Smith v McKeough [1953] HCA 43

H. C. or A.

1953. —)

BRISBANE,

July 30, 31.

Kitto and Taylor JJ.

HIGH COURT (1953.

[HIGH COURT OF AUSTRALIA.]

SMITH 'i ' s 4 : ; 2 ' APPELLANT ; DEFENDANT,

AND

McKEOUGH . 2 i é , ' 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 isswes—Oonduct of case—Inferences of fact not inconsistent with findings of jury—Power of appellate tribunal—The Judicature Acts 1876 to 1921 (Q.) (40 Vict. No. 6—12 Geo. V. No. 15), s. 8—The Rules of the Supreme 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.