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[1968] VR(90 results)

Cases reported in this volume of the Victorian Reports

HARTWELL TRENT (AUSTRALIA) PTY LTD v TEFAL SOCIETE ANONYMEVR 3

PAPE, J·25 Sept 1967·

Private international law - Practice - Service out of jurisdiction - Reasonable evidence - Evidence in support must show compliance with requirements - Prima facie case - Insufficient verification of the cause of action sued upon - Rules of the Supreme Court, O.XI, r1, r2.

HRISTEAS v GMH PTY LTDVR 14

PAPE, J·25 Aug 1967·

Practice and procedure - Pleadings - Amendment - Claim for damages for personal injuries - Substantial alteration in factual basis of claim - Limitation period expired before amendment sought - Whether new cause of action raised.

ASHLEY v SCHONBERGERVR 22

WINNEKE CJ, LITTLE and GOWANS , JJ·24 Apr 1967·

Appeal - Statutory negligence - Intersection - Obligation to "give way" to approaching vehicle - Failure to give way - Negligence - Road traffic regulation - Subjective element - Misdirection of law - New trial ordered where the jury may have been influenced by the misdirection - Road Traffic Regulations 1962, reg601, reg603(2)(a).

Re HUGHES, deceasedVR 28

PAPE, J·14 Aug 1967·

Will - Construction - Income to widow till death or remarriage - "Children of my children" - "Date of distribution" - Who take vested interest at that date.

GOLDWATER v DI'GIOACCHINOVR 40

MENHENNITT, J·4 Aug 1967·

Criminal law - Criminal liability and capacity - Revenue offences - Whether mens rea must be proved - Whether knowledge of defendant of use to which equipment is to be put must be proved. Customs and excise - Illicit spirits - Making a still - Part of a still made - Lack of knowledge by defendant that part made was intended to be used as part of a still - Distillation Act 1901-1956 (Com.), s5, s6, s10.

Re CAMPBELL, deceasedVR 46

MENHENNITT, J·2 Oct 1967·

Probate duty - Appeal against assessment - Land used for primary production - Passing of that land on death to a person related by blood or marriage - Rebate of duty - Meaning of "passes to" - Requirement of a valid assent - Probate Duty Act 1962 (No. 6890) (as amended by Act No. 6970), s24 - Administration and Probate Act 1958 (No. 6191), s41.

MECKIFF v SIMPSONVR 62

MENHENNITT, J·5 June 1967·

Practice and procedure - Statement of claim - Libel action - Allegation of publication in Victoria and in other jurisdictions - Application to strike out part of allegation - Whether plaintiff should be permitted to litigate publication in different jurisdictions - Whether plaintiff should be compelled to institute separate actions in different jurisdictions - Rules of pleading complied with - Application to strike out inappropriate - Rules of Supreme Court, O.XVIII, r8; O.XIX, r27.

MECKIFF v SIMPSON (APPEAL)VR 69

WINNEKE CJ, ADAM and GOWANS , JJ·13 Oct 1967·

Practice and procedure - Statement of claim - Libel action - Allegation of publication in Victoria and in other jurisdictions - Application to strike out part of allegation - Whether plaintiff should be permitted to litigate publication in different jurisdictions - Whether plaintiff should be compelled to institute separate actions in different jurisdictions - Rules of pleading complied with - Application to strike out inappropriate - Rules of Supreme Court, O.XVIII, r8; O.XIX, r27.

MERCER v PHARMACY BOARD OF VICTORIAVR 72

PAPE, J·20 Oct 1967·

Chemist - Pharmaceutical chemist - Conduct discreditable to a pharmaceutical chemist - Appeal - Standard of proof - Balance of probabilities - Breach of undertaking may be discreditable conduct - Discreditable conduct less than infamous conduct - Absence from pharmacy when open for business - "Actual personal supervision" - Medical Act 1958 (No. 6309) (as amended by Medical Act 1959 (No. 6528)), s96, s101, s109.

