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[1944] VLR(47 results)

Cases reported in this volume of the Victorian Reports

CURWOOD v. R. F. WILLIAMS PTY. LTD.VLR 1

FULL COURT (Lowe, Martin and O’Bryan JJ.).·13 Aug 1943·Supreme Court of Victoria

Workers' CompensationInjury to worker — Loss of "joint" of thumb — Meaning of "joint" — Workers' Compensation Act 1928 (No. 3806), Fourth Schedule — Workers' Compensation Act 1935 (No. 4360), First Schedule.

JACKSON v. JAMES FLOOD PTY. LTD.VLR 5

FULL COURT (Mann C.J., Lowe and Martin JJ.).·23 Aug 1943·Supreme Court of Victoria

Workers' CompensationInjury by accident — Payments during period of incapacity — Fourth Schedule injury — Deduction of incapacity payments from Fourth Schedule payment — Workers' Compensation Act 1928 (No. 3806), secs. 5, 8, Fourth Schedule — Workers' Compensation Act 1935 (No. 4360), sec. 6, First Schedule — Workers' Compensation Act 1936 (No. 4456), sec. 7.

LAMBERTON v. HILLVLR 11

GAVAN DUFFY J.·3 Sept 1943·Supreme Court of Victoria

Local GovernmentBreach of by-law — Wilful — Whether liability for penalty depends on knowledge of by-law — Local Government Act 1928 (No. 3720), secs. 197 (6) (c), 222.

IN RE WHARTONVLR 14

GAVAN DUFFY J.·24 Sept 1943·Supreme Court of Victoria

WillDevise of property by way of remainder if devisee capable of properly using same, otherwise gift over — Devisee predeceasing life tenant — Whether gift over takes effect on death of life tenant.

IN RE McNAMARAVLR 17

O’BRYAN J.·24 Aug 1943·Supreme Court of Victoria

Administration and probateWill — Admission to probate — Duplicate copies of will — Testator signing both copies — Witnesses each signing separate copies — Both copies admitted to probate — Wills Act 1928 (No. 3803), secs. 7, 8.

CANE v. TORNEOVLR 22

GAVAN DUFFY J.·23 Sept 1943·Supreme Court of Victoria

National securityLandlord and tenant — Ejectment — Order for costs — Jurisdiction of Supreme Court to make — National Security Act 1939-1940 (No. 15 of 1939 No. 44 of 1940) — National Security (Landlord and Tenant) Regulations.

IN RE BROWNVLR 24

LOWE J.·21 Oct 1943·Supreme Court of Victoria

Administration and probateProbate of will — Signature at foot or end of will — Printed form — Dispositive provisions contained on first page which was duly executed — Further provisions on unsigned second page — Whether whole document should be admitted to probate — Wills Act 1928 (No. 3803), sec. 7.

OLIVER v. OLIVERVLR 26

LOWE J.·2 Dec 1943·Supreme Court of Victoria

DivorcePetitioner instituting suit whilst undergoing imprisonment for felony — Right to institute proceedings — Crimes Act 1928 (No. 3664), Part IV. — Marriage Act 1928 (No. 3726), sec. 75.

FITZGIBBON-LLOYD v. FITZGIBBON-LLOYDVLR 29

O’BRYAN J.·12 Nov 1943·Supreme Court of Victoria

DivorceDomicil — Acquisition of domicil of choice — Member of Air Force — Change of residence not voluntary — Intention to remain within jurisdiction.

GILBERT v. DIXONVLR 34

GAVAN DUFFY J.·29 Sept 1943·Supreme Court of Victoria

Workers' CompensationInjuries to infant worker — Agreement to accept compensation — Acceptance by Board — Action by infant for negligence — Breach of statutory provision — Effect of agreement on right of action — Workers' Compensation Act 1928 (No. 3806), sec. 5 (2) (b) — Workers' Compensation Act 1937 (No. 4524), sec. 10 (1) (b).

PATERSON v. PATERSONVLR 38

LOWE J.·22 Oct 1943·Supreme Court of Victoria

DivorceAlimony — Variation of alimony order — Power of Court — Factors for consideration — Former husband's re-marriage — Existing means of former wife — Marriage (Divorce) Act 1933 (No. 4210), sec. 5.

