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[1963] VR(97 results)

Cases reported in this volume of the Victorian Reports

BRUCE v WALDRONVR 3

LOWE , SMITH and GOWANS , JJ·17 Sept 1962·

Privy Council - Judicial precedent - Conflict between Privy Council and House of Lords - Victorian court follows Privy Council. Evidence - Production of documents - Crown privilege - Minister's opinion that production prejudicial to public interest - Power of court to inspect documents - Contents of Minister's affidavit.

SCOTT v FERNHILL STUD POULTRY FARM PTY LTDVR 12

SHOLL, J·7 Sept 1962·

Criminal law - Selling eggs to a person other than the Egg and Egg Pulp Marketing Board - Evidence - Admissibility of written documents signed by director of company - Whether director agent of company to make admissions - Whether document given to responsible officer of company merely for signature is a document produced by or from the custody of such officer - Marketing of Primary Products Act 1958 (No. 6304), s21, s56(d).

MCNAMARA v FLEMING Re FLEMING, deceasedVR 17

DEAN, J·27 July 1962·

Will - Interpretation - Ambiguity as to identity of beneficiary - Admission of parol evidence - Third person entitled to take if parol evidence shows such intention.

R v VOSSVR 22

LOWE , DEAN and SHOLL , JJ·2 May 1962·

Criminal law - Retirement of jury - Separation of jury during summing-up - Photographs - Practice of showing photographs of suspect to witnesses.

QUINLIVAN v PORTLAND HARBOUR TRUSTVR 25

SHOLL, J·18 Oct 1961·

Limitation of actions - Notice of intention to bring proceedings - Leave to bring proceedings notwithstanding absence of notice - Mistake - Reasonable causes - Omission by solicitor to give statutory notice may be "reasonable cause" - Limitation of Actions Act 1958 (No. 6295), s34.

R v McNAMARAVR 32

ADAM, J·11 Aug 1962·

Criminal law - Murder - Self-defence - Excessive violence in self-defence - Manslaughter - Charge to jury.

BLACK v CITY OF SOUTH MELBOURNEVR 34

HERRING CJ, LOWE and DEAN , JJ·31 Oct 1962·

Limitation of actions - Failure to give statutory notice - Whether occasioned by "mistake" - "Reasonable cause" - Limitation of Actions Act 1958 (No. 6295), s34.

Re MORTON, deceasedVR 40

PAPE, J·3 May 1962·

Will - Ademption - Direction to executors to sell real property and divide proceeds between beneficiaries - Nature of interest - Sale by testator of property on terms contract prior to death - Contract incomplete at date of death - Wills Act 1958 (No. 6416), s21, s22.

McDONALD v FINDLAYVR 55

HERRING, CJ·19 June 1962·

Commercial goods vehicles - Freedom of interstate trade - Freight conveyed for reward - One journey for interstate and intrastate purposes - Commercial Goods Vehicles Act 1958 (No. 6222), s3, s22; Commonwealth Constitution, s92.

R v GOVERNOR OF METROPOLITAN GAOL; Ex parte DI NARDOVR 61

SHOLL, J·28 Sept 1962·

Immigration - Prohibited immigrant - Production of forged visa - Absence of knowledge of forgery - Statements of fact in deportation order - Onus of disproof - "Personal evidence" - Custody warrant - Power of State officials to detain deportee in custody - Migration Act 1958 (Com.), s5, s16(1)(b), s39(6), s55.

JOHNS and WAYGOOD LTD v UTAH AUSTRALIA LIMITEDVR 70

SHOLL, J·28 Sept 1962·

Royal Commission - Contempt of court - Royal Commission appointed by Executive - Terms of inquiry similar to issues in civil action pending in Supreme Court - Validity of Commission - Power of court to restrain Royal Commission - No real or substantial interference with course of justice.

R v FONYODIVR 86

HERRING CJ, DEAN and HUDSON , JJ·16 Nov 1961·

Criminal law - Unlawfully and publicly exposing naked person - "Publicly" - Exposure seen by one person only.

HARGREAVES v BOURDONVR 89

SHOLL, J·17 Oct 1961·

Criminal law - Justices - Information - Limitation period - Laying information - Issue of new summons on original information - Extension of return date - Warrant issued on information - Information on oath - Justices Act 1958 (No. 6282), s5, s18(1), s18(2) and s18(3), s21(2), s23(3), s36(2) and s36(3), and s215.

FISCHER v PARRY and BEVERIDGE PTY LTDVR 97

HUDSON, J·14 Nov 1962·

Vendor and purchaser - Deposit - Agent - Return of deposit - Liability of estate agent - No contract between the parties.

