WESTERN AUSTRALIAN CASE NOTES · WESTERN AUSTRALIAN CASE NOTES Compiled and edited by the Law School of the University of Western Australia'. ... Agreement with husband-No right in

WESTERN AUSTRALIAN

CASE NOTES

Compiled and edited by the Law School

of the University of Western Australia'.

CASE NOTES INDEX.

Absolute Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Account stated-See Contract.

Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Agency-See Contract; Principal and iigent. Appeal-

Discrepancy between defendant's evidence and pleadings Grounds on which trial judge's award of damages for neg-

ligence will be interfered with . . . . . . . . . . . . . . . . . . To Court of Criminal Appeal under Industrial Arbitration

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Act

Arbitration- Interference by court with arbitrator's award . . . . . . . . .

Bankruptcy- Composition with creditors . . . . . . . . . . . . . . . . . . . . . Direction to trustees-Charge created by lien does not

extend to bonus shares not deposited . . . . . . . . . . . . Sale of land by Official Receiver-Purchaser's statement

of intention to retransfer-No trust created in favour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . of bankrupt

Bushfires- Hindering Forest Officer-Verbal prohibition . . . . . . . . . Occupier of land failing to extinguish . . . . . . . . . . . . . . . Regulation-Bulldozer without efficient spark arrester . . .

Cheques- Passing valueless cheques on newly opened bank account

Company- Directors' claim to be such not supported by minutes-

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Injunction Corporation's power to contract other than under seal . . .

Constitutional Law- Electoral Districts Act-Duty of Executive to advise Gover-

nor to issue proclamation directing electoral redistribu- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . tion

Contempt- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fine

Contract-See also Principal and Agent; Sale of Land; Sale of Goods ; Specific Performance- Account stated-Acknowledgment of debt . . . . . . . . . . . .

-Onus of proof . . . . . . . . . . . . . . . . . .

Agreement with husband-No right in wife to bring action 1 Breach-Implied terms-Measure of damages . . . . . . . . . 130

. . . . . . . . . . . . . . . . . . -Penalty-Entire contract 129 Breach of painting covenant in lease . . . . . . . . . . . . . . . 2 Breach of promise to marry-Consideration . . . . . . . . . 3 Building contract-Ascertainment of price-Payment into

. . . . . . . . . . . . . . . . . . . . . . . . . . . court-Costs 2 -Defective Work-Repudiation-

Measure of Damages . . . . . . . . . . . 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . Claim under guarantee 131

Construction-Annulment clause-Defect in title not pleaded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

. . . . . . . . . . . . . . . -Terms not too vague 76 Corporation's power to contract other than under seal . . . 131 Damages-Duty to mitigate . . . . . . . . . . . . . . . . . . . . . 9

-Fraudulent misrepresentation . . . . . . . . 11. 12. 75 -Innocent misrepresentation . . . . . . . . . . . . . . . 12 -Interest on unpaid purchase price . . . . . . . . . 7

. . . . . . . . . . . . . . . . . . -Measure of 1. 4. 8. 130 . . . . . . . . . . . . -Measure of-Sale of Goods 18

. . . . . . . . . . . . . . . . . . . . . . . . . . . -Nominal 13 -Repudiation . . . . . . . . . . . . . . . . . . . . . . . . 4 -Termination of employment . . . . . . . . . . . . . 8

. . . . . . . . . . . . . . . . . . -Wrongful dismissal 132 Employment-Overtime-Award under Industrial

. . . . . . . . . . . . . . . . . . . . . . . . . . . Arbitration Act 98 Termination-Award under Industrial Arbitration Act-

Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Wrongful dismissal-Measure of Damages . . . . . . . . . . . . 132

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Estoppel 102 Fraudulent misrepresentation . . . . . . . . . . . . . . . 11. 12. 75 "Guaranteed profits" . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Innocent misrepresentation . . . . . . . . . . . . . . . . . . . . . 12 Landlord and Tenant-Breach of covenant-Waiver of

breach-Forfeiture . . . . . . . . . . . . . . . . . . . . . . . . 14 Mining partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Misrepresentation-Fraudulent . . . . . . . . . . . . . 11. 12. 75

-Innocent . . . . . . . . . . . . . . . . . . . . . 12 Oral instructions limiting written authority . . . . . . . . . . . . 134 Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101. 129 Purchase of business-"Guaranteed profits" . . . . . . . . . 17

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rescission 12

(ii)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Repudiation 4. 80 . . . . . . . . . . Settlement of a,ction-Term s-Repudiation 80

. . . . . . . . . . . . . . . . . . . . . . . . Sharefaming agreement 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statute of Frauds 101

Conversion- No pecuniary loss-Nominal damages . . . . . . . . . . . . . . . 72

Costs- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contract 274

. . . . . . . . . . . . . . . . . . . . . Will-Testamentary capacity 141 Crayfish-

. . . . . . . . . . . . . . . . . . . . . . . . Possession of undersized 26 Custody-

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Adoption 136 . . . . . . . . . . . . . . . . . . Claim by stranger against parent 82

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Habeas corpus 136 Order pending litigation-Respective circumstances of

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . parties 27

Dangerous driving- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Excessive speed 102

Dangerous driving causing cleat h- . . . . . . . . . . . . . . . . . . . . . . . . Contributory negligence 103

Dissolution of Marriage- Application to rescind order nisi-Transitional provisions 106

. . . . . . . . . . . . . . . . . . . . . Adultery-Discretionary bars 27

. . . . . . . . . . . . . . . . . . . . . -Inference of guilt 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Condonation 107

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Damages refused 28 . . . . . . . . . . . . . . . . . . Desertion-Conduct conducing 27

. . . . . . . . . . . . . . . . . . . . . . . . . . . -Discretion 106 . . . . . . . . . . . . . . . . . . --Five years' separation 108

. . . . . . . . . . . . . . . . . . . . . . . . . . . -Just cause 29 . . . . . . . . . . . . . . . . . . . . . . Five ears' separation 103. 108

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Estoppel- 102 . . . . . . . . . Not founded by representation as to intention 72

Evidence- Adjournment to call evidence in rebuttal . . . . . . . . . . . . 59

. . . . . . . . . . Discrepancy between pleadings and evidence 120 Standard of proof-Cruelty and desertion-Married

Women's Protection Act . . . . . . . . . . . . . . . . . . . . . 34

Income Tax- "Knowingly and wilfully" understating income-Under-

statement in previous year . . . . . . . . . . . . . . . . . . Understatement of income-Moneys retained by finance

corpora.tion out of purchase price of motor cars- Year in which taxable . . . . . . . . . . . . . . . . . . . . .

Undisclosed funds accumulated over several years- Apportionment . . . . . . . . . . . . . . . . . . . . . . . . . . .

Industrial Arbitration-See also Contract-Employment Appeal to Court of Criminal Appeal . . . . . . . . . . . . . . . Exclusive jurisdiction of Arbitration Court . . . . . . . . . . . . Long-service leave . . . . . . . . . . . . . . . . . . . . . . . . . . .

Injunction- Claim for. to restrain sale of matrimonial home . . . . . . . . . Company-Directors-claim to be such not supported by

minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enforcement-Fine for contempt . . . . . . . . . . . . . . . . . . Form of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Keeping of dogs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nuisance-Amplified music and entertainment from hotel

-Milk distribution depot near residence . . . . . . -Kitchen smells and noise from hotel . . . . . . . . .

Jurisdiction of Supreme Court- Contract made in New South Wales-Service and Execution

of Process Act . . . . . . . . . . . . . . . . . . . . . . . . . . . Landlord and Tenant-See Contract . Licensing Act-

Reasonable cause to refuse to serve customer . . . . . . . . . Sale on Sunday-Delivery to carrier not sale . . . . . . . . . .

Maintenance- Deserted wife and child . . . . . . . . . . . . . . . . . . . . . . . .

Married Persons Relief- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Condonation

Constructive desertion . . . . . . . . . . . . . . . . . . 138. 139. Cruelty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Desertion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Wilful neglect to maintain . . . . . . . . . . . . . . . . . . . . . .

Married Women's Property Act- Claim to half-share of matrimonial home and car-Judg-

ment for sum of money . . . . . . . . . . . . . . . . . . . . .

Claim for injunction restraining sale of matrimonial home 84 Disputed ownership of property-Claim for amount of

. . . . . . . . . . . . . . . . . . . . . . . . money precluded 32 Matrimonial home and contents-Parties entitled in pro-

portion to contribution . . . . . . . . . . . . . . . . . . . . . 33 Married Women's Protection Act-

Cruelty and desertion-Standard of proof . . . . . . . . . . . . 34

Matrimonial Causes-See Custody; Dissolution of Marriage . Negligence-

Escape of water from dam . . . . . . . . . . . . . . . . . . . . . 154 Fire-Bushfires Regula.tions-Bulldozer without efficient

spark arrester . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Fire caused by spark from welding operations igniting

inflammable vapour from adhesive . . . . . . . . . . . . 156 Hot water bottle applied to unconscious patient in hospital

-Standard practice-Reasonable skill and case . . . 68 . . . . . . . . . . . . . . . . . . . Measure of damages-Fire 155, 156

. . . . . . . . . . . . . . . . . . . . . Negligent driving causing death 103 Negligence on the Highway-Assessment of Damages-

Back injury and alleged head injury or nervous disorder . . 89 Back injury-Hysteria . . . . . . . . . . . . . . . . . . . . . . . . 113

-Residual disability-Loss of profit . . . . . . 111 Brain injury causing mental abnormality and facial

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . lacerations 110 Contributory negligence . . . . . . . . . . . . . . . . . . . . . 58. 103 Cosmetic injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Crushed and amputated foot . . . . . . . . . . . . . . . . . . . . . 90 Deafness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Depreciation of vehicle-Loss of use . . . . . . . . . . . . . . . 114 Emotional distress . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Fatal Accidents Act . . . . . . . . . . . . . . . . . . 47. 87. 113. 114 Fatal Accidents Act-Methods of calculation . . . . . . . . . 150 Fracture and removal of right pastella . . . . . . . . . . . . . . . 112 Fractured ankle and jaw-Dislocated shoulder and scarring 91 Fractured femur . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Fractured femur-Woman of 64 . . . . . . . . . . . . . . . . . . 86 Fractured leg-Amputation below knee-Loss of earning

capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Fractured leg and pelvis . . . . . . . . . . . . . . . . . . . . . . . . 88 Fractured ribs and pelvis-Woman . . . . . . . . . . . . . . . . 87 Fractured tibia and fibula . . . . . . . . . . . . . . . . . . . . . . . . 89

Grounds on which trial judge's award will be interfered with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Head injuries and temporary unsoundness of mind . . . . . . 85 Injured child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 .. farmer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 .. girlof16-personalitychange . . . . . . . . . . . . . . . 50

. . . . . . . . . . . . . . . . . . . . . . . . .. married woman 51 .. police officer-loss of promotion prospects . . . . . . 55 .. stonemason . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 .. woman. . . . . . . . . . . . . . . . . . . . . . . . . . . 86. 87 .. widow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 .. widow-librarian-no loss of industrial capacity . . 51 .. woodmachinist-restriction of employment possibilities . . . . . . . . . . . . . . . . . . . . . . . . 57

Injuries to wife-Husband's claim for expenses for boarding children and domestic help . . . . . . . . . . . . . . . . . . 52

Interference with ability to swallow and speak-Paralysis of right shoulder muscles . . . . . . . . . . . . . . . . . . . . . 53

Lacerations and leg injury . . . . . . . . . . . . . . . . . . . . . 85 Litigation neurosis-Effect of delay in proceedings . . . . . 112 Loss of consortium . . . . . . . . . 56. 65. 67. 88. 89. 113. 114 Pain and inconvenience . . . . . . . . . . . . . . . . . . . . . . . . 53 Pain and inconvenience-Cost of future operation . . . . . . 53

-Loss of enjoyment of life . . . . . . 54 Part-aboriginal girl . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Permanent disability of leg . . . . . . . . . . . . . . . . . . . . . 55 Personality change . . . . . . . . . . . . . . . . . . . . . 46. 50. 56. 87 Shoulder injury and emotional distress-- Cosmetic injury 57 Wages paid to man replacing plaintiff in partnership . . . . . 63

Negligence on the Highway-Liability . Breach of statutory duty-Traffic Act 1919. sec . 46A . . . 114 Collision between motor bus turning left and pedestrian on

crossing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Collision between motor vehicle and pedestrian . . 89. 90. 94 Collision on narrow bridge-One vehicle on wrong side . . . 92 Collision with rear of moving vehicle-

Motor car and bicycle . . . . . . . . . . . . . . . . . . . . . 151 Motor car and motor scooter . . . . . . . . . . . . . . . . . . 151 Motor cycle and van . . . . . . . . . . . . . . . . . . . . . . . . 122

Collision with stationary vehicle-Apportionment of blame . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91. 152

Collision with unlighted bicycle . . . . . . . . . . . . . . . . . . . 58

Contributory negligence . . . . . . . . . . . . . . . . . . 58. 114. 153 Drunken passenger impeding driver . . . . . . . . . . . . . . . 63 Fall from back of truck . . . . . . . . . . . . . . . . . . . . . . . . 121 Head-on collision on curve . . . . . . . . . . . . . . . . . . . . . 152 Inevitable accident-Burden of proof . . . . . . . . . . . . . . . 59

. . . . . . . . . -Water in braking system 70 Infection suffered from examination to diagnose cause of

injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Intersection collision . . . . . . . . . . . . . . . . . . 121. 122. 154 Intersection collision-Failure to stop at "Stop sign-

Failure to give right of way . . . . . . . . . . . . . . . . . . 153 -Right of way-Contributory negli-

. . . . . . . . . . . . . . . . . . . . . gence 153 Vehicle turning across path of another . . . . . . . . . . . . . . . 92

Nuisance- Amplified music and entertainment from hotel . . . . . . . . . 95 Keeping of dogs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Kitchen smells and noise from hotel . . . . . . . . . . . . . . . 122 Milk distribution depot near residence-Degree of

disturbance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Noise from steel yard . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Partnership Obligation of partners to bear loss . . . . . . . . . . . . . . . 149

Passing valuless cheques- On newly opened bank account . . . . . . . . . . . . . . . . . . 24

Pleadings- Discrepancy between evidence and pleadings . . . . . . . . . 120

Principal and Agent- Agent's scope of authority-Oral instructions limiting

written authority . . . . . . . . . . . . . . . . . . . . . . . . 134 Duties of agent of syndicate . . . . . . . . . . . . . . . . . . . . . 15 Sale of land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Probate Duty- Valuation of land . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

Sale of goods- Implied condition of fitness for purpose . . . . . . . . . . . . . 18

. . . . . . Oral contract-Sale of Goods Act. secs . 4 and 35 79 Sale on Sunday-Delivery to carrier not sale . . . . . . . . . . 23 Suitability for purpose required . . . . . . . . . . . . . . . . . . 101

Sale of Land- Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Agent's scope of authority-Oral instructions limiting written authority . . . . . . . . . . . . . . . . . . . . . . . . . . .

Contract made "subject to finance being arranged" . . . . . Separation Agreement-

Money paid by husband for wife-No gift . . . . . . . . . . . . Simple offence-

Passing valueless cheques on newly opened account . . . . . . Possession of undersized crayfish-Measurement . . . . . .

Specific Performance- Agreement partly oral . . . . . . . . . . . . . . . . . . . . . . . . Reliance on grounds not pleaded . . . . . . . . . . . . . . . . . . Terms of contract . . . . . . . . . . . . . . . . . . . . . . . . . . .

Statute-Interpretation- Plain meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Substituted Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Testator's Family Maintenance- Order to widow in small estate . . . . . . . . . . . . . . . . . . Sick daughter of testator given income from half residuary

estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trusts-See Bankruptcy . Vermin Act-

Notice specifying means of eradication . . . . . . . . . . . . . . .

Wills- " . . . articles of domestic or household usev-Piano . . . . . . Construction-Absolute disposition followed by purported

disposition of remainder . . . . . . . . . . . . . . . . . . . . . Devise of realty-Contract of sale by instalments-

Ademption of gift . . . . . . . . . . . . . . . . . . . . . . . . Testamentary capacity . . . . . . . . . . . . . . . . . . . . . . 141. Testamentary capacity-Senile decay and hallucinations . Undue influence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

TABLE OF CASES NOTED . T h e number i n brackets is the number assigned t o the case

i n the Case Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Adamsv.Bray (133) 121

Amalgamated Collieries of W.A. Ltd . v . Coal Miners' Industrial Union of Workers of W.A. ( 158) . . . . . . . . . . 146

. . . . . . . . . . . . . . . . . . . . . . . . . . . Antonovich v . Zloic ( 13) 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . Arneli v Correia (1 14) 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . Baily v . Lockwood (89) 81

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Baker v Lear (128) 113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Baker v . Pearce (87) 80

Ball v . Katanning Shire Council ( 170) . . . . . . . . . . . . . . . . . . 155 . . . . . . . . . . . . . . . . . . . Bank of Adelaide v Hammond ( 143) 131

. . . . . . . . . . . . . . . . . . . . . . . . Barbour v . Donaldson (24) 23 . . . . . . . . . . . . . . . . . . . . . Barboutis v . Fletcher- Jones (2 1 ) 21

. . . . . . . . . . . . . . . . . . . . . . . . Barndonv.TheQueen (117) 103 . . . . . . . . . . . . . . . . . . . . . Ba. teman v . Hatton (No . 2) (22) 22 . . . . . . . . . . . . . . . . . . . . . Bateman v . Hatton (No . 3) (23) 22

Re Batkin deceased, Batkin v . W.A. Trustee Co . Ltd . (88) . . . 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Benson v . Evans ( 12) 12

Brackenbridge Bros . Pty . Ltd . v . Connor ( 142) . . . . . . . . . . . . 130 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Brain v . Merry ( 105) 92

R e Brewer (109) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 . . . . . . . . . . . . . . . . . . . . . . . . Briggs v . Uittenbroek (92) 67

Brown v . The Perpetual Executors Trustees and Agency Co . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (146) 133

. . . . . . . . . . . . . . . . . . . . . . . . . . . Bruce v . McAuliffe (93) 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Byrne v . Lee (135) 122

Carlile v . Walker (15) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Cartwright v . Arctic Cold Storage Pty . Ltd . and Bradford

Insulation (W.A.) Ltd . (171) . . . . . . . . . . . . . . . . . . . . . 156 Casella v . Harris ( 125) . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Chester v . Motor Vehicle Insurance Trust (61) . . . . . . . . . 55 Christensen v . Gangel (66) . . . . . . . . . . . . . . . . . . . . . . . . 58 Churchill v . Churchill (37) . . . . . . . . . . . . . . . . . . . . . . . . 36 Clegg v . Cox (98) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Clothier v . Jones (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Coli v . Smith (1 16) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Corcoran v . Wallis ( 101 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Correia v . Arneli ( 141) . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 Cousins v . Dower (54) . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Cura v . Stone (49) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . Curiarello v . Lake (164) 152

. . . . . . . . . . . . . . . . . . . . . . . . . . . Daffen v . Daffen ( 122) 108 . . . . . . . . . . . . . . . . . . . . . . Da San Martino v Harris ( 126) 112

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Davey v Reilly (99) 89 . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dearle v Gilligan (73) 68

Ditchfield v . Pearson (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Dorsett v . Henderson (100) . . . . . . . . . . . . . . . . . . . . . . . . 89

. Dorsett v Henderson ( 13 1 ) . . . . . . . . . . . . . . . . . . . . . . . . 120

. Fearn v Somerville (45) . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Federal Commissioner of Taxation v . Angel (139) . . . . . . . . . 127 Re Federico, ex parte the Official Receiver (159) . . . . . . . . . 148 Ferguson v . Collie District Hospital (74) . . . . . . . . . . . . . . . 68

. Ferry v Ferry (152) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Flanagan v . Stephens (60) . . . . . . . . . . . . . . . . . . . . . . . . 55 Flynn v . Flynn (32) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Ford v . Humphrey (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Forte v . Candido (160) . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Fowles v . Fowles and Holden (31 ) . . . . . . . . . . . . . . . . . . . . . 29 Frank Ruse Pty . Ltd . v . Lewis (83) . . . . . . . . . . . . . . . . . . 77

Gayfer v . Commissioner of Stamps (138) . . . . . . . . . . . . . . . 125 Grabusts v . Bonner (127) . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Gra. y (R.P.) Pty . Ltd . v . Lockyer (80) . . . . . . . . . . . . . . . . . . 74 Grotegoed v . Hosken (20) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Gurfinkel v . Hercules Crane and Haulage Pty . Ltd . (84) . . . 77

Hadfields (W.A.) 1934 Ltd . v . Perron and Sons Pty . Ltd . (18) 18 . Halligan v Lehane ( 137) . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

Hansen v . Johansen (145) . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Hanson v . Coyle ( 130) . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Harding v . Kolodenski (90) . . . . . . . . . . . . . . . . . . . . . . . . 82 Hardy v . Morgan (25) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Haseldine v . Haseldine and Panizza (30) . . . . . . . . . . . . . . . 28 Heal v . Baker (59) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Heppingstone v . Day (68) . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Hewitt v . Rogerson (102) . . . . . . . . . . . . . . . . . . . . . . . . 90 Higgins v . Agricultural Protection Board of Western

Australia (1 13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Re Holland deceased, Delamere v . White (40) . . . . . . . . . . . . 42 Hollins v . Drew (85) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Horvath v . Graikos (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Hume v . Caraher ( 106) . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Italiano v . Hast ( 134) 122

. . . . . . . . . . . . . . . . . . . . . . . . Jennings v . Montague ( 149) 136

Jones v . Hey (97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Kailis v . Jeffery (27) 26 Kenworthy v . Morley Park Hotels Pty . Ltd . (107) . . . . . . . . . 95

. . . . . . . . . . . . . . . . . . . . . . . . Lambert v . Lambert ( 150) 138 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Leach v . Ashby ( 147) 134

Leeuwrik v . Chilton and Plaistowe & Co . Ltd . (48) . . . . . . . . . 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . Lehane v . Halligan ( 155) I 143

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Letts v . Dalton (26) 24 Letts v . Saunders and Stuart Ltd . (1) . . . . . . . . . . . . . . . . . . 1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . Lewis v Lehmann (1 12) 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lines v . Smith (67) 58

. . . . . . . . . . . . . . . . . . . . . . . . . . . . Lloyd v Filligenzi (3) 2 Lombardo v . Wilkins (64) . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 I n re Lucas deceased, Cameron v . Soulos (41) . . . . . . . . . . . . 43 Lucas v . W.A. Trustee Executor and Agency Co . Ltd . and

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stoddart ( 154) 141 Lynes v . Tunstall (62) . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

McCarthy v . Darling ( 1 15) . . . . . . . . . . . . . . . . . . . . . . . . McCullough v . Sheen (44) . . . . . . . . . . . . . . . . . . . . . . . . MacFarlan v . Davies (46) . . . . . . . . . . . . . . . . . . . . . . . . . . . McGovern (Commissioner of Taxation) v . Telfer (79) . . . . . . McLeod v . Milkovich ( 14) . . . . . . . . . . . . . . . . . . . . . . . . Marinko v . West Perth Football Club (82) . . . . . . . . . . . . . . . Marinkovich v . Carbone (5 1 ) . . . . . . . . . . . . . . . . . . . . . . . . Marrable v . Maxrable and Beart ( 119) . . . . . . . . . . . . . . . . . . Martin v . Coffey (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Martin v . Donaldson (69) . . . . . . . . . . . . . . . . . . . . . . . . Meek v . Meek (36) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meek v . Minister for Water Supply, Sewerage and Drainage (8) Minister for Justice at the relation of McCutcheon v . Shire of

West Arthur (157) . . . . . . . . . . . . . . . . . . . . . . . . . . . Morrell v . Turton (148) . . . . . . . . . . . . . . . . . . . . . . . . . . . Moustaka v . McCormick (86) . . . . . . . . . . . . . . . . . . . . . . . . Murnik v . Murnik and Steward (29) . . . . . . . . . . . . . . . . . .

Nelligan v . Valli ( 16) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Newbey v . Durston (78) . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

. Nulsen v Smith (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Oliver v . Perry (81 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Osborne v . Brophy (57) . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Peacock v . James (55) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Perham v . McAlister (63) . . . . . . . . . . . . . . . . . . . . . . . . . . . Perron & Sons Pty . Ltd . v . Browning (165) . . . . . . . . . . . . . . . Pethick v . Pethick ( 153) . . . . . . . . . . . . . . . . . . . . . . . . . . . Piesse v . McGuire (52) . . . . . . . . . . . . . . . . . . . . . . . . . . . Pileggi v . Coneglio (129) . . . . . . . . . . . . . . . . . . . . . . . . . . . Pindan Pty . Ltd . v . McLeod (77) . . . . . . . . . . . . . . . . . . . . . Piscioneri v . Moore (169) . . . . . . . . . . . . . . . . . . . . . . . . Power v . Kenny ( 1 1 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preisig v . Jones (162) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Rautenback v . Whitbread ( 132) . . . . . . . . . . . . . . . . . . . . . Rawson v . Hobbs (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Redman v . O'Neill (94) . . . . . . . . . . . . . . . . . . . . . . . . . . . R . v . Court of Arbitration (43) . . . . . . . . . . . . . . . . . . . . . Retell v . Henig ( 168) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Richardson v . Joyce ( 124) . . . . . . . . . . . . . . . . . . . . . . . . Ricupero v . Ricupero (120) . . . . . . . . . . . . . . . . . . . . . . . . Rimes v . McManus (136) . . . . . . . . . . . . . . . . . . . . . . . . . . . Rowlands v . City of Perth (1 10) . . . . . . . . . . . . . . . . . . . . . Sandars v . Llorens (76) . . . . . . . . . . . . . . . . . . . . . . . . . . . Sharp v . Sharp (118) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Shaw v . Shaw and Davies (91) . . . . . . . . . . . . . . . . . . . . . Shell Co . of Australia Ltd . v . Fremantle Harbour Trust

Commissioners (43) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sims v Swan (140) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sketchley v . Duncan (103) . . . . . . . . . . . . . . . . . . . . . . . . Smith v . Gilchrist (33) . . . . . . . . . . . . . . . . . . . . . . . . . . . I n re Spencer deceased, Spencer v . Dolman (156) . . . . . . . . .

. . . . Stephens v . Perkins Steel and Engineering Pty . Ltd (108) Stock v . Ramnek and Metropolitan (Perth) Passenger Trans-

port Trust (166) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Strzelecki v . Mellowship (163) . . . . . . . . . . . . . . . . . . . . . . . . Swiontek v . Clarke (167) . . . . . . . . . . . . . . . . . . . . . . . . . . .

. Syme v Taylor (95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Terry v . Hicks (39) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Thompson v . Bennett ( 19) . . . . . . . . . . . . . . . . . . . . . . . . . . . Thompson v . Kelly and Lippe (92) . . . . . . . . . . . . . . . . . . Tilley v . Western Australian Milk Board (144) . . . . . . . . . . . .

Tolliday v . Tolliday and Hughes (28) . . . . . . . . . . . . . . . . . . Tolliday v . Tolliday (34) . . . . . . . . . . . . . . . . . . . . . . . . . . . Tonkin v . Brand (1 1 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . Tranchita v . Fiolo (47) . . . . . . . . . . . . . . . . . . . . . . . . . . . Treby v . Cohen and Devenish (50) . . . . . . . . . . . . . . . . . . . Treloar v . Treloar ( 15 1 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . Tunstall v . Lynes (96) . . . . . . . . . . . . . . . . . . . . . . . . . . . Uittenbroek v . Hoffman and Briggs (71) . . . . . . . . . . . . . . . Van der Weide v . McCallum (65) . . . . . . . . . . . . . . . . . . . . . Van Ryswyk v . Willison ( 17) . . . . . . . . . . . . . . . . . . . . . . . . Viner v . Viner and Norwell ( 12 1 ) . . . . . . . . . . . . . . . . . . . . . Vuleta v . Vuleta (38) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Washington v . Clappinson (56) . . . . . . . . . . . . . . . . . . . . . . W.A. Trustee Executor and Agency Co . Ltd . and Stoddart v .

Lucas (154) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Webb v . Webb (35) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . West v . Bergrnan (53) . . . . . . . . . . . . . . . . . . . . . . . . . . . Whitbread v . Bryson (104) . . . . . . . . . . . . . . . . . . . . . . . . . Wilkins v . Sloggett (58) . . . . . . . . . . . . . . . . . . . . . . . . . . . Winmar v . Farrell ( 123) . . . . . . . . . . . . . . . . . . . . . . . . . . . Wolff v . Shore (70) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. Wyllie v Brownes Dairy Ltd . (75) . . . . . . . . . . . . . . . . . . . . . Young and Wilkinson v . Williams ( 161 ) . . . . . . . . . . . . . . .

(xiii)

CASES CITED IN CASE NOTES . Absalon Ltd . v . Great Western (London) Garden Village

Society Ltd.. [I9331 A.C. 592 . . . . . . . . . . . . . . . . . . . . . 149n Adamson v . Jarvis, (1827) 4 Bing . 66. 130 E.R. 693 . . . . . . . . . 78n Addis v . The Gramophone Co . Ltd., [I9091 A.C. 488 . . . . . . 9 Les Affrkteurs Rkunis SociCtC Anonyme v . Walford. [I9191 A.C.

801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41n Ardennes (Cargo Owners) v . Ardennes (Owners), [I9511 1

K.B. 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135n Re Armstrong, [I9601 Victorian R . 202 . . . . . . . . . . . . . . . . . . 41n Astle v . Astle, [I9391 3 All E.R. 967 . . . . . . . . . . . . . . . . . . 138n Atherton v . Flodine. [1959] 2 Queensland R . 364 . . . . . . . . . 134n Attorney-General for Manitoba v . Kelly. [I9221 1 A.C. 268 . . . 149n Attorney-General v . P.Y.A. Quarries, [I9571 1 All E.R. 894 ... 123

Baguley v . Baguley. [I9611 2 All E.R. 635 . . . . . . . . . . . . . . . . . . . . . Baily v . Baily. (1924) 34 Commonwealth L.R. 558 . . . . . . Baily v . Baily. ( 1952-1953) 86 Commonwealth L.R. 424

Banks v . Goodfellow. (1870) L.R. 5 Q.B. 549 . . . . . . . . . . . . . . . . . . Barry v . Butlin. (1838) 2 Moo . P.C. 480. 12 E.R. 1089 . . . . . . Beckham v . Drake. (1849) 2 H.L.C. 579. 9 E.R. 1213

Birmingham Southern Railway Co . v . Limbner. (1904) 141 Ala . 420 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Boreham v . Prince Henry Hospital. (1955) 29 Aust . L.J. 179 . . Branca v . Cobarro. [I9471 K.B. 854 . . . . . . . . . . . . . . . . . . . . . British Fame (Owners) v . MacGregor (Owner). [1943] A.C. 197 Browne v . De Luxe Car Services. [I9411 1 K.B. 549 . . . . . . . . . Brunning v . Odhams. (1896) 75 L.T. (N.S.) 602 . . . . . . . . . Bull v . Bull. [I9551 1 Q.B. 234 . . . . . . . . . . . . . . . . . . . . . . . . Bull v . Fulton. ( 1942) 66 Commonwealth L.R. 295 . . . . . . . . . Butts v . O'Dwyer. (1952) 87 Commonwealth L.R. 267 . . . . . . Carr v . J . A . Berriman Pty . Ltd., (1953) 89 Commonwealth

L.R. 327 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Re J . M . Carrol. [I9311 1 K.B. 317 . . . . . . . . . . . . . . . . . . . . . Chant v . Read. [I9391 2 K.B. 346 . . . . . . . . . . . . . . . . . . . . . Chillingworth v . Esche. [I9241 1 Ch . 97 . . . . . . . . . . . . . . . . . . Coalminers Industrial Union v . Amalgamated Collieries, ( 1960)

34 Aust . L.J.R. 248 . . . . . . . . . . . . . . . . . . . . . . . . . . . Couchman v . Hill, [I9471 K.B. 554 . . . . . . . . . . . . . . . . . . . . . Craig v . Lamoureux, [I9201 A.C. 349 . . . . . . . . . . . . . . . . . . Re C . T . (An Infant), 119571 1 Ch . 48 . . . . . . . . . . . . . . . . . .

Re Cutcliffe (decd.). El9581 3 All E.R. 642 . . . . . . . . . . . . . . . 143 Cutter v . Powell, (1795) 6 T.R. 320, 101 E.R. 573 . . . . . . . . . 129n

Daken (H.) & Co . Ltd . v . Lee, [I9161 1 K.B. 566 . . . . . . . . . 5n . . . . . . . . . . . . Daniels v . Jones, [I9611 1 Weekly L.R. 1103 150

Davis v . Bunn, ( 1936) 56 Commonwealth L.R. 246 . . . . . . . . . 62 Dean and Chapter of Chester v . Smelting Corporation, (1901)

85 L.T. 67 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 In re A Debtor, [I9391 Ch . 225 . . . . . . . . . . . . . . . . . . . . . . . . 79 Delacour v . Waddington, ( 1953-1954) 89 Commonwealth L.R.

117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 . . . . . . . . . . . . . . . . . . Derry v . Peek, (1889) 14 App.Cas. 337 1 ln

Dickenson v . Fletcher, (1873) L.R. 9 C.P. 1 . . . . . . . . . . . . . 27 . . . Dickson v . McWhinnie, (1958) 58 State R . (N.S.W.) 179 84n

Dobson v . Dobson, [I9471 Victorian L.R. 244 . . . . . . . . . . . . 108 . . . Douglas v . Rhyl Urban District Council, [I9131 2 Ch . 407 132n

Downie v . Turner, [I9511 2 K.B. 112 . . . . . . . . . . . . . . . . . . 14n Drinkwater v . Kimber, [I9511 2 All E.R. 713 . . . . . . . . . . . . 116 Dun v . Dun, [I9591 A.C. 272 . . . . . . . . . . . . . . . . . . . . . . . . 81 Dunlop v . Selfridge, [I9151 A.C. 847 . . . . . . . . . . . . . . . . . . 39

. Evans v Jones. [I9551 2 Q.B. 58 . . . . . . . . . . . . . . . . . . . . . 14n

Fairweather v . Fairweanther, ( 1944) 69 Commonwealth L.R. 12 1 43 Federal Commissioner of Taxation v . Galt, (1947) 4 Aust . &

N.Z. Inc . Tax R . 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Fowler v . Lanning, [I9591 1 Q.B. 426 . . . . . . . . . . . . . . . . . . 62 Frixione v . Tagliaferro, (1856) 10 Moo . P.C. 175, 14 E.R. 459 78n

. . Fuller's Theatre Co v Rofe, [I9231 A.C. 435 . . . . . . . . . . . . 15n Fulton v . Andrew, (1875) L.R. 7 H.L. 448 . . . . . . . . . . . . 124 Re Fynn, (1848) 2 De G . & Sm . 457, 64 E.R. 205 . . . . . . . . . 83n

Gall v . Mitchell. (1924) 35 Commonwealth L.R. 222 . . . . . . 135n . . Garner v Murray. [I9041 1 Ch 57 . . . . . . . . . . . . . . . . . . . . . 149n

Godden v . Alford. [I9601 West . Aust.<R. 235 . . . . . . . . . . . . 4 Re Goldsworthy. (1876) 2 Q.B.D. 75 . . . . . . . . . . . . . . . . . . 83n Graham v . Markets Hotel. (1943) 67 Commonwealth L.R. 567 14n Grant v . Sun Shipping Co . Ltd.. [I9481 A.C. 549 . . . . . . . . . 94 Green v . Russell. El9591 1 Q.B. 28. 2 Q.B. 226 . . . . . . . . . . . . 41n

. . . . . . . . Hadley v Baxendale. ( 1854) 9 Exch 341. 156 E.R. 145 10 Re Hain. ( 1945) Queensland W.N. 49 . . . . . . . . . . . . . . . . . . 83n Haines v . Borough of Grafton. (1899) 20 N.S.W. L.R. 324 . . 132n

. . Hall v . Hall. (1868) L.R. 1 P & D 481 . . . . . . . . . . . . . . . 142 . Hanak v Green. [I9581 2 All E.R. 141 . . . . . . . . . . . . . . . . . . 3n

. . . . . . . . . . . . . . . . Hargreaves v Baldwin. ( 1905) 69 J.P. 397 103 . . . . . . . . . . . . . Re Harris. (1937) 37 State R (N.S.W.) 17 83n

Harris v . Rickett. (1859) 4 H . & N . 1. 157 E.R. 734 . . . . . . 135n . . . . . . . . . . . . . . . . . . . . . . Harrold v . Plenty. [I9011 2 Ch 314 98n

. . . . . . . . . . . . . . . . . . . . . . Hawkins v . Price. [I9471 Ch 645 19n Hazelwood v . Webber. (1934) 52 Commonwealth L.R. 268 . . 155 Hemsworth v . Hemsworth. [I9481 Victorian L.R. 483 . . . . . . 108n Henderson v . Henderson. [I9441 A.C. 49 . . . . . . . . . . . . . . . 108 Henwood v . Municipal Tramways Trust (S.A.), (1938) 60

. . . . . . . . . . . . . . . . . . . . . . . . Commonwealth L.R. 438 116 Hoenig v . Isaacs. [I9521 2 All E.R. 176 . . . . . . . . . . . . . . . . . . 5n Holloway v . McFeeters. (1956) 94 Commonwealth L.R. 470 . . 95

. . . . . . . . . . . . . . . . . . . . . Hyman v . Rose. [I9121 A.C. 623 15n

Inglis v . N.S.W. Fresh Food & Ice Co., (1944) 44 State R . (N.S.W.) 87 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J . v . J.. [I9551 P 215 84n Jones v . Dunkel. ( 1958) 101 Commonwealth L.R. 298 . . . . . . 95 Re Jones. Richardson v . Jones. [I8981 1 Ch . 438 . . . . . . . . . 144 Joss v . Joss. [I9241 South Aust . State R . 461 . . . . . . . . . . . . 108n Jowett v . Federal Commissioner of Taxation. (1926) 38 Com-

monwealth L.R. 325 . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 Jubal v . McHenry. [I9581 Victorian R . 406 . . . . . . . . . . . . . . . 134n

Kiddle v . Deputy Federal Commissioner of Land Tax. (1919) 27 Commonwealth L.R. 316 . . . . . . . . . . . . . . . . . . . . . 126

Kilmer v . British Columbia Orchard Lands Ltd., [I9131 A.C. 319 102n King v . King. [I9531 A.C. 124 . . . . . . . . . . . . . . . . . . . . . . . . 138

Lake v . Lake. [I9551 P . 336 . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Lang v . London Transport Executive. [I9591 1 Weekly L.R. 1168 93 Langford v . Western Lands Commissioner. (1958) 4 Local

Government R . of Aust . 46 . . . . . . . . . . . . . . . . . . . . . 126 Lawford v . Billerica-y Rural District Council. [I9031 1 K.B. 772 132 Lee v . Lee. [I9521 2 Q.B. 489 . . . . . . . . . . . . . . . . . . . . . . . . 84n Lincoln v . Gravil. (1954) 94 Commonwealth L.R. 430 . . . . . . 150 Lloyds v . Harper. ( 1880) 16 Ch . D . 290 . . . . . . . . . . . . . . . 41n London Passenger Transport Board v . Upson. [I9491 A.C. 155 93 London Passenger Transport Board v . Upson. [I9491 1 All E.R.