GILES v. MELB. & METRO. TRAMWAYS BD.VLR 41

LOWE J.·29 Oct 1943·Supreme Court of Victoria

County CourtApplication to transfer action to Supreme Court — Plaintiff's injuries severer than originally supposed — County Court unable apart from consent to award adequate damages — Consent to amend claim for damages unobtainable — Impossibility of commencing afresh in Supreme Court — Delay — Order for transfer — County Court Act 1928 (No. 3663), sec. 61.

BENNETT-HULLIN v. T.P. CLARK & CO.VLR 45

FULL COURT (Mann C.J., Lowe and O’Bryan JJ.).·9 Dec 1943·Supreme Court of Victoria

InsuranceMotor vehicle policy in name of individual and company — Personal accident benefits — Non-application when "assured consists of a firm company or more than one person" — Meaning of "person" — Whether corporation included — Property Law Act 1928 (No. 3754), sec. 61.

RODGERSON v. A.-G. FOR VICTORIAVLR 55

MARTIN J.·20 Dec 1943·Supreme Court of Victoria

LandResumption of land for public purposes — Meaning of "public purposes" — Land Act 1928 (No. 3709), sec. 286 (1).

JOHNSON v. NAVEVLR 60

MARTIN J.·15 Dec 1943·Supreme Court of Victoria

Landlord and tenantRecovery of possession of premises — Premises reasonably required by lessor for personal occupation — Particulars — National Security Act 1939-1940 — National Security (Landlord and Tenant) Regulations, reg. 15.

BENDER v. EDDYVLR 62

MARTIN J.·2 Feb 1944·Supreme Court of Victoria

JusticesSpecial complaint — Counterclaim beyond jurisdiction — Proceedings transferred to Supreme Court — Order for trial by jury — Justices Act 1928 (No. 3708), sec. 65 (4) — Rules of Supreme Court 1938, Order XXXVI., rr. 6, 7 (a).

WOOD v. WOODVLR 64

MARTIN J.·8 Dec 1943·Supreme Court of Victoria

JusticesIllegal detention of goods — Order that defendant deliver goods to complainant — No alternative of paying value thereof — Jurisdiction to make order — Enforcement of order — Justices Act 1928 (No. 3708), sec. 64 (3) — Justices (Enforcement of Orders) Act 1937 (No. 4472), sec. 2.

THE KING v. GREIG AND HERIOTVLR 66

O’BRYAN J.·23 Feb 1944·Supreme Court of Victoria

National securityOrders for arrest and detention of seamen — Habeas corpus — Order nisi for issue of writ of — Return to order nisi by respondent — Power of Court to go behind — Contents of orders made under regulation — "Actually proceeds to serve" — Meaning of — National Security Act 1939-1940 — Commonwealth National Security (General) Regulations, cl. 51A (i) — Rules of Supreme Court 1938, Order LIII., rule 46.

SMITH v. PURVESVLR 76

O’BRYAN J.·6 Mar 1944·Supreme Court of Victoria

SolicitorPartnership — Charge on profits in favour of widow of deceased partner — Surviving partner forming new partnership — Whether charge still operative — Benefit of charge — Creation of trust — Right of widow to enforce charge.

MADDEN v. COYVLR 88

O’BRYAN J.·27 Jan 1944·Supreme Court of Victoria

WaterDrainage — Easement — Drain constructed on land of adjoining owner — Pursuant to magistrate's order — Limitations on right of user — Variance between order and map of drainage scheme — Drainage of more land than order authorises — Drainage of Land Act 1928 (No. 3669), secs. 3, 4, 8-13.

LEWIS v. BENSONVLR 106

O’BRYAN J.·29 Feb 1944·Supreme Court of Victoria

CharityPatriotic fund — Failure of particular purpose for which fund subscribed — General overriding charitable intent — Application of cy-prs doctrine — Patriotic Funds Act 1939 (No. 4717), secs. 12, 15.

M. v. M.VLR 113

MacFARLAN J.·8 Mar 1944·Supreme Court of Victoria

DivorcePractice — Soldier service order — Letter forwarding documents pursuant to order — Contents of letter.

R. v. BURNETTVLR 115

O’BRYAN J.·30 Mar 1944·Supreme Court of Victoria

Criminal lawEvidence — Statement by way of confession — Accused's state of health at time — Whether confession voluntary — Evidence Act 1928 (No. 3674), sec. 141.