LANSELL v LANSELLVR 102

SHOLL, J·30 Oct 1962·

Matrimonial cause - Application for settlement - Decree absolute before commencement of Commonwealth Act - Subsequent purchase of subject property by respondent - Whether jurisdiction in Court - Constitutional validity - Inter se question - Commonwealth Constitution, s51(xxii), s51(xxxix) - Matrimonial Causes Act 1959 (Com.), s5(1), s8, s23, s86 - Judiciary Act 1903-1959 (Com.), s38A, s40A.

EVANS v SHARPVR 108

ADAM, J·24 July 1962·

Practice - Costs - Bill of costs delivered to a client by solicitor - Taxation - Appointment for taxation obtained by client - Certificate of Taxing Master - Judgment not obtainable upon certificate following appointment - Supreme Court Act 1958 (No. 6387), s93, s94, s103.

W R HENRY and SON v HODGEVR 111

ADAM, J·1 May 1961·

Bankruptcy - Sequestration order - Judgment by default - Bankrupt no right to take proceedings - "Property" includes right to have judgment set aside - Vested in official receiver - Bankruptcy Act 1924-1960 (Com.), s4, s26, s60(1), s91, s124.

COYSH v ELLIOTTVR 114

SHOLL, J·27 Oct 1961·

Criminal law - Motor car - Information - Plea of guilty - Explanation of exculpatory nature - Alteration of plea not invited - Dismissal of information - Amendment upon review - Validity of regulation - Whether ultra vires - Defence absence of mens rea when signal of police officer controlling traffic not obeyed - Failure to observe signal - No defence if driver reasonably should have seen - Road Traffic Act 1958 (No. 6359), s4 - Justices Act 1958 (No. 6282), s91(4) and s91(5) - Road Traffic Regulations 1960, reg201 and reg202.

R v TONKS and GOSSVR 121

HERRING CJ, SHOLL and LITTLE , JJ·19 Dec 1961·

Criminal law - Plea of guilty - Effect of plea - Autrefois convict - Meaning of "conviction" - Crimes Act 1958 (No. 6231), s446, s447.

SCARBOROUGH v LEW'S JUNCTION STORES PTY LIMITEDVR 129

ADAM, J·18 Dec 1962·

Practice - Appeal - Stay of execution - Judge in chambers has jurisdiction to grant stay - Special circumstances required before stay pending appeal granted - RSC, O.LVIII, r17.

C v CVR 131

LOWE , DEAN and PAPE , JJ·29 Oct 1962·

Matrimonial causes - Maintenance - Order for maintenance of child under 21 years - Tertiary education of child - Quantum of order directed to increase from named future date - Validity - Marriage Act 1958 (No. 6306) (Vic.), s102, s103 - Matrimonial Causes Act 1959 (Com.), s84, s87, s110, s111, s114.

SANDFORD v D V BUILDING and CONSTRUCTIONS CO PTY LTDVR 137

SHOLL, J·18 Oct 1962·

Chose in action - Assignment by company of part of future book debt - Notice of assignment to agent of debtor - Valid equitable assignment - Company's affairs conducted by trustee under scheme of arrangement - Invalidity of assignment as a "charge" - Originating summons - Interpleader - Property Law Act 1958 (No. 6344), s134 - Instruments Act 1958 (No. 6279), s83, s84 - Companies Act 1958 (No. 6455), s72.

O'SULLIVAN v SCHUBERTVR 143

DEAN, J·18 Sept 1962·

Libel - Qualified privileges - Occasion of privilege - Publication in newspaper - Scope of subject - Matter of privilege - Pleadings - "Rolled-up" plea - Plea of fair comment - Rules of the Supreme Court, O.XIX, r15, r17.

HEDKE v HEDKEVR 151

BARRY, J·11 Sept 1962·

Matrimonial causes - Divorce - Whereabouts of respondent wife and child of marriage unknown - Parties and child immigrants - Order directing inquiries - Matrimonial Causes Act 1959 (Com.), s71(1)(b).

McCULLAGH v LA TOSSVR 153

SHOLL, J·19 Sept 1962·

Firearms - "Firearm" - "Pistol" - Conditions of exclusion from definitions - Whether alternative or cumulative - Firearms Act 1958 (No. 6251), s3(1).

WALPOLE v BYWOOL PTY LIMITEDVR 157

O'BRYAN, J·27 Nov 1961·

Justices - Information - "Offensive trade" - "Wool dagging" - Failure of information to disclose offence - Amendment on review not permitted - Uncertainty in proclamation - Health Act 1958 (No. 6270), s3, s94, s96, s367, s376, s389 - Justices Act 1958 (No. 6282), s88(3) and s88(4), s160, s165, s200, s218.

In the Estate of DUNN, deceasedVR 165

HERRING, CJ·24 May 1962·

Administration and probate - Administration completed - Appointment of new administrator - Trustee - Time when administrator becomes a trustee - Substitution of new trustee - Administration and Probate Act 1958 (No. 6191), s34(1) - Trustee Act 1958 (No. 6401), s48(1).