60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

Loprestov.Golding. (1957) 31Aust.L.J.851 . . . . . . . . . 115. 116 Luna Park (N.S.W.) Ltd . v . Tramways Advertising Pty . Ltd.,

(1938) 61 Commonwealth L.R. 286 . . . . . . . . . . . . . . . 17

. . . . . . Mace v . Murray. (1954) 92 Commonwealth L.R. 370 137 Magaard v . Magaard. ( 1957-1958) 99 Commonwealth

L.R. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29. 140 . . . . . . . . . . . . . . . . Mahon v Osborne. [I9391 1 All E.R. 533 69

Mann v . Owen. (1829) 9 B . & C . 595. 109 E.R. 222 . . . . . . 35 Martin French v . Kingswood Hill Ltd., [I9601 2 All E.R. 251 3n

. . . Masters v . Cameron. (1954) 91 Commonwealth L.R. 353 133 . . . . . . . . . . . . . . . . . Mathews v Smallwood. [I9101 1 Ch 777 15n

. . . . Mayfair Ltd . v N.Z. Properties Ltd.. [I9401 N.Z.L.R. 190 71 McFarlane v . Commissioner of Taxes (N.Z.), (1951) 9 Aust .

Tax Decisions 344; [I9521 N.Z.L.R. 349 . . . . . . . . . . . . 128 Miller v . Jennings. (1954) 92 Commonwealth L.R. 190 . . . 49. 87 Mischeff v . Constant Smith & Co.. [I9501 2 K.B. 616 . . . . . . 150n

. Moody v . Cox and Ha.tt. [I9171 2 Ch 71 . . . . . . . . . . . . . . . 6n . . . Munro v . Southern Dairies Ltd.. [I9551 Victorian L.R. 332 123

Murphy v . Murphy. [I9621 Aust . Argus L.R. 221 . . . . . . . . . 105 Murray Pty . Ltd . v . W.A. Amalgamated Society of Carpenters

and Joiners. ( 1962) 42 West . Aust . Industrial Gazette 241 147

Nance v . British Columbia Electric Railway Co . Ltd., [I9511 A.C. 610 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

. Naylor v Naylor. [I9611 2 All E.R. 129 . . . . . . . . . . . . . . . 141n Nock v . Austin. ( 1918) 25 Commonwealth L.R. 519 . . . . . . 142

. North Bay Snaps Ltd . v Tangury (unreported) . . . . . . . . . 72 . . . Nowark v Linton. [I9601 West Aust R . 2 . . . . . . . . . . . . . . . 8

. . . . . . . . . . . . . . . . . Paff v Speed. [I9611 Aust Argus L.R. 614 11 In . Parker v Clark. [I9601 1 All E.R. 93 . . . . . . . . . . . . . . . . . . 41

. . . . . . Pennington v Norris. (1956) 96 Commonwealth L.R. 10 154 . Penton v Barnett. [I8981 1 Q.B. 276 . . . . . . . . . . . . . . . . . . 14n . Pierce v Corf. (1874) L.R. 9 Q.B. 210 . . . . . . . . . . . . . . . 19n

Preston Jones v . Preston Jones. [I9511 A.C. 391 . . . . . . . . . . . . 35 Public Trustee v . Kirkham. [I9561 Victorian L.R. 64 . . . . . . 84n

. . Rapier v London Tramways Co.. [I8931 2 Ch 588 . . . . . . . . . . . . Redgrave v Hurd. (1881) 20 Ch D 1 . . . . . . . . . . . . . . .

. . . Rees v Lines. (1837) 8 C & P 126. 173 E.R. 427 . . . . . . . . . R . v . Court of Arbitration. Ex parte Amalgamated Collieries of

. W.A. Ltd.. [I9601 West Aust . R . 147 . . . . . . . . . . . . . . . . . R v Wa.ters. [I9121 Victorian L.R. 372 . . . . . . . . . . . . . . .

. . Richards v Jones. [la981 1 Ch 438 . . . . . . . . . . . . . . . . . . . . Ridgeway v Lees. (1856) 25 L.J. Ch 58 . . . . . . . . . . . . . . .

. Rimmer v Rimmer. [I9531 1 Q.B. 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rochefoucauld v Boustead. [I8971 1 Ch 196

Rouse v . Rouse. (1936) 38 West . Aust . L.R. 91 . . . . . . . . . . . . 141n Rushmer v . Polsue and Alfieri Ltd., (1905) 93 L.T.R. (N.S.)

823 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Rushmer v . Polsue and Alfieri Ltd., [I9061 1 Ch . 234, [I9071

A.C. 121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Russell v . Russell, [I8971 A.C. 395 . . . . . . . . . . . . . . . . . . . . . 138

. . . . . . . . . . . . . . . . Samson v Samson. [I9601 1 All E.R. 653 34n . . . . . . . . . Sangster v Sangster. [I9541 South Aust State R 129 108

Scanlon's New Neon Ltd . v . Tooheys Ltd., (1942-1943) 67 . . . . . . . . . . . . . . . . . . . . . . . . Commonwealth L.R. 169 10n

. Re Schebsman. [I9441 Ch 83 . . . . . . . . . . . . . . . . . . . . . . . . 41 . . . . . . . . . . . . . . . I n re Sinnott, [I9481 Victorian L.R. 279 82n

. . . . . . . . . . . . . . . . Smith v Chadwick. ( 1884) 9 App Cas 187 11 . . . . . . . . . . . Spain v Arnott. ( 1817) 2 Stark 256. 171 E.R. 638 8

. Spence v Cra.wford, [I9391 2 All E.R. 271 . . . . . . . . . . . . . . . 7 . . . . . . . . . . . . . . . . . . . Squire v Squire. [I9481 2 All E.R. 51 138

Somes v . British Empire Shipping Co., (1860) 8 H.L.C. 338, 11 E.R. 459 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Southport Corporation v . Esso Petroleum Co . Ltd., [I9561 A.C. 218 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61n

. Sullivan v Sullivan. [I9581 N.Z.L.R. 912 . . . . . . . . . . . . . . . 105 . Sumpter v Hedges. [I8981 1 Q.B. 673 . . . . . . . . . . . . . . . . . . 5n

. . Thompson v J Tait Ltd., [I9301 N.Z.L.R. 36 . . . . . . . . . . . . 71

. . . Thompson v Thompson, [I9601 West Aust L.R. 97 . . . . . . . . . 108n . . . . Timbury v Coffee. (1941) 66 Commonwealth L.R. 277 142 . . Tomlinson v Gill, (1756) Amb 330, 27 E.R. 221 . . . . . . . . . 41n

Toohey v . Hollier. (1954-1955) 92 Commonwealth L.R. 618 56. 67 . Tunstall v Tunstall. [I9531 2 All E.R. 310 . . . . . . . . . . . . 31, 33

. . . Turnerv.Mason. (1845) 1 4 M . & W . 1 1 2 . 153E.R.411 8

Vandepitte v . Preferred Accident Insurance Corporation of New York. [I9331 A.C. 70 . . . . . . . . . . . . . . . . . . . . . . . . 41

Walker Property Investment (Brighton) Ltd . v . Walker. (1947) 177 L.T. 204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135n

Wallis. Son and Wells v . Pratt and Hagnes. [I9101 2 K.B. 1003 17 Walter v . Selfe. ( 1851 ) 4 De G . & Sm . 315, 64 E.R. 849 . . . 70, 96 Wareing v . Giddons. 119521 Queensland State R . 23 . . . . . . . . . 153 West Australian Trustee Executor and Agency Co . Ltd . v .

Holmes, [I9611 West . Aust . R . 144 . . . . . . . . . . . . . . . . . . 124 Re White. (1962) 33 Dominion L.R. (2d) 185 . . . . . . . . . . . . 144n

Willan v . Willan. [I9601 2 All E.R. 463 . . . . . . . . . . . . . . . 108

. . . . . . . Williams v Usher. ( 1955) 94 Commonwealth L.R. 468 150 . . Winn v . Bull, (1877) 7 Ch D 29 . . . . . . . . . . . . . . . . . . . . . 20

. . . . . . . . . . . . . . . Wintle v . Nye, [I9591 1 Weekly L.R. 284 125 . . . Wirth v . Wirth, (1957-1958) 98 Commonwealth L.R. 228 34

Woods v . Duncan. 119461 A.C. 401 . . . . . . . . . . . . . . . . . . . . . 62n . . . Worth v . Clasohm, (1952) 86 Commonwealth L.R. 439 142n

Wright v . Williams (unreported) . . . . . . . . . . . . . . . . . . . . . 63

WESTERN AUSTRALIAN CASE NOTES.

Since the case notes were last published in this Review,' the Law School has received copies of reasons for judgment in 150 cases (including appeals). A few of these cases have not yet been finally considered by the Council of Law Reporting of the Law Society. Of those which have been considered, many have been or are to be reported in the Western Australian Reports. The remaining-80 cases5n all-are included in these notes. As was anticipated the number of cases available for noting has increased very considerably.

CONTRACT.

1. Letts v . Saunders and Stuart Ltd. (L. No. 17 of 1959). Nisi Prius (Mr. Commissioner Boylson, Q.C.) ; 15th June 1960. Agreement with husband-No right in wife to bring action.

This was a claim for the sum of £1 108 alleged to be owing by the defendant to the plaintiff under a contract alleged to have been made between the plaintiff and the defendant for the construction of concrete foundation work. The defendant denied that at any time it had contracted with the plaintiff but alleged that it had contracted throughout with her husband. Evidence was given on behalf of the plaintiff that her husband, who had undertaken the work, was at all material times an undischarged bankrupt and that he had made it clear to the defendant's general manager at the time of contracting and on subsequent occasions that the business was owned by the plaintiff and that all business would be transacted in her name. The learned Commissioner rejected this evidence and held that the defendant had intended to contract throughout with the plaintiff's husband. Accordingly the claim failed, and it was not necessary to consider the second ground of defence that no money was in fact owing.

D.E.A.

2. Nulsen v. Smith. (N. No. 2 of 1960). Nisi Prius (Virtue J.) ; 1 lth October 1960. Breach of painting covenant in lease-Measure of damages.

A lease of a hotel for a term of three years contained a covenant that the lessee should, at a certain time during the term, repaint the

1 See (1959) 4 U. WFST. AUST. ANN. L. REV. 548. Xncluding one case-Wolff v. Shore-for which written reasons for judgment

were not received from the Court. Counsel who appeared for the appellant provided the particulars from which the note was prepared.

premises, in accordance with specifications set out in the covenant, to the satisfaction of the lessor or his agent. In this action the lessor claimed damages for breach of that covenant.

Virtue J. found that the repainting did not comply with the specifications in the covenant and that, although the plaintiff's agent had approved the repainting, he had not at the time of giving his approval seen the terms of the covenant but had been misled bv the defendant's account oi what was required. Accordingly the defendants were in breach of the covenant.

His Honour held, however, that the measure of damages for this breach was not the cost of making good the painting but the injury to the plaintiff's reversion. As the plaintiff, without repainting the premises, ha.d relet them to a new tenant at a higher rental and had obtained a similar repainting covenant from the new tenant, no damage to the reversion was proved.

Accordingly the plaintiff recovered nominal damages of forty shillings.

D.E.A.

3. Lloyd v . Filigenzi. (L. No. 15 of 1959). Nisi Prius (Wolff C.J.) ; 5th January 1960. Breach of promise to marry--Consideration.

This was a case in which the plaintiff sued to recover three sums of money totalling £2000 which he claimed he ha.d lent to the defendant, and a diamond engagement ring which he alleged he had given to her upon their becoming engaged to marry. The defence was an admission that the money and ring had been received, but the defendant claimed that they were in each case gifts and that she had never promised to marry the plaintiff. The case turned entirely on the credibility of the witnesses and the inferences to be drawn from the circumstances surrounding each of the transactions, and Wolff C.J. gave judgment for the plaintiff in respect of each item of the claim. His Honour was satisfied that there was no suggestion that any of the money had been paid on an unlawful consideration.

D.E.A.

4. Martin v. Coffey. (M. No. 61 of 1959). Nisi Prius (Hale J.) ; 14th September 1960. Building contract-Ascertainment of price-Payment into Court-Costs.

In an action by a builder for £655 being the balance of the contract price of a house built for the defendant, plus the cost of certain

extras and less certain allowances, the defendant denied that the price quoted was as alleged by the plaintiff, disputed certain extras, and counterclaimed in respect of poor workmanship and departures from specifications. The defendant paid £425 into Court with a denial of liability.

Hale J. reduced the plaintiff's claim in respect of the contract price and extras to £534, and in respect of the defendant's allegations of defects and omissions he allowed the defendant £129. The plaintiff in his reply had charged that all these defects and omissions were items of maintenance in respect of which the defendant held a retention allowance of £100 under the contract and that the defendant had refused to allow the plaintiff to do the necessary work. The contract permitted the defendant to retain £100 for 6 months "in order to secure the execution of any reinstatement or repairs that may be required", and his Honour interpreted this as requiring the contractor to rectify all defects which should appear within that peiiod and which were due to breaches of contract by the c~n t r ac to r .~ Only one of the alleged defects answered that description, so that the defendant could not recover the cost of repair of that item without bringing the retention allowance into account. The other defects which were exist- ing and apparent at the date of completion did not fall within this category as the plaintiff was already in breach of his contract when he gave possession, and accordingly the defendant could recover for these items without giving credit for the balance of the retention allowance. On this basis £129 was allowed on the counterclaim.

His Honour held further that as the defendant's right to £129 was in the nature of an equitable set-off,4 the plaintiff was entitled to judgment for £405. This was less than the payment into Court, but that payment had been made only in respect of the plaintiffs claim and not in respect of the claim less the cquitablr srt-off,5 so that, as the plaintiff had established a claim of greater value than the payment in, the payment in could not avail the defendant so far as costs were concerned.

However, the defendant had made a written offer to the plaintiff to pay £425 in full settlement and to discontinue the counterclaim, and he claimed that this would entitle him to his costs of the action after that dateB His Honour held that, while such a letter might be

3 Citing HUDSON oh BUILD IN^, CONTRACIS (8th ed.), 192. 4 Applyi~lg Hanak v. Green, [1958] 2 All E.R. 141; HIIDSON, op. cit. 317 5 Applying Martin French v. Kingswood Hill Ltd., [I9601 2 .411 E.R. 251 6 Rclying on Martin French v . Kingswood Hill, ihid., at 2.53.

relevant in seeking the exercise in the defendant's favour of the Court's discretion as to costs, to be effective it must offer the plaintiff at least as much as he was entitled to so that the plaintiff need merely accept the offer without embarking on further negotiation. While the plaintiff was protected by the rules for his costs in respect of the payment into Court, if he had accepted the defendant's written offer he could have recovered no costs on either the claim or counterclaim. Accordingly, while an offer to submit to judgment for £425 with costs to date and to have the counterclaim dismissed might have protected the defendant from liability for costs thereafter, the offer actually made was not effective for that purpose.

In the light of the opinion of the Full Court in Godden v. A l f ~ r d , ~ his Honour considered that the proper order in this case would be that the plaintiff should have judgment for £405 with costs to be taxed and that the counterclaim should be dismissed without costs.

D.E.A.

5. Clothier v. Jones. (C. No. 14 of 1959). Nisi Prius (Hale J.) ; 14th September 1960. Building contract-Defective work-Repudiation-Measure of damages -Costs.

This was a cla.im by a building owner against a builder for failure to complete a contract to erect a house and outbuildings at a cost of £4913. The work had been left uncompleted after £3700 had been paid on account of the price, and the plaintiff claimed £1 122, being the cost of replacing defective work and completing the remaining work less the unpaid balance of the contract price. The defendant denied liability and counterclaimed for £33 in respect of extras, £300 the balance of a progress payment, and £400 loss of profit.

When the third progress payment became due under the contract, the plaintiff had refused to pay it in full until certain defects in the building were remedied, whereupon the defendant had ceased his operations and declined to resume until payment was made in full. The plaintiff then gave written notice of his intention to cancel the contract if work was not started within 21 days and, on the failure of the defendant to comply, the contract was accordingly cancelled.

Hale J. held that the failure by a building owner to pay an instalment of the price when due could amount to a repudiation of the

7 [I9601 West. Aust. R. 235

entire contract or, according to the circumstances, merely a breach of contract for which the contractor's only remedy would be to sue for payment, and which would not, in the absence of an express term conferring such a right, entitle the contractor to suspend operations under the contract. Having regard to the part payment of the progress payment and to the correspondence between the parties, his Honour had no doubt that the plaintiff did not intend to repudiate the contract but that in fact there were defects which were sufficient to preclude the defendant's right to any part of the third progress payment. Accordingly, the defendant had suspended operations without just excuse, the plaintiff was entitled to give notice requiring him to resume work, and, on the failure of the defendant to comply, to sue for breach of contract8 His Honour held further that the measure of damages, where the contractor fails to complete the work, is the difference between the contract price and the cost of actually completing the contract work, and, if the building owner accepts defective work because it would be impracticable or unreasonable to remedy it, the contract price may be treated as reduced to an appropriate extent.

The contract in this case required the work to be done to the satisfaction of the building owner, but his Honour held that, as the building owner could not withhold his approval unreasonably, the contract in fact required the work to be done to a standard that would be approved by a reasonable man. Further, although a final payment by the building owner may imply approval of the work, a progress payment does not normally of itself imply approval of the work up to that date. I t is a question of fact in each case whether the action or inaction of the building owner amounts to an implied approval.

After considering the various defects alleged, his Honour reduced the plaintiffs claim in respect of them from £2336 to £1100, against which the plaintiff was required to give credit for £1213 unpaid purchase price, so that the plaintiff recovered nothing on his claim. So far as the counterclaim was concerned, his Honour held that the defendant was entitled to retain monies already paid to him, but having abandoned the contract before any more was due he was not entitled to recover anything further under that ~ o n t r a c t , ~ so that the claim for loss of profit failed. However, the claim for extras was outside the main contract and for these the defendant could recover even

8 Applying Carr v. J . A. Berrirnan Pty. Ltd., (1953) 81) Commonwealth L.R. 327. 9 Citing HCDSON ON BUILDING COUTR~CTS (8th ed.) , 139: Sumpter v. Hedges,

[I8981 1 Q.B. 673; Daken (H) & Co. Ltd. v. Lee, [I9161 1 K.B. 566, at 574; Hoenig v . Isaacs, [I9521 2 All E.R. 176, at 178.

though he did not complete the contract.1° The amount in respect of extras was, however, reduced to £15.

So far as costs of the action were concerned, the plaintiff had failed on the claim and the defendant had recovered £15 on a counterclaim for £733. The defendant failed on the bulk of his counterclaim because he had failed on the issue of breach of contract, and therefore the costs of that issue should be paid by the defendant. However, on normal principles the defendant was otherwise entitled to the costs of the action. In order to avoid a complicated taxation on this basis, his Honour decided that justice would be done by allowing the defendant two-thirds of his taxed costs of the entire action.

D.E.A.

6. Rawson u. Hobbs.ll (R. No. 14 of 1959) . Nisi Prius ( Wolff C. J.) ; 19th October 1959. Construction-Annulment clause--Defect in title not pleaded.

The plaintiffs in this action claimed a declaration that an agreement in writing to purchase 10,000 acres of grazing land under conditional purchase lease together with some plant and machinery had been annulled by them pursuant to a right resewed under a clause in the agreement. Having found that on a construction of the clause in question the plaintiffs were not entitled to annul, his Honour nevertheless granted them the relief claimed on the ground that there were serious defects in the vendor's title to one of the two locations the subject of the sale-the defects arising under section 47 (1 ) ( a ) and (b) of the Land Act 1933-1956, which precludes husband and wife from jointly holding an area of grazing land in excess of 5,000 acres. Moreover, the improvements had been insufficient to comply with the requirements of the Act. One firm of solicitors had acted for both parties12 but his Honour found that the plaintiffs had not grasped "what, to a layman, would be a complicated position, and the serious defects in the title had not been disclosed to them."

The defendants also claimed that there could be no rescission as restitutio in integrum was not possible, the plaintiffs having at a

10 Referring to 3 HAI.SBURY'S LAWS or ENGLAND (3rd ed.) , 438, citing Rees v. Lines, (185.7) 8 C. & P. 126.

11 Judgment in this case was reversed by the Full Court on appeal. The appeal is to be reported su0. nonr. Hohbs v. Rawson in [I9611 West. Anst. R.

1% "The difficulties . . . would probably never have occurred", said his Honour, "had the parties been separately represented. Scrutton L. J . has commented on the invidious position in which solicitors who try to act for both parties place themselves" (Moody v. Cox and Hatt, [lBl'i] 2 Ch. 71, at 91) .

clearing sale disposed of plant, machinery, and stock, but the Chief Justice rejected this contention referring to the more elastic approach as instanced in Spence v. C7awford.13

E.J.E.

7 . Horuath u. Graikos. ( H . No. 12 of 1960). Nisi Prius (Mr. Commis- sioner Boylson, Q.C.) ; 2nd June 1960. Damages-Interest on unpaid purchase price.

A contract for the sale of a house contained the following terms: That a deposit of £5 was to be paid on the signing of the contract, and the balance of the purchase price within a further 28 days; a stipulation that time was of thr essence of the contract; and a provision that failure to pay the balance of the price within the stipulated time should constitute a breach of the contract and entitle the vendor to re-sell. Thew was a further clause as follows:- "Special clause: Sub- ject to inspection of white ant expert and to be found free of white ants. £5 to be refunded to buyer if white ants discovered."

The purchaser paid the £5 deposit, but later the same day decided not to go on with the contract and the vendor was informed of this decision. No proper inspection of the house was ever made to discover the presence or absence of white ants and Mr. Commissioner Boylson, Q.C., found that there was no evidence of white ant infesta- tion during the material period. When the balance of the purchase price was not paid on the due date, the vendor re-sold the house and brought this action for damages for, inter alia, the deficiency on the re-sale.

The learned Commissioner held that the operation of the special clause must, on the true construction of the contract, be limited to the period between the signing of the contract and the date for payment of the balance of the purchase price, and, as the defendant had not availed himself during this period of his right to have the premises inspected and to avoid the contract if traces of white ants were found, the plaintiff was entitled to his remedies for breach of contract.

The measure of damages which the plaintiff could recover was calculated on the following basis: ( i ) loss on re-sale, calculated on the basis of the difference between the contract price less agent's commission, and the price obtained on re-sale less agent's commission, the vendor giving credit for the £5 deposit paid by the plaintiff; (ii) the

13 [I9391 3 All E.R. 271.

costs of advertising the re-sale and the auctioneer's fee; (iii) legal expense^.^'

A claim for interest on unpaid purchase money was disallowed on the ground that the plaintiff rescinded the contract as soon as he was cntitled to and the obligation imposed by the contract to pay such interest disappears after rescission insofar as the interest would accrue after rescission (see Nowak v. Linton15).

U.E.A.

8. Meek v. The Minister for W a t o Sufiply, Sewerage and Drainage. ( M . No. 23 of 1959). Nisi Prius (D'Arcy J.) ; 28th June 1960. Employment-Termination-Award under Industrial Arbitration Act -Damages.

This was a claim for damages for wrongful dismissal. The plaintiff, who had been employed by the day by the defendant as a leading hand under Award No. 35 of 1952, made under the Industrial Arbitration Act 1912, as amended from time to time, was dismissed from his employment on one da.yYs notice on the ground of wilful disobedience to a lawful and reasonable order that he should take accumulated leave due to him. D'Arcy J. held that there was no evidence of an agrecment alleged by the plaintiff that he should take his leave a.t a later date; that clause 9 ( a ) of the Award did not entitle the plaintiff to insist on taking accumulated leave in one continuous period; that clause 38 ( a ) , which authorized either party to terminate the contract of service on one day's notice, could not be construed as limiting the right of the employer to terminate the contract for just cause only; and that in any event the plaintiffs disobedience to the order did constitute just cause (see Spain v. Arnott16 and Turner v. Mason1?). Accordingly, the plaintiff was not wrongfully dismissed.

Dealing with the various heads of damages claimed by the plaintiff, his Honour would have disallowed a claim for sick pay under clause 40 in respect of periods when the plaintiff was absent from his employment sreking medical or dental treatment in Perth as, in the circumstances of these absences, clause 40 was not applicable, and the absences could not be said to be "approved" periods within the meaning of clause 9 ( d ) ( i ) . Similarly, no damages could be awarded as compensation for the manner of his dismissal, his injured feelings, his

14 As the contract specifically provided that it should not be necessary to tender a transfer to a defar~lting purchaser before proceeding to a re-sale, only seven guineas was allowed under this head.

15 [I9601 West. Allst. R . 2. 16 (1817) 2 Stark. 256. 1 7 (1845) 14 M. & W. 112.

difficulty in obtaining fresh employment or the detrimental effects of his dismissal on his parents (see A d d i ~ v. T h e Gramophone Co. Ltd.'" . A claim for pay in respect of pro ~ a t a long service leave under clause 32 would have been valid only if the plaintiff had been wrongfully dismissed. As the award constituted the employment as one which was determinable on one day's notice, the only other damages the plaintiff could claim if he had bern wrongfully dismissed would have been purely nominal; ]"he plaintiff had remained out of employment since his dismissal by his own choice and had therefore failrd to mitigate his damages (see Beckham v. Drake").

D.E A.

9. Ditchfield v. Pearson. ( D . No. 53 of 1959). Nisi Prius (Wolff C.J.) ; 22nd December 1959. Grading and Levelling.

In an action by the plaintiffs to recover the cost of levelling, gra.ding, and paving a car-park at the request of the defendant, the defendant sought to deny liability on the ground of faulty workmanship. I t was found on the facts by Wolff C.J. that the work accorded with the contract specifications and had been properly performed with one cxception. Thr rollcd gravel was less than the stipulated 4 inches in thickness in certain parts, and in respect of this item the parties agrced on a deduction of £75. Judgment accordingly was given for the plaintiffs for the balance of the claim.

D.E.A.

10. Ford v. Humphrey. ( F . No. 7 of 1959). Nisi Prius (Hale J.) ; 1st April 1960. Implied term-Intention of parties-Damages-Duty to rnitiate.

The plaintiff owned a Customline motor-car and an International truck. He approached the defendant, a motor dealer, and proposed to

18 [I9091 A.C. 488. 1:) It is submitted with respect that if the plaintiff's cmploy~nent had been

determinable on one day's notice for just cause only, and if he had heen given one day's notice without just cause, then he would still have been wrongfully dismissed rlotwithsta~lcling the notice, and there would accortii~lgly be no justification for limitiiig his damages to oue day's loss of earnings. H e would be limited to one day's earnings only if the facts had been that Ire had been dismissed summarily withoc~t just cause, but his contract had been deternlinahle on one day's notice with or without just cause. 'I'he plaintiff's darnages in the situarion postulatetl b y D'.4rcy J. should be based o n the normal measure of damages for wrongful dismissal when the contract is not determinable by notice, v i z . , loss of earnings for such period as it might reasonably be expected to take hi111 to find suitable en~plovmenr.

20 (1849) 2 Ij.I..C. 579, at 606 pel- Erle J

trade in both vehicles for a new Plymouth car priced at £2300. The defendant was unwilling to take two vehicles as a trade-in on a single car, but accepted the Customline as a deposit (valued at £1000) and arranged for the plaintiff to obtain the balance of the price on a 6-months hire-purchase agreement. The defendant also agreed to sell on commission on behalf of the plaintiff the International truck for £1300 within a period of 3 months.

After 6 months had elapsed, the defendant had still not succeeded in selling the truck, and as a result of this failure the plaintiff was unable to meet his hire-purchase commitments. The finance corpoxa- tion accordingly repossessed the Plymouth car.

In an action by the plaintiff for damages for non-performance of the agreement to sell the truck, the defendant claimed to be relieved of his obligation by reason firstly of a false representation or warranty by the plaintiff that the truck was in good mechanical condition and secondly of an implied condition that the truck was worth at least $2 1300.

Hale J. found on the evidence that the plaintiff had given no representation or warranty as to the condition of the truck, and he held that a term that the truck was worth at least £1300 could be implied only if it was clearly necessary to make the contract operative in accordance with the intention of the parties, and not merely on the ground that it would be reasonable to imply such a term.21 There being no such necessity in this case, the plaintiff was entitled to damages.

The plaintiff claimed as damages the sum of £772.2.6d., being the value of the Customline car which he had given as a trade-in on the Plymouth less various credits.22 His Honour held &ant in order to recover this amount the plaintiff must bring himself within the second rule in Hadtey v. Ba~enda le*~ by showing that when the contract was

21 Applying dicta in Scanlon's New Neon Ltd. v. Tooheys Ltd., (1942-1943) 67 Commonwealth L.R. 169, at 195, and Butts \'. O'Dwyer, (1952) 87 Common- wealth L.R. 267, at 280. Although on the particular facts of the case nothing turns on the point, it is suggested that the measure of the plaintiff's damages was not the loss of the Customline, which in no way arose from the defendant's failure to sell the International truck. Instead, damages should surely have been claimed on the basis of the difference between the value of the Plymouth (which the plaintiff would have had if the defendant had performed the contract) and the value of the International truck (which he retained as a result of the defendant's default) .

23 (1854) 9 Exch. 341.

made the defendant had notice of facts which would reasonably lead him to suppose that a breach of contra.ct would cause this loss to the plaintiff, and there was some doubt whether the evidence established this. However, in any event, the plaintiff was guilty of a failure to mitigate his damages. When the defendant was in breach of the agreement through failing to sell the truck within three months, the plaintiff acting as a reasonable man should have placed the truck with another agent and claimed the ultimate deficiency from the defendant. There being evidence that if this had been done the truck might have been sold for £1295 (after deducting agent's commission and a further sum for necessary repairs), the plaintiffs loss would have been only £5 plus a further £11 as his estimated loss through two months' deprivation of the vehicle whilst it was being repaired and a purchaser found. Accordingly the plaintiff could recover only £16.

D.E.A.

11. Power u. Kenny. (P. No. 12 of 1958). Nisi Prius (Jackson S.P.J.) ; 17th October 1958. Misrepresentation-Fraudulent-Damages.

In an action for damages for fraudulent misrepresentation on the sale of a business by the defendant to the plaintiff, Jackson S.P.J. found that a representation as to the net profits of the business, although false, was believed to be true by the defendant, and that in any event the plaintiff relied upon his own investigations and not upon the statement of the defendant. As to other representations made by the defendant, his Honour found that although these were material, false, and fraudulent, the onus was upon the plaintiff to show that he relied upon them and was induced to enter the contract by them (applying Smith u. Chadzuicka) ; there was no direct evidence of any such inducement and, in the circumstances of the case, it was not possible to draw any inference in the matter.

This decision was subsequently reversed by the Full (Wolff C.J., Virtue and D'Arcy JJ.), so far as the representations as to profits were concerned, on the ground that the proper inference from the facts was that they were made recklessly, regardless of their truth or falsity,26 and that the plaintiff did place reliance upon them.27 As to

24 (1884) 9 App. Cas. 187, particularly per Lord Blackburn at 195-197. 25 El9601 West. Aust. R. 57. 26 Applying Derry v. Peek, (1889) 14 App. Cas. 337. 27 Virtue J. also held that as there was no denial of fraud on the pleadings,

and as knowledge of falsity was never an issue at the trial, the trial judge was bound to find fraud if he found that the representations were false.

the other representations, their Honours held that, as they were of such a nature as would be likely to influence a purchaser, the onus was upon the defendant to show that in fact they did not have this effect.**

D.E.A.

12. Benson v . Evans. ( B . No. 25 of 1958). Nisi Prius (Virtue J.) ; 25th November 1959. Misrepresentation-Fraudulent-Damages-Rescission.

In an action claiming rescission of a contract on the ground of fraudulent misrepresentation and damages, Virtue J. gave judgment for the plaintiff rescinding the contract and allowing the damages as claimed. On appealz9 by the defendant the Full Court confirmed the rescission but varied the award of damages.

E.J.E.

13. Antonovich v . Zloic. (Appeal No. 68 of 1959). Appeal from the Warden's Court. (Virtue J.) ; 20th May 1960. Misrepresentation-Innocent-Rescission-Mining partnership.

The parties to this appeal had entered into an agreement to conduct gold mining operations at a mine at Br0a.d Arrow. The appellant subsequently brought an action in the Warden's Court, Kalgoorlie, for rescission of the agreement and damages, the claim being based on misrepre~entation,~~ or in the alternative claiming dissolution of the partnership. The Warden dismissed the action on both grounds.

On appeal, Virtue J. held that the Warden's finding that there was no fraud was correct. Regarding innocent misrepresentation he found that untrue representations which induced the appellant to enter into the agreement had been made, but the conduct of the appellant in lodging a caveat with the Mining Registrar at Kalgoorlie claiming an interest in the mine arising out of the agreement, and in seeking payment of moneys arising out of the agreement, amounted to an

28 Applying Redgrave v. Hurd, (1881) 20 Ch.D. 1, at 24 per Lush L.J.; Smith v. Chadwick (supra) distinguished, and dictum of Lord Blackburn (supra) explained.

29 The appeal is to be reported sub noin. Evans v. Benson in [1961] West. Aust. R.

30 Innocent misrepresentation was pleaded but the case was argued as if fraud had been alleged. On appeal, in the interests of justice, it was treated as if both fraudulent and innocent nlisrepresentation had been alleged.

election to affirm the contract and so precluded the appellant from the right to rescission.

On the alternative claim the Warden on the merits would have decreed dissolution of the mining partnership"' but for the proviso to section 282 of the Mining Act, which excludes from thc operation of the section any incorporated company or association, which in his view prevented him from so decreeing. In the instant case although in the agreement between the parties it was contemplated that a company should be formed to take over the interests of the parties in the mine, and in fact a company had been so formed, the lease had not been transferred to it. The effect of the proviso, the judge held, was to exclude from the operation of the section only those cases where the shares in a mining lease are held by a company, and as this was not the position here the appellant was entitled to a dissolution of the partnership.

I.M.

14. McLeod v. Milkovich. (Appeal No. 66 of 1959). Full Court (Jackson S.P.J., Virtue and Hale JJ.) ; 21st April 1960. Nominal damages.

The plaintiff sued in the Local Court for £240 arrears of rent due to him under a lease of certain premises used as a supermarket by the defendant. The defendant admitted liability for the rent but counterclaimed for damages for breach of contract alleging that the plaintiff had failed to supply certain shop fittings in accordance with the covenants in the lease and had supplied others which were defective. The magistrate dismissed the counterclaim, and from that dismissal the defendant appealed.

Jackson S.P.J. felt some doubt whether in fact all the fittings had been supplied in accordance with the contract but he upheld the magistrate's decision on the grounds that he was not convinced that the magistrate was in error and there was evidence to support the magistrate's finding. On the allegation that defective fittings had been supplied, his Honour upheld the magistrate's view that no pecuniary loss had been proved but, as the defendant had established a breach of contract by the plaintiff, he varied the decision by awarding nominal damages of 40 shillings although without affecting the order for the costs of the counterclaim.

D.E.A.

31 Which is deemed to exist between t w o or more persons acquiring, workinp or using a ~n ir~ i r~g tenentent: See Mining Act 1904-1957, 5ec. 282 ( 1 ) .