R v TRANSPORT REGULATION BOARD; Ex parte BANKSVR 95

WINNEKE (1 and 2) CJ, ADAM and GOWANS , JJ·24 Oct 1967·

Transport regulation - Metropolitan taxi-cab licence - Decision of Transport Regulation Board - Revocation of licence - Revocation approved by Governor in Council - Crown practice - Certiorari against Board - Order in Council effects revocation - Discretionary nature of writ - Will not issue if ineffective - Transport Regulation Act 1958 (No. 6400), s31, s32.

WARNER v SUNNYBROOK ICE CREAM PTY LTDVR 102

LUSH, J·17 Aug 1967·

Public health - Adulterated food - Information - Amendment - Information laid out of time - Food purchased from person other than defendant - Time limit for laying information applies to sale by wholesaler - Health Act 1958 (No. 6270), s238, s291, s295. Justices - Amendment of information after informant's case closed - "Variance" - Discretion to allow or refuse amendment - Justices Act 1958 (No. 6282), s88, s200, s215.

RICHARDS v CONOLEVR 111

LUSH, J·24 Aug 1967·

Infants - Custody - Ward of court - Supervision of wardship by court.

TZOUVELIS v VICTORIAN RAILWAYS COMMISSIONERSVR 112

BARRY, SMITH AND GOWANS, JJ·27 Sept 1967·

Damages - Personal injuries - Loss of future earnings - Future pain and suffering and loss of amenities - Paralysed plaintiff - Quantum - Excessive award - Evidence of expert concerning past increases in nominal wages - Admissibility - Lack of evidence concerning likelihood of future increases in real wages - Judge's direction to jury concerning use to be made of evidence - Contingencies of life - Adequacy of judge's charge to jury.

GRUMMITT v NATALISIOVR 156

GILLARD, J·12 Oct 1967·

Sale of land - Compromise of action by agreement for sale of land - Agreement signed by counsel but not by the parties - Counsel for defendant not authorized in writing by his client to sign compromise - Part performance - Estoppel - Instruments Act 1958 (No. 6279), s126, s127.

R v WRIGHT (No 1)VR 164

STARKE, J·12 Oct 1967·

Practice - Criminal law - Contempt of court - Supreme Court may punish for contempt of inferior court - Unprovoked assault on Crown witness committed after termination of trial in court of general sessions - Whether punishable contempt of court.

Re TABONE, deceasedVR 168

WINNEKE, CJ·23 June 1967·

Trust property - Sale by auction - Leave to trustee to bid at auction - Granted only in interests of trust estate - Summons under Property Law Act not an originating summons - "Originating summons" - Property Law Act 1958 (No. 6344), s37, s203 - Rules of the Supreme Court, O.LXXI, r1; O.LV, r3(g).

R v WRIGHT (No 2)VR 174

WINNEKE CJ, GILLARD and MCINERNEY , JJ·10 Nov 1967·

Criminal law - Identification - Accused previously known by identifying witness - Witness recognizing accused's voice - Trial judge's warning to the jury - Sufficiency of warning.

AZZOPARDI v BOISVR 183

ADAM, J·8 Mar 1968·

Estoppel - Claim for damages for personal injuries - Previous proceedings between same parties - Claim and counter-claim in respect of property damage - Findings of negligence on the part of both parties - Claims reduced by a percentage - Plaintiff estopped from alleging that defendant alone was negligent and from denying contributory negligence - Plaintiff not estopped from contending that his damages for personal injuries be reduced by a different percentage - Wrongs Act 1958 (No. 6420), s26.

DZEKOVSKI v SAFCOL SEAFOODS PTY LTDVR 190

WINNEKE CJ, ADAM and GOWANS , JJ·17 Nov 1967·

Workers compensation - Assessment and amount of compensation - Amount of compensation in case of death - Reduction of amount to allow for present payment - Amount of compensation to be such sum as in the opinion of the Board is reasonable - Whether opinion of Board vitiated by failing to take into account the fact of present payment - Workers Compensation Act 1958 (No. 6419), s9 CL1(a).