In the WILL of MOORE, deceasedVR 168

ADAM, J·28 June 1962·

Will - Construction - Gift to issue - Per capita or per stirpes - Substitutional gifts.

PATTERSON v RICHARDSVR 179

GAVAN DUFFY, DEAN and SHOLL, JJ·17 Feb 1961·

Practice - Amendment of statement of claim after expiry of period of limitation - Action under Wrongs Act - Application by plaintiff to add children as dependants - Three-year period of limitation - Wrongs Act 1958 (No. 6420), s17, s18, s19, s20, s21.

MOSS v MOSSVR 191

SHOLL, J·22 Aug 1962·

Matrimonial causes - Divorce on ground of separation - Ancillary relief - Maintenance - Arrangements to the satisfaction of the court - Matters taken into account in arriving at proper weekly sum for maintenance - Matrimonial Causes Act 1959 (Com.), s28(m), s37(2).

SHANKS and CO PTY LTD v HOHNEVR 198

SHOLL, J·15 Mar 1963·

Practice - Specially endorsed writ - Order setting aside judgment in default of defence - Failure to deliver defence and counter-claim within time limited and before judgment - Judgment again entered in default of defence - Defence and counter-claim - Judgment may not be entered on counter-claim in default of defence thereto save on motion - Rules of the Supreme Court, O.XXI, r16; O.XXVII, r2, r11.

KHAN v KHANVR 203

GOWANS, J·14 Nov 1962·

Matrimonial causes - Dissolution of marriage - Potentially polygamous marriage - Moslem marriage - "Marriage" - "Children of the marriage" - Matrimonial Causes Act 1959 (Com.), s28, s83, s84, s87.

STEPHENS v OSCAR MAYER PTY LTDVR 206

HERRING CJ, SHOLL and HUDSON , JJ·8 May 1962·

Public health - Adulterated food - Sausages - Fat content - Meat content - Edible casings - Analysis - Observation of methods of analysis laid down by regulations - Food and Drug Standards Regulations 1958, reg22(8)(a) and reg22(8)(b) and reg102 Health Act 1958 (No. 6270), s238.

ZIEME v GREGORYVR 214

HUDSON , J·10 Sept 1962·

Vendor and purchaser - Contract for sale of land - Contract conditional on purchaser obtaining loan - Condition subsequent - Meaning of "obtaining" - Purchaser's rights under condition - To take all reasonable steps to obtain loan - And not unreasonably refuse loan available - Terms on which loan available - Whether subjective or objective test - Rescission of contract by vendor - Property retained - Deposit to be brought into account in calculating deficiency.

OGILVIE v LOWEVR 225

SHOLL, J·28 Mar 1963·

Aborigine - Statute - Public policy - "Wife of an aborigine" - Whether feminine expression includes masculine - "Relative" - Aborigines Act 1958 (No. 6190), s7(1), s11 - Aborigines Regulations 1957, reg11, reg18 - Acts Interpretation Act 1958 (No. 6189), s17.

HOLLOWAY v COOKE PTY LTDVR 229

SHOLL, J·20 Mar 1963·

Public health - Sale of adulterated food - Tripe - Service of certificate with summons - Tripe "as sold for human consumption" - Food and Drug Standards Regulations 1958, reg22(11) - Health Act 1958 (No. 6270), s3, s238, s240, s304.

Justices - Court of petty sessions - Practice - Objection to service not taken until completion of prosecution case - Waiving of objection - Objection to service procedural, and does not go to jurisdiction - Justices Act 1958 (No. 6282), s23(4).

BOEYEN v KYDDVR 235

ADAM, J·6 Mar 1963·

Negligence - Public policy - Plaintiff and defendant illegally using motor car - Whether illegal act of plaintiff is defence to an action for negligence on the ground of public policy - Volenti non fit injuria - Rules of the Supreme Court, O.XXV, r2.

LOBB v VASEY HOUSING AUXILIARY (WAR WIDOWS GUILD)VR 239

HUDSON, J·14 Feb 1963·

Contract - Frustration - Total failure of consideration - Agreement to create life tenancy - "Licence" - Upon completion of erection of flat - Death of promisee before completion - Interest in land not created prior to death - Contract of which specific performance would not have been decreed prior to death - Whether doctrine of frustration applicable - Expenses incurred prior to discharge by frustration - Whether just to allow defendant to retain money - Onus of proof - Frustrated Contracts Act 1959 (No. 6539), s3.

In the Matter of CHEVRON (SYDNEY) LTDVR 249

ADAM, J·14 Aug 1962·

Company law - Scheme of arrangement - Sanction or approval by court - Function of court - Discretionary power - Debenture stockholders - Whether beneficial to class as such - Companies Act 1958 (No. 6455), s90 - Companies Act 1961 (No. 6839), s181.