15. Carlile v. Walker. ( C . No. 29 of 1960). Nisi Prius (Hale J.) ; 21st December 1960. Landlord and tenant-Breach of covenant-Waiver of breach- Forfeiture.

This case was an action for possession and mesne profits brought by the plaintiffs, as lessors of an hotel, against the defendant, as lessee, on the ground that the lease was forfeited through the failure of the lessee to remedy certain breaches of covenant. The defendant denied the breaches, and pleaded that in any event they had been waived by the conduct of the plaintiffs. He also claimed relief against forfeiture.

In respect of the allegations of breaches of covenant, Hale J. held as follows: -

(i) In the case of the covenant to put and keep the premises in repair, dilapidations existed at the material dates. I t was argued on behalf of the defendant that there could be no breach of the obligation to keep the premises in repair until first of all the premises had been put in repair; and that although the premises had not been put in repair, the plaintiffs had waived this breach by accepting rent. His Honour rejected this argument on the following grounds: -

( a ) the covenant expressly required the lessee to put and keep the premises in repair "forthwith and from time to time and at all times during the term";

(b) an obligation to keep property in repair involves a continuing obligation to put in repair what is out of repair;32 and

(c ) although normally the acceptance of rent or other indication of an intention to treat the lease as subsisting might involve waiver of past breaches of covenant, this would not preclude a lessor from working a forfeiture for a continuance of the breach where the covenant involved a continuing ~ b l i g a t i o n . ~ ~

(ii) In the case of a covenant to spend not less than £2000 on furniture and furnishings for the premises during the first

32 Citing 23 HALSBURY'S LAWS OF ENGLAND (3rd e d . ) , 580; Evans v . Jones, [I9551 2 Q.B. 58; Graham v. Markets Hotel, (1943) 67 Commonwealth L.R. 567, at 579.

33 Citing 23 HALSBURY'S LAWS OF ENGLAND (3rd ed . ) , 673; Penton v. Barnett, [I8981 1 Q.B. 276; Downie v. Turner, [I9511 2 K.B. 112.

six months of the term, the defendant admitted the breach but said the breach was committed at the expiry of the six months and had therefore been' waived by the subsequent acceptance of rent. His Honour held that a right of re-entry could be waived only where the lessor had knowledge of the facts on which the right arose and that the onus was an the lessee to adduce evidence of such knowledge.34 On the facts of this case there was no such knowledge, as the plaintiffs had relied on the defendant's assurance of compliance.

(iii) In the case of a covenant to deliver to the lessors a copy of the half-yearly return made to the receiver of revenue pursuant to section 73 of the Licensing Act 191 1-1959, there had been a failure to comply with this covenant. The plaintiffs had a.t one time indicated their willingness to accept an authority to inspect the returns at the office of the receiver in Perth, and authority had been sent by the defendant to the receiver to cover the period up to 31st December 1959, but the plaintiffs never learned of this. Although what had happened up to that point might have afforded a defence, based on equitable estoppel, to an allegation of breach of covenant, the plaintiffs had thereafter insisted on strict compliance with the covenant and there was accordingly a breach.

On the claim for relief against forfeiture, his Honour held that, although under section 3 (2) of the Landlord and Tenant Act 1912 the Court had a wide and unrestricted discretion to give nevertheless as it appeared from the evidence that the defendant had for some time been in financial difficulties, as he was unable to explain his defaults, and as he gave no assurance that the breaches would be remedied, there was no reason why he should be relieved from the forfeiture of the lease.

D.E.A.

16. Nelligan v. Valli. (N. No. 3 of 1960). Nisi Prius (Hale J.) ; 14th September 1960. Principal and agent-Syndicate-Duties of agent of syndicate.

The defendants organized a syndicate to purchase 80 tickets in the jackpot tote at a race meeting held by the Fremantle Trotting Club. The total cost of the tickets was £20 and the plaintiffs as mem-

34 Applying Fuller's Theatre Co. v . Rofe, [1923] A.C. 435, at 44.3; Mathews v Smallwood. [I9101 1 Ch. 777.

35 Applying Hyman v. Rose, [I9121 A.C. 623.

bers of the syndicate contributed £2. 10s. each. The first defendant, Valli, undertook to purchase the tickets and to enter on them the numbers of the syndicate's selections. The plaintiffs did not know which horses had been selected, but each defendant had a list of the selected horses. Valli attended the race meeting at which he purchased and completed 84 tickets in the jackpot. One ticket won a consolation prize of £901. 8. Od., and the plaintiffs claimed that this was a syndicate ticket. Valli denied this claim, contending that it was a ticket which he had purchased on his own account.

Hale J. found that the winning ticket did not belong to the syndicate. The winning ticket was next to the last in the series of 84; and, whilst this circumstance taken alone might be equivocal in that Valli might have completed his own tickets either before or after the syndicate's tickets, yet the selections on the winning ticket bore little relation to the syndicate's selections. Although Valli had from time to time departed from the syndicate's list in completing the tickets, no ticket among the first 80 contained more than one non-syndicate horse, while the winning ticket contained three. Evidence that Valli had admitted that the winning ticket belonged to the syndicate was insufficient and inconclusive, although Valli possibly at one stage had considered sharing his prize with the syndicate.

Counsel for the plaintiffs drew his Honour's attention to an article by Mr. R. E. D ~ w r i c k ~ ~ on the duties of an agent in the position of the first defendant. However, his Honour held that Valli was not guilty of any breach of duty owed to the syndicate because-

( a ) he could not be said to be competing with the syndicate in taking in his own name tickets which contained non-syndicate selection,

(b) he did not use confidential information acquired from the syndicate when completing his own tickets, and

( c ) he did not purchase in his own name anything which he was directed to purchase for the syndicate.

His Honour also rejected an argument that the syndicate had some species of property in the names of selected horses, and that Valli had used one of these names on his winning ticket and so was accountable to the syndicate for his gains. His Honour was not pre-

36 T h e Relationship of Principal and Agent , (1954) 17 MOD. L. REV. 24, at 3s-39.

pared to accept that the syndicate could have any such property in the names of its selections.

The claim was therefore dismissed.

( T h e r e should, nevertheless, be some moral i n this story for rclould-be synd ics ) .

D.E.A.

17. V a n Ryswyk v. Willison. (V. No. 4 of 1959). Nisi Prius (Wolff C.J.) ; 14th September 1959. Purchase of business-"Guaranteed" profits.

The defendants were sued for breach of contract for failure to complete a contract to purchase a business from the plaintiffs. The defendants pleaded firstly, that the parties had subsequently agreed to treat the contract as discharged, and secondly, that the fact that the business was unable to live up to the guaranteed nett weekly profit entitled them to repudiate the contract.

Wolff C.J. accepted the plaintiffs' evidence on the first point, that no offer had ever been made by the plaintiffs to release the defendants. On the second point he found as a fact that the guaranteed figures were accurate and said that in any event "if the figure demonstrated had been a little short of the mark [he would] still have held that the defendants had not demonstrated that the business had not earned the nett income of £50 a week over the period in question. What one has to stress is that accounting often involves estimates or empiricism. One cannot be precise." Further, the "guarantee" amounted to no more than a warranty of the profits, which if false would have entitled the defendants to sue for damages but not to rescind the contract.

In deciding this last point, his Honour purported to follow the decision of the High Court in L u n a Park (N .S . W.) L t d . v. T r a m w a y s Advertising Pty. Ltd." However, in that case the High Court held that the particular "guarantee" was a condition, the breach of which entitled the other party to rescind the c~ntract.~Wevertheless, this case can be distinguished and, applying the dictum of Fletcher-Moulton L.J. in Wallis, S o n and Wel ls v. Pratt and H ~ y n e s , ~ ~ it is clear that the "guarantee" in the case before Wolff C.J. could not be regarded

:{i (1938) 61 Commonwealth L.R. 286. 38 Ihid, , at 302-303 p r r Latllam C.J., and at 312 pel McTiernan J :In [1910] 2 K.B. 1003, a t 1012.

as so fundamental to the purpose of the contract that its breach could fairly be considered as a substantial failure to perform the contract at all and so entitle the defendants to rescind.

D.E.A.

18. Hadfields (W.A.) 1934 Ltd. u. Perron and Sons Pty. L td . ( H . No. 10 of 1960). Nisi Prius (Jackson S.P.J.) ; 2nd December 1960. Sale of Goods--Implied condition ef fitness for purpose--Measure of damages.

In 1959 the plaintiff had designed and built for the defendant a mobile stone-crushing plant to be used by the defendant to perform a contract with the Commonwealth Department of Works. In this action the plaintiff sued for the balance due under the contract for the plant and spare parts, and the defendant counterclaimed damages for breach of the implied condition of fitness for purpose under section 14 ( 1 ) of the Sale of Goods Act 1895. Only the counterclaim was in fact litigated. The plaintiff admitted that the purpose of the plant and specifications of the work to be done were made known, but denied any implied condition and said that the agreement was to manufacture and supply the plant in accordance with a plan submitted to and approved by the defendant's managing director, that the defendant relied on the plaintiff's skill and judgment only to manufacture and supply plant in accordance with that plan, and that in any event the plant was not unfit for its purpose.

On these issues and on the application of section 14 ( 1 ) , Jackson S.P. J. held as follows : -

(i) As the main object of this contract was the transfer of property in and the delivery of possession of a chattel as a chattel to the buyer, this was a contract for the sale of goods and not for work and materials;

(ii) Although the particular plant was novel to the plaintiff, nevertheless the plaintiffs business was engineering work in connexion with the quarrying industry and therefore the design and construction of this plant was in its normal course of business;

(iii) The defendant had made known to the plaintiff the particular purpose for which this plant was required, and it was not necessary to show complete reliance on the plaintiffs skill and judgment as long as there had been any real reliance. In this case, although the defendant's managing director had

approved a blue print of the general design, he relied substantially on the plaintiff company to exercise engineering skill and judgment in both the design and manufacture;

(iv) There was therefore an implied term of fitness for purpose . .

and, as the plant was not fit for the particular purpose, the plaintiff was liable for damages for its breach;

( v ) Damages should be assessed on the basis of the expenses and losses incurred in attempting to repair the plant, and also the loss of profit under the contract with the Commonwealth, which must be deemed to have been in the contemplation of the parties as a likely result of the breach.

D.E.A.

19. Thompson v. Bennett. (T. No. 22 of 1959). Nisi Prius (Virtue J.) ; 31st May 1960. Specific performance-Agreement partly oral.

The plaintiffs, as purchasers, claimed specific performance of a contract for the sale of a house. The contract alleged was partly in writing and partly oral, the written parts consisting of several memoranda and receipts, and the oral parts relating to the date for possession and the requirement that a formal contract be prepared. The defence raised was that any agreement between the parties was subject to a formal contract which had never been entered into, and that in any event there was no sufficient memorandum of the agreement to satisfy the Statute of Frauds.

Virtue J. held40 that the claim failed through the insufficiency of the memoranda which contained no mention of the terms as to possession and formal contrart whirh were matters of substance and of interest to both parties.

In any event, after considering the facts in some detail, his Honour inclined to the view that no binding agreement had been entered into pending the preparation of the formal contract.

This latter point raises some interesting possibilities. As it was nowhere recorded in writing between the parties that their agreement was subject to the preparation of a formal contract, cases such as

40 Applying the dicta of Blackburn J. in Pierce v. Corf, (1874) L.R. 9 Q.B. 210, at 214, and of Evershed J. (as he then was) in Hawkins v. Price, [1947] Ch. 645, at 654 and 659.

Winn a. Bull4' and Chillingworth u. E s ~ h e , 4 ~ in which it had been held that as a matter of construction the words 'subject to contract' operated as a condition postponing the incidence of liability, are distinguishable and the court would therefore be free to enquire as to whether the true intention of the parties was to postpone obligation or whether it was that the parties should be initially bound by an informal agreement which was subsequently to be replaced by a formal one, as in Branca v. C ~ b a r r o . ~ ~ With respect, it is suggested that as the parties had apparently reached agreement upon every point and had passed beyond the stage of negotiation, the latter alternative may be the more attractive.

D.E.A.

20. Grotegoed v. Hosken and Hosken. (G. No. 32 of 1958). Nisi Prius (D'Arcy J . ) , 29th June 1959; Full Court (Wolff C.J., Jackson S.P.J. and Virtue J.'), 23rd December 1959. Specific performance-Reliance on ground not pleaded.

In this action brought by the purchaser under a contract for the sale of a house against the vendors to complete the sale, D'Arcy J., after a very detailed analysis of the facts, dismissed claims for specific performance and damages on the ground that there was no proof that at any time both defendants had concurred in accepting an offer made by the plaintiff and there was therefore no contrart in existence. The plaintiff also claimed from the defendants the return of a deposit which he had paid to a land agent employed by the defendants; but this claim was also dismissed, on the ground that there was no proof that the defendants had authorized the land agent to receive the deposit or that they had received it from him.

The Full Court upheld the decision, primarily on the ground that, whereas the action had been fought on thc basis of the plaintiff's plea.ding that there was an agreement in writing made between the parties on the 19th September 1958, the plaintiff in fact relied not only on a letter written by the male dcfendant on that date but also on other documents and on the conduct of the female defendant. The plaintiff had not sought to amend his pleading, and if he had done so the Court would have felt obliged to permit the defendants to amend by pleading the Statutc of Frauds (see Brunning v. Odhams4*).

41 (1877) 7 Ch. 1). 29.

12 [1924] 1 Ch. 97. 43 [I9471 K.B. 854. 44 (1896) 7.5 L.T.R. (n.s.) 602.

In any event, the Full Court was of the opinion that the plaintiff had never made any firm offer to purchase the property, but that an enquiry he had made as to methods of financing the transaction had been "converted" into an offer by the defendants' agent. Further, if there had been an offer, it had never been accepted by both defendants. So far as the deposit was concerned, the Full Court upheld the decision of D'Arcy J., but expressed the opinion that inasmuch as there was no concluded contract between the parties, the agent would not be entitled to retain the deposit as against the plaintiff.

D.E.A.

21. Barboutis v . Fletcher-Jones. (B. No. 34 of 1960). Nisi Prius (Hale J.) ; 28th October 1960. Specific performance-Terms of contract.

This was an action for specific performance of a contract for the purchase of a house and land known as 17 Moran Street, Boulder. The defendant had at one time owned houses at both 17 and 19 Moran Street. The houses were separated by a yard which, over a period of years, had been used in conjunction with No. 19 although in fact, together with No. 17, it constituted Lot 89. The defendant contracted to sell No. 17 to the plaintiff, intending to except the yard from the contract, but the plaintiff contended that the contract was simply for the sale of No. 17 without any land being excepted and that in normal parlance 'No. 17' meant the whole of the subdivision on which it was erected.

Hale J. agreed that the normal understanding was as alleged by the plaintiff, but he found that, although the offer and acceptance did not specify the exact subject matter in terms, nevertheless it had been made clear to the plaintiff that the yard was to be excluded from the sale and that the parties intended the subject matter of the contract to be the property which had been identified to the plaintiff. The plaintiff was not entitled to rely on a receipt for part-payment of the purchase price, which referred to the property as "17, Moran St., Boulder", as the receipt was subsequent to a contract which had already been made.

Other facts which confirmed his Honour's finding were as follows: That the plaintiff had gone into occupation of the property but had raised no objection to the defendant's re-laying the drains in the yard or erecting a new fence; that the plaintiff had requested the defendant to grant him a right of way over the yard; that the defendant's solicitors had prepared a formal contract which clearly defined

the property as excluding the yard and that, although the plaintiff had never signed this contract, he had not objected on the ground of misdescription of the property; and that up to the time the plaintiff paid the balance of the price he had never given any indication that he believed that he had bought the yard.

Accordingly the plaintiffs claim for a transfer of the whole of Lot 89 was dismissed; and on the counterclaim by the defendant for specific performance his Honour made a declaration that the property sold did not include the yard and granted specific performance by directing the plaintiff to withdraw his objection to approval by the Town Planning Board of a new subdivision and ordering the plaintiff to submit a transfer for execution and registration.

D.E.A

CRIMINAL LAW

22. Bateman v. Hatton ( 2 ) . (Appeal No. 32 of 1959). Appeal by way of Order to Review (D'Arcy J.) ; 26th August 1960. Bushfires-Hindering Forest Officer-Verbal prohibition

The appellant who had been convicted under section 57 of the Bushfires Act 1954-1958, of hindering a Forest Officer in the performance of his duties under the Act, contended that his mere verbal objection to the officer's entering onto land did not constitute a prevention. As there was evidence which led to a reasonable inference that the verbal prohibition, if disregarded, would be backed by more emphatic persuasion, the Court held that the magistrate had been justified in convicting the appellant. The appellant also contended that the officer a t the time of the alleged offence had not been acting bona fide but was merely seeking to obtain evidence against the defendant on another charge, and that the magistrate had not permitted the appellant to cross-examine the officer as to character to challenge his bona fides. D'Arcy J., regarding this as a question of credibility, refused in the absence of compelling reasons to interfere with the magistrate's conclusions. No reference is made in the judgment to the refusal to allow the cross-examination.

E.J.E.

23. Bateman v . Hatton ( 3 ) . (Appeal No. 33 of 1959). Appeal by way of Order to Review (D'Arcy J.) ; 26th August 1960. Bushfires-Occupier of land failing to extinguish.

On this appeal against a conviction under section 28 of the Bush- fires Act, for having failed, as the occupier of land, to take all possible

measures to extinguish a fire thereon after having become aware that the fire was burning, the appellant argued firstly, that it had not been established that he was the occupier, and 'secondly, that it should not have been found that he had not taken all possible measures to extinguish the fire. The term "occupier of land" is defined in section 7 of the Act very extensively. The land in question belonged to the appellant's mother who resided on it but was temporarily absent. The appellant himself resided on a contiguous parcel of land and had at the time in question been in charge of the land on which the fire was burning and there can be little doubt that he came within the definition. On the second ground of the appeal, there was evidence that the fire was burning and had been burning since the previous day, that the appellant had been present and in the circumstances could not have failed to know of the fire, and that a small quantity of sand which had been placed on the fire was not all that could have been done to put it out. The appeal was therefore dismissed.

E.J.E.

24. Barbour v. Donaldson. (Appeal No. 42 of 1960). Appeal by way of Order to Review (Hale J. ) ; 18th August 1960. Licensing Act-Reasonable cause to refuse to serve customer.

Under section 1 18 of the Licensing Act 191 1-1959 a licensee com- mits an offence if "he refuses without reasonable cause . . . to supply any person with liquor." Hale J. in discharging an order to review held that a licensee had reasonable cause to refuse to serve a customer so long as the customer kept his dog with him in the bar of the hotel. "It appears to me obvious," said the judge, "that a licensee can reasonably object to having dogs in his bars." The dog had just urinated in the hotel hall and the licensee's wife after wiping up the mess had reprimanded the customer who in response had been "un- justifiably rude." Words had then been exchanged between the licensee and the customer and the licensee had ordered the customer out of the hotel refusing to serve him if he brought the dog back.

E. J.E.

25. Hardy v. Morgan. (Appeal No. 26 of 1960). Appeal by way of Order to Review (D'Arcy J.) ; 1st July 1960. Licensing Act-Sale on Sunday-Delivery to carrier not sale.

Under ,section 122 (1) of the Licensing Act 1911-1959, "No licensee shall . . . (b) sell any liquor, . . . upon any Sunday . .'." Under section 5 of the Act Y 'sale' and 'sell' include barter and exchange and derivatives have corresponding meanings."

The respondent licensee having accepted an order to provide beer to a lodge once fortnightly over a period of six months delivered a keg of beer for the lodge to a carrier on a Sunday. A charge against the licensee of selling the beer to the carrier on a Sunday was dismissed by the magistrate but the certified copies of the proceedings in the Court of Petty Sessions contained no findings or reasons. In an affidavit filed by the complainant appellant in support of his application for the order nisi to review, he deposed that the charge had been dismissed by the magistrate on the ground that the contract had been entered into some six months earlier and the liquor the subject of the offence had been sold then and not on the date alleged. Before the return of the order nisi, however, the respondent obtained an order- the appellant consenting-to the production of an affidavit verifying a letter from the magistrate in which the magistrate stated: ". . . the basis of my decision was that there had been no sale of liquor to C. V. Hosking as charged, that he was merely acting in his capacity as carrier . . . I accepted the evidence of the defence (and it is not really disputed by the prosecution) that the liquor was in fact purchased by and intended for the Buffalo Lodge . . ." There being no evidence on the record from which an inference could be drawn that Hosking was an agent for the Lodge, the order nisi was discharged.

E.J.E.

26. Letts v . Dalton. (Appeal No. 74 of 1960). Appeal from Petty Sessions (D'Arcy J.) ; 6th December 1960. Simple offenc+Passing valueless cheques on newly opened account- Police Act, sec. 64A.

The appellant, who appeared in person, had been convicted under the provisions (section 64A46) introduced into the Police Act 1892 in 1959 to deal with the passing of valueless cheques on newly opened bank accounts. He set out numerous grounds in his notice of appeal,

45 Section 644 provides: (1) Any person who obtains any chattel, money or valuable security by passing a cheque within a period of sixty days from and commencing on the day of the opening of the bank account on which the cheque is drawn, which cheque is not paid on presentation, shall, unless he proves

(a) that he had reasonable grounds for believing that that cheque would be paid in full on presentation; and

(b) that he had no intent to defraud; be liable on summary conviction to a fine of fifty pounds or to imprison- ment for a term of six months, notwithstanding that there may have been some funds to the credit of the account on which the cheque was drawn at the time it was passed. (2) No prosecution for the offence defined in this section shall be commenced without the written consent of the Commissioner of Police.

the majority quite inappropriate and some even fantastic. Among other things he challenged the validity of the amending statute, claiming that it was "inconsistent with the rightk of personal liberty granted by common law and defined and declared by Magna Carta." This the court referred to as "the result of misapplication of fragmentary knowledge of the law." And indeed it was on this "fragmentary knowledge of the law" that the appellant based many of his grounds. He claimed that the magistrate had wrongly refused to allow trial by jury, in spite of the fact that the offence is not defined as indictable and the section expressly provides for summary conviction; that the magistrate had no authority to remand from time to time on a summary charge; that the prosecutor had no authority to make the complaint; and that as there had been a civil action, the prosecution was incompetent by virtue of section 440 of the Criminal Code, the inapplicability of which would be apparent to any intelligent reader. The appellant also made several objections to the evidence which had been admitted and raised a question of the burden of proof. None of these grounds on which he relied raised issues of any real substance. There was one question, however, which might have. The magistrate had refused to allow him to call further witnesses. Some of them were to give evidence relating to the validity of the statute and as this evidence was not material and could not have assisted the court, its exclusion is unquestionable. But others asked for by the appellant would, he claimed, have testified to the substance of the charge. The appellant had stated that an associate of his, one James, was to have paid money into the account on which he had drawn. Letters to him from James ha,d been put in evidence, and apparently indicated a conclusion contrary to that claimed by the appellant. In dealing with the magistrate's refusal to allow the further witnesses to be called, the Appella,te Court said: ". .. . the magistrate refused an application by the appellant . . . to call a number of witnesses whom the appellant named [then followed three names] . . . Nothing could have been of greater advantage to the magistrate than the contemporaneous correspondence between James and the appellant, and the magistrate felt quite satisfied to proceed on that without admitting further evidence from the men named and I think he was well justified in doing so."

The appeal was of course dismissed.

While the accused is entitled "to make his full answer and defence to the charge"46 the courts are under a duty to ensure that the time of the court and the persons involved in actions and trials is not

4(i See Justices Act 1902-1959, sec. 68.

unnecessarily wasted and extravagant applications should not be permitted to delay proceedings. The balance may not always be easy t~ maintain but the court itself is of course in the best position to determine whether or not an application is reasonable in the circumstances. Though a denial to an accused of his right to call witnesses should be made only in most extraordinary circumstances, it would seem that the circumstances were sufficiently unusual in this case.

E.J.E.

27. Kai l i s u. Jeffery. (Appeal No. 59 of 1960). Appeal by way of Order to Review (Hale J.) ; 7th November 1960. Simple Offence-Possession of undersize crayfish-Measurement-Inter- pretation of statutory provision-Fisheries Act 1905-1960, see. 24 (1).

The appellants had been convicted of having on their premises crayfish of less than the prescribed length, which in the terms of the statute is to be measured "from the rear end of the horns to the end of the carapace (or body) ." As the carapace curves backwards so as to protrude more to the rear on each of the flanks than it does a t the centre line of the dorsum, the question was whether the measurement from the horns should be to the end of the midline or to a point vertically above the rearmost protuberances on the flanks. The appellant of course contended for the latter alternative, and if this were correct the crayfish would not have been undersize.

Neither counsel was prepared to refer the Appellate Court to any authority on the subject and his Honour expressed the view thai the matter was "essentially one of first impression." Without hearing argument he would have read the provision in the manner contended for by the respondent, i.e., construing the end of the carapace as the end of the midline of the dorsum, but if it had been explained to him that the accepted method was to measure to the extended end of the carapace on the flank, he would not have said that this was obviousIy wrong and contrary to the Act. However, as the accepted method- since 1949 when the provision had first been introduced into the Act- had been in accordance with his first impression, and he ha.d not been persuaded that this was a wrong construction, the appeal was dismissed. His Honour referred to Ex parte A r r n s t r ~ n g ~ ~ in support of the proposition that where an act is susceptible of an interpretation that has been put on it by long usage the court should not disturb such an interpretation.

Counse) for the appellant had urged that any ambiguity should be construed in favour of an accused, citing Brett J. (as he then was), in

47 (1902) 2 Nicholls & Stops (Tasmania) 104.

Dickinson v. F l e t ~ h e r : ~ ~ "Those who contend that the penalty may be inflicted must show that the words of the Act distinctly enact that it shall be incurred under the present circumstances. They must fail if the words are merely capable of a construction that would, and one that would not, inflict the penalty." But his Honour pointed out that the old rule had lost much of its force, it being now recognized that "it is the duty of the court to endeavour to ascertain the meaning of the legislature from the language used and then to declare the result without being influenced by a disposition so to read an Act as to avoid the imposition of a penalty, although it is wrong to resolve a true ambiguity against the defendant." As already indicated, his Honour did not consider the instant case as presenting a true ambiguit$

E.J.E.

DOMESTIC RELATIONS.

28. Tolliday v. Tolliday and Hughes. (Matrimonial Causes No. 573 of 1959). In Divorce (Hale J.) ; 5th August 1960. Custody-Order pending litigation-Respective circumstances of parties.

Before the hearing of this action for dissolution was c~mple ted*~ the trial judge was requested to give a decision concerning the custody of two children of the parties to the marriage. As he had heard all the evidence relevant to this issue he acceded to this request, considering it to be in the interests of all parties concerned. The reasons for the decision contained an examination of the respective circumstances in which both husband and wife could care for the children and although there was little distinction between the parents as to the purely physical comforts each could provide, and as the children were no longer of tender years, it was with the plaintiff husband that the judge considered the children were likely to have a better chance of affectionate care, wise parental control, a sound education, and an opportunity to make a good start in life, and it was to him that custody was granted.

I.M.

29. Murnik v. Murnik and Steward. (Matrimonial Causes No. 552 of 1959). In Divorce (Mr. Commissioner Boylson, Q.C.) ; 2nd June 1960. Dissolution of marriage-Adultery-Discretionary bars-Desertion- Conduct conducing.

This was a plaintiff wife's action for dissolution of marriage based on the defendant's adultery with the co-defendant. The adultery was

48 (1873) L.R. 9 C.P. 1 , at 7. 49 It commenced on 11th April 1960; it was then adjourned to 8th July 1960

when due to the absence of the co-defendant it was again adjourned.

admitted, but the defendant alleged that the plaintiff had deserted him some fourteen months prior to the adultery, and this desertion raised the discretionary bar contained in section 27 (c) of the Matri- monial Causes and Personal Status Code 1948-1954. In addition, it was claimed that the desertion conduced or contributed to the defendant's adultery which raised a further discretionary bar and it was argued that the Court's discretion should not be exercised in the plaintiff's favour.

The learned Commissioner found that because of the defendant's excessive drinking and ill-treatment of his family the plaintiff was justifikd in leaving him when she did and accordingly was not in desertion. No discretionary bars therefore arose, and the adultery being established, an order nisi was made.

I.M.

30. Haseldine v . Haseldine and Panizza. (Matrimonial Causes No. 67 of 1960). In Divorce (Mr. Commissioner Boylson, Q.C.) ; 12th July 1960. Dissolution of marriage-Adultery-Inference of guilt-Damages refused.

The evidence led in this claim for dissolution disclosed an association between the defendant and co-defendant from which a strong inference of guilt arose, and from which the learned Commissioner was prepared to conclude that there was an adulterous association. The ground upon which the action was based was accordingly established and an order nisi granted.

The plaintiffs claim for damages against the co-defendant, however, did not succeed. Some six months prior to his suspecting an illicit association between his wife and the co-defendant, the plaintiff had entered into a deed of separation with his wife, and there was no evidence from which it could be inferred that the separation was caused by the adultery or other wrongful act of the co-defendant. The plaintiff was not, therefore, "entitled to be compensated for what he gave up or agreed to vol~ntar i ly ."~~

I.M.

50 Damages for adultery in Western Australia (apart from punitive damages awarded in special circumstances) were awarded only for the loss sustained from the loss of consortium and the breaking up of the marriage home: See sec. 89 ( I ) , Matrimonial Causes and Per.wnal Status Code 1948-1957.

31. Fowles v. Fowles and Holden. (Matrimonial Causes No. 84 of 1959). Full Court (Wolff C. J., Virtue and D'Arcy J J.) ; 21st October 1959. Dissolution of marriage-Adultery-Misapplication of evidence.

This was an appeal against a decision dismissing a husband's claim for dissolution of marriage on the ground of adultery. The trial judge would not infer adultery from the evidence led but treated the matter as one of credibility. He accepted the denial of the wife, whose evidence he said was supported, and whose version of what took place on a particular occasion was made more likely by the evidence of a witness called on her behalf.

The conclusion of Wolff C.J. (who delivered the judgment of the Full Court), after examining the evidence of this witness, was that it did not support the defendant and in any event it was too vague and indefinite for much weight to be attached to it. In the. circumstances the appeal was allowed and a new trial ordered; not because a finding based on credibility was being reversed, but because "where the trial judge wrongly applies the evidence before him, his decision may be reversed where the misapplication might materially have affected his judgment."

I.M.

32. Flynn v . Flynn. (Matrimonial Causes No. 71 of 1960). I n D' lvor~e (Hale J.) ; 20th July 1960. Dissolution of marriage-Desertion-Just cause.

After a period of unhappiness spreading over the previous ten years the defendant husband left the plaintiff in 1957 giving as his primary reason her constant nagging. Three years later the wife brought this action for dissolution on the ground of the husband's desertion to which he replied by counterclaiming for the same relief on the ground of her constructive desertion. From the evidence Hale J. was unable to find an intention on the part of the wife to end the matrimonial relationship and accordingly, following Magaard v . M a g a a ~ d , ~ ~ the counterclaim failed. But before the wife's claim could succeed the issue of whether the husband had just cause for leaving her had to be resolved. I t arose in this way: For some years the husband had not been in good health. He suffered from an inferiority complex and, although it subsequently appeared as if the diagnosis may have been mistaken, he had received treatment as a psychopath. Nevertheless the

51 (1957-1958) 99 Commonwealth L.R. 1

judge was satisfied that throughout the year prior to his departure he suffered from a chronic anxiety state made more acute by failure in a business venture and the plaintiffs complaints concerning his financial affairs. To the defendant in this state of depression everything loomed unnaturally large, including the wife's complaints. The question which then arose was whether the plaintiff's conduct gave this husband in his particular state an excuse for living apart. To this question the judge gave the following answer: Conduct which, if spontaneous, might amount to grave and weighty reasons justifying a withdrawal from cohabitation, may not do so if induced by the defendant's own conduct. Here the plaintiffs conduct was not such as to justify an ordinary man leaving. But with this particular defendant, bearing in mind his mental state, it was difficult to decide whether he had just cause. However, it appeared that the plaintiffs conduct of which the defendant complained primarily arose from his own shortcomings (the wife's complaints, it was held, would have ceased if the defendant had indulged her to a small extent) and he would not be permitted to ignore his own shortcomings-which induced the plaintiffs conduct- and say that that conduct justified him in leaving. Desertion accordingly was established.

The case raises the question of how objective is the "objective" test of just cause for leaving. By this judgment it is certainly not a thoroughgoing one as the peculiarities of the husband were considered. But if it is not a completely objective test, then before the abnormal man, upon whom conduct has an aggravated effect, is to be held responsible for his conduct which induces in the other spouse conduct which to him is unbearable, should not his abnormality be examined to ascertain whether or to what extent it was responsible for his own shortcomings?

I.M.

33. Smith v. Gilchrist. (Matrimonial Causes No. 661 of 1959). Origi- nating Summons-In Chambers (D'Arcy J.) ; 3rd November 1960. Married Women's Property Act 1892, section 17-Claims to half share of matrimonial home and car--Judgment for sum of money.

The parties to this action were formerly husband and wife whose marriage had been dissolved, but at the date of dissolution a, dwelling house and land and a Holden taxi were registered in the name of the former wife. The claim by the plaintiff (the former husband) was that the real property was purchased out of joint assets during the marriage and consequently was owned by the parties in equal shares

whereas the motor vehicle, having been paid for by himself, was his sole property, and he asked for a declaration accordingly.

Both parties throughout the marriage had been employed, and at the beginning of their married life had agreed that their acquisitions would belong to them equally. From 1940 to about 1949 the plaintiff had been engaged mainly in driving a taxi, whereas the defendant had been either employed in or conducting small businesses. I t appeared that during this time the earnings of both had been pooled and constituted a joint fund.

From 1948 onwards, however, the trial judge found that each had been conducting his own business, the plaintiff that of a taxi proprietor, the defendant that of the proprietor of a mixed grill, and had been retaining the proceeds of the respective businesses as separate property. In addition, he accepted the defendant's evidence that the agreement to share future acquisitions had come to an end. Accord- ingly he held that the defendant's bank account which contained the sum of £610 in 1948 was a joint fund to which the parties were entitled in equal shares, and therefore there was the sum of £305 due from the defendant to the plaintiff.

After 1948, however, all assets purchased belonged to the respective purchasers. During this period the defendant had bought and paid for the house and land and consequently they belonged to her. The plaintiff in turn had paid for the taxi, which became his, subject to a liability of £50 representing the deposit paid on it by the defendant.

As the claim was made pursuant to the Married Women's Pro- perty Act that part of the judgment for payment of a sum of money appears to be contrary to the principle contained in Tunstall v. Tun- stalP2 that an order under section 1 7 of the Act must operate against specific property or a fund in existence "but there is no means under section 17 of giving a money judgment."j3 If the fund could be traced into other identifiable property no doubt an order of the Court could be made affecting that other property as in Rimrner v. Rimme?.= But on the facts disclosed in this judgment this would seem to be a difficult task. The defendant used the joint fund of £610 together with further borrowed moneys to purchase the mixed grill business for £1060. The business was sold in 1950 for £ 1600 which was paid into

52 [I9531 2 All E.R. 310; followed in Re Camkin's Question, [I9571 1 All E.R. 69. 53 Ihid., at 311 par Lord Goddard C.J. 6.1 [I9531 1 Q.B. 63, where the order operated on a fund representing the

proceeds from the sale of a matrimonial I~orne.

her account. She paid out of the account £235 towards the cost of the land (the total cost being £260) and during the ensuing years built the house, payment for which was partly made from the account and partly financed by a mortgage from a different bank. The total pa.yments made in respect of the house amounted to £2817. From the year 1950 onwards she was employed and repaid the money lent on mortgage but the judgment does not disclose whether the house was paid for from her earnings or the money in the account, or both, nor does it disclose from which source did the money upon which she lived actually come. In view of the various transactions entered into by the defendant since 1948 and the movements in her account it would seem difficult without further evidence to find that the plaintiffs interest in the joint fund in 1948 was now transformed into an interest in the land and house. But even if this were established a more difficult question to determine would be the extent of such an interest.

One thing, however, would appear to be clear, and that is that the original fund of £610 in 1948 was no longer in existence and the order in fact made could hardly purport to be an order operating on that fund.

I.M.

34. Tolliday u. Tolliday. (T . No. 13 of 1960). Originating Summons -In Chambers (Hale J.) ; 2nd September 1960. Married Women's Property Act 1892, see. 17-Disputed ownership of property--Claim for account in money precluded.

The plaintiff husband brought these proceedings against his wife under section 17 of the Married Women's Property Act 1892 asking for the determination of a number of questions concerning the disputed ownership of certain items of property.

Firstly, a house, registered in the joint names of the parties, his Honour found was intended by them both to be owned jointly, which was sufficient to dispose of the matter, but even if it was not, it was impossible with any degree of accuracy to ascertain the individual contributions of the parties towards the home so that the rule of equality as enunciated in R i m m e r v. rim me^^^ would apply.

Secondly, the plaintiff claimed that the defendant should be made to account to him for one half of the sum of £1000 which she with- drew from her account, which in the circumstances was a joint fund, and which she disbursed for her own uses. Hale J. would have been

55 [I9531 1 Q.B. 63.

prepared to find that the defendant was indebted to the plaintiff in the sum of £500 (being his half of the amount withdrawn) but for the rule in Tunstall u. Tunstall'" which precluded him from giving a judgment against the defendant for a sum of money in proceedings such as these.57

Thirdly, a sum of money coming to the defendant from a life assurance company and which was placed in a new bank account opened by her (apparently for the purpose of withholding it from the common fund) was a fund in which it was held the plaintiff could establish no interest.

