo. v. No. 15), S. 8-The Rules of the Supreme July 30, 31.

Court 1900 to 1951 (Q.), O. LXX, rr. 11, 26.

In an action for breach of promise of marriage the plaintiff pleaded the defendant's promise to marry her, the promise by her to marry the defendant and her readiness and willingness to marry the defendant. By his defence the defendant denied these allegations and put them in issue. At the trial no evidence was given by the defendant, and cross-examination of the plaintiff was directed to showing that the plaintiff was urging the defendant to marry her. During the trial counsel for the defendant stated that he was not conceding anything and was insisting on the plaintiff proving her cause of action. On the evidence and conduct of the case the real contest between the parties was the issue whether the plaintiff promised to marry the defendant. Counsel for the defendant took no part in framing the questions for the jury. Apart from damages, the only issue put to the jury was whether the defendant promised to marry the plaintiff. On the jury answering the questions in the plaintiff's favour the trial judge entered judgment for the plaintiff. On appeal, the Full Court of the Supreme Court of Queensland drew inferences of fact as to the essential ingredients of the cause of action, namely the two issues not put to the jury that the plaintiff promised to marry the defendant and that she was at all material times ready and willing to marry the defendant.

Held, that the Full Court was entitled to make the findings as inferences of fact not inconsistent with the findings of the jury, since the issues not put to the jury were not regarded at the trial as real or substantive issues.

Per curiam It is only in rare instances and with considerable caution that this power should be exercised by a court of appeal.

Baird v. Magripilis (1925) 37 C.L.R. 321, followed and applied.

89 CLR 521

Royal Mail Steam Packet Co. v. George &Branday (1900) A.C. 480, dis- tinguished and explained.

Decision of the Supreme Court of Queensland (Full Court) Smith V. McKeough (1954) Q.S.R. 17, affirmed.

APPEAL from the Supreme Court of Queensland.

In an action commenced in the Supreme Court, Mary Kathleen McKeough sued Howard Ney Smith for damages for breach of promise. By her statement of claim the plaintiff alleged, inter alia, that the plaintiff and defendant promised to marry each other, that she was always ready and willing to marry the defendant and that he refused to marry her. The defendant by his defence denied these allegations and put them in issue.

The…

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 Smith v McKeough

Details

AGLC: Smith v McKeough [1953] HCA 43
Case: [1953] HCA 43
Decision Date: 31 July 1953

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a decision of the Full Court of the Supreme Court of Queensland. The original action was brought by the plaintiff, Mary Kathleen McKeough, against the defendant, Howard Ney Smith, for damages for breach of promise of marriage. The plaintiff pleaded that both parties had promised to marry each other, that she was ready and willing to marry the defendant, and that he refused to do so. The defendant denied these allegations.

The legal issues before the High Court concerned the power of an appellate court to draw inferences of fact when certain issues, essential to the cause of action, were not put to the jury at trial. Specifically, the court had to determine whether the Full Court of Queensland was entitled to infer that the plaintiff had promised to marry the defendant and that she remained ready and willing to do so, despite these issues not being specifically put to the jury.

The High Court held that the Full Court was entitled to make these inferences of fact. The court reasoned that the issues not put to the jury were not considered substantive or live issues at the trial, given the conduct of the case and the evidence presented. The defendant's counsel had focused the cross-examination on the plaintiff's desire to marry the defendant, and the trial judge had summed up the case with only one substantive question for the jury: whether the defendant had promised to marry the plaintiff. The High Court applied the principle from *Baird v. Magripilis* and found that the inferences drawn by the Full Court were not inconsistent with the jury's findings and were reasonably open on the evidence. The court emphasised that while appellate courts should exercise this power with caution, it was appropriate in this instance due to the nature of the unsubmitted issues.

The High Court dismissed the defendant's appeal, affirming the decision of the Full Court of Queensland. Consequently, the judgment entered in favour of the plaintiff for £4,000 in damages was upheld.

Orders