Scott v Numurkah Corporation [1954] HCA 14

Ae ae Wh asy ! 61S KYO!

a 19, 8A SA, 1 WNP HRB = SS ARTs BB

H.C. or A. Evidence:

Feb. 23, 25, 26;

Sypyey, April 14.

Dixon Webb, Fullagar, Kitto and Taylor JJ.

GE,

HIGH COURT [1954.

(HIGH COURT OF AUSTRALIA.]

SCOTT i zi 5 3 . é 7 APPELLANT ;

PLaIntirr, AND

THE PRESIDENT, COUNCILLORS AND

RATEPAYERS OF THE SHIRE OF ResponpvENT. NUMURKAH 'DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

'uisance—Conflict of evidence—View by judge—What constitutes— Limits on use of—Experiment or demonstration—Supreme Court Rules 1939 (Vict.) O. 50, r. 3.

'A motion picture exhibitor, who had, by deed, the right of exclusive use 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 municipality for nuisance and breach of a covenant to be implied in the deed. He alleged that noise created by bands &c. 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 'At the completion of the evidence at the hearing, counsel

use of his premises. 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