Re WEAVER; TRUMBLE v ANIMAL WELFARE LEAGUE OF VICTORIAVR 257

HUDSON, J·1 June 1962·

Will - Testamentary dispositions - Charitable trust - Educational purposes - Perpetuity - Annual income given in perpetuity - Whether as immediate gift of corpus - Contrary intention - Animal welfare - Fourth head of definition of charity - Public benefit.

MOORE v MOOREVR 267

BARRY, J·17 Apr 1962·

Matrimonial causes - Divorce - Desertion - Adultery by petitioner - Condonation of adultery - Discretion statement - Matrimonial Causes Act 1959 (Com.), s41, s37, s127 - Matrimonial Causes Rules 1960, r161, r162, r164, Form 35.

Re McLENNAN, deceasedVR 270

SHOLL, J·7 Mar 1961·

Administration and probate - Will - "The remainder of my money" - "All my personal effects".

LLOYD v LEWISVR 277

PAPE, J·20 Dec 1961·

Negligence - Damages for personal injury - Parent's claim to recover medical expenses of injured child - Contributory negligence of child - No effect on parent's claim - Wrongs Act 1958 (No. 6420), s26 - Hospital and Charities Act 1958 (No. 6274), s70(2).

R v TIKOS (No 1)VR 285

SHOLL, SMITH AND MONAHAN, JJ·11 Oct 1961·

Murder - Self-defence - Intention by accused to cause death or serious bodily injury - Nature of attack by deceased - Extent of injury threatened - Excessive.

R v TIKOS (No 2)VR 306

HERRING CJ, O'BRYAN and ADAM , JJ·1 Mar 1962·

Murder - Manslaughter - Self-defence - Excessive self-defence - Occasion of self- defence - Charge by trial judge - Comments by trial judge on evidence - Miscarriage of justice - Crimes Act 1958 (No. 6231), s568(1).

Re EGAN, deceasedVR 318

HERRING, CJ·5 Dec 1961·

Administration and probate - Wills - Caveat - Grant of probate - Caveat lodged after grant - Caveat presented but not lodged - Caveat not accepted at probate office - Revocation of grant of probate - Administration and Probate Act 1958 (No. 6191), s12, s58.

SEXTON v MULVAHILVR 321

ADAM, J·10 Apr 1963·

Practice - Summons to have endorsement on writ struck out - Promissory note - Order to pay [blank] months after date - Whether effective as a promissory note - Rules of the Supreme Court, O.XXV, r4 - Instruments Act 1958 (No. 6279), s4 - Bills of Exchange Act 1909-1958 (Com.), s15, s89, s95.

R v KELLYVR 325

SHOLL, J·9 Apr 1963·

Criminal law - Practice - Order of addresses - Character evidence only called for the accused - Order of addresses a matter in the discretion of the court.

SHIRE OF NUMURKAH v SHINNICKVR 328

HUDSON, J·26 Mar 1963·

Local government - Council's right to take gravel - Materials necessary for council's purposes - Gravel for roadmaking - "Curtilage of any house", "park", "plantation" - "Materials necessary" - Local Government Act 1958 (No. 6299), s658.

GOODES v JAMES PATRICK and CO PTY LTDVR 334

ADAM, J·1 Mar 1963·

Navigable waters - Melbourne Harbor Trust Act 1958 - Statutory interpretation - Meaning of "agent...of the ship" - Navigable Waters (Oil Pollution) Act 1960 (No. 6705), s6(a).

HABER v WALKERVR 339

GOWANS , J·10 Oct 1962·

Damages - Negligence - Injuries resulting in suicide of injured husband - Causation - Foreseeability - Novus actus interveniens - Wrongs Act 1958 (No. 6420), s16.

EGG AND PULP MARKETING BOARD v K H KORP TOCUMAL TRADING CO PTY LTD and BARROW BROTHERS COMMISSION AGENCY PTY LTDVR 378

ADAM, J·17 Aug 1962·

Practice - Discovery - Incriminatory documents - Tendency to incriminate - Privilege from production - Civil action - Objection to be taken in affidavit of documents - Supreme Court Rules, O.XXXI, r13

HEINE BROS (AUST) PTY LTD v FORRESTVR 383

DEAN, J·23 July 1962·

Master and servant - Restraint of trade - Injunction - Contract of service - Covenants to serve and devote full time - "Not to be concerned" in any other business - Not to divulge or make use of any information acquired in the service of the company.

PETERS v OSCAR MAYER PTY LTDVR 390

HERRING CJ, PAPE and ADAM , JJ·16 Mar 1962·

Public health - Food - Package containing food - False statement on label - Notice - Service of sample - Incorrect description - Omission of words "Pty. Ltd." - Name of seller - Registered office - Address other than registered office - Health Act 1958 (No. 6270), s271, s273, s281, s302 - Companies Act 1958 (No. 6455), s252.

