Schumacher Mill Furnishing Works Pty Ltd v Smail [1916] HCA 11

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21C.L.R.] OF AUSTRALIA. 149

(HIGH COURT OF AUSTRALIA.}

THE SCHUMACHER MILL et vent WORKS PROPRIETARY LIMITED .f *))Y™ANTS:

AND

SMAIL 4 : E " ' f . RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

High Court—Jurisdiction—Appeal from Supreme Court of State— Proceedings H. C. ov A. coram non judice—Court of Insolvency of Victoria—Case stated—No findings 1916. of fact—Insolvency Act 1915 (Vict.) (No. 2671) sec. 32. Ww Murzourns,

See. 32 of the Insolvency Act 1915 (Vict.) authorizes the Court of Insolvency March 9, 23.

upon the request of any party to a proceeding to ''transmit any question of

law by way of special case to the Supreme Court which shall have full power Grittith 0.J., to determine the same." cae Rich Jd.

Purporting to act under that section, the Judge of the Court of Insolvency stated a case in which he set out the evidence given before him on a certain motion and asked the question what order should be made by the Court upon such motion. He also stated that it was agreed by the parties that the Supreme Court should be at liberty to draw inferences of fact from the evidence in the same manner as they might upon an appeal from the Court of Insolvency. The Supreme Court having heard the special case and answered the question,

Held, that the special case was not within sec. 32, that the proceedings before the Supreme Court were coram non juice except so far as the parties consented to the Court acting as arbitrators, and therefore that an appeal did not lie to the High Court from the decision of the Supreme Court.

Special leave to appeal from the decision of the Supreme Court of Victoria refused.

APPLICATION for special leave to appeal.

HH. C. or A. 1916.

ey

ScHUMACHER Min Fournisninc Works PROPRIETARY Lr.

v Smarn.

HIGH COURT [1916.

In the Court of Insolvency at Melbourne a motion was heard whereby Edward William Smail, the trustee of a deed of assignment made by George Henry Sutherland for the benefit of his creditors, applied for an order that certain machinery was his property by virtue of the deed of assignment and formed part of the estate of the assignor, and for an order that the Schumacher Mill Furnishing Works Proprietary Ltd. should delive: the inachinery up to the trustee. Certain questions of law were raised and certain evidence was given on the hearing. The learned Judge of the Court of Insolvency thereupon pur- ported to state a case for the opinion of the Supreme Court in which he set out the evidence and, after stating that he found as a fact that Sutherland was in possession of the machinery at the material date, asked the following question:—" Upon the facts appearing in evidence what order should be made by the Court of Insolvency on such motion?" he case then stated that " As between the parties, it is agreed that the Full Court be at liberty to draw inferences of fact from the evidence and to differ from my conclusion that Sutherland was in possession at the date mentioned in the same manner as they might upon an appeal from this Court."