Smith v McKeough

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.