KOLLMAN v WATTSVR 396

LOWE , DEAN and PAPE , JJ·9 Nov 1962·

Estate agent - Vendor and purchaser - "Sells" - Description of real estate in statutory statement - Readily identifiable - Damages - Reasonably in contemplation - Relevant time is time of contract not breach - Estate Agents Act 1958 (No. 6245), s34.

R v McNAMARAVR 402

LOWE , SHOLL and HUDSON , JJ·14 Sept 1962·

Criminal law - Murder - Admissibility of evidence - Means of obtaining evidence by Crown - Examination of accused by Government psychiatrist - Prosecution's use of information obtained by psychiatrist - Use by police of information obtained during investigations - Defence anticipated by disclosures by psychiatrist.

ZWILLINGER v SCHULOFVR 407

GOWANS, J·11 Oct 1962·

Habeas corpus - Infant domiciled in Victoria but presently in other State - Whether other State "foreign dominion" - State and Territorial Laws and Records Recognition Act 1901-1950 (Com.), s18 - Commonwealth of Australia Constitution 1900, s118. Infant - Application to make infant ward of court - Habeas corpus - Custody - Jurisdiction - Applicant stepmother and testamentary guardian - Competency of applicant - Supreme Court Act 1958 (No. 6387), s177 - Marriage Act 1958 (No. 6306), PtVII, s132(1), s149, s150, s151, s152. Practice - Service out of jurisdiction - Originating proceedings - Proceedings duly instituted - Whether limited to circumstances prescribed for writ of summons or notice thereof - Appearance under protest - Claim for relief going beyond objection to jurisdiction - Whether objection waived by claim or argument - Rules of the Supreme Court, O.XI, r1, r6(b), r6(d).

VRYBERGEN v SIDES and SON PTY LTDVR 415

LOWE, J·23 Nov 1962·

Judgment - Interest on judgment - Discretion - How exercised - Damages for future suffering not proper subject for interest - Supreme Court Act 1958 (No. 6387), s79A(3)(b), as enacted by Supreme Court (Interest on Judgments) Act 1962 (No. 6874), s2.

MELBOURNE AND METROPOLITAN TRAMWAYS BOARD v WITTONVR 417

HERRING, CJ SHOLL AND HUDSON, JJ·12 June 1963·

Limitation of actions - Notice of intended action - Ignorance of law - Delay due to waiting for injuries to stabilize - "Reasonable cause" - Limitation of Actions Act 1958 (No. 6295), s34.

PACYNA v GRIMAVR 421

SHOLL, J·21 May 1963·

Evidence - Admissibility - Divulging information received by doctor from patient - Privileged communication - Patient's privilege - Personal representative of deceased patient may waive privilege - Evidence Act 1958 (No. 6246), s28 - Administration and Probate Act 1958 (No. 6191), s29 - Wrongs Act 1958 (No. 6426), s16, s17.

WILDE v PRESTONVR 429

SHOLL, J·27 Mar 1963·

Motor car - Duties of driver to stop where property damaged - Necessary that property be damaged - Onus of proof - Failing to stop, give assistance, etc. - Duplicity of information - Amendment of information - Care needed in use of printed forms of informations - Motor Car Act 1958 (No. 6325), s80(1) - Motor Car (Amendment) Act 1958 (No. 6483), s5 - Sessional Acts Revision Act 1958 (No. 6489), s4, and Schedule, CL35.

McKENZIE v CAULFIELDVR 436

GOWANS, J·10 Oct 1962·

Limitation of actions - Failure to give statutory notice - Whether occasioned by mistake - Prospective plaintiff believing he was entitled to claim damages and intending to do so - Unaware that notice required - Limitation of Actions Act 1958 (No. 6295), s34. Application to court without jurisdiction - Order conferring jurisdiction made after argument concluded - Whether application still before court - Whether notice foreshadowing application defective - Limitation of Actions Act 1958 (No. 6295), s34(1), s34(4) and s34(5) - Local Government Act 1958 (No. 6299), s881.

HINGSTON v KATSIKASVR 441

DEAN, J·9 Oct 1962·

Practice - Application for renewal of writ and enlargement of time - Writ issued but not served on defendant - Application for renewal of writ out of time - Judge's discretion - Extension of time - Limitation of Actions Act 1958 (No. 6295), s5(6) - Rules of the Supreme Court, O.VIII, r1; O.LXIV, r6.

BAYVIEW QUARRIES PTY LTD v CASTLEY DEVELOPMENT PTY LTDVR 445

SHOLL, J·18 Sept 1962·

Practice - Specially endorsed writ - Default of defence - Setting aside judgment - Arguable defence not evident - Goods sold and delivered - Counter-claim for damages - Equitable set-off not available - Goods Act 1958 (No. 6265), s59(1)(a) - Rules of the Supreme Court, O.XXVII, r15.