IN RE LINTONVLR 118

LOWE J.·2 May 1944·Supreme Court of Victoria

WillTrust — Contingent gift — Beneficiary not entitled to vested interest on attaining twenty-one — Direction to accumulate income — Whether expression of intention to negative trustee's power of maintenance — Trustee Act 1928 (No. 3792), secs. 3, 31 (1) (b).

IN RE FINKELSTEINVLR 123

FULL COURT (Herring C.J., Lowe and Gavan Duffy JJ.)·16 Mar 1944·Supreme Court of Victoria

WillConstruction — Direction to hold income on trust for certain charities — Gift of income void for perpetuity — Creation of trust fund — Gift over in event of death of devisee — Gift to devisee void — Whether gift over takes effect — Estoppel by judgment.

HENDERSON v. WILSONVLR 144

MacFARLAN J.·15 Mar 1944·Supreme Court of Victoria

Police offencesInformation as to probable result of horse race — Sporting paper giving information as to past performances of horses — Forecasting results of races — Whether a "newspaper" — Police Offences Act 1928 (No. 3749), secs. 86, 121 (b).

IN RE WALSHVLR 147

O’BRYAN J.·24 Apr 1944·Supreme Court of Victoria

Barrister and SolicitorArticles of clerkship — Dispensation with service of articles for one year — Undue hardship — Legal Profession Practice Act 1928 (No. 3715), sec. 14 — Rules of the Council of Legal Education 1941.

HEYWARD v. MILESVLR 155

MacFARLAN J.·8 Mar 1944·Supreme Court of Victoria

National securityLandlord and tenant — Recovery of possession of premises — Notice to quit — Notice of owner's intention to apply for possession — Agent signing notices and taking proceedings — Validity — Landlord and Tenant Act 1928 (No. 3710), Part V. — National Security Act 1939-1943 — National Security (Landlord and Tenant) Regulations, cl. 15.

FRAUENFELDER v. FRANZIVLR 158

HERRING C.J.·12 May 1944·Supreme Court of Victoria

National securityLandlord and tenant — Recovery of possession of premises — Premises reasonably required by lessor for personal occupation — Particulars — Hardship — National Security Act 1939-1943 — National Security (Landlord and Tenant) Regulations, reg. 15.

MARTIN v. MARTINVLR 164

GAVAN DUFFY J.·17 May 1944·Supreme Court of Victoria

DivorceDesertion — Constructive desertion — Parties living under same roof — Deserted party leaving the home before statutory period expires — Continuity of desertion.

BURNS v. SHIRE OF WOORAYLVLR 166

LOWE J.·17 May 1944·Supreme Court of Victoria

National SecurityLandlord and tenant — Licence to use premises — Whether a "lease" — National Security (Landlord and Tenant) Regulations — National Security Act 1939-1943.

JOHN DANKS & SON PTY. LTD. v. COLLECTOR OF IMPOSTSVLR 172

MacFARLAN J.·17 Mar 1944·Supreme Court of Victoria

StampsEstablishment of trust fund — Fund held void — Duty of trustees of fund to vest securities in settlor — Transfers assessed with duty — Whether transfers should have been so assessed — Stamps Act 1928 (No. 3775), Third Schedule — Stamps Act 1937 (No. 4509), sec. 5.

S. v. S.VLR 178

GAVAN DUFFY J.·17 May 1944·Supreme Court of Victoria

DivorceNullity of marriage — Incapacity to consummate marriage — Psychological reasons — Whether decree should be granted.

COMMONWEALTH v. McSWEENEYVLR 181

LOWE J.·17 May 1944·Supreme Court of Victoria

JusticesNational security — Money had and received — Balance of account — Jurisdiction of justices — Whether Director-General of Allied Works an instrumentality of Crown — Whether contractual relationship between Crown and employees of Allied Works Council — Justices Act 1928 (No. 3708), sec. 64 (4) — National Security Act 1939-1943 (No. 15 of 1939 — No. 38 of 1943) — National Security (Allied Works) Regulations, regs. 6, 9.

R. v. MILK BOARDVLR 187

LOWE J.·8 June 1944·Supreme Court of Victoria

Milk BoardInquiry by — For purpose of assessing compensation — Duty of Board — Sources of information available to Board — Use of — Claimant for compensation entitled to opportunity to rebut information in Board's possession — Basis of assessment of compensation — Milk Board Act 1933 (No. 4183), sec. 24 — Milk Board Act 1936 (No. 4463), sec. 11.