Fourthly, a motor vehicle which represented the last of four suc- cessively used by the parties, the original one being purchased by the plaintiff but registered in the defendant's name, and each subsequent one being acquired by the sale of the previous one together with a further cash contribution made by the defendant, was held to be the defendant's separate property. In the absence of any agreement as to ownership this, his Honour held, was the most reasonable inference tc be drawn from the facts.

Finally as no evidence was given relating to the ownership of the items of furniture constituting the contents of the house, this question was referred to the Master to enquire into and to determine.

I.M.

35. Webb u. Webb. (W. No. 37 of 1959). Originating Summons- In Chambers (Hale J.) ; 2nd September 1960. Married Women's Property Act 1892, sec. 17-Matrimonial home and contents-Parties entitled in proportion to contribution.

The plaintiff wife brought these proceedings under section 17 of the Married Women's Property Act 1892 claiming a half interest in the former matrimonial home and its contents and certain other chattels.

During the relevant period of their marriage both parties had been employed and their financial arrangements had been "pleasantly vague." The land upon which the home was ultimately built was purchased for a total of £180, towards which the wife contributed the sum of £75, but was registered in the name of the husband alone. The home itself was subsequently built as a combined operation to

56 [I9531 2 All E.R. 310. -57 Cf. this decision with Smith v. Cilchrist, s t tprc~.

which both parties contributed substantially although it was impossible to determine the exact amount of their respective contributions.

Hale J., relying on Bull v. Bull,5s held that in the absence of any evidence relating to an agreement as to ownership or to a presumption of advancement or to an intention to make a gift, the plaintiff became beneficially entitled to an interest in the land in the proportion in which she had contributed, vir., to seventy-five one hundred and eightieth shares. Further, in the absence of any agreement to the contrary, she remained entitled to the same proportionate interest as the land was improved, as, on the authority of Wirth v. Wirth,59 once a proprietary right was established by the evidence there was no discretion to vary it.

The chattels, however, were acquired out of the combined earnings of the parties, and became mixed property which was owned in common60 and therefore, apart from items which were conceded as belonging to one or other of the parties, were declared to be owned by them in equal shares.

I.M.

36. Meek u. Meek. (Appeal No. 9 of 1959). Appeal by way of Order to Review (D'Arcy J.) ; 29th June 1959. Married Women's Protection Act-Cruelty and desertion-Standard of Proof.

In dismissing the appellant wife's application (under the provisions of the Married Women's Protection Act 1922-1954) for a separation and maintenance order on the ground of cruelty and desertion, the court of summary jurisdiction said, "it was not satisfied beyond reasonable doubt" that the husband had been guilty of the matrimonial offences alleged to have been committed by him. As the Act is silent as to the standard of proof to be applied in such proceedings it was this indication that the criminal standard had been applied that provided the wife with her main ground of appeal.

D'Arcy J., after examining the evidence, found that although the lower court had used the phrase commonly used to indicate the higher criminal standard, it had in fact applied the standard of proof applicable to civil proceedings. This normally would have concluded the matter. However, the judge then went on to determine what was the

5s [I9551 1 Q.B. 234. 69 (1!)57-1958) 98 Commonwealth L.R. 228. 60 Applying Samson v. Samson, [I9601 1 All E.R. 653, at 656

correct standard to apply in such proceedings. Firstly, he disposed of the proposition that a complaint under the Act was a charge of a criminal offence and so required allegations to be established in accordance with the criminal standard, by holding that the provisions of the Act did not create "offences for which the law awards punish- ment." It did not, therefore, create crimes as defined in Mann v. Owen.61

Secondly, following the dictum of Lord McDermott in Preston Jones v. Preston Jones,62 as orders made under the Act could not dissolve marriages, the court was not concerned with issues of sufficient gravity and public importance to warrant the same standard of proof as in the criminal law. Finally, in the absence of any governing statutory provision, the civil standard would apply on the authority of Wright v . Wright.63 Such statutory provision was, however, provided by section 34 of the Matrimonial Causes and Personal Status Code 1948-1957.

I t is this last proposition that to the writer appears to be of doubtful authority. Not only do the two Acts appear not to be in pari materia, but also it is difficult to see how the standard of proof provided under the Code, and which seems to be limited to proceedings under the Code, can be applied to proceedings under another Act in another

The remaining grounds of appeal were that the lower court had misdirected itself as to the legal nature of cruelty and that it had wrongly admitted evidence of similar conduct by the husband on a previous occasion. The first of these remaining grounds was not established and as to the second the judge held that although the evidence was wrongly admitted it had not been acted on by the court to the detriment of the respondent and accordingly the appeal was dismissed.

I.M.

61 (1829) 9 B . & C. 595, at 602; 109 E.R. 222, at 224.

62 [I9511 A.C. 391, at 417. 03 (1948-1949) 77 Commonwealth L.R. 191. @ This question of the appropriate standard of proof in the summary juris-

diction court is not likely to be raised in this particular form again as the Married Persons (Summary Relief) Act 1960, which has replaced the Married Women's Protection Act 1922, provides (in sec. 35) that "a matter of fact shall be taken to be proved if it is established to the reasonable'satisfaction of the court." This follows section 96 (1) of the Matrimonial Causes Act 1959 (Comn~onwealth) which sets out the standard of proof in divorce proceedings.

37. Churchill v. Churchill. (Appeal No. 19 of 1959). Order to Review (Wolff C. J.) ; 17th August 1959. Married Women's Protection Act-Separation Order-Failure to main. tain--Cruelty.

This appeal, by way of order to review, was taken by a husband against an order for separation and maintenance made against him by a court of summary jurisdiction which had, pursuant to the provisions of the Married Women's Protection Act 1922-1954, found him guilty of wilful neglect to provide reasonable maintenance for the wife and cruelty to her.

The facts supporting the first finding were that the net income of the appellant was between £1340 and £1450 per annum. Prior to the parties separating he ha.d provided a house in respect of which he paid all outgoings. He paid medical and chemists' bills and provided the respondent with £7. 10. 0 per week for housekeeping for the family-himself, the respondent, and one child. After separating he continued to pay the same weekly sum and expenses relating to the house in which the respondent continued to reside. This, in the opinion of Wolff C.J., was a fair allocation of his income (bearing in mind that he also maintained a child by a former marriage) and wilful neglect was not established. The order of the magistrate for £8. 10. 0 per week was accordingly set aside.

The finding of cruelty was based upon testimony to which, in the opinion of the Court, it was impossible to attach any credit and on this ground also the appeal was allowed.

I.M.

38. Vuleta v. Vuleta. (Appeal No. 40 of 1959). Full Court (Wolff C. J., Jackson S.P. J., and Virtue J.) ; 17th November 1959. Separation agreement-Money paid by husband for wife--No gift.

When the parties to this appeal, formerly husband and wife, agreed to separate, the husband agreed to pay £3000 to the wife so that she could purchase two houses-thus providing her with an income-producing asset. He subsequently lent to her a further £500, repayment being secured by a second mortgage on the premises, and also paid several sums on her behalf mainly for repairs and renovations and household items. These sums totalled over £500 but in order to bring the subject matter within the jurisdiction of the Local Court he abandoned the excess and commenced proceedings against her claiming the £500. In the Local Court the claim was dismissed because the plaintiff and a witness on his behalf were disbelieved and also because

the absence of any reference to this sum expended by the appellant for the benefit of the respondent in the deed led the magistrate to assume that thcsc moneys were the subject of a gift.

On appeal the Chief Justice held that no gift or benefit to the respondent could be spelled out of the transaction, particulasly as throughout the negotiations the parties had been at arms length. The ordinary principles of subrogation applied and the husband was entitled to be subrogated to the rights of the creditors and recover from the wife the money laid out on her behalf. On the question of credibility the evidence did not support the magistrate's finding and this was a case in which he would interfere to reverse such findings. With this latter point Jackson S.P.J. agreed, but Virtue J. on the other hand considered this to be a decision on a question of fact based primarily on credibility and in his view no justification had been shown for interfering with the lower court's findings. The appeal was allowed.

I.M.

EQUITY.

39. Terry v. Hicks, Barton, Williams and the Registrar of Titles. (T . No. 3 of 1959). Nisi Prius (Virtue J.) ; 12th November 1959. Sale of land by Official Receiver-Purchaser's statement of intention to retransfer-No trust created in favour of bankrupt.

This was an action for a declaration that the first and second defendants, Hicks and Barton, were holding land on trust for the plaintiff, and for an injunction to restrain thc Registrar of Titles from registering a transfer of the land to the third defendant, Williams, on the ground that the proposed transfer would be inconsistent with the trust.

The plaintiff, Terry, had originally owned the land in question together with other a.djoining land totalling about 900 acres on which he carried on business as a farmer. In May 1954 the plaintiff was made bankrupt and the Official Receiver attempted to sell the land. A meeting of creditors considered an offer to purchase for £4000 made by a syndicate of which Hicks and Barton were members, and also another offer of a similar price. The plaintiff himself preferred the syndicate's offer as, although the pricc was the same, no commission was payable and he would be given an opportunity to save his home and furniture. The syndicate had told him that they intended to subdivide the land and develop it as a tourist rrsort, but that they would be prepared to employ him as caretaker and adviser, and so

would permit him to continue to live in the homestead and would ultimately transfer the homestead to him after the subdivision had been effected and after he had obtained his discharge from bankruptcy. The form of offer submitted to the meeting of the creditors was prepared by a solicitor and, after stating the offer to purchase for £4000 cash, continued as follows :-

"In addition we have discussed with Mr. Terry the question of his being allowed to remain in occupation of the house on the property for an indefinite period and ultimately it is our intention to retransfer back to him such house and the grounds on which it stands as these would not be required for the purposes of our principals. Should you be agreeable to accept this offer . . ."

The creditors, after the advantages of the syndicate's offer had been explained to them, passed a resolution allowing the plaintiff to retain the household furniture and authorizing the Official Receiver to transfer the land to the syndicate in the terms of the offer. The offer was accordingly accepted by the Official Receiver by a letter which made no reference to any arrangement with the plaintiff in respect of the homestead except for a statement that he, the Official Receiver, presumed that vacant possession would not be required as Terry would remain in residence in the house.

The syndicate was unable to go ahead with its plans to subdivide the property, with the result that Hicks and Barton bought out the other members of the syndicate and contracted to sell the property to Williams, who at the time of the contract had no notice of Terry's claim. Nothing further occurred for some months until Terry attempted to lodge a caveat, and the Registrar rejected the caveat on the ground that Williams's transfer had already been lodged for registration. This action was then commenced and an interim injunction obtained to restrain registration of the transfer to Williams.

The plaintiff alleged that it was a term of the syndicate's offer to allow the plaintiff to reside indefinitely in the homestead and at some future time to retransfer it to him; and that the creditors had authorized the Official Receiver to sell on those terms, which he had done; and submitted accordingly that the property was impressed with a trust in favour of the plaintiff in the terms of the offer.

Virtue J. rejected this submission. His Honour held that the statements of the syndicate's intention in respect of the homestead "were not in any sense terms of the offer or of the contract which was accepted by the Official Receiver with the approval of the creditors . . . they were only inserted on the question of the giving up of vacant

possession on completion of the sale, and because it was reasonable to assume that the creditors would prefer a sale which while at least equally profitable to them, would enable the debtor to retain his home."65

Having held, therefore, that a trust could not be crea,ted in this way by the contract between the syndicate and the Official Receiver, his Honour proceeded to enquire whether any arrangement existed between the syndicate and the plaintiff that the syndicate should purchase as trustee for the plaintiff. In this connexion his Honour considered the case of Rochefoucauld v . B o ~ s t e a d ~ ~ "where the Court of Appeal was able to spell out a purchase as trustee from the evidence", but found that the evidence in the present case did not support such an arrangement. His Honour accepted most of the plaintiff's evidence as to what he had been told by the members of the syndicate but said that this amounted to "no more than expressions of intention as to what they would do in the future, and that it was never in contemplation that they were purchasing as trustees."

It was not pleaded that the plaintiff had a claim for breach of contract against the members of the syndicate, and if it had been, so far as the contract between the syndicate and the Official Receiver was concerned, his Honour would have applied the dictum of Lord Haldane in Dunlop v . Selfridge" so that the plaintiff as a stranger to that contract would not have been able to enforce any agreement to convey. Similarly there was no evidence of any binding contract between the plaintiff and the syndicate members, the discussions between them amounting to no more than "an honourable understandingJ' that was not intended to affect their legal rela.tions.

This case raises a number of points of considerable interest, many of which lie in that peculiar no-man's land between contract and trust which is fraught with insoluble conundrums.

In the first place it must be considered whether the promise by the syndicate to allow the plaintiff to continue to occupy the homestead and ultimately to retransfer it to him, was a term of the contract of sale. Virtue J. appears to have decided this point against the plaintiff on two grounds; firstly, that this statement of intention was not intended to give rise to legal relations, and secondly, that it was not

66 The writer has some difficulty in understanding this interpretation of the facts. It would appear, in any event, that the latter part of the passage quoted begs the whole issue.

66 [I8971 1 Ch. 196. 67 [I9151 A.C. 847, at 853.

incorporated in the letter of acceptance from the Official Receiver. So far as the first ground is concerned, the statement was contained in a formal offer prepared by a solicitor and was put before the meeting of creditors as an added inducement for them to accept that offer rather than another at a similar price; and it is respectfully suggested that a reading of the whole of that letter and a consideration of the circumstances in which it was accepted by the creditors would tend to show that this was intended as a contractual promise. It is difficult to see how, in the events that happened, it could be construed as a mere recital of an 'honourable agreement' between the syndicate and the plaintiff. On the second ground, it is surely not permissible to construe a contract made by exchange of letters merely by looking at the letter of acceptance. The letter of acceptance must be referable to the form of offer and the two should be read together. See, for example, Parker v. Clark68 where the letter of acceptance had not been preserved, but the letter containing the offer was accepted both for the purposes of ascertaining the terms of the contract and as a sufficient memorandum of those terms. In any event, the letter of acceptance did contain an oblique reference to the statements as to the future of the homestead.

However, assuming for the moment that this never became a term of the contract, one may enquire, as his Honour did, whether there was any arrangement between the plaintiff and the syndicate members that the syndicate should purchase as trustee for the plaintiff. I t is clear that in order to constitute a declaration of trust, precise and technical words are not necessary; all that is required is a clear intention that the syndicate would not claim any beneficial interest in the homestead itself but would hold the legal title for the benefit of the plaintiff. If the evidence be regarded in this light, it might be difficult to escape the inference that a trust was intended, but for his Honour's finding that the conversations between the syndicate members and the plaintiff amounted only to an 'honourable agreement.'

On the other hand, if, as is submitted, these statements werc incorporated as terms of the contract with the Official Receiver, the first question that arises is whether the plaintiff as a stranger to that contract could acquire .any enforceable rights under the contract; and here we enter the no-man's land. On the one hand there is the "fundamental principle" enunciated by Lord Haldane in Dunlop v. Sel- fridge:6"'My Lords, in the law of England certain principles are fundamental. One is that only a person who is a party to a contract

68 [I9601 1 All E.R. 93. 69 Supra.

can sue on it. Our law knows nothing of a jus quaesitum tertio arising by way of contract. Such a right may be conferred by way of property, as, for example, under a trust, but it cannot be conferred on a stranger to a contract as a right to enforce the contract in personam." On the other hand there is the concept of a trust of a contractual chose in action developed in a number of cases70 which permits a person who was not a party to a contract to enforce a term of that contract on the ground that one of the parties contracted as trustee for him. It is true that the tendency of the courts today is to require cogent evidence of an intention to contract as a trustee, and much judicial thought has been given to the position of the dividing line between contract and trust. In Re Schebsman7I Lord Greene M.R. said:72 "It is not legiti- mate to import into the contract the idea of a trust when the parties have given no indication that such was their intention. To interpret this contract as creating a trust would, in my judgment, be to disregard the dividing line between the case of a trust and the simple case of a contract made between two persons for the benefit of a third. That dividing line exists, although it may not always be easy to determine where it is to be drawn."

Where then is the line to be drawn? In Vandepitte v . Preferred Accident Insurance Corporation of New Y ~ r k , ~ ~ Lord Wright said: ". . . the intention to constitute the trust must be affirmatively proved." However, as the intention to create the trust need not be proved by any express declaration of trust in precise and technical language, but merely by a clear intention that a pa.rty to the contract is not himself to take the benefit of some promise contained in the contract but is to receive it and account for it for the benefit of some stranger, that brings us right back to Lord Haldane's "fundamental principle." It may be too simple a solution to suggest that this could be an area in which the rules of law and equity conflict.

Fortunately, it is submitted, it should not have been necessary for the plaintiff in this case to wend his way through these various dicta. All that he needed to show was that the land had been transferred by the creditors, through the Official Receiver, to the syndicate to the intent that the syndicate should take no beneficial interest in the homestead but should hold it for the plaintiff. Naturally, if there was

70 See, for example, Les Affrbteurs R6unis Soci6t6 Anonyme v. Walford, [1919] A.C. 801; Tomlinson v. Gill, (1756) Amb. 330; Lloyds v. Harper, (1880) 16 Ch. D. 290; Re Armstrong, [I9601 Victorian R. 202.

7 1 [1944] Ch. 83; and see Green v. Russell, [I9591 1 Q.B. 28, 2 Q.B. 226. 72 At 89-90; and see per Du Parcq L.J. at 104. 73 [I9331 A.C. TO, at 79-80.

a term of the contract to that effect, the inferencr that this was the basis of the transfer is all the more compelling; but it should not be necessary to go so far, and mere collateral representations made by the syndicate might be sufficient to show that the transfer was made with that intention. Once establish that intention and that should create the trust, so that it is not necessary to enquire whether the plaintiff could enforce a term of the contract, and still less whether there was an arrangement between intended beneficiary and intended trustees which would give rise to the trust. I t is difficult to avoid the conclusion that this was the vital factor which prompted the creditors to authorize the Official Receivrr to accept the syndicate's offer.

Accordingly it is submitted that if either the statements by the members of the syndicate to the plaintiff or the statement in the offer placed before the creditors could in this way have been construed as declarations of trust, the plaintiff should have succeeded. The members of the syndicate having used this "statement of intention" repeatedly and advisedly in order to obtain a transfer of the property to themselves, the cumulative effect must surely be that it would be fraudulent on their part if they were subsequently to seek to deny a trust and claim the homestead beneficially for themselves. I t was on this ground that the Court of Appeal in Rochefoucauld u. Bousteadi4 "was able to spell out a purchase as trustee."75

D.E.A.

40. Re Holland (deceased), Delamere v . White. (D. No. 50 of 1959). In Chambers (Wolff C.J.) ; 8th September 1959. Will-" . . . articles of domestic or household use" - Piano,

By paragraph 3 ( b ) of his will the testator bequeathed to the defendant "my motor car, my Grand Rapids bookcase, my watch, my field glasses, all articles of clothing and personal use . . ." By paragraph 3 ( c ) he bequeathed to the plaintiff "all furniture, furnishings,

14 Supra. 75 It would be tempting, if space permitted, to explore the probable outcome

if the plaintiff had allegeti that, insofar as the Official Receiver could not contract otherwise than as a trustee and the creditors had indicated that they were not interested in the Irornesteatl, the Official Receiver was a trustee for the plaintiff of the syndicate's promise to hold the homestead for the plaintiff. However, as the Official Receiver normally becomes a trustee for the bankrupt only after the cretiitors have been paid in full and a surplus ascertained (Bankruptcy Act 1924.3954, sec. ] IS) , probably the answer is that the Official Receiver is a trustee of this promise also for the creditors; and, insofar as it purports to confer a benefit on the bankrupt, we are back in the contract-trust no-man's land once more.

ornaments and articles of household or domestic use . . . other than those hereinbefore specifically bequeathed." Wolff C.J. held that paragraph 3 (b) indicated an intention to pass to the defendant only the things specified and other articles of a more personal nature and did not include the testator's piano but the words in paragraph 3 (c ) were wide enough to cover the piano which had not been otherwise specifically bequeathed.

E.J.E.

41. In re Lucas Decd., Cameron v. Soulos. ( C . No. 41 of 1960). Originating Summons (Virtue J .) ; 21st November 1960. Will-Devise of realty-Contract of sale by instalments-Ademption of gift.

A testatrix by her will devised a dwelling house to the defendant. Subsequently the testatrix sold the property under a contract of sale in respect of which there was £750 owing at the date of her death. On behalf of the next of kin it was submitted, in reliance on I n re C l~wes , '~ that the devise had been adeemed by reason of the change of the nature of the interest of the testatrix in the land. It was sought on behalf of the devisee to distinguish In re Clowes, in which there had been a conveyance on sale with a reconveyance by way of mortgage to secure the purchase money, from the present case in which there had been a contract but no conveyance, on the ground that the vendor in this case retained an interest in the land itself. I t was argued on this basis that the devisee was entitled to the balance of unpaid purchase money.

However, his Honour considered that he was bound by the decision of the High Court in Fairweather v. Fairweatheri7 to hold tha.t the principle of I n re Cloze~es applied to the facts of this case and that accordingly the devise had been adeemed.

D.E.A.

LEGISLATION AND ADMINISTRATIVE LAW.

42. R. v. Court of Arbitration. Application for Writ of Prohibition (Hale J.) ; 18th November 1960. Industrial Arbitration-Exclusive jurisdiction of Arbitration Court.

Employees of certain coal mining companies were members of unions which at an aggregate meeting resolved to withdraw the bulk of the labour employed by these companies and the men in question

76 [1893] 1 Ch. 214. 77 (1944) 69 Commonwealth L.R. 121, at 129 per Latham C.J.

did not report for work the next day and continued to stay away. On the application of the companies the Arbitration Court stated that it was of the opinion that the resolution had caused a strike, and ordered the unions to cancel the resolution, desist from encouraging the workers to take part in the strike, and take steps to ensure that their members return to work.

Under section 137 (1) of the Industrial Arbitration Act 1912- 1952, the Arbitration Court is empowered, if it appears to the Court reasonably likely that the result of an act will cause or continue a strike or delay its settlement, to make such order as it considers necessary to terminate or avoid that result; and section 108 provides: "Proceedings in the Court shall not be impeached or held bad for want of form, nor shall the same be removable to any Court by certiorari or otherwise: and no award, order, or proceeding of the Court shall be liable to be challenged, appealed against, reviewed, quashed, or called in question by any Court of judicature on any account whatsoever."

On the return of the order nisi, which the unions had obtained to quash the order of the Arbitration Court, counsel argued thas the evidence before that Court did not show that there was any strike at all, and that even if there was a strike, there was no evidence that the unions were doing anything to continue it; and that as the Court could not give itself jurisdiction by misinterpreting the word "strike", it had no jurisdiction. Section 108, counsel argued, could only come into operation if the court was once properly seised of the matter, but could not save an order made when there was a total lack of jurisdiction.

Hale J., however, relying on the decision of the High Court in Coalminers Industrial Union u. Amalgamated Collierie~,7~ was of opinion that section 108 did apply and concluded the question against the applicants. He disposed of the attempt to distinguish that case as setting up "a distinction without a difference", and succinctly sum- marized what the High Court had held in that case thus: ". . . the Industrial Arbitration Act is one of those Acts in which Parliament has committed exclusively to the Arbitration Court itself the duty of deciding all questions of law and fact relevant to the existence of that

78 (1960) 34 Aust. L.J.R. 248, in which the High Court reversed the decision of the Supreme Court of Western Australia. For the Supreme Court judgments see R. v. Court of Arbitration, Ex parte Amalgamated Collieries of W.A. Ltd., [1960] West. Aust. R. 147.

court's jurisdiction. I t follows that this court [the Supreme Court] cannot interfere if the decision in question is a bona fide attempt by the Arbitration Court to exercise its power, if the decision relates to the subject matter of the legislation, and if it is reasonably capable of reference to the power given to that court."

E.J.E.

43. Shell Co . of Australia L t d . v. Fremantle Harbour Trus t Commis- sioners. (S. No. 6 of 1959). Nisi Prius (D'Arcy J.) ; 1st May 1959. Statute-Interpretation-Plain meaning.

Section 10 of the British Imperial Oil Company, Limited (Private) Act 1925 provides: "If at any time . . . the local authority [which is defined to include the Fremantle Harbour Trust Commis- sioners in section 21 deems fit, . . . to require the company to raise, sink, or otherwise alter the situation of any works which shall have been erected, . . . contrary to any of the provisions of this Act, . . . or for any other reason, then the company shall, within a reasonable time after being required so to do by notice in writing, raise, sink, or otherwise alter the situation of such works accordingly, and in default it shall be lawful for . . . the local authority to cause such works to be so raised, sunk, or the situation thereof otherwise altered, and the expenses thereof shall, if rendered necessary by reason of a breach by the company of any of the provisions of this Act . . . or any other default of the company, be borne and paid by the company and shall, in any other case, be borne and paid by . . . the local authority; . . ."

The plaintiff company had commenced proceedings against the Fremantle Harbour Trust Commissioners claiming the expenses incurred by it in executing certain work pursuant to a notice served on it by the Trust under this section of the Act requiring the work to be done. The work had not been rendered necessary because of any breach or default on the part of the company. I t was contended on behalf of the defendant that under the section the question of expenses being borne by the Trust could only arise if the Trust itself executed the work, and that this was the true intention of Parliament, the section being divisible into two parts, the one ending with the word 'a.ccordingly' followed by the comma. In support of this contention counsel submitted that such an analysis was consistent with the ordinary grammatical meaning of the section and gave to the rule of proximity its due function. At the same time it was not iriconsistent with the intention of the legislature, nor did it involve absurdity or inconsistency. Moreover, if the section was ambiguous, this was the

more just, reasonable and sensible construction, and further, as the statute was a private act it should be construed strictly against the company and in favour of the public. His Honour found resort to the rules of construction unnecessary. "[Tlhe necessity for calling in aid the rules of construction arises," he said, "only when the meaning of the Legislature is not apparent in the language of the statute concerned." The expenses of the work in the circumstances were to be borne by the Trust whether the company executed the work in compliance with a notice, or the Trust itself had to do the work after the company had failed to do it. Judgment was entered for the company for the amount claimed there being no dispute as to the facts.

E.J.E.

TORT.

44. McCullough v . Sheen. ( M . No. 9 of 1960). Nisi Prius (Jackson S.P. J.) ; 5th December 1960. Change of personality.

The plaintiff, who was knocked down and severely injured by a car driven by the defendant, suffered a marked change in personality which clearly arose from the accident. Among other things he lost affection for and interest in his wife and family, and became irritable and bad tempered and likely to antagonise and lose friends and family. He lost his ability to concentrate on and his interest in his work and had not since the accident worked at any gainful occupation; his prospects of earning full regular wages were negligible and at most he could only hope to work spasmodically in sheltered and easy jobs.

For his physical injuries, his future economic loss, and as compensation for his changed life and character, general damages of £6750 were awarded, together with special damages of £1077. 1. 9.

E.K.B.

45. Fearn v. Somerville. (F. No. 16 of 1960). Nisi Prius (Hale J.) ; 16th December 1960. Deafness.

The plaintiff, a female child aged 9, sought general damages for impairment of hearing resulting from a compound fracture of the base of the skull suffered in an accident caused by the admitted negligence of the defendant. The plaintiff was found to have suffered a permanent loss of most of the hearing of the left ear, but to have been little affected in the right ear. This produced a marked disability, but one

not in itself likely to lead to economic loss or to any serious diminution in the enjoyment of life. If the right ear became impaired the plaintiff would be much deafer than she would have been had she not suffered the accident, but there was no real reason to suppose that such a thing would occur. The learned judge, commenting on the total lack of adequately reported decisions on awards of damages for loss of hearing, awarded £1500 for the permanent disability combined with the initial fracture and temporary incapacity.

E.K.B.

46. MacFarlan v. Davies. ( M . No. 47 of 1960). Nisi Prius (Virtue J.) ; 18th January 196 1. Fatal Accidents Act.

The plaintiff, a widow aged 21 with children aged 5, 4 and 1 a t the date of judgment, claimed damages for herself and her children in respect of the death of her husband while travelling as a passenger in a. Landrover driven by the defendant, the overturning of which, she claimed, was the result of the defendant's negligence. The defendant denied negligence and suggested that the accident resulted from a bursting tyre which caused him to lose control. The Court found, however, that the circumstances of the accident clearly gave rise to the inference that it was caused by the defendant's negligence.

The earnings of the deceased were given as £16. 7. 0 per week, and there was evidence that he could have expected something over £20 per week. The loss to the children was calculated at £2 per week each and to the widow £6. 2. 6. per week. Calculating the children's loss on the basis of dependency to age 16, with allowance for contingencies, the awards were £720, £740, £880 respectively. The widow's loss, based on termination of the husband's working life a t age 65 (nowhere in the judgment is there a statement of his age a t death), and making an allowance of 40% for contingencies, was estimated at £3,200. Total dama.ges (including funeral expenses) were £5603. 18. 6.

E.K.B.

47. Tranchita u. Fiolo. ( T . No. 23 of 1960). Nisi Prius (Hale J.) ; 16th December 1960. Fatal Accidents Act.

The plaintiff's husband, who was killed in a traffic accident as the result of the defendant's negligence, was aged 36, and left the plaintiff, aged 29, and three children aged 9, 8, and 3. On the evidence

as to the deceased's earnings the learned Judge concluded that each child was enjoying the benefit of £3 per week and each parent £4 per week. Capitalising £150 a year for each child at 44% for 7, 8, and 13 years respectively, and deducting for contingencies 10% in the case of the two eldest and 15% in the case of the youngest, he arrived at awards of £800, £900, and £1200 respectively. Averaging the widow's share of the family income at £350 a year, capitalising it at the same rate, and deducting one-third for contingencies, he made an award of £3,800; total damages were therefore £6,700 plus funeral expenses of £81. 19. 0.

A cornpasison of these last two awards of damages to widows under the Fatal Accidents Act provokes some uneasy reflections on the efficiency of the process by which the assessment of damages is arrived at. In each case the widow was left with three young children. In each case the husband's income, for the purposes of estimating loss, was taken as roughly £1000 a year.'S In Tranchita's case the learned Judge concluded that the widow was enjoying the benefit of £4 a week, disregarding the possession of a house. Taking into account the possibility that as the children became self-supporting and the family income increased the plaintiff would have had the benefit of an increased share for herself, he averaged this share at £350 a year, roughly £7 per week. In MacFarlan's case the learned Judge concluded that the widow's loss (inclusive of rent) was £6. 2. 6 per week, though this must be affected by the probability that her share would be increased after the children became i n d e ~ e n d e n t . ~ ~ Admittedly the MacFarlan children would be dependent longer than the Tranchita children, but Mrs. MacFarlan was eight years younger than Mrs. Tran- chita and the estimated working life of her husband was six years longer.81 Nevertheless, Mrs. Tranchita received £3,800 after deducting 33 1/3rd% for contingencies-a gross award of £5,700; Mrs. MacFar- Ian received £3,200 after deducting 40% for contingencies-a gross award of £5,333.

E.K.B.

79 In Tranchita v. Fiolo, Hale J. concluded that at the end of five years the family income, including produce, would have been about £1050 a year. In MacFarlan v. Davies, Virtue J. accepted evidence that the deceased brought home over £20 a week, including overtime but with tax taken off.

80 It is not stated in the judgment precisely how, in the final result, it is so affected.

81 Hale J. took a figure of 30 years for his calculation: Virtue J . based his calculation on the deceased's working life terminationg at 65 years; the statement of claim shows the deceased to ha\-e been 29.

48. Leeuwrik u. Chilton and Plaistowe & Co. Ltd. ( L . No. 21 of 1959). Full Court (Jackson S.P. J., Virtue and Hale JJ.) ; 19th July 1960. Grounds on which trial judge's award will be interfered with.

This was a plaintiff's appeal against the assessment of damages in a judgment of D'Arcy J. The plaintiff was injured in a traffic accident, suffering fractures of four bones in the left foot and a fracture of the left patella. No claim was made that any residual disability resulted from the foot injury, but general damages of £850 were awarded; £550 for future economic loss, and £300 for pain and suffering, loss of amenities, and possible future removal of the patella. Although Hale J. was of opinion that the trial judge had misapprehended the facts so far as future economic loss was concerned, and had erred in the appellant's favour, he thought the award of £300 low. Nevertheless, taking the award as a whole, in the light of the decision in Lake v. Lakes' that an appeal was by the terms of the then Rules of the Supreme Court Order 58, rule 1, to which the Western Austra- lian Order 58, rule l (2 ) corresponds, against the judgment itself and not against the judge's reasons therefor, his Honour saw no reason to suppose that £850 was not in truth an adequate award. He drew attention to the High Court's statement in Miller v. JenningsE3 that before interfering with an award of damages an appeal court should be satisfied that, either because he has acted upon a wrong principlr of law, or because he has misapprehended the facts, or for some other reasons, the judge has made a wholly erroneous estimate of the damage suffered, but asserted that it would not be proper for the appellate tribunal to ignore the trial judgr's view of the appellant, formed after sering and hearing him in the box, from which he had concluded that the appellant had been exaggerating the degree of his incapacity. Jackson S.P.J. and Virtue J. concurred.

E.K.B.

49. Cura v. Stone. (C. No. 56 of 1959). Nisi Prius (Jackson S.P.J.) ; 12th August 1960. Injured child.

The plaintiff, a boy of 24 years of age, was struck and injured by a truck driven by the defendant, who was found to have been negligent in failing to see the child in sufficient time to have avoided him. The plaintiff suffered a fractured upper third of the right femur and

R2 [I9551 P. 336, at 343-344. 83 (1954) 92 Commonwealth L..R. 190, at I96

partial paralysis of the right side of his body, affecting both the arm and the leg. The arm was considerably incapacitated, and the plaintiff is developing into a left-handed person. He will be unable to play most sports normally and will be limited in many physical activities and will always have a noticeable limp. He was mentally and intellec- tually unimpaired. Though his avenues of employment will be substantially reduced he should not find himself under any serious economic disability. General damages of £3,500 were awarded, and special damages of £4. 4. 0.

E.K.B.

50. Treby v. C o k ~ n and Devenish. (T. No. 24 of 1959). Nisi Prius (Hale J.) ; 3rd June 1960. Injured girl of 16-Personality change.

The plaintiff, a girl of 16, was injured in a traffic accident when a pillion passenger on a motor-cycle. She lost one upper and two lower teeth, suffered a compound fracture of the left tibia and fibula, developed a squint but this had been corrected, and was left with some scarring on the face, throat, and leg. She also suffered severe cerebral damage which resulted in the complete and permanent loss of the left half of the field of vision of each eye and a slight loss of the central vision of the left eye, and also in some change of personality and loss of mental acuteness. The loss of vision would cause the plaintiff great inconvenience, an increased risk of injury through inability to see danger on the left, and an inability to play normal ball games, but was unlikely to cause economic loss as a result of inability to pursue any employment in which the plaintiff was likely to engage. The head injury had affected the general social behaviour of the plaintiff, but not to a marked extent, had markedly but not calamitous- ly lessened her ability to carry out ordinary tasks in the home or at work, and had reduced the wage she might otherwise have earned, though she was still capable of supporting herself.

Damages were awarded as follows: £1000 for loss of teeth, fractured leg, squint, and scarring; £2000 for loss of left field of vision; £500 for loss of enjoyment of life resulting from the change of personality (it was observed that on the evidence the plaintiff continued to live a normal sort of life and to do so apparently with the same degree of pleasure as she experienced before the injury) ; £300 for being put in peril of her life and for having "a not inconsiderable period" blotted from her memory for ever (she was deeply unconscious for a period of some weeks) ; £1200 for economic loss, based on a diminution of earning capacity of £100 a year for ten years plus an

additional allowance for a greater than usual risk of temporary unemployment; a total of £5000 plus £969. 16. 9 for special damages.

E.K.B.

51. Marinkovich v . Carbone. ( M . No. 34 of 1959). Nisi Prius (Virtue J.) ; 28th June 1960. Injured married woman.

The plaintiff a married woman of 55 was injured when struck by a utility driven by the defendant in an accident for which she was held 50% to blame. She suffered a broken right leg (which required a bone graft before it would unite), a broken right wrist, lacerations to the foot and leg and concussion; there was residual disability and pain likely to be in some degree permanent. She remained able to do ordinary housework, though her walking distance was considerably reduced, and she was unable to work in her husband's market garden as she had done before; no economic loss was proved in respect of this. General damages of £800 awarded for pain and suffering, inconvenience and restriction of bodily function, and loss of enjoyment of life, together with special damages of £741. 2. 11, were reduced by 50%.

E.K.B.

52. Piesse v . McGuire. ( P . No. 29 of 1959). Nisi Prius (Wolff C.J.) ; 22nd December 1959. Injured widow.

The plaintiff, a widow aged 76, was injured in a traffic accident, suffering a transcervical fracture of the right femoral neck, requiring two operations to secure bone union, severe bruising of the left upper arm, and a left diaphragmatic hernia which until repaired caused intense pain. As a result of the accident the plaintiff is unable to care for herself and will need constant attention for the rest of her life.