R v BATTYVR 451

SHOLL, J·3 Aug 1962·

Criminal law - Evidence - Confession - Must be voluntary - Onus of proof - Voir dire - Breaches of Chief Commissioner's Rules - Judges' Rules (Eng.) - Discretion of trial judge - Right of reply - Co-accused giving only alibi evidence - Evidence Act 1958 (No. 6246), s149 - Crimes Act 1958 (No. 6231), s399(i), s417.

ALEX KAY PTY LTD v GENERAL MOTORS ACCEPTANCE CORPORATION and HARTFORD FIRE INSURANCE COMPANYVR 458

SHOLL, J·3 Oct 1962·

Contract - Insurance - Interpretation of clause in contract of insurance - Proviso that insurer not liable for loss "arising from breach of contract, agreement or obligation" Hiring agreement - Motor car allegedly stolen - Ambiguity - Interpretation "contra proferentem".

BOSAID v ANDRYVR 465

SHOLL, J·23 Feb 1961·

Contract - Rectification - Statute of Frauds - "Attached" - Sufficiency of signature - Initials - Signed receipt for additional documents - Uncertainty - An agreement to execute a further final contract - Whether void as an agreement to enter into an agreement - Additional clause in formal contract subsequently tendered - Variation whether entitles rescission - Waiver - Fundamental to transaction - False representation - Fraudulent misrepresentation - Election to affirm contract - Specific performance - Hardship as a ground for refusal of specific performance - Determination of contract - Counter-claim for refund of deposit - Damages in lieu of specific performance - Instruments Act 1958 (No. 6274), s126, s127 - Transfer of Land Act 1958 (No. 6399), 7th Schedule, Table A, CL6(1) - Property Law Act 1958 (No. 6344), s49(2) - Supreme Court Act 1958 (No. 6387), s62(3).

LANDERS v DAWSONVR 491

LOWE , DEAN and PAPE , JJ·31 Oct 1962·

Workers compensation - Injury arising out of or in the course of employment - Interval between periods of employment - Injured while swimming during such interval - "Ordinary recess" - Workers Compensation Act 1958 (No. 6419), s5(1), s8(2)(a), s8(2)(b).

Re WATKINS' SETTLEMENTSVR 502

HERRING, CJ·18 Dec 1962·

Settlement - Construction - Deed of variation - Direction for excessive accumulation of income - Released income - Whether disposed of by other provisions in deed - Deed executed under power of revocation - Proviso in clause conferring power - Exercise not to cause existence of beneficial interest in person other than relation of settlor - Resulting trust to settlor - Whether caused by deed of variation - Thellusson Act (Property Law Act 1958 (No. 6344), s164(1)).

CONYNGHAM-POWER v CONYNGHAM-POWERVR 513

GOWANS, J·17 June 1963·

Matrimonial causes - Practice - Application for the issue of a commission to examine witnesses in England - Where rules do not provide, practice and procedure immediately prior to the commencement of the Act apply - Form of order - Matrimonial Causes Act 1959 (Com.), s127(6) - Rules of the Supreme Court (Vic.), Ch.II, r159; O.37, r5 et seq.

BERJAK (VICTORIA) PTY LTD v PEERLESS PROCESSING CO PTY LTDVR 515

HERRING CJ, SHOLL and ADAM , JJ·18 Mar 1963·

Evidence - Person making statement in document now deceased - "Purport" - "Continuous record" - Evidence Act 1958 (No. 6246), s55.

R v TAITVR 520

HERRING CJ, O'BRYAN and ADAM , JJ·22 Feb 1962·

Criminal law - Murder - Defence of insanity - Insanity supervening during commission of crime - Deceased dying from combined effect of several blows - Impossible to determine which was fatal blow, and what was state of deceased's mind when it was struck - Ordering of witness out of court - Rescission or amendment of order - Evidence suggesting bad character - Admissible if relevant to issues - Discretion to exclude.

Re TAITVR 532

GOWANS , J·30 Oct 1962·

Lunacy - Petition - For inquiry concerning alleged lunacy of prisoner under sentence of death - Estate consisting only of personal clothing and effects - Whether inquiry should be ordered - Principles to be observed in exercise of discretion - Purpose of inquiry - Appointment of committee of person or estate - Supreme Court Act 1958 (No. 6387), s16 - Mental Hygiene Act 1958 (No. 6314), s111 - Lunacy Rules 1916 - Crimes Act 1958 (No. 6231), s550, s551.

Criminal law - Prisoner under sentence of death - Alleged to be insane - Whether entitled to obtain suspension of execution by judicial process - Mental Hygiene Act 1958 (No. 6314), s69.