HOFSTETTER v THOMASVR 199

MENHENNITT, J·17 July 1967·

Police offences - Possession of property suspected of being stolen or unlawfully obtained - Whether such suspicion should exist up to the date of hearing - Police Offences Act (No. 6337), s42 - Function of Supreme Court on case stated by court of general sessions - Justices Act (No. 6282), s152(1).

CRONNOLLY v WILLIAMSVR 210

WINNEKE, CJ·30 Nov 1967·

Public health - Adulterated food - Sale effected by seller's agent - Seller and agent both prosecuted - Part of sample given to agent but no part given to seller - No request to seller for part - Health Act 1958 (No. 6270), s238, s281(1), s298(1) - Justices Act 1958 (No. 6282), s77.

CASH v RETTIGVR 215

ADAM, J·28 Nov 1967·

Practice - Specially endorsed writ - No request or order for pleadings - Counter- claim by defendant - Plaintiff's action struck out for want of prosecution - Judgment entered on counter-claim in default of defence - Defence to counter-claim not required - Application to set aside judgment - Rules of the Supreme Court, O.XVIII (A), rI, O.XXIII, r4, O.XXVII, r11, r15, and O.XXXVI, r25.

NORTON v LONGVR 221

WINNEKE, CJ·29 Nov 1967·

Statutes - Interpretation - Rules of construction - Construction with reference to consequences - Unworkability - Motor Boating Act 1961 (No. 6832), s6, s7, s9, and s11.

SCHUETT v MCKENZIEVR 225

WINNEKE, CJ·28 Nov 1967·

Road traffic - Failing to yield right of way - Danger of collision - First entry into the intersection irrelevant - Failure to prove regulation - Leave to tender Regulations on return of order nisi - Road Traffic Regulations 1962, reg602(3), as enacted by SR No. 59 of 1964 - Road Traffic Act 1958 (No. 6359).

CUARTERO v CUARTEROVR 230

BARRY, J·21 Nov 1967·

Matrimonial causes - Custody of young children - Wife's application to be relieved of contractual undertaking given at divorce hearing - Undertaking not to take the children of the marriage out of Victoria - Interests of children the "paramount consideration" - Welfare of the children superior to all other considerations - Matrimonial Causes Act 1959 (Com.), s85(1).

R v NILSONVR 238

WINNEKE CJ, LITTLE and GILLARD , JJ·5 Dec 1967·

Criminal law - Burglariously breaking and entering and striking or beating - Statutory offence - Presentment - "Burglariously" - Crimes Act 1958 (No. 6231), s130. Evidence - Tape recording of record of interview admissible - Second caution not necessary for tape recording.

R v OLIVERVR 243

WINNEKE CJ, LITTLE and GILLARD , JJ·8 Dec 1967·

Criminal law - Confessions - Admissibility - Record of interview between police and accused - Record not signed by accused - Part of record adopted by accused - Whole documentary record admitted in evidence - Appeal - Substantial miscarriage of justice - Crimes Act 1958 (No. 6231), s568.

R v URLICHSVR 249

WINNEKE CJ, LITTLE and GILLARD , JJ·4 Dec 1967·

Criminal law - Sentence - Minimum term - Sentence to be served concurrently with a sentence in respect of which no minimum term was fixed - Crimes Act 1958 (No. 6231), s535(2), as enacted by Crimes (Sentences and Parole) Act 1959 (No. 6572), s3 - Gaols Act 1958 (No. 6259), s18(1), s19(1), as amended by Gaols (Commencement of Sentences) Act 1966 (No. 7469).

Re CHARLESON, deceasedVR 252

STARKE, J·6 Feb 1968·

Will - Devise of land - Interpretation - Extrinsic evidence - Falsa demonstratio - Debts, expenses and duties - Ambiguity - Intention to benefit, not for devise to be absorbed by debts and duties.

R v DALYVR 257

WINNEKE CJ, SMITH and LITTLE , JJ·6 Apr 1965·

Criminal law - Rape - Intention to have intercourse without consent.