FRANCISCAN ORDER v. KEWVLR 199

LOWE J.·14 June 1944·Supreme Court of Victoria

Local GovernmentRates — Rateable property — Exemption from rateability — Land used exclusively for "public worship" — Hall or building used in connection with church — Residence of practising minister of religion — Local Government Act 1928 (No. 3720), sec. 249 — Local Government Act 1941 (No. 4869), sec. 21.

RENTOUL v. RENTOULVLR 205

GAVAN DUFFY J.·20 June 1944·Supreme Court of Victoria

WillJoint tenants — Gift to beneficiaries as — "Equally" — Whether tenancy in common created.

CARRAZZO v. WEYMANVLR 207

GAVAN DUFFY J.·30 June 1944·Supreme Court of Victoria

PracticeCosts — Taxation of — Counsel's fees — Two counsel on appeal from County Court — Allowance of one counsel only — Discretion of Taxing Master — Principles to be applied on review.

IN RE LESSERVLR 210

GAVAN DUFFY J.·24 July 1944·Supreme Court of Victoria

Administration and probateAdministration of assets — Alimony charged on "estate" — Whether life policy moneys subject to charge — Whether charge enforceable — Mode and priority of payment where estate insolvent — Administration and Probate Act 1928 (No. 3632), sec. 34(1); Second Schedule — Companies Act 1938 (No. 4602), sec. 554.

NEWTOWN v. SISTERS OF MERCYVLR 216

GAVAN DUFFY J.·24 July 1944·Supreme Court of Victoria

Local governmentRates — Exemption from rateability — Buildings of a religious order — Buildings used with chapel exclusively for the purposes of the religious order — Whether additional area of land with other buildings and within same boundaries exempt from rates — Rate covering buildings and additional area — Right to recover — Local Government Act 1928 (No. 3720), sec. 249 — Local Government Act 1941 (No. 4869), sec. 21.

FRIER & SONS v. O’ROURKEVLR 220

FULL COURT (Macfarlan, Lowe and O’Bryan JJ.).·11 Sept 1944·Supreme Court of Victoria

National securityLandlord and tenant — Ejectment — Order for costs — Jurisdiction of justices to make — Costs of order to review — National Security Act 1939-1943 — National Security (Landlord and Tenant) Regulations, cl. 24.

WHYTE v. PROUSE AND VINESVLR 228

HERRING C.J.·4 Sept 1944·Supreme Court of Victoria

InsuranceMotor car (third party insurance) — Action against nominal defendant where identity of car unascertainable — Practice — Pleading — Statutory notice of action — Whether necessary when facts within knowledge of defendant — Motor Car (Third Party Insurance) Act 1939 (No. 4688), sec. 13.

QUINN v. SYMONSVLR 231

FULL COURT (Macfarlan, Martin and O’Bryan JJ.)·30 June 1944·Supreme Court of Victoria

NegligenceDirection to jury — Two defendants — Absence of contributory negligence — Application of last opportunity rule.

IN RE TAYLORVLR 244

MARTIN J.·1 Aug 1944·Supreme Court of Victoria

WillSoldier's will — Document executed prior to enlistment — Not valid as will — Certificate as to being a valid will — Executed while in actual military service — Whether intended to have testamentary effect — Wills Act 1928 (No. 3803), secs. 6, 10.

POWER v. POWERVLR 247

GAVAN DUFFY J.·6 Sept 1944·Supreme Court of Victoria

DivorceDesertion — Parties living in the same house — Conduct of respondent — Whether terminating state of cohabitation.

WARD v. WARDVLR 249

HERRING C.J.·14 Sept 1944·Supreme Court of Victoria

DivorceCollusion — Agreement for payment of maintenance and institution of divorce proceedings — Matrimonial offence complete prior to agreement — Agreement not collusive.

COOK v. DOWNIEVLR 254

LOWE J.·15 Sept 1944·Supreme Court of Victoria

National SecurityLandlord and tenant — Recovery of possession of premises — Hardship — Tenant's hardship not greater than landlord's hardship — Ordering of possession — National Security Act 1939-1943 — National Security (Landlord and Tenant) Regulations, cl. 15.