TAIT v RVR 547

LOWE , SMITH and PAPE , JJ·30 Oct 1962·

Jurisdiction - Full Court - No criminal jurisdiction except as Court of Criminal Appeal - Criminal matter may not be reserved for consideration of the Full Court - Application for reprieve a criminal matter - Supreme Court Act 1958 (No. 6387), s34(1)(e), s44 - Crimes Act 1958 (No. 6231), PtVI. Criminal law - Reprieve - Application to trial judge by prisoner under sentence of death - Prisoner applying also for inquiry as to whether of unsound mind - Wether Court has common law power to reprieve felon under sentence of death and shown to be insane - Crimes Act 1958 (No. 6231), PtIII, Division 2, s3, s472, s485, s505 - Mental Hygiene Act 1958 (No. 6314), s69 - Juries Act 1958 (No. 6281), s58.

PACIFIC ACCEPTANCE CORPORATION LTD v OCEAN ROAD MOTEL PTY LTDVR 565

SMITH, J·30 Apr 1962·

Money lenders - Statutes - Loan to body corporate - Retrospective effect of amending Act - "This Act" - Money Lenders Act 1958 (No. 6324), s3, s23; Money Lenders (Amendment) Act 1959 (No. 6598), s3; Money Lenders (Amendment) Act 1961 (No. 6819), s2(e).

REES v REGENT INSURANCE LTDVR 570

HERRING, CJ SHOLL AND ADAM, JJ·26 Feb 1963·

Money lender - Loan to company - Guarantee of loan to company - Money Lenders Act 1958 (No. 6324), s3, s23 - Money Lenders (Amendment) Act 1959 (No. 6598), s3 - Money Lenders (Amendment) Act 1961 (No. 6819), s5.

SCOTT v DUNSTONEVR 579

SHOLL, J·16 Sept 1963·

Motor car - Breath analysing instrument - Approved instrument - Self incrimination - Crimes Act 1958 (No. 6231), s408A (as inserted by Act No. 6806).

CARLISLE v WILLSVR 583

GOWANS, J·9 Sept 1963·

Will - Administration and probate - Procedure - Revocation of probate - Should be by order nisi, not motion - Rules of Supreme Court.

EMERY v COMMONWEALTH OF AUSTRALIAVR 586

PAPE, J·13 Aug 1963·

Employer and employee - Long service leave - Notice of retrenchment - Withdrawal of notice - No arrangement with other employer - Not less than eight years' service - Salary in lieu of leave - Approving authority's discretion - Compulsory termination of contract of employment - "Retrenchment" - Commonwealth Employees' Furlough Act 1943-1959 (Com.), s3, s8(2).

VICTORIAN STEVEDORING PTY LTD v FARLOWVR 594

HERRING, CJ SHOLL AND HUDSON, JJ·12 Aug 1963·

Damages - Personal injuries - Onus on plaintiff to prove facts on which he relies - Mere conjecture not sufficient - Verdict for excessive amount.

SZENTMIKLOSI v INCORPORATED NOMINAL DEFENDANTVR 601

HERRING, CJ SHOLL AND HUDSON, JJ·17 June 1963·

Negligence - Evidence necessary to establish negligence - Failure to see motor car before collision - Contributory negligence - Appeal - Appellate court substituting its view of facts - Uncontradicted evidence - Balance of probabilities.

WEIDEMANN v WEIDEMANNVR 607

BARRY, J·18 July 1963·

Matrimonial causes - Adultery - Specified person - Omission to join person named as a party - Effect of omission - Irregularity - Matrimonial Causes Act 1959 (Com.), s45.

MURPHY v MURPHYVR 610

HERRING, CJ SHOLL AND HUDSON, JJ·13 June 1963·

Damages - Practice - Payment into court - Damages awarded less than amount paid into court - Interest on damages awarded - Interest awarded sufficient to make amount recovered exceed the amount paid into court - Whether interest must be claimed in the statement of claim - Statutory interpretation - Judge's discretion when informed of the payment in before interest allowed - Supreme Court Act 1958 (No. 6387), s78, s79, s79A - Supreme Court (Interest on Judgments) Act 1962 (No. 6874) - Rules of the Supreme Court, O.XXII, r6.

KRUBER v GRZESIAKVR 621

ADAM, J·10 Apr 1963·

Limitation of actions - Action for damages for personal injuries - Trespass to the person - Negligence an essential ingredient - Whether "action for damages for negligence nuisance or breach of duty" - Limitation of Actions Act 1958, s5(6).

HOPCROFT v HOPCROFTVR 625

HERRING, CJ·5 Dec 1962·

Husband and wife - Matrimonial home in joint names - Contributions in unequal proportions - Ownership - Division of proceeds of sale - Marriage Act 1958 (No. 6306), s161.