Re MARRIOTT, deceasedVR 260

GILLARD, J·28 July 1966·

Probate duty - Appeal against assessment - Onus of proof - Valuation of land forming part of dutiable estate - Source of Supreme Court's jurisdiction to hear appeal - Notional estate - Gift inter vivos - Sale of land by deceased to company - Inadequate consideration - Bona fide commercial transaction - Parties to sale not at arm's length - "Full consideration" - Valuation of land forming part of dutiable estate - Unused and unmade street dividing land - Persons entitled to right of way unknown - Land held under continuous adverse possession for less than 30 years - Administration and Probate Act 1958 (No. 6191), s100 - Probate Duty Act 1962 (No. 6890), s19 - Valuation of Land Act 1960 (No. 6653), s2, s5A, PtIII - Valuation of Land (Appeals) Act 1965 (No. 7276), s13.

YORKSHIRE DYEWARE AND CHEMICAL CO LTD v MELBOURNE and METROPOLITAN BOARD OF WORKSVR 277

MCINERNEY, J·17 Feb 1967·

Limitation of actions - Cause of action in tort - No statutory notice given - Application for leave to bring action - Repeal of section requiring giving of statutory notice after conclusion of argument but before judgment - Liability for costs - Limitation of Actions Act 1958 (No. 6295), s34 - Acts Interpretation Act 1958 (No. 6189), s7 - Limitation of Actions (Notice of Action) Act 1966 (No. 7457), s2.

Re ALEX RUSSELL, deceasedVR 285

MCINERNEY, J·15 Feb 1967·

Probate duty - Sale of land by testator to company - Part of purchase price satisfied by the issue of preference shares - General power of appointment - Power to dispose of property - Testator with right to convert preference shares to ordinary shares - Testator died without exercising right to convert shares - Right ceasing on death - Gift inter vivos - Actual estate - Notional estate - Administration and Probate Act 1958 (No. 6191), s100, s104(1)(b), s104(1)(f), s104(1)(j) - Probate Duty Act 1962 (No. 6890), s7(1)(b), s7(1)(f), s7(1)(j).

TOBACCO LEAF MARKETING BOARD v GIBSONVR 310

MCINERNEY, J·7 Sept 1967·

Marketing of primary products - Tobacco - Basic quota of tobacco grower - Appeal from refusal by Tobacco Quota Committee to increase quota - Appeal to Tobacco Quota Appeals Tribunal - Grower's basic quota increased - Tobacco Quota Appeals Tribunal empowered to increase quota - Manner in which increased basic quota operates - Interim Quota Committee - "Basic quota" - "Grower's basic quota" - "In respect of" - Tobacco Leaf Industry Stabilization Act 1966 (No. 7427), s1(1), s2, s4, s6(6), s14, s24, s26, s27, s29, s31, s33 - Marketing of Primary Products Act 1958 (No. 6304), s17, s20, s21, s25(2) - Tobacco Marketing Act 1965 (Com.).

H J HEINZ and CO LTD v COMPTROLLER OF STAMPSVR 321

LITTLE, J·27 May 1968·

Stamp duty - Company carrying on insurance business - Policies of insurance issued by company but no premium payable in respect thereof - Liability to take out annual licence - Minimum stamp duty payable - Stamps Act 1958 (No. 6375) (as amended), s17, s96, s97, s98, s99, s100, s106 and Heading XI of the Third Schedule.

HEIGHT v CLEMENCEVR 326

PAPE, J·10 Nov 1967·

Estate agents - Requirement for statement to be furnished to purchaser - Representation as to finance - Statement that balance of deposit payable on signing of contract - Condition of contract that balance of deposit payable within 14 days of date of sale note - Materiality - Estate Agents Act 1958 (No. 6245), s34 - Estate Agents (Amendment) Act 1960 (No. 6734), s3 - Estate Agents (Amendment) Act 1966 (No. 7425), s4.