General damages for loss of enjoyment of life, pain and suffering, and general inconvenience were assessed at £2500, with special damages at £1304. 4. 0 less £6 per week for living expenses during the period of hospitalization.

E.K.B.

53. West v. Bergman. (W. No. 28 of 1959). Nisi Prius (Wolff C.J.) ; 5th January 1960. Injured widow-Librarian-No loss of industrial capacity. .

The plaintiff, a widow of 55, was injured by being knocked down by the defendant, who was riding a motorcycle. The defendant was

found negligent in that he was riding in a dark street with his headlight on low beam at 30 miles an hour, a speed which did not enable him to stop within the ambit of his vision.

The plaintiff's injuries included fractures of the left forearm and left leg and injury to the left knee; one of the bones in the forearm had failed to unite, and would require a further operation. The plaintiff, who had been employed in a library with the option of retiring a.t 65 and compulsory retirement at 70, claimed that she was now permanently incapacitated for work, and that she should be compensated for loss of industrial capacity up to the retiring age of 65. The Court rejected this claim, finding that she would still be able to return to her work at the library if the second operation were performed, and that it was doubtful whether she would have continued to work beyond 60. Taking into account the severe injuries suffered and their permanent effects, pain and suffering, and loss of enjoyment of life, diminished earning capacity, and a weighting for wages lost, and the estimate of the cost of a further operation and hospitalization, general damages of £3,500 were awarded, together with special damages of £826. 4. 9, to be reduced by the cost of sustenance during the period in hospital.

E.K.B.

54. Cousins v. Dower. ( C . No. 7 of 1960). Nisi Prius (Hale J.) ; 9th November 1960. Injuries to wifeHusband's claim for expenses of boarding children and domestic help.

The plaintiff wife suffered injuries, including facial injuries, in a traffic accident. As a result she suffered considerable pain for a time and was left with a degree of permanent scarring; she also claimed to be suffering from constant headaches and a lack of convergence in her vision, resulting, in the Court's opinion, from a combination of an eye defect which antedated the acciderit, some shock resulting from the accident, and a degree of litigation-neurosis. Damages of £500 were awarded.

Included in the plaintiff husband's claim for special damages was an amount of £50 representing board paid for three children for three weeks and wages paid for domestic help for a month. This was allowed subject to a deduction of £9, representing the estimated cost of keeping the children in the plaintiff's home at £1 per week for each child.

E.K.B.

55. Peacock v. James. ( P . No. 49 of 1959). Nisi Prius (Virtue J.) ; 22nd August 1960. Interference with ability to swallow ancl speak-Paralysis of right shoulder muscles.

The plaintiff suffered a fractured base of the skull in a running- down accident attributable to the (admitted) negligence of the defendant. The consequential injury to the cranial nervous system para- lysed muscles on the right side of the pharynx and the right vocal chords, and thus interfered with the plaintiff's ability to swallow and to speak; although such interference was normally only temporary the account given by plaintiff and his witnesses of his disabilities was quite contrary to the normal history of progressive recovery from such injuries. In addition to this the plaintiff suffered the recurrence of a squint in the right eye, which would require operative treatment, slight deafness, and paralysis of the right shoulder muscles. The Court concluded that the plaintiff had greatly exaggerated the consequences of his injuries, but that he had undoubtedly sustained a very serious injury which had involved him in a diminution of bodily function, and that the compensating factors which the medical witnesses had indicated should take place, had not and would not entirely com- pensate him for that diminution. An award of £1030 for general damages and £1 14. 16. 3 for special damages was accordingly made.

E.K.B.

56. Washington v. Clappinson. (W. No. 11 of 1958). Nisi Prius (Hale J.) ; 23rd December 1960. Pain and inconvenience.

The plaintiff was injured in a traffic accident for which the defendant was found seven-tenths to blame. He suffered a fractured knee cap as a result of which he spent three weeks in hospital, seven and a half months in plaster, and was in sufficient pain for the next twelve months to make his doctor advise a further operation. Although the knee then improved without that operation, he was left with a distinct permanent disability in the knee. General damages for pain and inconvenience were assessed at £450, of which the plaintiff of course recovered only seven-tenths.

E.K.B.

57. Osborne v. Brophy. (0. No. 2 of 1960). Full Court (~a-Akson S.P.J., D'Arcy and Hale JJ.) ; 2nd December 1960. Pain and inconvenience and cost of future operation.

The plaintiff appellant, who suffered a fractured right wrist in a traffic accident for which the defendant admitted liability, was left

with restricted movement in the wrist as a result of pain, caused by arthritis of the joint, at the extremes of movement. There was a prospect that the pain would increase so that in five to ten years the plaintiff would require to undergo an operation ' to have the wrist fused; the operation would cost about £45 and would involve about 4 months off work at an estimated loss of earnings of £270.

Virtue J. had awarded the sum of £550 by way of general damages; of this £230 (the equivalent present figure of the estimated cost of a fusion operation in seven years' time) might be attributed to the probable need for such an operation and £320 might be attributed to pain suffered in the meantime and the inconvenience of having a stiff wrist. Hale J., applying the principle in Miller v . J e n n i n g ~ , ~ ~ did not see that the Court was justified in increasing the award. Jackson S.P.J. and D'Arcy J. agreed with him.

E.K.B.

58. Wilkins v . Sloggett. ( W . No. 26 of 1960). Nisi Prius (Virtue J.) ; 28th September 1960. Assessment of damages-Pain and inconvenience and loss of enjoyment of life of woman aged 77.

The plaintiff, who had begun to cross Canning Highway (in the metropolitan area) when the defendant's car was a very long way back, in a position where she could readily be seen, was struck by the defendant's car. The Court found that the defendant was not keeping a proper lookout, and did not see the plaintiff in time to avoid her, that he was travelling too fast at a stage when the position of the plaintiff and her companion presented a potential situation of danger on the roadway, and that he failed to take evasive action when he could have done so. Accordingly he was found solely to blame for the accident.

The plaintiff, a woman of 77, suffered a double fracture of the pelvis, a fracture of the lower part of the leg, a fracture of the upper part of the arm, and concussion, which left her with a severe disability in the movement of her shoulder and her knee, and reduced her level of health and enjoyment of life for the remainder of her expectation of life, a little over six years. General damages of £750, together with special damages of £951. 2. 6, were awarded.

E.K.B.

84 (1954) 92 Commonwealth L.R. 190.

59. Heal v. Baker. ( H . No. 2 of 1950). Nisi Prius (Jackson S.P.J.) ; 12th August 1960. Permanent disability of leg.

The plaintiff, who was injured in a traffic accident, suffered a fracture of the left femur, which had to be reset several times under anaesthetic and which left some degree of permanent disability in the leg, with wasting of the thigh muscles and damage to the knee joint. He also suffered a cut on the calf, which has left a scar, a cut on the right wrist, and concussion and bruising. General damages were assessed at £1300, allowing for pain and suffering, five and a half months in hospital, the difficulty in the setting of the leg, the scarring of the calf, and the permanent trouble in the knee joint; loss of wages (nine months at approximately £14. 10. 0 per week) at £560; and hospital and medical expenses at £900, after deducting an allowance for maintenance while in hospital.

' E.K.B.

60. Fldnagan v . Stephens. (I?. No. 19 of 1958). Nisi Prius (Virtue J.) ; 1 lth October 1960. Physical injuries-Farmer.

The plaintiff, a farmer, sustained a fractured pelvis, a back injury, and multiple bruises in a collision between a vehicle driven by him and a vehicle driven by the defendant, an accident for which the Court found the defendant wholly responsible. The accident left him with a back weakness which to some extent would interfere with his capacity to do heavy work without pain, which the Court described as a serious disadvantage to a farmer meriting some substantial recompense. In addition to this there was a possibility of the recurrence of his initial incapacity resulting from sudden strain. Taking into account these matters, as well as the pain and suffering and inconvenience resulting from the injury, the Court awarded general darnages of £1000 together with special damages of £1 107. 4. 6.

E.K.B.

61. Chester c. Motor Vchicle Insurance Trust. (C. No. 18 of 1960). Nisi Prius (Virtue J.) ; 22nd August 1960. Physical injuries and loss of promotion prospects.

The plaintiff, a police constable aged 31, suffered in a traffic accident a fracture of both inside and outside hones of the left ankle. The injury left him unable to carry out the normal duties of a police- man, as a result of which promotion would be out of the question,

and he would be condemned to the dullness and monotony of a seden- tary position in the police force. In addition he had become unable to play tennis and soccer and his enjoyment of swimming was affected. There was a possibility that osteoarthritis would supervene and that an operation for stiffening the joint would become necessary. General damages of £850 for economic loss, as a result of loss of promotion, and £2000 for pain and suffering and loss of enjoyment of life, including the possibility of an operation, were awarded. Special damages were 8324. 9. 3.

I.M.

62. Lynes u. Tunstall. ( L . No. 20 of 1960). Nisi Prius (Virtue J.) ; 7th February 1961. Physical injuries and personality change-Husband's claim for loss of consortium.

The plaintiff wife suffered multiple injuries to her head, back, and legs in a traffic accident for which the defendant admitted liability. As a result she was left with a tender toe joint on the right foot (which may need to be fused by a bone graft), a painful left foot, a trouble- some back, and severe facial injuries producing disfigurement, a degree of double vision in the right eye, interference with the sense of taste and smell, and certain minor consequences. From being gay, happy, and sociable she had become introspective, irritable, and somewhat of a recluse; she had been obliged to give up tennis and dancing (she and her husband having been in the championship class as ballroom dancers), was unable to enjoy reading, and lost interest in sewing, and was restricted in her ability to pursue other activities and to do her housework.

Taking into account her loss of enjoyment of life, disfigurement, pain and suffering and inconvenience (including that attributable to the future operation on her foot), and the symptoms of personality change, the Court awarded general damages of £5097. 1. 0 and special damages of £346. 2. 6.

In considering the husband's claim for loss of consortium the Court, after citing Toohey u. Holliers5 and McLellan C.J. in Birming- ham Southern Railway Co. u. Limbners6 referred specifically to the prospective loss to the husband in respect of medical treaiment necessary for his wife, loss in respect of her inability to assist him with the

65 (1955) 92 Commonwealth L.R. 618, a t 627 80 (1904) 141 Ala. 420, a t 427.

accounts of his business, and substantial deprivation of the services and society of the wife, and awarded the sum of £750 under this head.

E.K.B.

63. Pel ham v. McAlicter. (P. No. 46 of 1960) . Nisi Prius (Hale J.) ; 6th April 1961. Physical injury and restriction of employment possibilities.

The plaintiff, a wood-machinist of 34 years of age, suffered through the admitted negligence of thr defendant an injury which aggravated a congenital back defect and left him with a painful back. The Court found that while heavy work would probably cause serious trouble, it was a useful back, especially when supported by a corset. Moreover, an operation (estimated to cost about £1000) was available to reduce the plaintiff's disability and to make it probable that he could return to his trade as a general wood-machinist. At the moment he was able to do only light work at his trade, and according to counsel's submission had betome a "marginal" workcr with the prospect of periodical unemployment and loss of wages. Damages of £2,000 for future economic loss and £800 for pain and inconvenience and impairment of general enjoyment of life, together with special damages of £906. 13. 9, were awarded.

E.K.B.

64. Lomba7-do 71. Wilkins. (L. No. 9 of 1960). Nisi Prius (Virtue J.) ; 17th January 1961. Shoulder injury and emotional distress-Cosmetic injury.

The plaintiff, in a motor accident for which the defendant was admittedly responsible, suffered a head injury causing skin loss to the scalp, a fracture of t h ~ left shoulder, and damage to the left forearm. As a result of plastic surgery the lost skin was restored to the head, although quite a noticeable scar was left and there was some flatten- ing of the contour of the head. There had been some pain and limitation of movement in the shoulder, but this appeared to have improved by the time of the trial, though the plaintiff alleged that he was having difficulty in keeping up with his job as a granolithic worker. In addition, experiencing the accident had emotionally affected the plaintiff to such an extent that hc had been receiving psychiatric treatment for over two years. For the distress and emotional'affection, the restriction of shoulder movement and existence of pain, the cosmetic loss, and the possible future effect of the first two on the plain-

tiff's prospect of employment, an award of £2,000 general damages was made. Special damages totalled £1136. 5. 7.

E.K.B.

65. Van der Weide u. McCallum. ( V . No. 5 of 1959). Nisi Prius (Virtue J.) ; 25th October 1960. Collision with unlighted bicycle.

The plaintiff was injured in a collision between his bicycle and a motor car at a street corner during hours of darkness. The learned Judge having found that the headlight of the plaintiff's bicycle was not burning, and that the defendant, who had been parked at the kerb just before the corner with his lights on low beam, had had no reason to see the cycle, which was well on its correct side, until he had moved off and was actually turning, held that the accident occurred because the plaintiffs headlight was not burning and that the defendant was not guilty of negligence contributing to the accident.

E.K.B.

66. Christensen u. Gangel. ( C . No. 3 of 1960). Nisi Prius (Jackson S.P. J.) ; 12th August 1960. Contributory negligence.

Thc plaintiff in this case was injured when the motor vehicle he was driving collided on a bend head-on with a motor vehicle driven by the drfendant. Each driver maintained that he was on the correct side of the road when the impact occurred, but Jackson S.P.J. found that the most likely explanation of the accident was that neither driver in taking the curve was sufficiently careful to keep on his correct side of the road. Accordingly he found both drivers to be equally negligent. As a result the plaintiff succeeded in his claim for damages but these were reduced by 50% on account of his contributory negligence.

E.K.B.

67. Lines u. Smith. ( L . No. 6 of 1960). Nisi Prius (Virtue J.) ; 17th January 196 1. Contributory negligence-Assessment of damages-Fatal Accidents Act.

The plaintiff's husband was killed when a motor vehicle driven by the defendant ran into the rear of his car-which (as the Court found) was standing on the gravel verge of a country road, completely off the bitumen-and crushed him against it. The tail-lights of the deceased's car were not alight at the time of the accident, nor was any reflector visible. The plaintiff alleged that the defendant was

negligent in that he drove at an excessive speed, failed to keep a proper lookout and drove off the made surface of the road without any reason for doing so. The defendant denied this and alleged (inter alia) that the deceased placed his vehicle in the path of the defendant with no tail-light burning, failed to take his vehicle as far as possible off the roadway, and failed to take care for his own safety on the defendant's approach. The Court found that since the deceased was entitled to assume that passing traffic would drive on the 17-foot bitumen strip and not depart from it, he was not negligent in stopping his car where he did, nor in continuing with what he was doing at the back of the car, without stopping to turn the tail-light on or getting clear of the rear of the vehicle, at the defendant's approach. The Court accordingly found the defendant solely responsible for the accident.

The deceased was a tradesman wood-machinist, 59 years of age, earning £ 17. 11. 6 per week nett plus a war pension of £3 per week. He left a widow and two children (whose ages were not stated in the judgment). On the basis of a future working life for the deceased of 11 years, and an estimated loss of £2. 5. 0 per week for each child and £4. 10. 0 per week for the plaintiff, general damages of £460, £775, and £1600 (after allowing a substantial discount on account of contingencies) were allowed for each of the children and the plaintiff respectively.

The plaintiff, as the sole beneficiary under the deceased's will, received £1582. 17. 0, which, after discounting the value of the furniture, of which the widow and children had the use in any event, left a balance of £1482, something less than the value of the equity in the house property occupied by thc family. Taking the view that the wife and children would have continued to receive thc benefit of the house, and that on the eventual death of the husband the widow would in any case almost crrtainly have received the house under thr tcrms of the will, the Court found it extremely unlikely that she wouId have received any acceleration of benefit from it by reason of his earlier death, and made no deduction from the widow's share on account of the value of the estate.

E.K.B.

68. Heppingstone v. Day. (H. No. 42 of 1960). Nisi Prius (D'Arcy J.) ; 23rd November 1960. Inevitable accident-Burden of proof-Assessment of damages-Costs -Adjournment to call rebuttal evidence.

The plaintiff was injured in a collision on a bend between a vehiclr driven by him and a vehiclr driven by the defendant. The

plaintiff alleged that the defendant was negligent in driving on the wrong side of the road, not keeping any or a proper lookout, driving although three passengers on his left restricted his movement and precluded him from exercising proper control, and driving at an excessive speed. The defence was that a malfunctioning of the brakes pulled the defendant's vehicle sharply to the right and onto the wrong side of the road. The Court found that the evidence gave no support to the allegation that the utility was forced off course by the braking system, and the defence accordingly failed.

The question then arose as the effect of this failure on the burden of proof. The defence had not pleaded inevitable accident and had rejected a suggestion that in substance that was what the defence amounted to. The Court (referring to The Europas7 and The Mar- pesiass) took the view that the defendant had in fact set out to show inevitable accident. If this were so he had failed to discharge the burden of proof resting upon, because assumed by, him (citing The Merchant Princes9) and the plaintiff must succeed. If, however, the defence were not one of inevitable accident it became necessary to consider whether the plaintiff had discharged the legal burden resting upon him to establish by evidence circumstances from which the defendant's negligence might be inferred. The Court found, on a review of the evidence, that the plaintiff had discharged the legal burden of establishing the allegation of negligence against the defendant.

The plaintiff was awarded £200 damages for loss of salary and commission, and £75 for pain and suffering and deprivation of amenities. A claim for damages for loss of promotion prospects because of the drop in his sales figures resulting from his injuries was denied, the Court rejecting the proposition that an employer, not compelled to do so, would postpone the promotion of an efficient salesman to that of a mediocrity because in a given period the volume of the latter's sales was affected by a temporary incapacity beyond his control.

Counsel for the plaintiff had asked for an adjournment after the defendant's evidence had been tendered, in order to call evidence in rebuttal of the defence that the action of the brakes forced the car to the side of the road. The plaintiff's solicitors had received a letter stating that brake failure would be relied on, but counsel alleged that

87 (1850) 14 Jur. 627. 88 (1872) L.R. 4 P.C. 212. 89 (1892) 17 P . 179.

the plaintiff could not anticipaie what he had to meet because the correspondence did not suggest how the brakes were defective. Counsel for the defendant did not oppose the adjournment but asked for the costs occasioned by it. These were refused by the Court, which observed that, although the plaintiff's counsel might have been able to make a shrewd guess at the meaning of the reference to brake-failure, nevertheless he was entitled to pin the defendant down to a definitl story.OO

There appears, if one may say so with respect, to have been some confusion in the mind of the learned Judge (and, inferentially, in the mind of c,ounsel for the defence) concerning the nature and effect of the defence of inevitable accident. I t is pointed out in Charlesworth, Negligence (3rd ed., London, 1956) a t 547, that the defence is one way in which the defendant may establish facts negativing his liability, once the plaintiff by evidence has raised a prima facie case of negligence against him. This was the position in the last of the Admiralty cases cited by D'Arcy J., The Merchant Prince." In this case the vessel in question, while under way, collided with the "Catalonia", a vessel at anchor, a state of facts which, as both Lord Esher M.R.02 and Fry L.J.93 pointed out, was, "as a matter of law", prima fa.cie evidence of neg l i gen~e ,~~ so that the defendant must prove inevitable accident or be liable for damages. But D'Arcy J. (using the concept of the legal burden of proof) speaks as if failure to establish inevitabie accident automatically establishes the defendant's liability, and makes it unnecessary to consider at all whether the plaintiff's evidence has established a prima facie case of negligence against him. This is of course not the case at common law, and, although in The Marpesiag6 counsel for the respondents attempted to argue that in the Admiralty Court, when inevitable accident was pleaded, the practice was for the defendant to begin and the onus was thrown upon him, the argument was rejected by their Lordships. One suspects that it was fear of these Draconian consequences of the failure of the defence which led counsel for the defendant to deny so strenuously that it was being pleaded.

90 ODGERS, PLEADING AND PRACTICE (8th ed.) , 185 referred to. 91 (1892) 17 P. 179. 92 Ibid., at 187. 93 Ibid., at 189, referring to The Annot Lyle, (1886) 11 P.D. 114. 94 Devlin J. in Southport Corporation v. Esso Petroleum Co. Ltd., [I9561 A.C.

218, at 231, described The Merchant Prince as embodying "a rule of long standing in Admiralty matters involving a collision with a ship at anchor. It may be that it is properly to be regarded as a rule of limited application."

86 (1872) L.R. 4 P.C. 212.

There are of course two possible ways in which the defence may fail. The Court may refuse to accept the defendant's explanation of the cause of the accident, as indeed the Court did in the instant case. This by itself does not compel or necessitate any inference that the defendant was negligent, and unless the evidence for the plaintiff is sufficient to enable that inference fairly to be drawn the plaintiff cannot succeed.96 But the Court, while accepting the defendant's explanation of the cause of the accident, may refuse to believe that it could not have been averted by the exercise of reasonable care and skill on the part of the defendant. Obviously in this case the inference that the defendant was negligent is irresistible. But this is because the result of the defendant's evidence is to strengthen the inference which must have been open to the Court at the end of the plaintiff's case, a possibility suggested by Evatt J. (as he then was) in Davis u. B ~ n n . ~ ~ I t is not because the "legal burden of proof' has shifted to, or been initially placed on, the defendant by the plea of inevitable accident, for, as the same learned Judge remarks later in Davis v. Bunn, "the ultimate question is always whether the plaintiff has proved that the defendant was negligent."98

In truth the plea of "inevitable accident", embodying as it does a denial of any negligence on the part of the defendant, has no proper place in the action on the case for negligence, and even as a special (and proper) defence to the action of trespass it would appear, since Fowler v. La~zning,9~ to have lost much of its force. The correct view, with respect, would seem to be that expressed by Lord (then Sir Wilfred) Greene M.R. in Browne u. De Luxe Car Services,' "I do not find myself assisted by considering the phrase "inevitable accident." I prefer to put the problem in a more simple way, namely, has it been established that the driver of the car was guilty of negligence?"

E.K.B.

(To be continued.)

Qe T o quote again from Devlin J. in the Esso Petroleum Co. Case (supra, at 231), "If the rule in The Merchant Prince requires him personally to prove what the cause of the defect in the steering was, and I doubt that it does, then it cannot stand against the decision of the House of Lords in Woods v. Duncan ([1946] A.C. 401), which lays it down that if a defendant can satisfy the court that he personally was not negligent (scil. after the plaintiff's evidence has initially raised a reasonable inference of negligence) he does not have to explain how the accident occurred." The judgment of Devlin J , in that case was restored and approved by the House of Lords.

$17 (1936) 56 Commonwealth L.R. 246, at 268. 98 Ibid., at 269. 99 [I9591 1 Q.B. 426. 1 [I9411 1 K.B. 549, at 552 (a passage cited by the learned Judge in the instant

case)

69. Martin v. Donaldson. ( M . No. 37 of 1960). Nisi Prius (Hale J.) ; 9th November 1960.

Drunk passenger impeding defendant's control of car-Assessment of damages-Wages paid to man engaged to replace plaintiff in partnership.

The plaintiff, a dairy farmer aged 21, was injured in a head-on collision with a utility driven by the defendant, which at the time of impact was on the wrong side of the road. The defendant's explanation was that his passenger fell across him in a drunken stupor and caused him to lose control of the vehicle. The Court rejected the plaintiff's contentions that the defendant was negligent (1) in embarking on the journey with a drunk man who might interfere with his control of the vehicle or ( 2 ) in continuing to drive after the passenger had twice fallen against him and caused the utility to swerve (citing in each case the decision of Wolff S.P. J., and of the Full Court on appeal, in Wright v . Williams (unreported) ).

I t accepted, however, the contention that the defendant was negligent in approaching the plaintiff's vehicle a.t 35 miles per hour with knowledge of the passenger's propensities, and in looking away from the road and at his passenger when approaching another vehicle on a not very wide road at night at a combined speed of 70-80 miles per hour.

The plaintiff suffered head injuries, including a fractured jaw, a fractured pelvis, and a compound fracture of the right femur. He was unable to resume normal work as a dairy farmer for 10 months, and was left with marked permanent, though not crippling, disabilities which restrict somewhat his daily activities and his sporting activities. General damages of £1,250 were awarded, together with special damages of £911. 4. 0, including £571 in respect of wages paid to a man engaged to replace the plaintiff in the farming partnership during his period of disability, which wages were charged to the plaintiffs account in the partnership books.

E.K.B.

70. Wolff v. Shore. (Appeal No. 14 of 1960). Appeal from the Local Court-Full Court (Jackson S.P.J., Virtue and Hale JJ.) ; 21st April 1960. Inevitable accident-Water in braking system.

This was an appeal from a decision of a Local Court in a case in which a collision had occurred between a motor vehicle driven by the plaintiff and a motor vehicle driven by the defendant, the latter having

been on the incorrect side of the road at the time of the collision. The defendant set up a plea of inevitable accident, claiming that three- quarters of a mile before the scene of the accident he had driven through a puddle of water and had felt a jolt, but had continued driving. On coming up beside an omnibus and behind a car which had come to a halt, he had found that his brakes would not operate. Instead of running into the rear of the stationary car he had taken the course of crossing to the wrong side of the road, where the collision with the on-coming vehicle of the plaintiff had taken place. The magistrate found that the failure of the brakes had been caused by the presence of water in the brake drums, and that the defendant had not known, and could not reasonably be expected to have known, either that water had entered the braking system, or that it was likely to render that system defective as a person of ordinary skill would not possess such knowledge. He accordingly found that the defendant had not been negligent in respect of the failure of the brakes, nor in his conduct when the state of emergency arose and he took what appeared to be the only course open to him. Virtue J. held that there was no reason to disagree with the magistrate's finding, and Jackson S.P.J. and Hale J. concurred.

To one who learnt to drive a motor vehicle (admittedly in a rather wetter climate than that of Western Australia) in the 1930's the decision of the learned magistrate and the ready acquiescence of the Full Court comes as a surprise, for it was a commonplace instruction to every learner-driver that the brakes should be dried out when- ever the car had been driven through water. Evidence was given on the defendant's behalf by a motor engineer, with thirty years experience of driving, that the failure of the brakes was caused by water entering them, that he himself normally "steamed out" the brakes (by applying them until the brake drums became hot) after encountering water, and that this was normal practice among competition drivers, but that the first time he experienced the effects of water in the brake- drum he had been "rather panic-stricken". Other instances of surprise at first discovering the effect of water on the brakes have come to the writer's notice, and one wonders whether the average motorist, even if he has had the benefit of the instruction referred to above, or has heard from others that water in the brakes causes brake failure, refuses to believe this until he has experienced it himself. If so, can his conduct be said to be that of the reasonable man? In fairness, however, it must be said that there was no evidence that the defendant in this case, a young man of 19, who had been a licensed driver for only 8 months, had ever been told of the effect of water on the brakes

(although he admitted that he knew that if he drove through water for half-a-day it would affect the brakes), and it is noteworthy that no warnings concerning this appear in the current edition of "Over to You" (the Police Department's publication for instruction of learner- drivers) nor in the R.A.C.'s publication, "Driving is an Art."

E.K.B.

71. Uittenbroek v . Hoffman and Briggs. (U. No. 1 of 1959). Nisi Prius (Wolff C.J.) ; 19th October 1959.

Loss of consortium-Infection suffered from examination to diagnose cause of injury-Assessment of damages.

In November 1955 the plaintiffs, passengers in a motor car driven by the first defendant, were injured in a collision with a motor car driven by the second defendant. Each claimed damages for the personal injuries suffered, and in addition the male plaintiff claimed dama,ges for loss of consortium.

I t appears that when the male plaintiff, a building carpenter aged 51, was first admitted to hospital after the accident he was suffering from concussion, a fractured left clavicle, fractured fourth and sixth ribs, and associated chest injuries. He was discharged from hospital after 11 days, but was re-admitted five weeks later. After his discharge from hospital he had noticed a condition of haematuria (i.e., passing of blood in the urine) and before re-admission had collapsed and become extremely ill. The dia,gnosis at that time was that he had suffered (no doubt as a result of the accident) a traumatic injury to the left kidney. X-ray and cystoscopic examinations were carried out, but these failed to disclose any abnormality in the left kidney which could be associated with the bleeding; but the X-ray showed an extensive calcinosis of the right kidney2 of many years standing. I t appeared that the right kidney was the most likely source of the bleeding, but there was no history of haematuria before the accident, although the right kidney had been diseased for many years. Two years later a second doctor formed the opinion that there h a d , been some bruising of or extravasation of blood in and around the left kidney, but he later revised this opinion. The Court found that the diagnosis of injury to the left kidney as being a result of the accident was not sustained by the evidence. At the same time, it accepted the plaintiffs account of continued disability between the time of the

2 At one point in the judgment his Honour speaks of a calcinosis of the left kidney: but this appears to be a slip of the pen.

accident and the time of the litigation, but apparently attributed a good deal of this to a bruised or ruptured spleen and delayed ha,emor- rhage from this injury. At the time of the litigation, however, it was clear that to this cause of disability there had to be added a urinary infection which, the Court found, resulted from the cystoscopic examinations which the plaintiff had undergone in an effort to obtain a diagnosis of his complaints. These examinations had been made, it was found, with the acquiescence and approval of the medical advisers of the defendant's insurers, and were held to have been reasonable in the circumstances. The first of them was carried out at the end of 1955, but the overt symptoms of the urinary infection did not develop until after the last of these examinations, in June 1958, by which time the plaintiff had been suffering from a disability, whose diagnosis was not clear, for two and a half years; nevertheless, the Court found that the defendants were responsible for the urinary infection, as well as for the earlier injury to the spleen and its consequences. It is not clear from tke judgment whether the Court took into account for that period of two and a half years the disability arising from the haematuria, whose cause remained undiagnosed, and which did not appear to be associated with the later urinary infection.

The male plaintiff's condition as described resulted in long absence from work and reduced ability to perform his usual work, so that he was slowed down and forced to take a lighter class of work. For his immediate and consequential injuries, past and future pain and suffering, loss of enjoyment of life, and loss of earnings and earning capacity (bearing in mind the disclosure as the result of medical examinations that the plaintiff was not a first-class life nor a good industrial risk) general damages of £7,500 were awarded.

The principal injury suffered by the female plaintiff was a fracture of the lunate bone of the right wrist, which bone subsequently had to be removed. In consequence of this she suffered a loss of function and pain in the wrist and her capacity to carry out ordinary household duties. The pain and disability in the wrist might, however, be overcome by a further operation to effect a fixation of the wrist. Taking into account the disability, the likelihood of the future operation, and past and future pain suffering and discomfort the Court awarded general damages of £1,750.

For loss of consortium, taking into account the probable loss and expense in which the male plaintiff would be involved through the female plaintiff's disability, £1000 plus special household expenses of

£283 were awarded, the Judge expressly stating that the award was made on a basis similar to that in his judgment in Toohey v. H o l l i e ~ . ~

E.K.B.

7 2 . Briggs v. Uittenbroek. ( U . No. 1 of 1959). Full Court (Jackson S.P.J., Virtue and Hale JJ.) ; 17th May 1960.

This was an appeal against the award of damages to the female plaintiff, and for loss of consortium, in the above case. In the light of medical evidence that the female plaintiff's disability was primarily the result of pain, and that the injured wrist was otherwise quite a useful wrist which would be capable of carrying out a.dequately most of a housewife's domestic chores if an arthrodesis operation were carried out, and taking into account the absence of present economic loss or the likelihood of future economic loss, Virtue J. reduced the damages awarded to the female plaintiff to £1000. In the light of the express language in Toohey u. H ~ l l i e r , ~ limiting recovery to recovery for diminution of the capacities for usefulness, aid, and comfort as a wife she possessed at the time of the injury, and of the evidence that, after the domestic assistance on which the award of special damages was based ceased, the wife could with the assistance of her daughter do most of the domestic work with the exception of the washing, the damages for loss of consortium were to be substantially reduced. Admittedly the performance of an arthrodesis operation in the future would put the husband to additional expenditure, but the prospect of such an operation appeared to be remotq5 so that the likely expense should be substantially taxed down. The husband's damages for loss of consortium were accordingly reduced to £100. Jackson. S.P.J. and Hale J. concurred.

E.K.B.

3 Unreported. On appeal the decision was upheld by the High Court; see (1954-1955) 92 Commonwealth L.R. 618.

4 (1954-1955) 92 Commonwealth L.R. 618, at 624.

5 At first sight there seems, with respect, to be some inconsistency involved in taking account of the potential improvement in the condition of the wife's wrist, as the result of an arthrodesis operation, to reduce the damages awarded to her, and then taxing down the prospective expense to the husband of such an operation on the ground that the prospect of its being performed was remote. But the Court's reasoning was no doubt that if such an operation could be performed and would reduce the wife's disability she was under a duty to mitigate damages by undergoing the operation and could not seek to increase them as against the defendant by her presumed reluctance so to do; but the husband ought not to be awarded the full prospective damage resulting from the performance of the operation if this same reluctance rendered this unlikely.

73. Dearle v . Gilligan. (D. No. 10 of 1960). Nisi Prius (Mr. Cornmis- sioner Boylson, Q.C.) ; 24th June 1960. No evidence in collision.

The plaintiff in this case alleged that while riding his motor cycle he was struck by a Holden utility negligently driven by the defendant and was injured, or alternatively that his injuries resulted from his attempt to avoid a collision with the negligently driven vehicle. There being no evidence of damage to the utility consistent with its having struck a motor cycle, and no evidence from which it might be inferred that the plaintiff was injured in the alternative way alleged, the plaintiff's claim was dismissed.

E.K.B.

74. Ferguson v . Collie District Hospital. (F. No. 25 of 1959). Nisi Prius (Virtue J.) ; 31st May 1960. Negligence-Application of hotwater bottles to unconscious patient in hospital-Standard practice-Reasonable skill and care.

The plaintiff claimed against the defendant hospital damages for injuries alleged to have been received by her as the result of burning by hot-water bottles negligently applied to her body while she was a patient in the above hospital. The defence claimed that the injury resulted from the plaintiffs allergy to zinc oxide strapping, but the Court found that the evidence was overwhelming that the plaintiffs injury resulted from burning, and that in the absence of any other explanation as to its cause it must be concluded on the evidence that it resulted from the application of hot-water bottles.

The question then arose whether it was negligent in the circumstances to apply hot-water bottles to the plaintiff, who was unconscious. The preponderance of medical and nursing evidence was that the use of hot-water bottles to supply warmth to an unconscious patient was standard practice, though it was recognized that an added risk of injury was created and additional care should be taken. The Court found accordingly that there was no negligence in this respect.

The final question was whether the manner in which the hot- water bottles were applied to this patient was negligent. On the evidence the Court found that each of the members of the nursing staff responsible for the treatment had, in words adopted from Nathan's Medical Negligence, at 22, exercised "reasonable skill and care measured by the standard of what is reasonably to be expected from

the ordinary competent practitioner of her class", and was moreover not to be liable "if by reason of some peculiarity in the frame or con- stitution of the patient which was not reasonably to be anticipated, a treatment which in ordinary circumstances would be sound, bad] un- foreseen results." Since the treatment was administered in the presence of the patient's own doctor, the nurses might reasonably expect him to diagnose or recognise peculiarities in the condition of the patient which might render her susceptible to injury from the treatment and either to take measures to prevent it or to warn them of the consequences of it. In arriving at this conclusion the Court also indicated that it must take into account, without placing too much emphasis upon it, the state of emergency which existed in the case, citing the dictum of Scott L.J. in Mahon v . Osborne."

No Board has been constituted under the Hospitals Act 1927 for the control and management of the Collie District Hospital. Some question was raised at the commencement of proceedings as to the correct person or corporation to be sued in the action, but counsel for the defendant waived any technical objection that the hospital itself was not the correct person to be sued. It would appear that the proper defendant in this and similar cases is the Minister of Public Health, or other Minister for the time being charged with the administration of the Hospitals Act 1927.7

E.K.B.

75. Wyllie v . Brownes Dairy Ltd. ( W . No. 40 of 1959). Nisi Prius (Virtue J.) ; 21st June 1960. Nuisance-Milk distribution depot near residence-Degree of disturbance-Injunction-Damages.

The defendant company, having obtained the approval of the Road Board, built a milk distribution depot in a district proclaimed by the Board as a business district. Prior to such proclamation the plaintiff had built his home in the district. The plaintiffs house was separated from the depot by a. 10-foot right of way. The distance from the sleep-out and the children's bedroom of the house to the centre of the depot's operations was a "little under 140 feet." The plaintiff, who alleged that his sleep had been disturbed four or five times a week, claimed an injunction to restrain the company from conducting its depot in such a way as to permit the noise to interfere with his enjoyment of his property, and also damages for past interference. It

8 [I9391 1 All E.R. 533, at 548-549. 7 See sec. 7 (2) of the Act.

was conceded that the operations of the depot were carried out during the hours of the night and did involve some noise, the issue being, to use the words of his Honour, "one of degree as to whether or not the interference [was] sufficient to come within the oft quoted definition of Knight-Bruce V.C. in Walter v. Selfe."s After hearing witnesses lay and expert: and listening to tape recordings played over in Court, and himself visiting the premises during the operation of the depot on a Friday night, the judge concluded that in any event up till early in 1960 when the defendant company had built a wall in an effort to lessen the disturbance to the plaintiff, the noise did constitute a substantial and serious interference with the enjoyment by the plaintiff of his property. His Honour found himself unable to accept the submission of counsel for the company that the usefulness of the activity and the necessity of its being sited where it was, were in any way decisive factors and stated that even if he had taken a different view of this submission, "[iln these days of fast moving transport [he could] see no necessity for siting a distribution centre for milk in the heart of the residential area which it serves." The plaintiff was therefore entitled to "substantial damages" and was awarded £300.