GAEDE v CENTRAL AUTOMATIC SPRINKLERS PTY LTDVR 631

GOWANS, J·17 June 1963·

Workers compensation - Damages - Defence of election to take workers compensation - Worker unaware of effect of signing form of election - Worker unaware of alternative common law remedy - Payment of workers compensation - Workers Compensation Act 1958 (No. 6419), s5(2).

Re FOWLER, DECEASEDVR 639

PAPE, J·21 Mar 1963·

Will - Interpretation - Remarriage - Until death or remarriage - Beneficiary not already married.

EVANDALE ESTATES PTY LTD v KECKVR 647

HUDSON, J·2 Apr 1963·

Real property - Caveat - Mortgage - Security for loan - Loan made to enable purchase of land from third party - Lien claimed by lender over land purchased - Subrogation to vendor's lien.

MANN v MANNVR 654

PAPE, J·4 Mar 1963·

Matrimonial causes - Divorce - Application for order reducing period at expiration of which decree nisi becomes absolute - Petitioner applying on behalf of respondent - "Special circumstances" - Must be circumstances prima facie affecting applicant - Respondent may make application - Form of application - Matrimonial Causes Act 1959 (Com.), s72(3)(b) - Marriage Act 1961 (Com.), s89.

SH LOCK DISCOUNTS and CREDITS PTY LTD v MILESVR 656

O'BRYAN, J·14 Feb 1963·

Contract - Guarantee - Consideration - Whether truly stated in written note or memorandum - Executed consideration - Prospective consideration - No obligation on creditor to execute consideration - Guarantee binding if and when consideration provided - Statute of Frauds, s4 - Instruments Act 1958 (No. 6279), s126.

NEWMAN v COOKVR 659

HERRING, CJ DEAN AND HUDSON, JJ·18 Dec 1961·

Sale of goods - Contract - Breach of warranty - Action for damages for breach of warranty - Counter-claim - Diminution of price because of breach of warranty - Set-off against price - Purchaser not in default - Goods Act 1928 (No. 3694), s57 - Goods Act 1958 (No. 6265), s59.

R v CITY OF OAKLEIGH ; EX PARTE NEW GAMBLE BRICKWORKS PTY LTDVR 679

SHOLL, J·24 Oct 1962·

Local Government - Uniform Building Regulations - Application for issue of a permit to build - Non-conforming use - Residential by-law - Mandamus to compel issue of permit - Interruption in operation of brickworks - Whether such interruption an abandonment of use - Whether continuance of use of land as used prior to the existence of by-law - Interim development order - Local Government Act 1958 (No. 6299), s197(7) - Town and Country Planning Act 1961 (No. 6849), s17.

Re DENNERSTEINVR 688

HUDSON, J·30 Apr 1963·

Real property - Restrictive covenant - Building scheme - Encumbrance notified on certificate of title - Land affected must be indicated - Notification insufficient to bind transferees - Property Law Act 1958 (No. 6344), s84.

COUNTRY ROADS BOARD v HERALD and WEEKLY TIMES LTDVR 698

SHOLL, J·15 Mar 1963·

Limitation of actions - Arbitration - Public authority - Notice to public authority - Applicability of requirement of notice to arbitration - King-street Bridge Act 1957 (No. 6156), s3 - Lands Compensation Act 1928 (No. 3711), s12, s13, s15 and s31 - Lands Compensation Act 1958 (No. 6286), s12, s13, s15 and s31 - Limitation of Actions Act 1958 (No. 6295), s3, s28, s34.

R v INDUSTRIAL APPEALS COURT ; Ex PARTE FRIEZEVR 709

O'BRYAN, SHOLL AND SMITH, JJ·8 Mar 1961·

Prerogative writs - Prohibition - Labour and industry - Industrial Appeals Court - Determination of Wages Board - Jurisdiction of Industrial Appeals Court - Industrial matter - Clause preventing vicariously sued employer seeking indemnity from employee whose act or omission gave rise to action - Labour and Industry Act 1958 (No. 6283), s3, s30, s39, s45, s46, s47 - Supreme Court Act 1958 (No. 6387), s44.

CUISENAIRE v REEDVR 719

PAPE, J·7 Aug 1962·

Copyright - Statutory interpretation - "Artistic work" - Literary copyright in a chart or table not infringed by production of articles in accordance with the descriptions in the chart - System for teaching mathematics by coloured rods - Copyright Act 1912-1950 (Com.) - Imperial Copyright Act 1911 as set out in the Schedule to the Copyright Act 1912-1950 (Com.).

R v SMYTHVR 737

SHOLL, J·5 Apr 1963·

Criminal law - Malicious - Unlawful and malicious wounding - Duress - Onus of proof - Crimes Act 1958 (No. 6231).