WILSON ELECTRIC TRANSFORMER COMPANY PTY LTD v ELECTRICITY COMMISSION OF NEW SOUTH WALESVR 330

ADAM, J·12 Dec 1967·

Practice - Service of writ under Service and Execution of Process Act 1901-1963 (Com.) - Conditional appearance by defendant - Application by defendant to have service set aside - Action claiming indemnity by the plaintiff pursuant to s62 of the Workers Compensation Act 1958 - "Contract" - Service and Execution of Process Act 1901-1963 (Com.), s11.

HOLDEN v HOLDENVR 334

GOWANS, J·13 Feb 1968·

Infant - Custody proceedings - Jurisdiction of court - Domicil - Infants not ordinarily resident in Victoria - No power to make orders sought.

LAWRENCE v SLATCHER; LAWRENCE, Third PartyVR 337

MENHENNITT, J·9 Feb 1968·

Practice - Action in tort - Joint tort-feasors - Third-party proceedings - Joinder of wife of plaintiff as third party - Per quod servitium amisit - Loss of consortium - No cause of action between plaintiff and third party - Wrongs Act 1958 (No. 6420), s24(1)(c), s24(1)(d).

BERNARDI v MCDONALDVR 341

PAPE, J·18 Dec 1967·

Marketing of primary products - Tobacco - Provisional tobacco marketing quota allocated by Tobacco Leaf Marketing Board - "Grower's basic quota" - Grower's basic quota attaching both land and person - Land to which quota attached compulsorily acquired - Transfer of quota to other land - Holders of basic quota in partnership - Partnership dissolved - Marketing of Primary Products Act 1958 (No. 6304) - Tobacco Leaf Industry Stabilization Act 1966 (No. 7427), s1, s3, s4, s6, s23 to s27, s29, s30, s32, s33.

Re PUBLIC FIDELITY AND AUDIT LTDVR 353

WINNEKE CJ, GOWANS and LUSH , JJ·9 May 1968·

Companies - Order for release of liquidator - Application for extension of time in which to appeal - Contributor of company - Applicant an undischarged bankrupt - Competency to make application - Companies Act 1961 (No. 6839), s220(2).

Re STEVENSVR 356

MCINERNEY, J·13 Feb 1968·

Practice - Poor persons - Application for leave to defend in forma pauperis - Property "the subject-matter of the cause of matter" to be excepted when determining value of assets - Action connected with building operations on the defendant's land - Defendant's title or right to possession of the property not in question - Rules of the Supreme Court, O.XVI, r22.

BUCKLE v COMMONWEALTH AIRCRAFT CORPORATION PTY LTDVR 359

BARRY, SMITH AND PAPE, JJ·19 Feb 1968·

Workers compensation - Case stated - Disputed questions of fact - No question of law arising - Court declining to answer the questions submitted - Workers Compensation Act 1958 (No. 6419), s56(3).

AMERICAN REAL ESTATE PTY LTD v ABBATANGELOVR 362

GOWANS, J·17 Feb 1965·

Arbitration - Action arising from a building dispute - Parties willing to have matters in dispute referred for report by an architect - Appropriate form of order referring matter for report and giving directions - Arbitration Act 1958 (No. 6200), s14, s16.

C v RVR 364

BARRY, SMITH AND PAPE, JJ·15 Feb 1968·

Infant - Custody - Parent and child - Habeas corpus - Right of parents - Welfare of child - Appeal - Marriage Act 1958 (No. 6300), s149, s151.

Re McPHERSON, deceasedVR 368

ADAM, J·12 Mar 1968·

Will - Interpretation - Gift to "all my children who shall survive me" - Substitutionary gift to children of child of testatrix predeceasing testatrix - "If any of my children shall predecease me" - "Shall" - Intention.

EDWARDS v LAMSON PARAGON LTDVR 374

WINNEKE C, J ADAM and GOWANS , JJ·25 Oct 1967·

Workers compensation - Case stated - Widow's claim in respect of deceased worker - Worker died whilst at work as a result of a coronary occlusion - Such occlusion suffered by the deceased while on his way to work - Whether or not this was injury - If not was the death materially contributed to by the deceased's walking to work - Workers Compensation Act 1958 (No. 6419), s3(1), s8(2), as amended by Act No. 7292 of 1965.

