R v Rigby

R v Rigby - [1956] HCA 38 - HCA 1956 case summary — Zoe

[11]

But it is not possible to say whether any error of the kind was made or indeed to obtain from the case stated a definite factual basis for deciding exactly how ss. 154 and 155 operate upon this matter in the absence of a precise statement of the facts found, as opposed to the evidence. For it became necessary for the Land Appeal Court to apply these provisions so far as they concern ringbarking and clearing and the consequences ensuing therefrom and it is evident that some facts must have been found for the purpose. To some extent the same is true in relation to the priority right annexed to the lease by s. 72, but there is less reason to suspect that any error of law has been made with reference to the manner in which that right was treated in ascertaining the value of the lease. If the command of s. 36 to "set forth the facts and the grounds of decision" had been observed all this would have appeared. Unfortunately nothing of the sort was done. For this the parties must accept the blame, particularly the claimants, the now respondents. They prepared and brought in the case stated. No doubt the claimants wished to attack, in the Supreme Court, the proposition of the Land Appeal Court that, upon a proper application of the principles on which courts of appeal review findings of fact by primary judges, the Land Court's conclusion ought not to stand; and no doubt too it was desired under colour of denying the possibility on the evidence of lawfully reaching certain conclusions to attack the finding or findings of the Land Appeal Court. Such a desire might account for the manner in which the so-called case stated has been framed. The only statement of fact consists of a brief account of the proceedings. But the whole of the evidence and not a little of the argument before the Land Court is annexed, together with the exhibits and the judgment of that court and of the Land Appeal Court. The so-called case stated also comprises a statement of some contentions made on each side, which, subject to an exception to be mentioned, concern matters, which in our opinion are simply questions of fact. The exception is that on the part of the Crown it was contended that in assessing the value of the lease account should not have been taken of the priority right given by s. 72 because that right was extinguished by resumption. Of this it is enough to say that such a contention cannot be supported, and it certainly was not one adopted by the Land Appeal Court. The case stated goes on to state certain conclusions reached by that court extracted from the judgment which really turn on matters of evidence and afford no basis for any matter of law. Four questions are appended which in truth are not questions of law at all, although in an attempt to give them that complexion they are expressed as inquiring whether the Land Appeal Court was "authorised or justified in law" in adopting the course they did in respect to the several matters extracted from the court's judgment and set out in the case.

[16]

It is desirable in view of what has happened to restate some of the principles regulating the contents of cases stated. Upon a case stated the court cannot determine questions of fact and it cannot draw inferences of fact from what is stated in the case. Its authority is limited to ascertaining from the contents of the case stated what are the ultimate facts, and not the evidentiary facts, from which the legal consequences ensue that govern the determination of the rights of parties. The question may be one of the relevance of evidence and then the nature of the evidence becomes in a sense an ultimate fact for the purpose of that question. But that is not a common case: see Humphryis v. Spence [1] , and cf. Coughlin v. Thompson [2] . The general rule is clearly stated by Isaacs J. in the three following passages: "It cannot be too clearly understood that on a "case stated" the facts stated are to be taken as the ultimate facts for whatever purpose the case is stated. The Court is not at liberty to draw inferences unless the power is, by express words or by necessary implication, specially conferred by some enactment" - Mack v. Commissioner of Stamp Duties (N.S.W.) [3] . "Unless care is taken to distinguish between "inference" and "implication," confusion is likely to occur. An implication is included in what is expressed: an implication of fact in a case stated is something which the Court stating the case must, on a proper interpretation of the facts stated, be understood to have meant by what is actually said, though not so stated in express terms. But an inference is something additional to the statements. It may or may not reasonably follow from them: but even if no other conclusion is reasonable, the conclusion itself is an independent fact; it is the ultimate fact, the statements upon which it rests however weak or strong being the evidentiary or subsidiary facts" - The Merchant Service Guild of Australasia v. The Newcastle and Hunter River Steamship Co. Ltd. [No. 1] [4] . "It has been authoritatively decided by this Court in several cases that no inferences of fact can be drawn by the Supreme Court or this Court in such circumstances; among those cases are Merchant Service Guild of Australasia v. Newcastle and Hunter River Steamship Co. Ltd. [No. 1] [5] ; Schumacher Mill Furnishing Works Pty. Ltd. v. Smail [6] ; Boese v. Farleigh Estate Sugar Co. Ltd. [7] ; Mack v. Commissioner of Stamp Duties (N.S.W.) [8] ; Alexander v. Menary [9] . In the absence of explicit statement of facts, including inferences, the Court engaged in dealing with the case stated may perhaps gather the necessary facts from the construction of the case itself as stated, in the way expounded by Lord Atkinson in Usher's Wiltshire Brewery Ltd. v. Bruce [1] " - Dickson v. Commissioner of Taxation (N.S.W.) [2] . See further per Jordan C.J. in Dennis v. Watt [3] .

[21]

Under the power conferred by s. 38 "to make such other order in relation to the matter as seems proper" we think that the Supreme Court might have set aside the purported case stated and ordered that the case be restated in accordance with s. 38. On this appeal we are able to make any order which the Supreme Court might have made. Ought we to exercise this power? Clearly enough we cannot substitute for the order of the Supreme Court any order determining the case stated on the merits. In effect that means that the case stated must be set aside or treated as incompetent. If we thought that no question of law was really involved in the decision of the Land Appeal Court, it would not be proper to order a restatement of the case. But as we have already said we are by no means assured that something has not gone wrong in the application of ss. 154 and 155. Whether there has been an error or not must in the first instance depend on the true meaning and operation of these sections with reference to the subject of ringbarking. But that is not a subject that can be decided in the abstract. It could only be satisfactorily decided on an ascertained set of facts. The elements taken into account in arriving at a value under s. 154 (1) form part of the facts that must appear for the purpose, and no doubt the manner in which a value or values are ascribed to them, or reached by reference to them, may be equally important. Then it would be necessary to know how the last paragraph in s. 155 (1) has been used. In particular it would or at all events might be material to know what value was in the first instance assigned to the "ringbarking or the clearing of undergrowth and useless vegetation or any development work in the nature of clearing" for the purpose of satisfying the words in the last paragraph, "an improvement for which the lessee shall be entitled to be paid" considered with the words "the value of the improvements" occurring in the leading portion of par. (i) of s. 155 (1). That means the value which is placed upon the ringbarking etc. as "improvements" before proceeding to apply either the clause beginning "but in no case shall" or the proviso. Next it would or might be necessary to know how the clause and the proviso had been applied and by means of what figures and on what basis the figures had been reached.

At a glance

Court

Decision date

Before

Source

Judgment (24 paragraphs)

Parties