His Honour also granted the injunction but limited it to prohibit- ing the operation of the depot in such a way as substantially to interfere with the plaintiff's enjoyment of the property, because he found that the erection of the wall must have reduced the sound level, and though he accepted the evidence of the plaintiff and his witnesses that substantial interference had continued even after its erection, nevertheless if every care was taken by the depot staff and the vendors engaged in loading and unloading at the depot, the operations could be carried on without substantial interference.

E.J.E.

76. Sandars v. Llorens. ( S . No. 85 of 1958). In Chambers (Wolff C.J.) ; 1 lth December 1959. Nuisance-Keeping of dogs-Form of injunction to restrain-Enforce- mentFine for contempt.

The plaintiff, who in earlier proceedings against the defendant had obtained an injunction restraining her from bringing and keeping

8 (1851) 4 De G. & Sm. 315, at 322, ". . . not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people."

9 His Honour was not very impressed with the experts. "I must say . . . that for the most part I found the evidence of the experts unrealistic and of little real assistance," commented the judge.

dogs on her premises in such a way as to create a nuisance, applied in the present proceedings to enforce the injunction by an order for com- mittal or a writ of attachment. After hearing evidence as to the defendant's continued keeping of dogs on the premises, and conflicting evidence as to the amount of barking that went on, his Honour found that the dogs were being kept in such a way as to create a nuisance to the plaintiff, and fined the defendant £20 for contempt in disobeying the injunction, with a warning that if the nuisance continued and the matter were again ventilated more drastic action would require to be taken.

This case illustrates rather neatly the difficulties which may arise from what is admittedly a common form of injunction in nuisance cases.1° The defendant having been restrained from keeping dogs "in such a way as to create a nuisance" modified her dog-keeping activities slightly, for example, by disposing of some spaniels which, she conceded, were particularly prone to bark, and then asserted that she had done her best to comply with the order. In effect, the hearing of the summons for enforcement involved a re-hearing of witnesses on the question whether the defendant's continued activities did or did not create a nuisance. The difficulty with the type of order which draws a hard and fast line (for example, in this case a limitation on the number of dogs which may be kept) is no doubt the dilemma it creates; on the one hand the defendant may by some rearrangement of premises or conduct be able to overstep the line without causing a nuisance, while on the other even the limited number of dogs may be kept in such a way as to constitute a nuisance, and in that case the plaintiff is obliged to have recourse to fresh proceedings; see the observations of Warrington J. in Rushmer v . Polsue and Alfieri Ltd.ll and also Mayfair Ltd. u. N.Z. Properties Ltd.12 But the "hard and fast line" type of order must in many cases be more satisfactory to the plaintiff, as well as to the Court which may subsequently be asked to enforce the order; and even the defendant will have the advantage of knowing precisely where he stands, and so avoid being put in the embarrassing position of the defendant in Thompson v . J . Tait Ltd.,ls cited by Mr. F. T . P. Burt, Q.C., in argument.

E.K.B.

10 See 9 ENCYCLOPAEDIA OF FORMS AND PRECEDENTS 655 (No. 60), 656 (No. 62), and Rushmer v. Polsue and Alfieri Ltd., (1905) 93 L.T. R. (n.s.) 823.

11 (1905) 93 L.T. R. (n.s.) 823, at 825. 32 [I9401 N.Z.L.R. 190. 13 [I9301 N.Z.L.R. 36.

a civil action under section 237) for an alleged understatement of income arising from the defendant's business as a motor car dealer and from the proceeds of the sale of that business. The defendant admitted that he had received all the sums specified by the Commis- sioner but denied, as to some of them, that they were taxable in his hands, and he also relied on the defence under section 227 (2) that he had not previously been convicted of an offence against the Act, that he had prepared his income return himself personally, and that

/ the errors occurred through ignorance or inadvertence.

Certain monies, which were payable to the defendant by a finance corporation as the balance of the price on cars which he had sold, were retained by the finance corporation as a fund to which recourse could be had in the event of loss resulting on a deal arranged by the defendant. Hale J. held that these monies were taxable income of the defendant in the year in which they arose and not in the year in which they were received by him. However, the failure to include them in the return arose from ignorance and inadvertence so that the defence was established under section 227 (2) .

His Honour also found that various other sums should have been included in the return and had been omitted deliberately; but in one case it was not clear that a purchase of land had in fact been ma,de from income not included in the return, and in another case the omission occurred through inadvertence.

His Honour found a total intentional understatement of taxable income amounting to £3,283. 6. 8, and he imposed a fine of £50 and a penalty of an amount equal to tax avoided.

D.E.A.

80. R. P. Gray Pty. Ltd. v. Lockyer. (R. No. 11 of 1960). Interlocu- tory Summons-In Chambers (Virtue J.) ; 4th July 1960.

Jurisdiction of Coiurt-Action on contract made in New South Wales- Application for particulars before defence amounting to submission to jurisdiction-Service and Execution of Process Act 1901-1954, sec. 11.

The defendant, a resident of New South Wales, forwarded to the plaintiff in Western Australia a cheque drawn in New South Wales on a. New South Wales bank as a deposit on a contract previously made between the parties. On presentation the cheque was dishonour- ed and the plaintiff commenced proceedings, service of the writ being effected on the defendant in New South Wales pursuant to the provisions of the Service and Execution of Process Act 1901-1953. A

written request by the defendant for an extension of time for the filing of a defence and for further particulars of the claim was refused so the defendant then applied to the court for this relief. An order was made extending time but the application for particulars was dismissed and as at the expiration of the extended time no defence had been filed an order was subsequently made giving the plaintiff leave to sign judgment. The defendant app1ie:d to have this last order rescinded.

Virtue J. on examining the cause of action, concluded that it did not come within the causes specified in section 11 of the Act and so no order for leave to proceed should have been given. However, judgment could be entered without such an order if it was shown that the defendant had submitted to the jurisdiction, which in Western Australia was usually established by showing that a defence had been filed." As no defence had been filed the question was whether the application for further particulars amounted to a submission. This in turn depended upon the construction to be placed upon Order XII, rules 3 and 4, of the Supreme Court rules, which permitted such an application for further particulars of the statement of claim prior to the filing of a, defence, and the content of the application in this particular case. His Honour held that these rules did not permit a defendant to apply for interlocutory relief before defence and then object to the jurisdiction, if the application for interlocutory relief could reasonably be regarded as treating the action as a competent proceedings. Here the particulars required were directed towards the merits of the claim18 and therefore, this fact, combined with the absence of any indication by the defendant of his intention to object to the jurisdiction, amounted to a submission. The plaintiff accordingly did not require leave to proceed under section 11 of the Act but was entitled to enter judgment in default of defence independently of the Act.

I.M.

CONTRACT.

81. Oliver v. Perry. (0. No. 60 of 1960). Nisi PI-ius (Jackson S.P.J.) ; 27th June 1961. Misrepresentation-Fraud-Damages.

The plaintiffs bought a farming property belonging to the defendant after it had been represented to them by the defendant's agent that approximately 750 acres of the farm were cleared. This

17 Entry of appearance has been abolished in this State. 3s They sought details of the consideration given for the cheque.

statement, which the agent believed to be true, was untrue, and the defendant knew that it had been made and that it was untrue. The plaintiffs claimed the sum of &1,850 damages for fraud, being the difference between the purchase price and the real value of the farm. The defendant alleged that he had in conversation with one of the plaintiffs corrected the false impression given by his agent, and had told the plaintiff that he did not know how great an acreage had been cleared and that the plaintiffs should find this out for themselves before buying the farm. The plaintiffs denied this allegation. Jackson S.P.J. held on the evidence that the defendant was aware that an untrue representation had been made to the plaintiffs and that he had acted fraudulently in allowing the plaintiffs to purchase the farm without informing them of the true state of affairs.

On the question of measure of damages, there was a disagreement between expert witnesses as to the value of the farm at the date of the contract; one witness valuing it at £9,650 and another at £10,500. After reviewing the evidence Jackson S.P.J. arrived at a figure of £10,400 and awarded & 1,100 as damages, being the difference between the true value of the farm and purchase price of £1 1,500.

W.E.D.D.

82. Marinko v. West Perth Football Club ( M . No. 22 of 1961). Nisi Prius (Wolff C.J.) ; 28th June 1961. Construction-Terms nodt too vague.

The plaintiff was a playing member of the defendant club. The plaintiff had for some time been discontented with playing for the defendant and had frequently applied for a clearance to join another club, the East Perth Football Club. Under the rules of both clubs the plaintiff could not transfer to the East Perth Football Club unless the West Perth Football Club consented. The plaintiffs brother was also a playing member of the defendant Club and was also anxious to join the East Perth Football Club. Finally it was agreed in 1957 that the plaintiff would continue to play for the defendant if his brother was granted a clearance to the East Perth Football Club and if the defendant gave him a written undertaking that if he was unhappy with them they would grant him a clearance. The plaintiffs brother was cleared in accordance with the agreement and the plaintiff was given a letter, signed by the President and Secretary of the defendant Club, stating that if the plaintiff was unhappy with them during the 1957 season they would give serious consideration to his application for a clearance. The plaintiff was not satisfied with this communication and a few

days later he received another letter, signed by the Secretary of the defendant Club, stating that if the plaintiff became unhappy at any future date the club would grant him a clearance. The plaintiff then continued to play for the West Perth Football Club until further disputes arose between himself and the defendant and he applied for a declaration that he was entitled to a clearance to the East Perth Football Club. Wolff C.J. held that the terms of the second letter were not too vague to be enforceable, and that the plaintiff, by continuing to play for the defendant Club, ha,d given good consideration for the Club's undertaking. The declaration, therefore, was granted.

W.E.D.D.

83. Frank Ruse Pty. Ltd. v . Lewis and another. (Appeal No. 14 of 1961). Full Court (Jackson S.P.J., Virtue and D'Arcy JJ.) ; 15th August 196 1. Sale of land-Agent.

The respondents entered into a contract of sale of land as purchasers, and paid £100 deposit to the appellants, who were agents for the vendors. When the contract went off because finance could not be arranged, the respondents recovered the £100 deposit from the appellant in the Local Court. The Full Court held on appeal that the appellant had received the money as agent of the vendors, and that it was the vendors who should have been sued for the money. The judgment of the Local Court, therefore, was set aside and the respondents' claim dismissed.

W.E.D.D.

84. Gurfinkel v. Hercules Crane and Haulage Pty. L td . (Appeal No. 5 of 1961). Full Court (Wolff C.J., Jackson S.P.J. and Hale J.) ; 19th July 1961. Principal and Agent.

At the request of the appellant the respondent's managing director bought goods to the value of £71 at an auction sale from the Depart- ment of Supply on behalf of the appellant. The appellant paid the respondent for the goods, but was unable to remove the goods from the Department of Supply without the authority of the respondent. The appellant wished to remove the goods in his own truck, but the respondent requested him to arrange for an independent carrier to remove them. When the appellant failed to do so, the respondent removed the goods to its own yard and stored them there. I t frequently

requested the appellant to collect the goods after paying for carriage and storage, but the appellant made no reply to its communications. Finally the respondent obtained judgment in the Local Court for £107. 6. 11. as being the cost of carting, handling, and storing the goods.

On appeal the judgment of the Local Court was set aside by the Full Court which held (per Jackson S.P.J. and Hale J.; Wolff C. J. dissentiente) that the respondent had acted outside the scope of its authority in removing and storing the goods and was not, therefore, entitled to reimbursement or indemnity. Had the appellant failed to remove the goods from the Department of Supply, the Department would have charged the respondent with the cost of storing the goods and the respondent would have been entitled to be indemnified in respect of such cost; but this in fact did not happen. There was no evidence to show that the Department would have refused to allow the appellant to remove the goods himself if he had the authority of the respondent to do so; and even if this had been the case, the respondent would only have been entitled to the cost of transporting the goods.

The majority decision, it is submitted, is clearly correct. An agent is entitled to be reimbursed in respect of all expenses, and indemnified in respect of all liabilities, which he has incurred in the reasonable performance of his agency;19 but he is not entitled to reimbursement or indemnity when he has incurred the expenses or liabilities when acting outside the scope of his authority.20 In this case the respondent had clearly exceeded its authority. The appellant had requested it merely to bid on his behalf at the auction; he gave no instructions about removing the goods, and indeed showed a desire to remove them himself. Even if it could have been proved that the Department of Supply would have refused to let the appellant take away the goods himself, the respondent would only have been entitled to recover the cost of transporting the goods, for it would have been holding the goods under a claim to a lien upon them:21 and while an agent has a lien on such goods of his principal as come under his control in respect of such expenses or liabilities as he has incurred in the reasonable performance of his a person who holds goods under a

19 Adamson v. Jarvis, (1827) 4 Bing. 66: 130 E.R. 693. 20 Frixione v. Tagliaferro, (1856) 10 Moo. P.C.C. 175; 14 E.R. 459. 21 Counsel for the respondents agreed that throughout they were claiming

a lien. 22 Ridgway v. Lees, (1856) 25 L.J. Ch. 584.

claim to a lien upon them is not entitled to charge the owner for the cost of storing them.23

W.E.D.D.

85. Hollins v. Drew. ( H . No. 19 of 1960). Nisi Prius (D'Arcy J.) ; 24th April 1961.

Sale of Goods-Verbal contract-Sale of Goods Act 1895, sec. 4, sub- sets. 1, 3; see. 35.

The plaintiff sued the defendant for £700, being the price of a Landrover vehicle which he claimed to have sold to the defendant. The defendant denied liability on the grounds that no contract of sale was concluded, or that the contract, if it had been concluded, was not enforceable, because of the provisions of the Sale of Goods Act 1895.

The plaintiff had sold to the defendant a sheep-carrying property near Ajana. The plaintiff alleged that he also agreed orally to sell to the defendant a Landrover which was on the property for £700, and that the defendant had agreed to buy the vehicle and had used it on the property. The defendant denied that he had a.greed to buy the vehicle.

D'Arcy J. preferred the testimony of the plaintiff to that of the defendant, and found that the agreement as alleged was made. The defence was raised that the agreement was not enforceable bemuse of the provisions of the Sale of Goods Act 1895.

His Honour held that although it was arguable that there was sufficient evidence to establish delivery and acceptance, it was not necessary for him to consider the point as the evidence showed that sufficient use had been made of the vehicle to constitute acceptance in performance of the contract under section 35 of the Sale of Goods Act. His Honour was of the opinion, following I n re a Debtor:" that once there had been an acceptance under section 35 the requirement of section 4 had been complied with, and it was unnecessary to consider subsection 3.

W.E.D.D.

86. Moustaka, Moustaka and Moustdka v. McCormick. ( M . No. 52 of 1960). Nisi Prius (Wolff C. J.) ; 23rd May 1961. Account stated-Burden of proof.

From February 1952 until June 1959 the defendant was employed by the plaintiffs as manager of a hardware shop that they owned in

2s Somes v. British Empire Shipping Co., (1860) 8 H.L.C. 338: 11 E.R. 459. [1939] Ch. 225.

Geraldton. The plaintiffs sued for the balance which they alleged the defendant owed them on a running and continuing account which he had with them. The defendant claimed an allowance for entertainment expenses and taxation indemnification.

Wolff C.J. held that the onus was on the defendant to prove that he was entitled to those allowances, and that he had not established the issues the burden of proving which rested on him.

W.E.D.D.

87. V. L. tY C. C . Baker v. A. B. tY M. Pearce. (B. No. 54 of 1960). Nisi Prius (D'Arcy J.) ; 9th August 1961. Contract-Settlement of action-Terms of settlement carried out- Settlement not repudiated.

Pursuant to an agreement made in December 1958 the plaintiffs sold to the defendants the whole of the shares in a hotel company. As the company owed the plaintiffs money the defendants agreed to cause the company to repay the amount owing by six equal half yearly instalments. The defendants also guaranteed payment by the company to the plaintiffs. Upon default in payment of the first instalment the plaintiffs commenced proceedings against the defendants, who counterclaimed that as a result of fraud and misrepresentation by the plaintiffs they were released from all liability under the guarantee.

These proceedings, however, never came to trial as on the day of the hearing the action was settled. By the settlement, the terms of which were partly contained in a written memorandum and partly oral, the amount of the instalments payable by the defendants was reduced, the plaintiffs were required to produce evidence that certain property belonged to them personally or to the company, and the defendants agreed to abandon any claim for rescission or damages in respect of any representations made by the plaintiffs relating to the negotiation of the agreement made in December 1958.

The first two instalments pursuant to the settlement were paid but the defendants defaulted in payment of the third. The plaintiffs commenced the present proceedings. The defendants alleged that the plaintiffs had failed to carry out certain undertakings contained in the settlement and therefore it had been repudiated; they then counterclaimed for damages for misrepresentation which induced them to enter into the agreement of December 1958.

On the evidence the Judge found that the plaintiffs had carried out the terms of the settlement that applied to them so it had not been repudiated. Accordingly they were entitled to judgment for the amount of the unpaid instalment and to have the counterclaim dismissed.

I.M.

DOMESTIC RELATIONS.

88. R e Batkin decd.: Batkin v . W.A. Trustee Co . L td . and Ors. ( B . No. 3 of 1961). In Chambers (Hale J.) ; 2nd May 1961. Testator's family maintenance-Order to widow in small estate.

The plaintiff a,ged 70 years was the widow of the deceased and brought this application under section 3 of the Testator's Family Maintenance Act 1939-1944. The deceased had died leaving an estate valued at approximately £1130, all of which had been disposed of by will to two beneficiaries other than his widow. The deceased had deserted his wife some 29 years prior to his death and although she had obtained a maintenance order against him soon after the desertion, which had remained in force up to the date of his death, the maintenance ha.d been paid only intermittently for many years prior to the death and not at all since 1955. For practical purposes the plaintiff's total assets and means at the date of the application were a house and the age pension.

Hale J., applying Dun v. Dun,25 found that deterioration in the plaintiffs health and increasing incapacity were probabilities that the testator should have reasonably foreseen at the time of his death, and, although the existence of a maintenance order did not conclusively decide the a3pplication,2Qhere was nevertheless a moral obligation on the testator to make testamentary provision for her.

When it came to making an order His Honour considered that he should not give the widow the whole of the estate immediately because in the event of her early death this would unnecessarily deprive the beneficiaries otherwise entitled under the will. Accordingly, as it was agreed that she could receive £182 per annum without affecting the pension, he ordered that the widow receive an annuity of this amount, payable quarterly, the income of the estate being the primary fund and the capital being the secondary fund to meet such an annuity. If the plaintiff lived long enough she would under such an order ultimately receive the whole of the estate.

I.M.

89. Baily v. Lockwood. ( B . No. 27 of 1960). In Chambers (Jackson S.P.J.) ; 27th June 1961. Testator's family maintenance--Sick daughter of deceased given income from half residuary estate.

The testatrix, a widow, died in 1959 leaving the residue of her

25 I19591 A.C. 272. 26 Applying Delacour v. Waddington, (1953-1954) 89 Commonwealth L.R. 117.

estate, which in fact constituted nearly the whole of her estate, amounting to £14,500 to the defendant, her son.

The defendant was employed as an accountant on a salary of £2,100 per annum, had a private income of approximately £300, owned a house (on which there was about £2,700 owing), and owned shares to the value of £7,500. The majority of his assets appeased to have come from the deceased who made a gift to him of £10,000 in 1958.

The deceased also left a daughter, the plaintiff, who did not benefit from the will and apart from small amounts sent to her as presents from time to time had not received any financial assistance from her mother. The plaintiff was in a bad state of health, suffering from chronic dermatitis and chronic anxiety which combined rendered her incapable of working and incapable of performing household duties without assistance. Her husband had left her in 1947 and petitioned for divorce on the ground of constructive desertion, a petition which was dismissed on but he himself was not in desertion as it was held he had been justified in leaving her because of her medical condition. He had, however, continued to provide her with a house in respect of which he paid all outgoings, and continued to make her an allowance for the maintenance of herself and her son to the extent of his ability.

Jackson S.P.J. found that the plaintiff in the circumstances had both a strong moral claim on the testatrix's bounty and a real need of financial provision for her proper m a i n t e n a n ~ e . ~ ~ The provision, His Honour held, should be limited to income only and not include capital; so the plaintiff was given a. life interest in one half of the residuary estate with the remainder to the defendant on her death. The defendant was entitled immediately to the other half of the residuary estate.

I.M.

90. Harding v. Kolodenski. (Appeal No. 51 of 1960). Order to Re- view (Hale J.) ; 6th April 1961. Claim for custody of children by stranger against parent-Procedure.

Soon after the death of the respondent's wife his five children, including the youngest named Lee then only a few months old, were given to the appellant who cared for them from then until late in 1959, some four years later, when the respondent apparently decided

27 See Baily v. Baily, (1952-1953) 86 Commonwealth L.R. 424. 28 Applying In re Sinnott, [1948] Victorian L.R. 279, per Fullagar J., at 281.

to remove the children from the de facto custody of the appellant and place them in orphanages.

The appellant then applied in the Children's Court to be appointed joint guardian with the respondent of all the children pursuant to section 5 (2) of the Guardianship of Infants Act 1920-1952. The application was dismissed and an appeal by way of order to review brought. The admitted purpose of the application was, if successful, to give the appellant locus standi to pursue a claim for sole custody. On the return of the order nisi to review Hale J. pointed out that as the sole issue was where the child Lee (as it was in respect of this child only that the appeal was brought) should live, and as there had been no allegation that the respondent was unfit to be the child's guardian, the question of custody should not be decided by appointing a joint guardian unless it was the only method whereby the child's welfare could be brought before a court for determination.

There wa,s in fact another way. This was to apply to the Supreme Court in its equitable jurisdiction by originating summons in the child's name as plaintiff by a guardian ad litem simply asking for custody.29 This jurisdiction which was given to the Supreme Court by section 16 (1) (d ) of the Supreme Court Act 1935-1957 ante-dated the special Acts dealing with custody and guardianship30 which Acts did not impair but enla,rged and liberalised the principles previously applied in the equitable j~risdiction.~'

The appeal was accordingly dismissed. However, the evidence before the Court indicated that it might be detrimental to the child to remove her from the appellant's custody, and as Hale J. considered that the injunction granted on the making of the order nisi to review restraining the respondent from removing the child from the appellant's custody could not be extended beyond the determination of the appeal he directed that the order dismissing the appeal should not issue for 14 days-giving sufficient time to allow a proper application to be instituted when a further injunction could be obtained until that application was decided.

I.M.

2s This is in fact the only other way as no part of the Act dealing with custody of children permits an application by a stranger against a parent for custody of a child unrelated to proceedings for other matrimonial relief.

30 See Re Fynn, (1848) 2 De G. & Sm. 457, 64 E.R. 205; Re Goldsworthy, (1876) 2 Q.B.D. 75.

31 See Re Harris, (1937) 37 State R. (N.S.W.) 17; Re Hain, (1945) Queensland W.N. 49; R. v. Waters, [I9121 Victorian L.R. 372, at 579.

91. Shaw v . Shaw and Davies. (Matrimonial Causes No. 336 of 1960). In Divorce (D'Arcy J.) ; 21st August 1961. Maintenance for deserted wife and child--Claim for injuncticm restraining sale of matrimonial home.

At an earlier hearing of this action the plaintiff wife was granted an order for separation and custody of the child of the marriage on the grounds of the defendant's desertion. The plaintiff, however, also claimed maintenance for herself and her son, a declaration that she and her son be at liberty to remain in the dwelling house which formerly constituted the matrimonial home, and an injunction restraining the defendant from selling the house until he had provided alternative accommodation. These matters had been a,djourned and heard subsequently and it was in respect of them that this judgment was given.

With respect to the claim for maintenance the judge found that the defendant was receiving approximately £63 per fortnight of which there was £21 after his living expenses had been paid, but the plaintiff was also employed and earning a net weekly wage of 812. In arriving at the amount of maintenance to be paid to the plaintiff His Honour "discounted'' the earning capacity of the wifes2 and ordered the defendant to pay the sum of 84 per week for the son, as well as provide him with his clothing, and a further £4 per week for the plaintiff. These orders were made on the basis that the plaintiff continued to live in the former matrimonial home, the outgoings thereon (amounting to £4 per week) being paid by the defendant.

The claim for a declaration and injunction was made pursuant to section 17 of the Married Women's Property Act 1892 under which section the judge pointed out there was the power to make such ordersg3 but the exercise of the power was discretionary. The next question was whether the discretion should be exercised in this case. His Honour pointed out that there were many circumstances in which a declaration such as that sought in this case might be made. For example, where a deserted wife with the duty of caring for several young children is so situated that she should have the protection of security of occupation; or where proximity of the premises to sources of treatment is essential in the case of invalidism; or where the wife is unable to go out to earn and the husband is an irresponsible person whose habits are likely to result in loss of the home. In this case,

32 Following J. v. J., [I9551 P. 215, at 244. 33 See Dickson v. McWhinnie, (1958) 58 State R. (N.s.w.) 179; Lee v. Lee,

[1952] 2 Q.B. 489; Public Trustee v. Kirkham, [I9561 Victorian L.R. 64.

however, no such circumstances were present. There was no difficulty in obtaining alternative accommodation, the husband had security of tenure in his employment and sufficient salary to meet further matrimonial liabilities should a change in circumstances require him to do so. The result was that there did not appear to the judge any prospective matrimonial liability that could not reasonably be the subject of monetary adjustments and accordingly the claim for a declaration was dismissed.

I.M.

TORT.

92. Thompson v . Kelly and Lippe. (T . No. 6 of 1960). Nisi Prius (Hale J.) ; 3rd July 1961. Lacerations and leg injury.

The plaintiff, who was injured when a utility driven by the first defendant, in which he was a passenger, collided with a motor-wagon driven by the second defendant, suffered severe lacerations, which at the time needed over 120 stitches to repair but which by the time of the trial had fully recovered, and a very severe fracture of the upper left tibia involving the knee joint; this latter injury rendered the knee completely unstable and plaintiff was obliged to have the knee fused. He was therefore left with the permanent disability of a completely stiff left knee. The plaintiff had been a taxi proprietor and later a hotel-keeper; he contemplated going back into the latter occupation, but at the time of the accident he had been helping the defendant Kelly in the business of a licensed dealer. On the assumption that if the plaintiff went back into the hotel business he would as a result of his injuries have to hire some additional casual help the sum of £1,000 was allowed for economic loss under this heading. £2,000 was atwarded for loss of earnings during the period of incapacity, £900 for general damages, and special damages were agreed at £495. 18. 4; £10. 10. 0. was proved as the cost of taxi fares to obtain medical treatment. The total damages a-warded were therefore £4,406. 8. 4.

E.K.B.

93. Bruce v . McAuliffe. ( B . No. 31 of 1960). Nisi Prius (Hale J.) ; 23rd June 1961. Head injuries and temporary unsoundness of mind.

The plaintiff, who sued by a guardian ad litem, suffered severe head injuries when he was knocked down by a motor car driven by

the defendant. A craniotomy was performed, after which he recovered slowly, but as his mental state was seriously impaired he was committed to the Claremont Mental Hospital a month after the accident; after almost four months he was allowed out on leave, and a month later the medical practitioner on whose advice he was sent to the Mental Hospital reported that the plaintiff was almost back to what was normal for him, though a later examination indicated that there were still some residual deficiences in attention, memory span and recent memory and a certain lessening of the normal drive to activity. A certain weakness in the arms and shoulders manifested itself after the accident and the learned judge inferred, in the absence of any other explanation, that it was a consequence of the accident. The plaintiff had all his life worked at unskilled jobs, and reports indicated that he was still mentally fit to resume this sort of work. At the time of the accident he was aged fifty-three; he was not physically strong, had some minor bronchial disability, for which he received a war pension, and was showing signs of alcoholism. His residual working life was estimated at five years; and the result of his injuries, lea~ing him with a weakness in one arm, mentality probably less than it was, and a history of having been committed to the Mental Hospital, was that in a difficult labour market he must expect substantial periods of unemployment, and even when working might not earn his pre- accident wage. The sum of £1,500 was allowed under this head. For the physical injury suffered, for confinement to hospital and mental hospital, for pain and inconvenience, and for the general prejudice likely to flow from having been temporarily insane, the sum of £1,200 was awarded. Loss of wages and hospital and medical fees totalled £1,099. 8. 0; the total damages awarded were £3,799. 8. 0.

E.K.B.

94. Redman v. O'Neill. (R. No. 8 of 1961). Nisi Prius (D'Arcy J.) ; 24th July 1961. Fractured femur-Woman of 64.

The plaintiff, a woman of 64, suffered a fractured femur as a result of the admitted negligence of the defendant in handling a motor car. The injury resulted in the shortening of her left leg by #-inch, leaving her with a permanent limp, and a degree of pain and incapacity which had retarded her activity since the injury. A further operation would be necessary to remove the Smith-Peterson nail which had been inserted in the femur and which was itself causing some degree of pain. There was a risk of avascular necrosis (death of the head of the femur as the result of the cutting off of the flow of blood to it) which

would increase both her pain and her disability. The damages awarded for past and prospective pain and suffering, loss of amenities, and prospective cost of treatment, were assessed at £1,025, together with special damages of £692.

E.K.B.

95. Syme u. Taylor. (S. No. 4 of 1961). Nisi Prius (Wilff C.J.) ; 2nd June 1961.

Fractured ribs and pelvis-Woman plaintiff.

The plaintiff suffered three broken ribs and a fractured pelvis when a motor car in which she was riding came into collision with one driven by the defendant, who admitted liability. The fractures united reasonably quickly, and she was delivered normally of a second child about fifteen months after the accident. She complained of pains in the chest and in the pelvis on exertion, but there was evidence that her physical state was not as bad as she suggested. She had been obliged to leave her job some seven months after the accident, but would have had to leave shortly afterwards in any case as the result of her pregnancy, and was unlikely to have returned after the birth of a second child. For the injuries and the resultant pain and suffering the sum of £500 was awarded as general damages, together with agreed special damages of £241. 2. 5. plus the hospital account.

E.K.B.

96. Tunstall u. Lynes. (L . No. 20 of 1960). Full Court (Wolff C.J., Jackson S.P.J., Hale J.) ; 19th July 1961. Physical injuries and personality change.

This was an appeal against the award of £5,097 general damages to the female plaintiff, in respect of physical injuries, loss of enjoyment of life, disfigurement, pain and suffering and inconvenience and personality change, made by Virtue J. on 7th February 1961.34 The Full Court, citing Miller u. J e n n i n g ~ ? ~ refused to interfere with the award of damages.

E.K.B.

97. Jones v. Hey. (J. No. 7 of 1960). Nisi Prius (Jackson S.P.J.) ; 3rd August 1961. Fatal Accidents Act.

The plaintiff, a woman of 34, sued for herself and her three younger children, aged respectively 10 years, 24 years and 7 months,

34 Noted supra, at 56 as case No. 62. 36 (1954) 92 Commonwealth L.R. 191.

evidence, and the learned judge found that the defendant's version of the accident, which indicated that it was caused solely by the negligence of the plaintiff, was acceptable. The action was therefore dismissed; the learned judge indicated, however, that for the pain and inconvenience suffered as a result of the injuries ( a transverse fracture of the neck of the fibula and an oblique fracture of the lateral third of the tibia, extending into the knee joint) from which the plaintiff had made a good recovery, with a residual mild disability likely to continue for a further twelve months, he would have awarded general damages of £300.

E.K.B.

101. Corcoran v. Wallis. (C. No. 53 of 1960). Nisi Prius (D'Arcy J.) ; 4th May 1961. Collision between motor car and pedestrian-Fractured femur.

The plaintiff was injured when he was run into while crossing Hay Street, Perth, by a motor car driven by the defendant. The defendant's account of the accident, that the plaintiff stepped out from between parked cars in such a way that he had no opportunity of avoiding him, was accepted by the learned judge, who found that the accident occurred because the plaintiff failed to take reasonable care for his own safety and that there was no ground for apportionment of liability. Had an assessment of damages been necessary he would have awarded, for the pain and inconvenience resulting from a lacerated elbow and a fractured femur from which the plaintiff had made as good a recovery as possible, £350 general damages.

E.K.B.

102. Hewitt v. Rogerson. (H. No. 2 of 1961). Nisi Prius (Hale J.) ; 10th July 1961. Collision bsetween motor-bus turning left and pedestrian on crossing- Crushed and amputated foot.

The plaintiff, a woman of 56, was crossing the road on a pedestrian crossing at a light-controlled intersection. The defendant, driving a motor bus, was turning left at the intersection, the green light being in his favour as well as the plaintiffs. The plaintiff walked into the side of the turning motor bus about eight feet from the kerb, and her foot was crushed by the wheel. I t was held that if the defendant in fact saw the plaintiff step off the kerb he was negligent in proceeding as he did, and if he did not see the plaintiff step off the kerb he was negligent in not keeping a look-out for pedestrians crossing on the green light. I t was held also that the plaintiff was guilty of contribu-

tory negligence in not looking to the right, and her damages were reduced by 20 per cent.

As a result of the crushing of her foot it was necessary that it be amputated, and a further operation to enable the plaintiff satisfactorily to wear a, prosthesis would be necessary. She had suffered much pain and discomfort for the past two years, and for the rest of her life would suffer a disability resembling a below-the-knee amputation; for ordinary walking she would have to wear a pair of ungainly lace-up boots. General damages for this were assessed at £2,500, together with agreed special damages of £503. 4. 6. and £120 as the estimated cost of the second operation.

E.K.B.

103. Sketchley v . Duncan. (S. No. 76 of 1959). Nisi Prius (Hale J.) ; 23rd June 1961. Collision with stationary vehicle--Fractured ankle and jaw-Dislocated shoulder and scarring.

The plaintiff was injured when a motor car driven by her husband collided with a, utility, under the control of the defendant, which was stationary on the left-hand side of a bitumen road 22 feet wide, with a fprther 5 feet of firm gravel on the left; the utility was about 4 feet onto the gravel and encroached 2 feet onto the bitumen. I t had stopped there because its lights had failed, no fault being alleged against the defendant in connexion with this. There was a standard red reflector on each side of the rear of the utility, and the night was clear and fine with almost a full moon. The plaintiff alleged inter alia (1) that the defendant placed an unlighted obstruction on the road in a manner which was negligent and (2) that he failed to take any proper precaution to warn approaching drivers of the obstruction. I t was held on the first point that theklefendant could not get his vehicle any further off the road unless he drove on without lights, an activity itself involving an obvious element of danger unless the moonlight was bright enough to enable him to see where he could safely leave the road. In that case it would also be sufficiently bright that another driver might reasonably be expected to see the unlighted vehicle. Moreover, the defendant had asked the driver of another vehicle to shine his headlamps into the bonnet of the utility, so that there must have been enough reflected light in the vicinity to attract the attention of an approaching driver. There was therefore nothing to lead the defendant to believe that there was any real likelihood of another vehicle colliding with his utility, and he was not negligent in remaining where he was. The defendant was also entitled to think that no

additional warning was called for. The plaintiff had therefore failed to establish that the defendant was negligent.

The plaintiff suffered concussion, a fractured right ankle, a dislocated shoulder, a fractured jaw, lost the tip of her tongue and suffered cuts and bruises. For some weeks she suffered severe pain. The ankle united well, leaving a weakness but no substantial permanent disability. The fractured jaw united but left a small area of numbness. An operation to the shoulder-blade was necessary; this left a scar and a disfiguring bony boss on the right chest, and a tendency to pain in the arm. Cartilage at the fourth rib on the right side was strained, causing significant soreness likely to continue for a long time. For the physical injuries and pain, the residual tendency to pain, and the cosmetic injury to the right chest, general damages were assessed at £1,250; special damages had been agreed at £378. 19. 5.

E.K.B.

B. NEGLIGENCE ON THE HIGHWAY--GENERAL.

104. Whitbread v. Bryson. (Appeals 76 and 77 of 1960). Full Court (Wolff C. J., Jackson S.P. J., D'Arcy J.) ; 21st March 1961. Vehicle tu~ning across another's path.

The respondent, driving a motor car, had suddenly turned right across the path of a motor car driven by the appellant, who was travelling at between 20 and 25 miles per hour. Wolff C.J. (with whom Jackson S.P.J. and D'Arcy J. agreed) held that the contention on the part of the respondent that the appellant should have stopped because the respondent's blinker light signal was indicating his intention to turn right across the appellant's path was asking for too high a standard of care and caution; the appellant was entitled to expect the respondent to give way, and the respondent's manoeuvre was an extremely dangerous one to make. No negligence should therefore have been attributed to the appellant.

E.K.B.

105. Brain v . Merry. (M. No. 49 of 1960). Full Court (Wolff C.J., Jackson S.P. J., Hale J.) ; 19th July 1961. Collision on narrow bridge--One vehicle on wrong side.