BARNETT v RAYNORVR 386

WINNEKE, CJ·20 Mar 1968·

Justices - Order to review - Costs - Informations against both defendants dismissed - Order that the defendants pay the informant's costs - No jurisdiction to make such order - Justices Act 1958 (No. 6282), s105.

Re ELMORE, deceasedVR 390

GOWANS, J·15 Mar 1968·

Administration and probate - Purposive trust for the publication of a book - No indication of character or content of the work to be published - Purposive trust for the preparation and publication of the testator's own literary works - Trust not for the advancement of education or the public benefit.

DRILLER v SMAILVR 396

SMITH, J·26 Apr 1968·

Bankruptcy - Scheme of arrangement - Trustees of scheme - Management of debtors' business - Sale of debtors' business - Claim by debtors for administration, accounts, inquiries and possession of the business - Jurisdiction of Supreme Court - Jurisdiction of Federal Court - Concurrent jurisdiction - Exercise of court's discretion - Bankruptcy Act 1924-1965 (Com.), s25, s148, s149, s162(8).

PATE v PATEVR 404

LUSH, J·1 Apr 1968·

Husband and wife - Matrimonial property - Property held by husband alone - Effect of court's declaration that property held on trust - Wife's rights prospective only - Sale of property at under-value prior to declaration - Marriage Act 1958 (No. 6306), s161 - Marriage (Property) Act 1962 (No. 6924), s3.

STEVENS v LEWCOS (AUST) PTY LTDVR 409

SMITH, J·26 Apr 1968·

Workers compensation - Dismissal of common law action for want of prosecution - Application to remit action to Workers Compensation Board for assessment of compensation - Whether the injury was one for which the defendant "is not liable" in the action - Workers Compensation Act 1958 (No. 6419), s63(1).

LORD v REVR 411

WINNEKE CJ, ADAM and LITTLE , JJ·22 Apr 1968·

Lottery - Gaming - Sale of packets of soap powder containing tokens - Conducting and assisting in conducting a lottery - Participant entitled gratuitously to participate - All participants must be so entitled - Lotteries Gaming and Betting Act 1966 (No. 7429), s5, s7.

R v GAFFNEYVR 417

WINNEKE CJ, LITTLE and GILLARD , JJ·6 Dec 1967·

Criminal law - Appeal against conviction - Trial judge's direction to the jury - Inadequate direction on issue of identification - No objection taken at the trial - General discretion of appellate court - Interests of justice - Crimes Act 1958 (No. 6231), s568(1).

PADDLE v STATE ELECTRICITY COMMISSION OF VICTORIA JOHNSTON v STATE ELECTRICITY COMMISSION OF VICTORIA JENNINGS ESTATES and FINANCE LTD v STATE ELECTRICITY COMMISSION OF VICTORIAVR 425

MENHENNITT, J·7 Aug 1967·

Public authorities - Authorized undertakings - Easements - High tension power lines - Alternative routes - True and real exercise of statutory powers by public authority - "Do as little damage as may be" - Permit under interim development order - State Electricity Commission Act 1958 (No. 6377), s3, s21(1), s106 - Town and Country Planning Act 1961 (No. 6849), s17, s18, s19, s20, s21, s22, s25.

Re WALKER HARE PTY LTD (in liquidation)VR 447

NEWTON, J·2 Feb 1968·

Companies - Winding up - Application of assets - Debts - Unsecured creditors - Power of liquidator to pay any class of creditors in full - Limits of power - Debts incurred subsequent to creditor's meeting - Companies Act 1961 (No. 6839), s236, s269.

