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Civil procedure, Evidence, Family Law, LAW FIRM

Briginshaw v Briginshaw [1938] HCA 34

ON 30 JUNE 1938, the High Court of Australia delivered Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (30 June 1938).

http://www.austlii.edu.au/au/cases/cth/HCA/1938/34.html

Where serious or grave allegations are made in a civil case, the court must, when making findings of fact, apply the civil standard of proof but, depending on the nature of the issue, give serious consideration as to whether or not it has reached the necessary degree of reasonable satisfaction or persuasion that the alleged facts are more likely than not to exist.

Per Dixon J at 362:

“… [R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. …”

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LAW FIRM, Succession

Birmingham v Renfrew [1937] HCA 52

ON 2 SEPTEMBER 1937, the High Court of Australia delivered Birmingham v Renfrew [1937] HCA 52; (1937) 57 CLR 666 (2 September 1937).

http://www.austlii.edu.au/au/cases/cth/high_ct/57clr666.html

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Copyright, LAW FIRM, Property Law, Uncategorized

Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45

ON 26 AUGUST 1937, the High Court of Australia delivered Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479 (26 August 1937).

There is no general right of privacy at common law.

There is no property in a spectacle.

Copyright does not provide an exclusive right to state or to describe particular facts.

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LAW FIRM, Succession

Levy v Kum Chah [1936] HCA 60

ON 7 DECEMBER 1936, the High Court of Australia delivered Levy v Kum Chah [1936] HCA 60; (1936) 56 CLR 159 (7 December 1936).

http://www.austlii.edu.au/au/cases/cth/high_ct/56clr159.html

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LAW FIRM, Taxation

Income Tax Assessment Act 1936 (Cth)

ON 7 DECEMBER 1936, the Commonwealth Income Tax Assessment Act 1936 was enacted and commenced.

http://www.austlii.edu.au/au/legis/cth/consol_act/itaa1936240

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Appeals, LAW FIRM

House v R [1936] HCA 40

ON 17 AUGUST 1936, the High Court of Australia delivered House v R [1936] HCA 40; (1936) 55 CLR 499 (17 August 1936).

http://www.austlii.edu.au/au/cases/cth/HCA/1936/40.html

The exercise of a judge’s discretion may be reviewed on appeal if the judge:

  • Acts on a wrong principle.
  • Allows him or herself to be guided by extraneous or irrelevant matters.
  • Mistakes the facts.
  • Fails to take into account a material consideration.

If there is no identifiable error, but if upon the facts the exercise of discretion is “unreasonable or plainly unjust”, an appeal court may infer that the judge has failed to properly exercise his or her discretion on the grounds that a substantial wrong has occurred.

Peter Dixon, Evatt and McTiernan JJ:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

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Russell v Scott [1936] HCA 34

ON 12 AUGUST 1936, the High Court of Australia delivered Russell v Scott [1936] HCA 34; (1936) 55 CLR 440 (12 August 1936).

http://www.austlii.edu.au/au/cases/cth/high_ct/55clr440.html

Percy Russell and his elderly aunt opened a joint bank account containing funds to be managed by Russell for the benefit of the aunt. Russell made no contributions.

After the death of the aunt, proceedings were instituted by Scott (a beneficiary under the aunt’s will) seeking a declaration that the balance of the account and some funds withdrawn before the aunt’s death belonged to the estate. The trial judge ruled that the balance of the account did not pass to Russell as the benefit was testamentary in nature and had not been made in accordance with the Wills, Probate and Administration Act 1898 (NSW).

Russell appealed the trial judge’s decision.

The High Court found an intention by the aunt to confer upon her death, through survivorship, legal and beneficial ownership of the funds to Russell.  The court therefore allowed the appeal, dismissing Scott’s action on the grounds that that the funds in question did not form part of the estate.

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Consumer Law, Duty of Care, LAW FIRM, Negligence, Personal Injury, Product liability

Grant v Australian Knitting Mills [1935] UKPC 2

ON 21 OCTOBER 1935, the Judicial Committee of the Privy Council delivered Grant v Australian Knitting Mills [1935] UKPC 2 (21 October 1935).

http://www.bailii.org/uk/cases/UKPC/1935/2.html

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Criminal Law, Criminal Procedure, Evidence, LAW FIRM, United Kingdom

Woolmington v DPP [1935] UKHL 1

ON THIS DAY in 1935, the United Kingdom House of Lords delivered Woolmington v DPP [1935] UKHL 1 (23 May 1935).

http://www.bailii.org/uk/cases/UKHL/1935/1.html

The case is known for the following passage:

“Through-out the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt…. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. It may prove malice either expressly or by implication. For malice may be implied where death occurs as the result of a voluntary act of the accused which is (i) intentional and (ii) unprovoked. When evidence of death and malice has been given (this is a question for the jury) the accused is entitled to show by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted.”

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Consumer Law, Damages, LAW FIRM, Personal Injury, Product liability, Sale of Goods

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ON 17 OCTOBER 1934, the High Court of Australia delivered David Jones Ltd v Willis [1934] HCA 47; (1934) 52 CLR 110 (17 October 1934).

http://www.austlii.edu.au/au/cases/cth/HCA/1934/47.html

Per Rich J at 118-9:

“..whenever the description of the goods enters into the transaction so that the buyer must be taken to rely upon it to a substantial degree as well as upon the identity of the goods, it is a sale by description. Therefore, if the description is a matter that influenced the buyer and had a material bearing on the decision to buy, even if it was not the only matter that influenced the buyer, then the sale is one by description.”

Goods which only have one specific use are not of merchantable quality if they are not fit for their purpose.

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