The plaintiff respondent, riding a motor cycle and side-car, had collided with a motor truck driven by the defendant appellant on a narrow bridge. The appellant was on the bridge first; when about twenty feet on he saw the respondent, preceded by a friend also riding a motor cycle and side-car, about 50 yards from the other end of the bridge and about to enter the bridge. The respondent entered the (bridge on his incorrect side. When it became apparent that the two

motor cyclists were going to pass his vehicle the appellant slowed down; the leading motorcyclist just managed to squeeze past, but the respondent remained on his wrong side. The appellant then applied his brakes hard, and the respondent tried to move back onto his correct side, but collided with the right hand front mudguard of the truck and was injured. The trial judge, D'Arcy J., found the appellant and the respondent equally to blame for the accident, the fault of the appellant being founded on his failure to reduce his speed further than he did, when it should have been apparent to him that the respondent was not moving over to his correct side. Jackson S.P.J., with whom Hale J. agreed, held that the appellant should not have been held to be negligent, as he did not depart in any way from the standard of the reasonably prudent driver, who is normally entitled to proceed on the assumption that other drivers will themselves act reasonably, and is not expected to foresee the wholly unexpected. Until the last moment, the appellant had no reason to think that the respondent would continue in his foolhardy course. The appeal was therefore allowed and the judgment for the plaintiff set aside. Wolff C.J. dis- sented.

It is often asserted that insurance companies, and the Motor Vehicle Insurance Trust, when faced with claims arising from a collision between two moving vehicles, take the position that each of the drivers must be to some extent at fault, perhaps basing this view on a prediction of what the Courts will find in such cases. It is of interest therefore to note that in each of these two appeals the Full Court has adopted the more rigorous approach, in finding that the negligence which caused the accident was wholly on one side, and has corrected what, with respect, may be described as the path of least resistance followed by the Courts appealed from, that of finding both parties at fault. At first sight it appears that the Full Court is adopting a line of approach different from that adopted by Ha,vers J. in Lung v. London Transport E x e ~ u t i v e ; ~ ~ a decision which has not met with universal approval. Havers J. was, however, basing his decision on dicta in London Passenger Transport Board v. U p ~ o n ~ ~ which he quoted in his judgment. In that case Lord Uthwa,tt said:sg

"A driver is not, of course, bound to anticipate folly in all its forms, but he is not, in my opinion, entitled to put out of consideration the teachings of experience as to the form these follies commonly take."

37 [I9591 1 Weekly L.R. 1168. 38 [1949] A.C. 155. 39 Id., at 175.

and Lord du Parcq in the course of his judgment40 repeated what he had said in Grant v . Sun Shipping Co. Ltd. : 41

". . . a, prudent man will guard against the possible negligence of others, when experience shows such negligence to be common."

Havers J. therefore held that the omnibus driver in Lung's case ought to have foreseen that the deceased motorcyclist might cross the major road in front of traffic, instead of giving way to it, because his experience should have taught him that persons in fact sometimes do this.

In the instant cases, however, though the members of the Court who gave the principal judgment did not in terms advert to this test, it may be said with some confidence that experience of the vagaries of drivers does not necessarily suggest that an approaching driver will suddenly turn across the path of another car, even though he is indicating his intention to turn, nor does it suggest that an approaching motorcyclist, especially on a narrow bridge, will not take adequate steps to get back on ot his own side of the road when he can see quite clearly that a large motor lorry is approaching.

E.K.B.

106. Hume v. Caraher. (H. No. 61 of 1960). Nisi Prius (Jackson S.P.J.) ; 19th April 1961. Collision between pedestrian and motor wagon.

The plaintiffs' husband and father was killed when he was struck by a motor wa,gon driven by the defendant. The evidence showed merely that the deceased had got out of a stationary vehicle in which he had been travelling and had gone across the road to another vehicle which had pulled up on the opposite side of the road about 100 yards away. His fellow-passengers in the first vehicle heard a knock or a hit as the motor wagon driven by the defendant approached. The defendant gave no evidence. For the plaintiffs it was argued that the proper inference was that the deceased was struck while walking on the roa.d, and that as the headlights of the defendant's motor wagon were burning he should if he were keeping a proper lookout have seen the deceased in time to avoid hitting him; thus the accident was the result of the defendant's negligence. The learned judge described the case as one in which the evidence was sketchy and the choice was between reasonable inference and mere conjecture.

40 Id., at 176. 4 1 [I9481 A.C. 549, at 567.

He cited what ha,d been said in Holloway v. M c F e 8 t e - r ~ ~ ~ to the effect that what was necessary in such cases was that, according to the course of common experience the more probable inference from the circumstances that sufficiently appear must be that the injury arose from the defendant's negligence-that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood. He referred also to Jones v. D ~ n k e 1 . ~ ~ Returning to the instant case, His Honour found that on the evidence it was impossible to say whereabouts on the road the deceased was when he was struck, what he was then doing, which part of the defendant's vehicle struck him, on which part of the road the vehicle was travelling, and where he was found after the accident. In the circumstances, it was pure conjecture how the accident happened and there was no warrant for holding that the defendant was negligent.

E.K.B.

107. Kenworthy v. Morley Park Hotels Pty. Ltd. ( K . No. 6 of 1960). Nisi Prius (D'Arcy J.) ; 3rd July 1961. Amplified music and entertainment fr* hotel.

The plaintiff complained of a nuisance created by the noise caused by the conduct of entertainments in an open-air beer garden on the opposite side of the street from his residence and at least 62 yards away from it. The noise was the result of the amplification of the entertainment through sound amplifiers to such an extent that every word that was sung or announced could be clearly heard in the plaintiffs house. Part of the area in which the hotel and the house were situated was set aside for business sites, and pa,rt for light industry, under the Town Planning and Development Act, and was to some extent used for this purpose. The learned Judge held however that, even if this could be regarded as a statutory power to carry on such activities, in the absence of specific statutory authority they must be carried on in such a way as not to constitute a nuisance, citing Rapier v . London Tramways C O . ~ ~ Moreover, whatever the standard of comfort in a district dedicated to commercial pursuits, the addition of a fresh noise might be so substantial as to create a legal nuisance- Rushmer v. Palsue and Alfieri,d5 was cited. Applying the test in

42 (1956) 94 Commonwealth L.R. 470. 43 (1958) 101 Commonwealth L.R. 298. 44 [I8931 2 Ch. 588, at 599-600. 45 [I9061 1 Ch. 234; [I9071 A.C. 121.

Walter v . Selfe46 the learned Judge held that the plaintiff was entitled to relief against the defendant company, and awarded £200 damages for the period of approximately two years during which he had suffered inconvenience. He also granted an injuction restraining the defendant from amplifying electrically the sounds on or about Morley Park Hotel in such manner as to cause a nuisance to the plaintiff.

E.K.B.

108. Stephens ZJ. Perki'ns Steel and Engineering Pty. Ltd. ( S . No. 102 of 1960) . Nisi Prius (Hale J.) ; 31st May 1961. Noise from steel yard.

The defendant company established a steel yard on a block of land adjoining the plaintiffs residence. The general locality in which the residence was situated was described as light industrial, but the immediate locality of the house was residential and it was agreed by the defendant that the general background noise level in the house, excluding the noise from the steel yard, was about what would be expected in an ordinary residential suburb. The plaintiff complained of a nuisance caused by the operaptions of the steel yard between 8 a.m. and 5 p.m. on Mondays to Fridays; she alleged five heads of nuisance -noise from vehicles using the driveway, noise from the workmen shouting in the course of their work, the noise caused by an overhead gantry crane erected on the defendant's land as it moved along the rails, the noise from the electric motor which operated the gantry, and the noise produced by the clashing of sheets of steel and girders and the chains used in lifting them while loading and unloading. The noise arising from the first four heads of complaint was found by the learned Judge not to amount to a nuisance. He found however that the noise produced by the handling of steel of the size stored by the defendant in the yard could be intolerable if care were not taken in the handling of the steel, but if care were taken it need not produce any appreciable noise. He found also that to start with the defendant did not take adequate care and that the plaintiff did suffer a substantial annoyance from the resulting noise, but that during the twelve months preceding trial the yard had become much quieter because of the taking of more care. In determining the degree of annoyance suffered by the plaintiff the learned Judge said that he derived no assistance from electronic measurement of the intensity of the noise produced by the steel yard, as it failed to convey any real idea of the impact any particular sound was likely to make on the human ear.

46 (1851) 4 De G. & Sm. 315, at 322.

The question, nuisance or no nuisance, must be answered broadly as a matter of commonsense after hearing from witnesses a description of what they heard and what impact the noise made on them. More attention was paid to the evidence of a medical practitioner as to the nature and effect of the noise of metal dropping.

In view of the fact that for the year preceding the hearing the defendant had made a real and effective effort to suppress unnecessary noise no injunction was granted, but for the period of three and a half years before this, during which the defendant took little or no care to avoid noise which would be distracting and distressing to a neighbouring householder, the plaintiff was awarded damages of £250.

E.K.B.

109. Re Laurance Arthur Brewer. (S. No. 49 of 1956). In Bankrupt- cy (Jackson S.P. J.) ; 3rd August 1961. Bankruptcy-Direction to Trustee-Charge over shares created by lien does not extend to bonus shares not deposited with lienee.

The debtor Brewer arranged with a bank to overdraw his account and gave to the bank by way of security a number of fully paid shares in a picture thea.tre company. The share certificates, bearing on them a transfer signed in blank, were delivered to the bank which had continued to hold them, and at the same time the debtor executed in favour of the bank a document known as a general lien. The bank had not made a, demand for payment of the money owing to it under the general lien, nor had it given notice to the company of the security held by it over the shares nor required the dividends payable in respect of the shares to be paid to it.

Three years later a sequestration order was made in respect of the estate of the debtor, and aft about the same time the company dcided to make a bonus issue of shares. The bonus shares due to the debtor were issued four months after the sequestration order, the certificates being received and held by the trustee in bankruptcy. The bank then claimed that its security extended to the bonus shares as well as the original certificates deposited with it. For the purpose of determining the attitude he should take with respect to this claim the trustee made this application to the Court pursuant to section 105 (i) of the Bankruptcy Act 1924 for directions.

The bank claimed that the deposit of the share certificates as security for advances amounted to an equitable mortgage of the shares

which entitled it to bonus shares issued subsequently. This claim did not find favour with the Judge who held that the only remedy of an equitable mortgagee of shares was to obtain an order for transfer and foreclosureff7 and until this was done no title could be acquired to the bonus shares. In any event the deposit of the certificates was made pursuant to the general lien which defined the rights and remedies of the bank. The lien provided that only those shares the certificates for which were then or later deposited were charged. As the bonus share certificates were never in the bank's hands they never became express7 ly charged.

In addition, the remedies provided in the lien included the payment to the bank of rents, dividends, etc., in respect of the property chaxged, but only after notice had been given by the bank to the company. As no notice had in fact been given prior to the issue of the bonus shares to the trustee, the Judge's view was that the bank had no claim to the dividends or bonus shares. Accordingly, he answered the question asked by the trustee by saying that the claim to hold a security over the bonus shares by the bank should be resisted.

I.M.

110. Rowlands v . City of Perth. (R. No. 13 of 1960). Nisi Prius (D'Arcy J.) ; 2nd May 1961.

, Employment-Overtime-Award under Industrial Arbitration Act.

In 1952 the plaintiff was employed by the defendants to take charge of a golf course. In his letter of appointment his post was described as "foreman of the Wembley Golf Links." At the time of his appointment there was in operation an award under the Industrial Arbitration Act 1912-1949. Schedule A of that award contained several references to positions which included the word "foreman" in their titles; but there was no reference in the Schedule to a position with a similar title to that of the plaintiff. The plaintiff worked a,t the golf course until January 1960, when he left the employment of the defendants; during this period he was not paid overtime. By an amendment to the award in 1955 the position of "Foreman, Golf Course (with quarters)" was added to the Schedule. Clause 8 of the Schedule of the amended award provided that foremen should be paid overtime for work done on Saturdays, Sundays and public holidays, but that officers not working under close supervision or whose hours of duty were not definitely determined should not be entitled to claim overtime.

47 Relying on Harrold v. Plenty, [1901] 2 Ch. 314.

The plaintiff claimed £2850. 9. 9. for work done on Saturdays, Sundays and public holidays.

D'Arcy J. held that although the plaintiff was described as "foreman of the Wembley Golf Links", the title did not describe the duties of his office. He did not supervise the work of others, nor was he subject to supervision in his own work. He was not, therefore, entitled to overtime.

W.E.D.D.

11 1 . T o n k i n &' O t h e r s v . Brand &' Others . ( T . No. 32 of 1960) Full Court ( Wolff C. J., Jackson S.P. J., Hale J. ) . Constitutional Law-Electoral Districts Act 1947-Duty of Executive to advise Governor to issue proclamation directing electoral radistribu- tian.

This case will be reported in full in [I9621 West Australian Reports: but because of its constitutional and general importance an outline of the relevant facts is given here-partly for the information of those who do not have access to the West Australian Reports, and partly as an introduction to a comment, in the next issue of the Review, on the legal issues at stake.

Ever since the grant of responsible government to Western Australia in 1890, the allocation of seats in the Legislative Assembly has been deliberately weighted in favour of the country areas. An arbitrary number of seats was always given to the "North West" (which means the northern and much larger part of the State-which is very thinly populated) ; then in varying ways the remainder of the seats were allocated so that the number of electors in the average metropolitan electorate always exceeded the average in the non-metropolitan. 1947, with the Electoral Districts Act of that year, brought into existence the latest and still current method of weighting; but it also had some features which had not appeared in earlier legislation.

The North West received three out of fifty Legislative Assembly seats, thus suffering a reduction of one. The rest of the State was divided into two areas; the metropolitan, and the agricultural, mining, and pastoral (which hereafter will be described as non-metropolitan) . Adult suffrage obtains: the number of registered electors in the metropolitan area is divided by two and then added to the number of registered electors in the non-metropolitan area. The total *

so obtained is then divided by 47, the resulting figure being the electoral quota. The "adjusted" number of electors in the metropolitan area, and the actual number of electors in the non-metropolitan, are then divided by this quota to determine the allocation of seats to each area; since the division is likely to produce two whole numbers and two fractions the metropolitan area gets the unallotted seat. The practical result is that each metropolitan electoral district has twice as many electors as the average of the non-metropolitan districts.

The Act then provides the method of determining the actual electoral boundaries in each area. Three Commissioners are appointed who divide the two areas into the correct number of districts; but they are not bound to provide for exact equality. They must consider such matters as "community of interest, means of communication, physical features, etc."; and they can "adopt a margin of allowance'' above or below the average for the particular area of not more than 10%. Their determinations, when complete, are published in the Government Gazette and in a newspaper circulating in any district whose boundaries are to be altered. During the next two months any person may object in writing; then the Commissioners consider the objections-though they can ignore them all-and send their final recommendations to the Governor. As soon as these have been promulgated by Order in Council and published

in the Government Gazette they have the force of law. T h e Act also contem- plates the need for revision of electoral districts and makes appropriate provision in regard thereto. A proclamation reconstituting the Electoral Commission "shall be issued by the Governor: (a) if the Legislative Assembly so resolves, or (b) if in the report by the Chief Electoral Officer to the Minister to whom the administration of the Electoral Act, 1907-1940, is for the time being committed, as to the state of the rolls made up for any triennial election it appears that the enrolment in not less than five Electoral Districts falls short of o r exceeds by twenty per centum the quota as ascertained for such districts under this Act." Once the proclamation has been issued the procedure is as has already been described.

T h e last triennial election, held early in 1959, saw a Labour Government facing the electors at a time when the electoral rolls, brought up to date for the election, showed that nearly a dozen districts varied more than 20% from the relevant quota. As the returns came in it became more and more certain that the Labour Party would be defeated; but before the Government resigned it advised the Governor (after having received a report from the Chief Electoral Officer) to issue the necessary proclamation appointing Electoral Commission- ers. This proclamation was published in the Government Gazette; within a few days the Government had resigned and was succeeded by a Liberal-Country Party coalition. The latter announced that it intended to sponsor legislation to amend the 1947 Act; hence, in its view, it would be a waste of time for the Electoral Commissioners to make enquiries and recommendations which might be completely useless if and when the Act were amended. But a valid proclamation had already been issued; and once that had been done a certain sequence of events was automatic. The first and essential step, therefore, was to set aside the proclamation; but this could only be done by legislation. Accord- ingly, the first measure brought before the newly elected Legislative Assembly was a Bill to cancel the proclamation and terminate the appointment of the Commissioners; that was duly passed by both Houses and received assent on 7th July 1959. When introducing the Bill the Government explained that i t intended to propose amendments to the 1947 Act later in the session; but subsequent events made it impossible for the Government to carry out that intention. A Bill to amend an Act such as the Electoral Districts Act is one of a small class of measures which require an absolute majority in both houses; the Government was assured of such a majority in the Legislative Council and seemed to have every prospect of being equally successful in the Legislative Assembly. In the latter House its own supporters numbered twenty-five, one of whom was elected as speaker and therefore became in effect voteless; but i t had every reason to believe that it could count on the support of two independent members; if it could, it could muster 26 votes, an absolute majority of the total membership of 50. Before it could introduce its amending Bill, however, one of its supporters became very seriously ill-the absolute majority had temporarily disappeared1 When, some months later, that member had recovered and would soon be well enough to attend the House, one of the independent members announced that he intended to cross the floor and join the Labour Party (which enthusiastically welcomed him into its ranks)-the absolute majority had now disappeared for the full duration of the Legislature! I t would be pointless for the Government to sponsor a measure to amend the 1947 Act; but it did not advise the issue of a new proclamation so as to provide for a redistribution of seats. I t looked as though the next election (due early in 1962) might be conducted on electoral rolls which were likely-because of population shifts, etc.-to show even more anomalies than the rolls had done in 1959. Late in 1960 five members, all representing electorates which varied from the norm by much more than the permissible 20%, adventurously issued a writ out of the Supreme Court against all the members of the Government. The plaintiffs did not seek a mandamus to compel the ministers, acting col- lectively in Executive Council, to advise the Government to issue a new proclamation; they merely sought a declaration that the ministers were under a legal duty to give such advice. The action was heard before a court of three Judges who unanimously gave judgment in favour of the plaintiffs on 25th May 1961.

F.R.B.

CONTRACT.

140. Sims v. Swan. ( S . No. 84 of 1961). Nisi Prius (Virtue J.) ; 12th September 1962. Account stated-Acknowledgment of debt.

The defendant, who was a vendor of scrap metal, had signed a document acknowledging that he owed £1,180. 16. 3 to the plaintiff. I n tha,t document the defendant agreed to have 10% deducted from all monies due to him during the course of trading between him and the plaintiff until his debt to the plaintiff had been liquidated. The plaintiff brought an action for £1,038. 2. 0, which he claimed was due to him after 10% had been deducted from the purchase price of scrap metal sold to him by the defendant. The defendant a.dmitted signing the document, and also admitted owing £1,038. 2. 0 to the plaintiff after the deductions from the price of the scrap metal; but he alleged that the acknowledgment was subject to a condition that the plaintiff would accept pa,yment of the amount so acknowledged by the deduction of 10% from the purchase price rd scrap metal supplied by the defendant and would not require payment in any other manner, and also subject to a further condition that the plaintiff would accept such scrap metal as the defendant offered at the best available price.

Virtue J. held on the evidence that the acknowledgment was subject to no such conditions and gave judgment for the plaintiff.

W.E.D.D.

141. Correiu v. Arneli. ( A . No. 8 of 1961). Full Court (Wolff C.J., Nevile and Hale JJ.) ; 16th May 1962. Breach-Penalty-Entire contract.

The appellant appealed from the decision of D'Arcy J.I Wolff C.J., with whom Nevile and Hale JJ. agreed, allowed the appeal on the grounds that the contract was an entire contract by reason of the fact that it was the intention of the parties that no pa,yment should be made beyond the first payment unless and until the respondent had completed the whole of the term of service, and that the respondent was therefore entitled to nothing further than the first payment which he had ~ollected.~ Hale J. also held that the appeal could be allowed on the grounds that on the finding of fact made by the trial judge the parties had expressly agreed that for each trip completed by the

1 Noted supra at 101. 2 Citing Cutter v. Powell, (1795) 6 T.R. 320, 101 E.R. 573.

respondent he should be paid an amount ascertained from the first distribution of the pool, and that he should get something more if he continued to serve throughout the season; as he had not served throughout the season, he was not entitled to the something more.

W.E.D.D.

142. Brackenbridge Bros. Pty. Ltd. v. Connor. ( B . No. 23 of 1961). Nisi Prius (Jackson S.P. J.) ; 22nd November 1962. Breach-Implied terms-Measure of damages.

The plaintiff company was a building contractor and the defendant was a master plasterer. The plaintiff had contracted with the Minister for Works to carry out additions to the Scarborough High School, and the defendant had contracted with the plaintiff to do the plastering involved for £1,797. When the time came for the plastering to be done the defendant refused to do the work, and the plaintiff contracted with another plasterer to do the work for £2,743. 10. 9. The second plasterer performed the work and was paid that amount, and the plaintiff claimed £946. 10. 9 from the defendant, being the difference between the amount paid to the second plasterer and the price agreed with the defendant.

In defence the defendant alleged:

1. That the formation of any contract was conditional on the consent in writing thereto of the Ministeis architect and that no such consent was obtained.

2. That it was a term of the contract that the defendant would be able to commence the plastering no later than the third week in November, whereas, in fact, the building was not ready for plastering until mid-December.

3. The cost of the work done by the second plasterer was excessive.

Under the terms of the plaintiff's contract with the Minister for Works, the consent of the Minister's architect was required for any sub-contract. Jackson S.P.J. found, however, that it was not the practice to obtain the architect's consent to each sub-contract, but that when the architect disapproved of a particular sub-contractor, the latter's rights under the contract were revoked; it was reasonable, therefore, to conclude that the sub-contract should be read subject to an implied condition that it would go off if the architect disapproved, and not subject to an implied condition that the architect's consent to the sub-contract must be obtained before the sub-contract could

take effect. In His Honour's view the consent of the Minister's architect was a condition subsequent and not a condition precedent.

With regard to the second and third grounds of defence, Jackson S.P.J. found on the evidence that it was not a term of the contract that the defendant should be able to commence the plastering no later than the third week in November, and that the cost of the work done by the second plasterer was not excessive. The plaintiff, therefore, obtained judgment for £946. 10. 9.

W.E.D.D.

143. Bank of Adelaide v. Hammond. (B. No. 31 of 1961). Nisi Prius (Negus J.) ; 6th July 1962. Claim under guarantee.

The plaintiff bank claimed 85,497. 17. 10 and interest at 6% from 26th March until payment of judgment, which it claimed was due to it from the defendant under a guarantee of the indebtedness of J. H. Masters Pty. Ltd. The defendant denied liability and counterclaimed £983. 13. 0, alleging that the receiver appointed by the bank under a debenture executed by J. H. Masters Pty. Ltd. wrongfully seized and sold 137 bales of wool owned by him but in the possession of the company, received the proceeds totalling £6,481. 10. 10, and paid them to the bank. The case turned on whether or not the defendant owned the 137 bales of wool as he alleged.

Negus J. held on the evidence that the defendant did not own the bales of wool, allowed the plaintiff's claim, and dismissed the counter-claim.

W.E.D.D.

144. Tilley v. Western Australian Milk Board. (T. No. 23 of 1961). Nisi Prius (Negus J.) ; 22nd June 1962. Corporation's power to contract other than under seal.

The plaintiff, a consulting engineer, claimed £1,410 from the defendant Board as a professional fee for giving expert evidence at an inquiry and preparing estimates of cost of the construction of an egg floor for the Board; alternatively he claimed payment on the basis of a qudntum meruit. The Board denied requesting the plaintiff to give evidence or instructing him to prepare estimates.

Negus J. held that the Board was not a trading corporation ,but was entitled to make contracts not under seal in matters of a tem-

porary or minor nature;3 he held, however, that the subject matter of the alleged contract was neither minor nor temporary. His Honour, however, went on to hold that the alleged contract did not have to be made under seal, as it was a contract for work necessary for the purposes for which the Board was created? On the evidence Negus J. found that the Board did not request the plaintiff to give evidence or prepare estimates: the plaintiff had been so requested by the manager and secretary of the Board who were acting outside the scope of their apparent authority in so doing. The plaintiffs claim was therefore dismissed.

W.E.D.D.

145. Hansen v . Johansen. ( H . No. 26 of 1962). Nisi Prius (Negus J.) ; 3rd September 1962. Employment-Wrongful dismissal- Wzasure of damages.

The plaintiff, a Norwegian, was employed by the defendant on 21st December 1961, and on 10th April 1962 the defendant gave the plaintiff 14 days' notice terminating the employment. The plaintiff alleged that he had been wrongfully dismissed, and claimed as damages his salary from 1 lth April 1962 until 21st September 1963 on the basis that he was entitled to be employed until 21st September by virtue of his contract, and was then entitled to twelve months' notice. He also claimed the travelling expenses from Norway to West- ern Australia of himself, his _wife, and four children, which he alleged were payable under the contract, and the travelling expenses by air for himself, his wife, and four children to return to Norway.

Negus J. held tha.t under the terms of the contract the employment was to be of indefinite duration, but was determinable on reasonable notice; His Honour further held that it was provided in the contract that if the employment lasted nine months, and the defendant was satisfied with the service rendered by the plaintiff during that period, and the plaintiff was prepared to remain in his position permanently, the defendant was to pay the travelling expenses of the plaintiff and his wife to Australia. Negus J. held that the defendant had acted reasonably in terminating the plaintiffs employment, and that the plaintiff was not entitled to recover his and his family's travelling expenses from Norway; in His Honour's opinion this would have been so even if the defendant had had no justification for dis-

3 Citing Haines v. The Borough of Grafton, (1899) 20 N.S.W. L.R. 324. 4 Citing Lawford v. Billericay Rural District Council, [1903] 1 K.B. 772; Douglas

v. Rhyl Urban District Council, [I9131 2 Ch. 407.

missing the plaintiff. Negus J. went on to hold tha.t the defendant had not given the plaintiff reasonable notice of dismissal; in view of the facts that the plaintiff had been asked to come to Australia from Norway and that his prospects of getting new employment in Australia were not very good, His Honour was of the opinion that the plaintiff should have been allowed a longer time than usual to look for other employment, and held that in the circumstances twelve months would have been a reasonable period of notice. In May 1962 the plaintiff had been offered a position as third mate on a ship, but had declined it. Negus J. held that he had not acted unreasonably in refusing this appointment and insisting on looking for a shore job, but was further of the opinion that it was not reasonable that he should be allowed to continue that sea,rch for the full twelve months. In His Honour's opinion a period of six months would have been long enough for him to search for a shore job, and at the end of that period he should have been willing to accept a seagoing job which would have been available to him at a salaxy equivalent to that paid to him by the defendant, within a period of two months. Negus J. further held that it was reasonable for the plaintiff to return by air to Norway to search for new employment, but that he should send his family by sea. His Honour held, therefore, that the plaintiff was entitled to eight months' salary less the 14 days' salary he had received in lieu of notice, together with a tourist class air fare to Norway for himself and medium fares on a one-class ship for his wife and children.

W.E.D.D.

146. Brown v. The Perpetual Executors Trustees and Agency Co. ( B . No. 61 of 1960). Nisi Prius (Hale J.) ; 2nd November 1961. Sale of land-Contract made "subject to finance being arranged."

The plaintiffs sued the defendant company as executor of the brother of the first plaintiff for specific performance of a contract by which they alleged that they had agreed to buy the deceased's farm. The plaintiffs sued on a verbal contract by which they agreed to buy the deceased's farm for £10,000, provided that they could obtain finance from their bank. The bank agreed to provide finance for the purchase, and a formal contract of sale was drawn up; but before he could sign the contract the vendor died. The defendant alleged that the plaintiffs had failed to prove a concluded contract, and all that had occurred was a discussion which was not intended to constitute a contract until a formal document had been prepared and signed.

Hale J. held on the evidence that the case fell within one or other of the first two categories described by the High Court in Masters v.

CameronP and that there was a binding contract. His Honour stated6 that where a bargain is made "subject to finance being arranged" there is a contract with a condition subsequent for the release of the purchaser if he cannot arrange finance; an essentially different situation to a case where bargaining terminates on the note that nothing is to be taken as finally agreed until a formal contract is signed.

W.E.D.D.

147. Leach v . Ashby. ( L . No. 17 of 1961). Nisi Prius (D'Arcy J.) ; 9th May 1962. Sale of Land-Agent's scope of authority--Oral instructions limiting authority.

The plaintiff alleged that on 7th April 1959 he contracted to buy an allotment of vacant land from the first defendant. After that date there was a resubdivision of the land which included the lot which the plaintiff alleged he had contracted to buy from the first defendant, and on 24th July 1961 the Registrar of Titles received for registration a transfer from the first defendant to the second defendant of an allotment of land comprising most of the land which the plaintiff alleged he had contracted to buy from the first defendant on 7th April 1959. The plaintiff claimed an injunction restraining the Registrar from registering the transfer; a declaration that the second defendant had no interest in the land as purchaser or otherwise; an order for specific performance with abatement against the first defendant; or alternatively damages instead of an order for specific performance. The first defendant denied the alleged agreement to sell the land to the plaintiff. The alleged agreement had been nego- tiated with land agents, and the first defendant denied that the land agents had authority to sell the land on his behalf, and stated that they were only authorized to find a purchaser for him, and not to conclude a sale on his behalf. D'Arcy J. held on the evidence that the land agents were not authorized to conclude a sale of the land on the first defendant's behalf but were only authorized to find a purchaser for him, and dismissed the plaintiffs action. In arriving at this conclusion D'Arcy J. considered a letter written by the first defendant to the land agents on 4th March 1959, authorizing them to sell the land on his behalf by public auction and afterwards by priva,te treaty; His Honour held that the letter did not contain the whole of the agree-

5 (1954) 91 Commonwealth L.R. 353, at 360. 6 Citing Jubal v. McHenry, [1958] Victorian R. 406; Atherton v. Flodine

[1959] 2 Queensland R. 364.

ment between the first defendant and the land agents but only part of the agreement; the rest consisting of oral stipulations, which had the effect of restricting the authority of the land agents to finding a purchaser for the first defendant and forbidding them to conclude a sale on his behalf.'

D'Arcy J. indicated that had he come to the opposite conclusion he would not have exercised his discretion to award damages, but would have ordered specific performance with abatementea

W.E.D.D.

CRIMINAL LAW.

148. Morrell v. Turton. (Appeal No. 36 of 1932). Order to Review (D'Arcy J.) ; 6th September 1962. Vermin Act-Notice specifying means of eradication.

The respondent had been prosecuted for having failed to commence to comply with the provisions of a notice under section 98 of the Vermin Act 1918-1960. The notice required him to commence to destroy the rabbits on his property and to continue until they were suppressed or destroyed. I t specified the means whereby this was to be done: "Destruction of warrens by deep ripping followed by fumigating with recognized lethal fumigant." The respondent had dug into the burrows and inserted fumigating tablets. He had not, however, destroyed the warrens by deep ripping. The magistrate had nevertheless dismissed the charge, having found that (in his words) "the defendant commenced the eradication of rabbits on his property when he could and by the only means available to him," and "that the defendant had done what he could without a ripper and that although what he did may not have been technically the same as deep ripping, it seemed to have done as good a job, or nearly as good a job."

D'Arcy J. on the return of an order nisi to review this decision made the order absolute and remitted the case with directions to con- vict. Clearly the respondent had not complied with the letter of the notice and technically he could have been found guilty; section 98 empowers the inspector to give notice not merely to destroy vermin

7 In support of the proposition that an oral agreement should be read with a written instrument as forming the entire contract, where the written document is not intended to express the whole of the agreement between the parties, D'Arcy J . cited Harris v. Rickett, (1859) 4 H. & N. 1 , 157 E.R. 734; Walker Property Investment (Brighton) Ltd. v. Walker, (1947) 177 L.T. 204; Couchman v. Hill, [I9471 K.B. 554; Ardennes (Cargo Owners) v. Ardennes (Owners), [1951] 1 K.B. 55.

8 Citing Gall v. Mitchell, (1924) 35 Commonwealth L.R. 222.

but "to take such steps and adopt such means to suppress and destroy vermin . . . as may be specified in such notice." His Honour referred to the objectives of the legislature as indicated by the long title:- "An Act relating to vermin fencing and the control, prevention and eradication of vermin and for other purposes incidental thereto;" to the wide powers given to the boards of vermin districts, and to the requirement in a vast State with a variety of vermin that powers be delegated in the most general terms. He also expressed the opinion that the magistrate had misdirected himself- " . . . nowhere does it appear that he bent his mind to the question of the destruction of warrens as an operation and a result." But with respect, it is submitted that though the destruction of warrens was expressly required in the notice it was not "a resultyy: it was only a, means to an end, the end being, in the terms of section 98, ". . . to suppress and destroy vermin or destroy eggs . . . ". Moreover, the magistrate did appreciate that the respondent had been required to deep-rip and had not done so. However desirable it might be for the legislature to give wide powers and to enable such powers to be delegated, it is surely as desirable for the Courts to ensure that the powers are not abused. Though the liability is imposed in absolute terms, the statute can hardly be taken as empowering the inspector arbitrarily to require in his notice something it would be impossible to perform. And if the requirement seems disproportionately onerous the court should be free to look behind it. There is no evidence on the record suggesting-and it was open to the prosecution to give evidence on this question-that warrens which had been dug into and fumigated constituted any greater a vermin hazard than deep-ripped warrens did. The magistrate seems to have doubted whether deep-ripping would have done a better job, and if his decision was based on a finding that what the respondent had done was as effective, it was not an unworthy decision.

E.J.E.

DOMESTIC RELATIONS.

149. Jennings v. Montague. ( J . No. 1 of 1962). (Virtue J.) ; 21st March 1962. Custody-Habeas Corpus-Adoption.

Three separate proceedings taken by the parties in this case were heard together by agreement of the parties and affidavits filed were permitted to be freely used in all the proceedings. The proceedings represented, in the words of the trial judge, moves in a bitterly con- tested struggle to gain custody and control over an illegitimate child,

between on the one hand the mother of the child and on the other hand the mother's parents.

The applicant, Mrs. Jennings, in 1958 when unmarried had given birth to an illegitimate child in Melbourne. When she returned to Western Australia the child was passed off as the child of her parents the respondents, Mr. and Mrs. Montague, who in fact had assumed the main responsibility for his care and upbringing. In 1960 the Montagues attempted to a.dopt the child with the mother's consent in Victoria, but the attempt failed because the Supreme Court of Victoria lacked jurisdiction, none of the parties being domiciled in that State. Soon afterwards the applicant married but allowed the child to remain with her parents. Relations between the two families were friendly and the applicant saw the child several times each week. This situation continued until late in 1961 when relations became very strained culminating in the grandparents deciding to establish a domicil in Victoria, and to obtain an adoption order there. This decision prompted the mother to apply for a writ of habeas corpus for the return of the child to her and also to institute proceedings for custody of the child under the Guardianship of Infants Act. The grandparents retaliated with an application for an a.doption order which included asking for the consent of the mother to be dispensed with.

The application under the Guardianship of Infants Acts was dismissed because it was conceded that those Acts did not give the Court the power to make an order for custody of an illegitimate child. Although he was in the circumstances not called upon so to decide, Virtue J. commented that he could see no reason why the decision in R e C. T. (An Infant) ,9 where it was held that the (English) Guardian- ship of Infants Act did not confer power to make custody orders in respect of illegitimate children, should not be followed.

This left the application for habeas corpus on the one side and the adoption applica.tion on the other. His Honour then decided that he would not be justified in dispensing with the mother's consent to the adoption if he concluded in her favour on the merits in her habeas corpus application; so the vital question to be determined was her right to the issue of the writ.

His Honour then reviewed the evidence which in his view showed that the mother had done nothing to justify the court in depriving her of the child to whom she had every moral right, and being guided by the principles stated in Re J . M. Carrolllo and Mace v. Murray1"

9 [1957] 1 Ch. 48. 10 [1931] 1 K.B. 317, at 351. 11 (1954-1955) 92 Commonwealth L.R. 370, at 383.

as to the position at common law of a mother with respect to her illegitimate child, he ordered that habeas corpus should issue and the application for adoption be dismissed.

I.M.

150. Lambert v. Lambert. (Appeal No. 3 of 1962). Appeal by way of order to review (Virtue J.) ; 11th May 1962. Married Persons Relief-Cruelty-Constructive desertion-Condonation.

This was an appeal against an order of the Married Persons' Relief Court made in favour of the respondent wife for separation and maintenance upon her complaint that the appellant husband had been guilty of cruelty, constructive desertion, and wilful neglect to maintain.

The magistrate had found that the husband's conduct towards the wife in persistently nagging her and on occasions physically ill- treating her until March 1961 was excused because of his mental condition.12 After this date, however, when he had been discharged from treatment, he persisted in nagging the wife and told her to leave. She did so for a short period but returned to live with him for a further three months whereupon being told to leave again she did so. In the view of the magistrate cruelty and constructive desertion ha.d been established.

On appeal, Virtue J. held that the magistrate had not properly considered the principles of cruelty and after referring to the nature of cruelty discussed in Russell v. Russel1,l3 King v. King14 and Squire v. Squire,15 he held that a finding of cruelty was not justified in this case.

The next question was whether there had been constructive desertion. His Honour on this issue found that when the wife first left, the husband's conduct fell within the provisions of section 5 (2) (a ) of the Married Persons (Summary Relief) Act 1960 and so did constitute constructive desertion, but this offence was condoned by the subsequent resumption of cohabitation, and the husband's conduct thereafter was not of sufficient gravity to revive the condoned offence.