CAMERON v CAMERONVR 459

LUSH, J·2 Apr 1968·

Matrimonial causes - Arrears of maintenance - Sale of land by respondent - Petitioner's application that part of proceeds be paid into court - Further application for moneys in court to be paid to petitioner for arrears of maintenance and costs - Whether respondent attempting to defeat an existing or anticipated order - Time of formulation of intention - Onus of proof - Matrimonial Causes Act 1959 (Com.), s120.

Re GRIEVEVR 465

GOWANS, J·30 Apr 1968·

Wills - Construction and effect of testamentary dispositions - Legacies and divises - Ademption - Specific legacy of unsecured note - Note surrendered and new note allotted on similar terms - Whether adeemed - Wills Act 1958 (No. 6416), s22.

DEWER v DEWER; HOWELL, co-respondentVR 470

MCINERNEY, J·19 Apr 1968·

Matrimonial causes - Petition by husband on grounds of wife's adultery with co-respondent - Uncorroborated evidence of adultery by petitioner - Standard of proof required - Matrimonial Causes Act 1959-1966 (Com.), s96.

PEACH v CHRISTOPHERVR 476

GOWANS, J·17 June 1968·

Licensing - Gratuitous disposal of liquor to guests by licensee - Whether disposal took place in a room "occupied by him or reserved for his private use" - No notice of any reservation for private use - Guests in main lounge - Bona fide traveller also present - Licensing Act 1958 (No. 6293), s170, s181.

R v HOLZERVR 481

SMITH, J·16 Aug 1968·

Criminal law - Manslaughter - Acts resulting in death - Intentional infliction of bodily harm - Unlawful and dangerous act - Requisite mental element - Realization of risk by accused need not be proved - Direction to jury - Manslaughter by criminal negligence.

Re WATKINS, deceased WATKINS v COMMISSIONER OF PROBATE DUTIESVR 486

PAPE, J·19 Feb 1968·

Administration and probate - Estate of a deceased person - "Gift inter vivos" - "Settlement" - Disposition to "taking effect upon or after the death" of settlor - "Power which may affect the enjoyment" of gift - Administration and Probate Act 1958 (No. 6191), s100, s104 - Probate Duty Act 1962 (No. 6890), s19.

BREW v WHITLOCK (NO 3)VR 504

WINNEKE CJ, LITTLE and GOWANS , JJ·31 Aug 1967·

Practice - Interest on judgment - Appeal - Appellant successful - No application at trial or on appeal by successful appellant for interest on judgment - "Slip rule" does not apply - Rules of the Supreme Court, O.XXVIII, r11 - Supreme Court Act 1958 (No. 6387), s78, as substituted by Act No. 6874 of 1962, s2.

ROYAL AUTOMOBILE CLUB OF VICTORIA v PATERSONVR 508

MCINERNEY, J·29 June 1967·

Libel and slander - Practice - Likelihood of repetition of statements - Further repetition compensable by damages - Interlocutory injunction only in clear case - Supreme Court Act 1958 (No. 6387), s62(2).

CASTLEMAINE BACON COMPANY LTD v MCLENNANVR 514

WINNEKE, CJ·14 Mar 1968·

Health - Seizure of meat alleged to be unbranded - Claim for return of meat - Interest of claimant in goods seized - Order for return of meat - Seizure (Claims Procedure) Regulations 1925 - Health Act 1958 (No. 6270), s322, s408.

KIRKWOOD v G J COLES and CO (PTY) LTDVR 518

WINNEKE, CJ·18 Mar 1968·

Public health - Sale of toys containing lead in excess of the quantity prescribed - No prescription of percentage of lead in paint on toys - Health Act 1958 (No. 6270), s245(a) - Health Act 1959 (No. 6507), s7 - Poisonous Substances Regulations 1955, r2 - Poisonous Substances Regulations 1960.

MCOMISH v MCOMISHVR 524

GOWANS J·19 Mar 1968·

Matrimonial causes - Variation of maintenance - Variation may be retrospective - Changed circumstances including substantial rise in value of shares owned by former wife - Remarriage of former husband - Increased education and other expenses for children - all the circumstances to be considered to determine what is just and equitable - Matrimonial Causes Act 1959-1965 (Com.), s84, s87.