On the third issue of whether there had been wilful neglect to maintain it was conceded that there was no evidence upon which the

12 Relying on Astle v. Astle, [I9391 3 All E.R. 967. 13 [I8971 A.C. 395. la [i953] A.C. 124. 15 [I9481 2 All E.R. 51.

magistrate could reasonably make such a finding and so the appeal was allowed.

I.M.

151. Treloar v . Treloar. (Appeal No. 1 of 1962). Appeal by way of order to review (Virtue J.) ; 25th May 1962. Married Persons Relief-Constructive desertion.

In the Married Persons' Relief Court held at Kalgoorlie the wife alleged that since the marriage of the parties in 1957 the husband had refused to allow her to have children; on occasions ha.d physically ill-treated her, the last such occasion resulting in her leaving him; and had been mean over money matters. The Court found that this conduct of the husband over the years constituted just cause for the wife to live apart from him, had occasioned her to leave him, and so amounted to desertion by him pursuant to section 5 (2) (a ) of the Married Persons (Summary Relief) Act 1960.16 I t accordingly made an order for separation and maintenance in her favour.

I t was against the making of this order that the husband appealed. Virtue J. after first pointing out that it was common ground that neither the acts of physical interference nor the refusal to have a child in themselves justified a finding that the husband was guilty of a matrimonial offence, went on to say that while he was not holding that in a proper case a denial by a husband to his wife of a child if persisted in could not amount to conduct providing just cause and excuse for her leaving, such a denial did not in his view necessarily do so, and whether it did depended upon the surrounding circumstances. In the present case the evidence showed that on two prior occasions when the wife had left the husband the condition of her return to him had been purely a mercenary one and not a promise that she should have a child, and in view of this the judge concluded that this complaint was insincere. The other matter of complaint, the ill-treatment, ha.d not resulted in any deterioration in her health nor, on her own admission, since 1959 had the wife been in fear of the husband. Accordingly on the evidence the judge held that the wife did not have just cause or excuse for leaving the husband and therefore the husband was not guilty of desertion within the meaning of the statute and the complaint should have been dismissed. The appeal was allowed.

I.M.

16 The section is substantially the same as sec. 29 of the Matrimonial Causes Act 1959 (Commonwealth).

152. Ferry v. Ferry. (Appeal No. 35 of 1961). Appeal by way of order to review (Hale J.) ; 18th June 1962. Married Persons Relief-Constructive desertion.

In the Married Persons7 Relief Court the magistrate had found tha.t the appellant husband had been guilty of constructive desertion and had accordingly ordered the appellant to pay maintenance for the respondent and given to her the custody of the children of the marriage.

As the wife had alleged constructive desertion the sole question to be answered was whether the evidence justified a finding that the wife had "just cause and excuse to live separately or apart" within the meaning of section 5 (2) ( a ) of the Married Persons (Summary Relief) Act 1960. Hale J., after referring to the meaning given to these words by the High Court in Magaard v. Magaard,17 went on to add that it was not possible to state with any exactitude what conduct would be sufficiently grave to amount to just cause and excuse but it certainly was not synonymous with unkind, ungrateful, discourteous, unsocial or irritating conduct which may cause a wife to be unhappy or discontented in her home. A review of the evidence led the judge to the conclusion that in this case the magistrate's finding was not justified, so the wife who had left the husband without just cause and excuse was in fact the deserting party. Being a deserting wife she was not entitled to maintenance so the order made in her favour was discharged.

I.M.

153. Pethick v. Pethick. (Appeal No. 31 of 1961). Appeal by way of order to review (Hale J.) ; 27th November 1961. Married Persons Relief-Desertion-Wilful neglect to maintain.

This was an appeal against an order of the Married Persons' Relief Court (held at Fremantle) made in favour of the respondent wife for separation and maintenance, which order was made after the court had found that the wife's complaints that the husband had been guilty of "actual and constructive desertion" and wilful neglect to provide reasonable maintenance ha.d been proved.

The evidence showed that the parties were married on 16th February 1961; that the husband was a farmer who at the time of the marriage had leased his farm; that the wife was running a small business which returned sufficient to support herself and an illegitimate

17 (1957-1958) 99 Commonwealth L.R. 1, at 5.

daughter. Between 1st January and 12th June the husband had paid £3000 in reduction of the mortgage on the plaintiff's house and either given or lent to her other sums amounting in all to more than a further £3000. Soon after the marriage the husband went to his farm for several weeks and then later took a temporary job in the country. On his return from his second trip away the wife refused to allow him back into the house and three weeks later ma.de the above complaints.

On this evidence Hale J. held that desertion could not be made out as there was no evidence when the husband left the second time that he intended to stay away. A submission that there was constructive desertion by the husband because he ha,d failed to make a special allowance for the house-keeping expenses while away was untenable. In addition, in the present case, if the wife said that the husband was guilty of actual desertion because he left against her will and while she wished to maintain the matrimonial relationship, it did not seem to him that she could at the same time be heard to say that he was in constructive desertion.ls I t followed, therefore, that the proper findings on this issue should have been that the wife had deserted the husband. Being in desertion, she was not entitled to be maintained and was not in a position to establish that the husband was guilty of wilful neglect to provide maintenance for her.lg Also, on the facts, the judge held that in his view this latter complaint could not be established as there was no justification for imputing to the husband knowledge that the wife had spent over £3000 in six months and was by then without means when the wife had at no time informed the husband of her financial position.

For these reasons the appeal was allowed. I.M.

EQUITY

154. W.A. Trustee Executor and Agency Co. Ltd. and Stoddart v. Lucas. ( W . No. 26 of 1961 ) . Probate Jurisdiction (D'Arcy J.) ; 13th March 1962. Lucas v. W . A . Trustee Executor and Agency Co. Ltd. and Stoddart. (W. No. 26 of 1961 ) . Full Court (Wolff C. J., Virtue and Negus JJ.) ; 24th July 1962.

1s The judge did recognize that such a case could occur in certain circumstances but these circumstances were not present in this case.

19 Citing Rouse v. Rouse, (1936) 38 West. Aust. L.R. 91, and Naylor v. Naylor, [1961] 2 All E.R. 129.

Testamentary capacity-Undue influence--Costs.

In this case D'Arcy J. considered the validity of a will which was challenged on the ground that the testatrix was not of sound memory and understanding and also on the ground that it had been made as a result of undue influence.

On the issue of testamentary incapacity, the evidence tended to show that the testatrix was a chronic alcoholic and suffered from delusions. Counsel for the defendant pointed to what he alleged was the irrationality of the provisions of the will, and also the effect of the constant consumption of alcohol on the judgment of the testatrix, in support of the submission that the testatrix lacked testamentary capacity. On the relevance of the rationality of the terms of the will, he cited Boreham v. Prince Henry H o ~ p i t a l . ~ ~ However, His Honour was a,ble to distinguish this case on the facts and he held that it was not permissible to look at the will independently of the factual context in which it came into being. On the effect of the constant and excessive consumption of alcohol, counsel relied on certain remarks of Dixon J. in Timbury v . Coffee,2l but again D'Arcy J. was able to distinguish the case and he based his decision on the circumstances in which the will was made, as established by the evidence. The evidence showed that in fact the testatrix had given instructions for, and had executed, her will during periods when she was sober and fully aware of what she was doing. Accordingly, after considering various authorities on the burden of proof in such cases22 and on the effect of insane delusions on testamentary capacity,23 His Honour held that the testatrix ha.d the necessary capacity to make the will.

On the issue of undue influence, His Honour referred to the cases of Craig v. Lamoureux,24 Bailey a. Hall v. H ~ 1 1 , 2 ~ and Nock v. and found that there was insufficient evidence to establish undue influence.

Accordingly, His Honour pronounced for the validity of the will

20 (1955) 29 Aust. L.J. 179, at 181. 21 (1941) 66 Commonwealth L.R. 277, at 283. 22 Timbury v. Coffee, (1941) 66 Commonwealth L.R. 277, at 283 (and authori-

ties therein cited) ; Worth v. Clasohm, (1952) 86 Commonwealth L.R. 439, at 453.

23 Worth v. Clasohm (supra) ; Bull v. Fulton, (1942) 66 Commonwealth L.R. 295, at 299.

24 [I9201 A.C. 349, at 356. 2s (1924) 34 Commonwealth L.R. 558, at 571. 26 (1868) L.R. 1 P. & D. 481, at 482. 27 (1918) 25 Commonwealth L.R. 519, at 527.

and, after referring to Re Cutcliffe ( d e ~ d . ) , 2 ~ ordered the defendant to pay the costs of the action.

The defendant appealed against the finding on the issue of testamentary capacity and against the order for costs. On the question of the testamentary capacity of the testatrix, the Full Court held that the issues were issues of fact depending on the testimony of witnesses, that the judge had properly directed himself, and that he came to the right conclusions. The Court also held that the judge haad acted in the proper exercise of his discretion in the matter of the costs.

D.E.A.

155. Lehane v. Halligan. (H. No. 53 of 1960). Full Court (Wolff C.J., Nevile and Hale JJ.) ; 20th May 1962. Testamentary capacity.

This was an appeal from a decision of Virtue J.29 admitting a will to proof in solemn form. The will had been challenged on the grounds tha.t the testator did not know and approve of the contents and that he was not of sound mind in that he was incapable of forming a rational judgment as to those persons who should be the objects of his benefaction.

The appeal was dismissed, the Court holding that Virtue J. had properly instructed himself on the law and had fully appreciated that considerable doubts existed as to the testator's testamentary capacity. Nevertheless the resolution of these doubts depended on the acceptance or rejection of the evidence, and this was properly the function of the judge at first instance.

D.E.A.

156. In re Frank Spencer Deceased, Spencer v . Dolman. (S. No. 19 of 1962). Originating summons (Virtue J.) ; 23rd May 1962. Will-Construction-Absolute interest follolved by purported disposition of remainder.

The operative portion of the will of the testator read as follows:- "I give unto my wife Sarah Ann Spencer all my estate real and personal. Af'ter her decease the estate to be divided between Calvert Charles Spencer, Herbert Spencer and Nellie Spencer . . . in the following manner . . . and my wife shall have the right to sell this property should she wish to do so."

2s [I9581 3 All E.R. 642, at 648-649. 29 Noted supra at 123.

Virtue J. was called upon to construe this will and to decide whether on the death of the widow the portion of residue remaining would pass under her will or under her husband's will.

After considering and applying the decision of Byrne J. in re Jones, Richards v. Jones,3O His Honour held that, having regard to the smallness of the estate and to the absolute power of disposition given to the widow, it was most unlikely that the gift over was intended to cut down the widow's interest to a, life estate. Accordingly the gift over would fail and the widow took absolutely.

D.E.A.

LEGISLATION AND ADMINISTRATIVE LAW.

157. Minister for Justice at the relation of McCutcheon and Om. V .

Shire of West Arthur. ( M . No. 44 of 1961). In Chambers (Jackson S.P.J.) ; 27th November 1961. Statute-Interpretation-Substituted Act.

The West Arthur Road Board decided late in 1960 to raise a loan of £18,000 to build a public hall. Under the Road Districts Act 1919-1959, the Board was required first to give notice by advertisement specifying inter alia the estimated cost of the project. The Board failed in its advertisement to include the estimate cost. The Act also provided that on the demand of a certain number of ratepayers within a specified time a poll was to be taken. Such a demand having been duly made, the poll was taken and resulted in a small majority in favour of the proposal to raise the loan. This put the Board in a position under section 301 of the Act "to proceed to make a special order for borrowing" the money.

On 1st July 1961 the Road District became a Shire under the Local Government Act 1960 (by which the Road Districts Act was repealed), and on 3rd July 1961 the Council of the Shire adopted a special order for raising the loan, which a bank had already agreed to make. The signed debentures were delivered to the bank on the same day and on 14th July 1961 it paid the £18,000 into an account in the name of the Shire with another bank. On 28th July 1961 the Minister for Justice at the relation of some of the ratepayers issued a writ claiming an injunction restraining the Shire from proceeding further with the loan and obtained an ex parte order for an interlocutory injunction until the trial of the action. The Shire now sought a discharge of this order by motion in chambers before Jackson S.P.J.

30 [1898] 1 Ch. 438. For a more recent decision arriving at a similar result, see Re White, (1962) 33 Dominion L.R. (2d) 185.

"It was important to decide," said His Honour, "whether the proposed loan was, as a matter of law, completed under the Road Districts Act or under the Local Government Act." If under the latter, then the Shire would succeed in its application; if under the former, it might not.

Under the Interpretation Act, section 16 (3)-the draftsman it would seem was not prepared to risk any oversight or possible mis- interpretation of section 3 of the Interpretation Act and so incorporated section 16 expressly into the Local Government Act-any enactment notwithstanding its repeal continues in force "for the purpose of continuing and completing . . . any civil proceeding, act, matter, or thing commenced or in progress thereunder, if there is no substituted Act or enactment adapted to the continuance and completion thereof." The words "any . . . act, matter, or thing commenced or in progress" were clearly adequate to include the proposal for the loan, but the question was whether the new Act, in relation to the repealed Act, was "a substituted Act . . . adapted to the continuation and completion" of the act, matter or thing. To answer this question His Honour applied a "broad testw:-"the substituted Act shall apply where it contains provisions by which it is convenient and practicable to complete some act, matter or thing which is in progress and for which similar though not necessarily identical provision is made under both statutes, but . . . otherwise the repealed Act shall continue in force so as to enable such a matter to be completed." As the provisions empowering the local authority to borrow money in the Local Govern- ment Act and the Road Districts Act are very similar (though there are minor differences), and the general scheme under each Act is the same, the Local Government Act, he held, is a substituted Act adapted to the continuation of the matter in progress, viz., the raising of the loan, and its provisions therefore applied.

Under the Local Government Act, section 612, the adopting of the proposal to borrow and the proceeding to borrow were subject only to the condition that "the raising of the loan is not forbiddenyy, and under section 613 the debentures once issued and sold are gooa and valid security against the local authority, again subject only to the same condition. As this condition was fulfilled when the poll resulted in favour of the loan, the Shire was entitled to raise the loan and issue the debentures.

But if the Road Districts Act had applied the position could have been different. While under section 301 the making of the special order is subject only to there having been no demand made, or the poll having resulted in a majority in favour of the raising of the loan,

under section 302, ". . . if the board publish a notice of their intention to borrow money and no such demand as aforesaid is made, or, if it is made, the requisite majority in favour of the loan is obtained on the taking of the poll on the question submitted, the board may issue debentures, and such debentures shall be good and valid as against such board." Was this to be construed as requiring the publication of the notice both if the demand was made and the majority favoured the loan, and if no demand was made, or only if no demand was made? His Honour preferred the first of these alternatives partly because it was "the more natural construction", and partly because under section 301 there is no mention of the publication of the notice.

Another question could have arisen if the Road Districts Act had applied. Section 259A of the Act enabled a ratepayer to test the validity of an order borrowing money in a court of summary jurisdiction, and purported to give such court exclusive jurisdiction. But after the repeal of that Act, section 16 of the Interpretation Act could not be relied on to save this special remedy which did not become available until after the borrowing order had been made.

E.J.E.

158. Amalgamated Collieries of W.A. Ltd. v. Coal Miners' Industrial Union of Workers of W.A. (Appeal No. 11 of 1962). Court of Criminal Appeal (Wolff C.J., Virtue and D'Arcy JJ.) ; 16th April 1962. Industrial Arbitration-Appeal to Court of Criminal Appeal-Long service leave.

Amendment No. 53 of 1957 introduced a new clause 2 (x) (a) into the Miners' Long Service Leave Award No. 104 of 1955, giving to employees in the coal mining industry on the termination of their services after a qualifying period of eight years a right to long service leave on a pro rata basis subject to certain limitations and conditions. One of these conditions was that the applicant should have obtained from the West Australian Coal Industry Tribunal a certificate to the effect that he had been unable within the time prescribed to obtain further employment in the industry. By amendment No. 18 of 1961 the Tribunal reduced the qualifying period to three years "but only in respect of the workers retrenched as the result of the latest allocation of coal orders by the West Australian Government resulting in the close down of Amalgamated Collieries of W.A. Ltd. [i.e., the appellant company]. The workers concerned would be: (1) those retrenched or to be retrenched after dismantling by Amalgamated Collieries and not likely to be re-employed, (2 ) those retrenched by

other collieries as a result of the district seniority provisions of clause 27 of the Miners' Award No. 4 of 1953 and not likely to be re- employed."

The Arbitration Court decided that a worker whose services had been terminated after five and a half years in the industry as a result of this closing down was entitled to the pro rata long service leave and convicted the Company for a breach of the award in having refused to pay him. The worker had not produced the certificate required by Amendment No. 53 of 1957, but it was admitted that among those retrenched there were in the field 70 or 80 miners with seniority higher than his and the Arbitra.tion Court inferred-"no doubt with reasonable justification", said Virtue J., speaking for the Court of Criminal Appeal later-that it was unlikely that he would be re- employed in the industry.

The Company appealed to the Court of Criminal Appeal under the proviso to section 108 of the Industrial Arbitration Act 1912- 196 1, which gives a right of appeal to anyone convicted by the Arbitration Court of the breach of an award and fined more than £20. The company had been ordered to pay £123. 14. 1 to the worker.

Counsel for the respondent union argued first that the Court of Criminal Appeal ha.d no jurisdiction in the matter: The award in question had been made in the first instance by a tribunal having authority under the Mining Act 1904-1961, and therefore did not come within the terms of the proviso which, he submitted, should be limited to awards as defined in section 6 of the Industrial Arbitration Act, i.e., to awards "made under this [the Industrial Arbitration] Act." Section 322 ( a ) of the Mining Act required awards of the Tribunal to be enforced as awards of the Arbitration Court but this, he argued, did not make them awards of that Court so as to bring them within the proviso. The Court of Criminal Appeal rejected such an interpretation. "We have no doubt," said Virtue J., "that in enacting that awards of the Tribunal should be enforceable as awards of the Court of Arbitration, it was the intention of the Legislature to incorporate the appeal provisions. Nor do we doubt that the language used is sufficient expression of such an intention."

To counsel's further submission that the money ordered to be paid to the worker should not be construed as a fine or penalty the Court held that Murray Pty. Ltd. v . The W . A . Amalgamated Society of Carpenters and JoinerP afforded a complete answer.

31 (1962) 42 West. Aust. Industrial Gazette 241.

Having decided they had jurisdiction the Court then upheld the appeal on the ground that the worker not having produced a certificate from the Tribunal had failed to establish his entitlement to payment: Amendment No. 18 of 1961 had merely reduced the qualifying period; it could not be regarded as having created a new category of workers entitled to long service leave without complying with the conditions laid down in the previous award.

E.J.E.

MERCANTILE LAW.

159. Re Federico, ex parte the Official Receiver. In Bankruptcy (Virtue J.) ; 1st December 1961. Bankruptcy-Composition with creditop-s.

In these proceedings the Court was asked to approve a composition by a bankrupt. The bankrupt's position, on the date when he lodged his proposal, was that he owed £820. 7. 11, of which £783. 5. 9 was due to the Deputy-Commissioner of Taxation as being the subject of a preferential claim under section 221 (b) of the Income Tax and Social Services Contribution Assessment Act 1936-1957, while the balance of £37. 2. 2 was owed to unsecured creditors. The bankrupt's proposal was as follows:-

1. That payment in priority to all other debts should be made of seven shillings and eightpence in the pound in full settlement of preferential debts.

2. That all costs, charges, and expenses should be paid in cash.

3. That consequent on the acceptance of this proposal by preferential creditors, a composition of seven shillings and eightpence in the pound should be paid on all other provable debts.

At the general meeting of creditors convened by the Official Receiver, all proved creditors accepted the bankrupt's offer.

Virtue J. held that it would be in every way proper for the Court to approve the composition, but for the provisions of section 71 (16) of the Bankruptcy Act 1924-1960.32 He went on to hold, however, that section 71 (16) had clearly been enacted for the protection of preferential creditors, and was not intended to preclude the Court from giving its approval to a proposal to which the preferential creditors them-

32 Sec. 71 (16) provides: The Court shall not approve any composition or scheme which does not provide for the payment, in priority to other debts, of all debts required by this Act to be so paid in the distribution of the property of a bankrupt.

selves had agreed. His Honour, therefore, approved the composition. W.E.D.D.

160. Forte u. Candido. (F. No. 2 of 1959). Nisi Prius-Appeal from Arbitration (Hale J.) ; 17th November 1962. Partnership-Obligation of partners to bear loss-Arbitration-Inter- ference by court with arbitrator's award.

The plaintiff applied to have part of an arbitration award remitted or set aside. The arbitrator had found that the plaintiff and defendant had been partners, that the partnership had been dissolved, that it was a term of the partnership agreement that the plaintiff was to provide all the capital necessary for the partnership business, and that the defendant was under no obligation to bear any part of the loss sustained by the partnership. The plaintiff challenged the last part of the award.

Hale J. held that the arbitrator was wrong in holding that the defendant was under no obligation to bear any part of the loss sustained by the partnership. In His Honour's opinion the matter was governed by section 57 (a) of the Partnership Act 1895,33 and the defendant and plaintiff should bear the loss sustained by the partnership in equal shares; in His Honour's opinion the effect of section 57 (a) of the Partnership Act 1895 was that where there is a partnership in which one partner contracts to supply and does supply all the capital, and the partners share the profits equally, and there is a dissolution of the partnership without any special terms being agreed on as to the distribution of the partnership assets, and there is a deficiency of assets, each partner is liable to contribute an equal share of the deficiency.%

Hale J. also held that where on the facts as found by an arbitrator a statute creates a right and imposes a corresponding liability, an award which fails to give effect to the statute shows on its face an error in law; this therefore was a case in which the court could intervene.36

33 Sec. 57 provides: In settling accounts between the partners after a dissolution of partnership, the following rules shall, subject to any agreement, be observed: (a) Losses, including losses and deficiencies of capital, shall be paid first out

of profits, next out of capital, and lastly, if necessary, by partners individually in the proportion in which they were entitled to share profits:

34 An interpretation which is supported by Garner v. Murray, [I9041 1 Ch. 57. 35 Citing Attorney-General for Manitoba v. Kelly, [I9221 1 A.C. 268, at 283;

Absalon Ltd. v. Great Western (London) Garden Village Society Ltd., [I9331 A.C. 592, at 607-609.

On the question of the most appropriate remedy, Hale J. held that he could not amend the award, and the question of whether to set aside or remit was essentially one of discretion, which must be exercised in manner most likely to do justice between the parties.36 His Honour, therefore, remitted to the arbitrator for further consideration that part of the award by which he determined that the defendant was under no obligation to bear any part of the loss sustained by the partnership.

W.E.D.D.

TORT.

A. NEGLIGENCE ON THE HIGHWAY-ASSESSMENT OF DAMAGES.

161. Young and Wilkinson v . Williams. (Y . No. 55 of 1961). Nisi Prius (D'Arcy J.) ; 19th September 1962. Fatal Accidents Act-Assessment of damages-Methods of calculation.

The plaintiffs, on behalf of the widow and three young children of a man who was killed in a highway accident caused by the admitted negligence of the defendant, claimed damages under the Fatal Acci- dents Act. Counsel for the parties differed on the question whether damages should be assessed on the years'-purchase method adopted by Kitto and Fullagar JJ. in Lincoln v. GraviP7 or the method indicated in Nance v. British Columbia Electric Railway Co. Ltd.as referred to by Webb J. in Williams v. Usher.39 The learned judge drew attention to the observations of Pearson L.J. in Daniels v. to the effect that the various possible methods of assessment could be used to check one another, and the observations of Holroyd Pearce L.J.41 in approval of the view of the learned trial judge that the final result was bound to be a general effect of the assessments on the different bases, which were equally valid as ways of approaching the problem. The basic problem, he said, was to arrive at such damages as were "proportioned to the injury resulting from [the] death to the pasties . . . for whose benefit" the action was brought.

The evidence in this case showed that the deceased was aged 40 at the date of his death, his widow was aged 38, and there were three children aged 11, 92, and 2+. The deceased, who was an insurance agent, was earning £1,236 per annum (gross) at the time of his death;

36 Citing Mischeff v. Constant Smith & Co., [I9501 2 K.B. 616. 37 (1954) 94 Commonwealth L.R. 430. 38 [I9511 A.C. 601, at 615. 39 (1955) 94 Commonwealth L.R. 468. 40 [I9611 1 Weekly L.R. 1103. 41 Id., at 1110.

he would possibly have progressed to £1,481 per annum in four years. The widow's evidence as to family expenditure showed that it exceeded the net annual income by about £340, and was therefore not acceptable. It was submitted that the working life of the deceased would have continued for a further 25 years, but the learned Judge found that it would not necessarily follow that he could have continued to drive a motor vehicle in a country area for so long. Taking into account the probable duration of the earning life of the deceased, the probable duration of the lives of widow and children, the possibilities of increased earnings or of disablement or unemployment, the possibility of the widow's re-marriage, the benefit of accelerated succession by the widow to the deceased's estate, the ages of the children and their academic and other potential, the probable duration and cost of getting them launched in life, their fluctuating needs and the resultant shares in family income available to the parents, the trends in returns on long-term first-class investment, and other relevant matters, the learned Judge awarded £5,639 to the widow and £566, £644, and £1,235 to ea,ch of the children respectively.

E.K.B.

162. Preisig v . Jones. (P. No. 43 of 1960). Full Court (Wolff C.J., Jackson S.P.J., D'Arcy J.) ; 22nd November 1961. Collision with rear of moving veh i c l i ~Motor car and motor scooter.

The appellant, while riding a type of motor-scooter, was struck from behind by a motor-car driven by the respondent. Hale J. having rejected the evidence of an onlooker attributing liability for the accident to the respondent, on the grounds that he was unable to describe the appellant's vehicle correctly, found for the defendant, in a judgment dated 30th June 1961. The Full Court found that more credibility was to be attached to the onlooker's evidence than was assigned to it by the trial judge, and, taking into account the appellant's evidence that he was riding his vehicle carefully, on the correct side of the road, and the respondent's inability to give any explanation of how he came to hit the appellant, that the correct inference was that the respondent was entirely to blame.

E.K.B.

163. Strzelecki v . Mellowship. (S. No. 106 of 1961). Nisi Prius (Virtue J.) ; 30th April 1962. Collision with rear of moving vehicle-Motor casr and bicycle.

A motor-car driven by the defendant collided with the rear of a

push-cycle ridden by the plaintiffs husband (deceased) on a wet night. The defendant's statement to the police indicated that he was suddenly confronted with a cyclist about four or five yards in front of him and slightly to the right, and was unable to avoid striking the cycle. There was evidence from which it could be inferred that the defendant should have seen the deceased man's cycle in time to avoid him. There being no evidence consistent with a finding that the deceased was guilty of any want of care contributing to the accident, the negligence of the defendant was found to be the sole cause of it.

E.K.B.

164. Curiarello v . Lake. ( C . No. 19 of 1962). Nisi Prius (Hale J.) ; 3rd August 1962. Head-on collision.

A motor-car driven by the plaintiff collided with a motor-car driven by the defendant when the latter was on the correct side of the road and the former on the incorrect side of the road. The plaintiffs case was that the defendant approached him on the incorrect side of the road and that in order to avoid a collision he swung over to his incorrect side, at the same time as the defendant regained his correct side. The defendant's evidence, that he was on the correct side of the road throughout, was preferred and the action was dismissed.

E.K.B.

165. Perron & Sons Pty. Ltd. v . Browning & Ors. (Appeal No. 30 of 1962). Appeal from Local Court (D'Arcy J.) ; 1st October 1962. Collision with stationary vehicle-Apportionment af blame.

The respondent's semi-trailer, driven by a servant of theirs, collided at night with a stationary vehicle belonging to the appellant which their servants had negligently left standing on the road with its offside wheels some inches over the centre line. The appeal was against the learned magistrate's finding that the appellant's servants were solely to blame. The learned Judge found that the respondent's driver, warned by a single light on the appellant's vehicle of its position, did not pull sufficiently far over to the left, or remain sufficiently far over on the left, to avoid the collision, as he could have done, that the respondents were two-thirds to blame for the accident, and that they were therefore entitled to only one-third of the damages claimed.

E.K.B.

166. Stock v. Ramnek and Metropolitan (Perth) Passenger Trans- port Trust. (S. No. 105 of 1961). Nisi Prius (Mr. Commissioner Boylson) ; 15th January 1962. Intersection Collision-Failure of plaintiff to stop at "Stop" sign- Failure of deflendant to give way toi vehicle on right.

A motor-bus belonging to the second defendant, driven by the first defendant, collided at an intersection with the plaintiff's motor- vehicle, which was approaching the intersection from the first defendant's right but (as the learned Commissioner found) failed to stop at the "Stop" sign, in breach of Regulation 191A of the Traffic Regu- lations 1954, and entered the intersection at a speed excessive in the circumstances; it was also found that the plaintiff failed to keep a proper iook-out for other traffic and (as a result) failed to stop or take any other step to avoid the motor-bus when a collision would have appeared imminent.42 Citing Wareing v . G i d d o n ~ ~ ~ for the proposition that the purpose of Regulation 191A is to eliminate, as far as possible, errors of judgment, and the results of negligence on dangerous intersections or junctions, by making certain that the stopped driver has ample time to make a proper judgment before moving into the intersection, the learned Commissioner described the conduct of a driver who was aware of the presence of a "Stop" sign but drove through it to the danger of other traffic as "gross negligence." Holding that in the circumstances the first defendant was under no obligation to give way,44 he found that the plaintiff's negligence was the sole cause of the accident.

E.K.B.

167. Swiontek v. Clarke. ( S . No. 119 of 1961). Nisi Prius (Virtue J.) ; 14th September 1962. Intersection collision-Right of way-Contributory negligence-Appor- tionment of damages.

A motor-vehicle driven by the plaintiff collided at an intersection with a motor-vehicle driven by the defendant, which was approaching the intersection on the plaintiff's right. Although the plaintiff ww in

42 The learned Commissioner's judgment says "seemed imminent"; but as he had already found that the plaintiff was not keeping a proper look-out, and the plaintiff himself gave evidence that he did not see the bus (after his first sight of it some 70 yards away) until the moment of impact, "seemed imminent" appears, with respect, hardly correct.

43 [I9521 Queensland S.R. 23. 4 Although he also indicated that a "Stop" sign is not to be taken as the

equivalent of a green light beckoning on the vehicles on the other road.

breach of regulation 190 ( 1 ) (b) of the Traffic Regulations 1954,45 she had seen the defendant's vehicle and thought it safe to cross; this, the learned Judge found, was clearly an error of judgment. On the other hand, he found that the defendant was negligent in approaching a dangerous intersection (signposted as such), with limited vision to the left, a t too high a rate of speed and without looking to the left. Responsibility for the accident was therefore apportioned equally between the parties, so that plaintiff's damages were reduced by 50%.

E.K.B.

168. Retell v. Herzig. (H. No. 46 of 1961). Full Court (Wolff C.J., Virtue and Negus JJ.) ; 24th July 1962. Intersection collision-Apportionment of blame.

This was an appeal from a judgment of Hale J. finding that the appellant motor-driver was two-thirds to blame for the collision and the respondent motor-cycle one-third to blame. The Full Court held tha.t there were no grounds for disturbing the apportionment made by Hale J.; Negus J. citing British Fame (Owners) v. MacCregor (Owner)4c and Pennington v. Norrif17 on the question of an appellant court's interference with the findings of the court below on the apportionment of blame.

E.K.B.

169. Piscioneri v. Moore. ( P . No. 40 of 1961). Nisi Prius (D'Arcy J.) ; 5th July 1962.

Absolute liability-Negligence-Escape of water from dam-Measure of damages.

The plaintiff's claim was for damage to his land (including his dam), his fences, and his crops caused when a, dam constructed by

45 The judgment refers (per incuriam, it appears) to regulation 130 (1) (b) . It is, with respect, unfortunate that the learned judge did not consider the bearing of sub-paragraph (a) of regulation 190 (1) on the situation; at the time of the accident that sub-paragraph (as the result of an amending regulation gazetted in the (1959) Western Australian Government Gazette, 2741) conferred the right-of-way on the vehicle first entering the intersection, and hence on the plaintiff. But when the case was heard the potentially confusing situation created by a regulation which combined in two successive sub-paragraphs the "first into the intersection" rule with the "give way to the right" rule had been resolved by a return to the latter (see (1961) Western Australian Government Gazette, 3040) and no doubt the point appeared to all concerned not to be worth consideration.

40 [I9431 A.C. 197. 47 (1956) 96 Commonwealth L.R. 10.

the defendant (whose property was upstream) collapsed and released the water from behind it. There was expert evidence to the effect that the defendant's dam (which he had constructed himself, with the assistance of a contractor) was unstable because the defendant had failed to adopt sound principles and practice in design, construction, choice of materials, and maintenance. The learned Judge accordingly found that the defendant had been negligent in the construction of the dam. There was also evidence from a witness with a good deal of experience in the valuation of farming properties that the defendant's dam, which held at least 4,000,000 gallons of water, was too large for the size of the property and impounded far more water than was necessary. (The plaintiff's dam held only 150,000 gallons). The learned Judge accordingly held, applying the test enunciated in Hazelwood v . Webber;48 that the defendant's dam could not be described as "an accepted incident of some ordinary purpose to which the land is reasonably applied by the occupier", and therefore amounted to a non-natural user of the land. The plaintiffs claim therefore succeeded.

On the question whether the true measure of damages for the injury done to the land should be the cost of reinstatement or the depreciation in value, the learned Judge, observing that no good purpose would be served by an attempt to review the somewhat sparse authority because the two methods of assessment in this instance led to a similar result, cited the opinion of the learned editor of MAYNE AND MCGREGOR ON DAMAGES (12th ed., 1961, at 743) to the effect that a plaintiff should not be denied an assessment on the basis of reinstatement if it is reasonable, having regard to the advantages to the plaintiff and the discrepancy between the cost of reinstatement and depreciation. The plaintiff's damages under that head were therefore based on the cost of reinstatement of the land, as he had claimed.

E.K.B.

170. Ball v . Katanning Shire Council. ( B . No. 86 of 1961). Nisi Prius (Virtue J.) ; 20th August 1962. Fire-Bushfire Regulations-Bulldozer without efficient spark arrester -Assessment of damages.

The plaintiffs claim was for damages to fencing and pasture on his farm (and for labour costs involved in cleaning up), as the result of a fire which (as the learned Judge found) was caused by the emission of sparks from the exhaust pipe of a bulldozer belonging to

48 (1934) 52 Commonwealth L.R. 268, at 277.

the defendant Council. The exhaust pipe of the bulldozer was not fitted with a suitable type of efficient spark-arrester, as required by regulation 37 under the Bushfires Act 1954:O and it was found that the type of engine fitted to the bulldozer had a propensity to eject sparks and incandescent carbon through its exhaust if not so fitted. The learned Judge therefore found the defendant Council guilty of negligence in causing the fire.

In assessing the damages for destruction of clover and pasture in two paddocks the learned Judge took into account the fact that it would have been necessary to burn one paddock at a later date, and that a sum of £6, which would otherwise have been expended on labour to burn the paddock, had been saved; this was deducted from the damages claimed.

E.K.B.

171. Cartwright v. Arctic Cold Storage Pty. Ltd. and Bradford Insu- lation (W.A.) Ltd. ( C . No. 36 of 1961 ) . Nisi Prius (Hale J.) ; 30th August 1962. Negligence-Fire caused by spark from welding operations igniting inflammable vapour from adhesive-Quantum of damages.

The judgment in this case was delivered on a counterclaim by the first defendant (which will be referred to as "Arctic") against the plaintiff Cartwright (who had first sued Arctic for the cost of the supply and installation of refrigeration plant, a claim which was agreed before trial) and the second defendant (which will be referred to as "Bradford"). During the course of installation the premises of Arctic were damaged by a fire caused when a spark from an arc welder used by an employee of Cartwright ignited inflammable vapour from ad- hesives being used by Bradford to fix insulation on the premises. Arctic alleged negligence on the part of Cartwright in bringing sparks into an atmosphere charged with inflammable vapour, and on the part of Bradford in creating inflammable vapour in a room in which somebody was making sparks. The learned judge found that neither Cartwright nor his servants were aware, or should reasonably have been aware, that the adhesive used in fixing the insulation in the room where welding was carried on was volatile and highly inflammable, but that Bradford (by its servants) knew of these properties of the adhesive and was negligent in continuing to use them in a room where an electric arc was used for welding. Pleas that the work was done

49 See (1957) Western Australian Government Gazette, 3324-3347. The bulldozer was in fact not fitted with any spark-arrester.

by the direction of Arctic, and that Arctic was contributorily negligent, failed.

Included in the damages claimed was a sum of £2,368. 9. 3, - representing rent paid for alternative cold storage space during re- building. This was arrived at by deducting from the rent actually paid (£2,960. 11. 6) 20% on account of a saving in overhead expenses. The learned judge rejected this method of computing damages and held that the correct measure of damages would be the difference between the actual amount paid for rent and the expenditure which Arctic would have incurred in providing identical storage accommodation on its own premises.

E.K.B.

Documents

WESTERN AUSTRALIAN CASE NOTES · WESTERN AUSTRALIAN CASE NOTES Compiled and edited by the Law School of the University of Western Australia'. ... Agreement with husband-No right in