WOJCIC v INCORPORATED NOMINAL DEFENDANT (NO 2)VR 533

GILLARD, J·18 Mar 1968·

Costs - Judgment for defendant with costs on first trial - Judgment set aside and new trial ordered by Full Court - No order by Full Court as to costs of first trial - Power of judge at retrial to deal with costs of first trial - Rules of the Supreme Court, O.LXV, r1. Costs - Poor person - Civil suits and actions - Liability of pauper for costs.

LUXTON v LUXTONVR 540

MCINERNEY, J·9 May 1968·

Husband and wife - Matrimonial home - Application by wife under s161 of the Marriage Act 1958 - Applicant an undischarged bankrupt - Right to make application - Marriage Act 1958 (No. 6306), s161 (as amended by Act No. 6924) - Bankruptcy Act 1924-1965 (Com.), s91.

GUNNION v ARDEX ACCEPTANCE PTY LTDVR 547

MENHENNITT, J·9 May 1968·

Real property - Writ for possession - Judgment in default of defence - Application to set judgment aside - Description of land in judgment correct but at variance with description in writ - Default in paying interest under mortgage - Nature of mortgagee's right to possession - Notice specifying breach and requiring remedy not required - Property Law Act 1958 (No. 6344), s146(1) - Rules of the Supreme Court, O.LIV, r16.

MINTERN-LANE v KERCHERVR 552

NEWTON, J·7 May 1968·

Motor-car - Refusal to take breath test - Request made on the footpath outside a police station - Instrument set up in a police car in the street outside the police station - Police station closed - Breath test "at" the nearest police station - "At" - Crimes Act 1958 (No. 6231), s408A.

BRATOVICH v MITCHELLVR 556

WINNEKE CJ, GOWANS and LUSH , JJ·24 May 1968·

Damages - Personal injury - Assessment of general damages by judge - Inadequacy - Appeal - Review by appellate court - Substitution of new award by appellate court - County Court Act 1958 (No. 6230), s74.

CLAYTON v STATE OF VICTORIAVR 562

GILLARD, J·17 June 1968·

Negligence - Dangerous chattels - Sulphuric acid in school classroom - Injuries to child trespasser - Occupier's duty of care - Unknown and unanticipated trespasser - Presence of plaintiff on premises contrary to regulations.

BASHTANNYK v NEW INDIA ASSURANCE CO LTDVR 573

WINNEKE, CJ·21 June 1968·

Insurance - Motor vehicle - Motor vehicle "being used whilst in an unsafe condition" - Bald tyres - Vehicle in safe condition at time of accident.

BROWNRIGG v BARRYVR 577

MENHENNITT, J·27 June 1968·

Justices - Information for indictable offence which may be disposed of summarily - Offence more than 12 months before the date of the information - Information statute barred if dealt with summarily - Discretion to propose to dispose of case summarily - Matters to be considered in exercising discretion - Justices Act 1958 (No. 6282), s102A, s102B, s103(1), s215, s221.

MILLS v BAITISVR 583

WINNEKE, CJ GOWANS AND LUSH, JJ·12 June 1968·

Damages - Damages claimed for loss of earnings - Illegal source of income - Business carried on without permit - Business unlawfully carried on in residential area - Planning scheme - Town and Country Planning Act 1961 (N. 6849), s49.

MORRIS v HEALYVR 597

WINNEKE, CJ·21 Mar 1968·

Justices - Order to review - Found on premises without lawful excuse - Proof of incorporation of owner of premises unnecessary - Ingredients of offence - Vagrancy Act 1966 (No. 7393), s7(1)(i).

CAUGHEY v SPACEKVR 600

WINNEKE, CJ·27 Mar 1968·

Motor car - Vehicle and traffic - Driving - Driving a vehicle being towed by another vehicle - Motor Car Act 1958 (No. 6325), s81A - Motor Car (Driving Offence) Act 1965 (No. 7327), s2.

CARRACHER v COLONIAL MUTUAL LIFE INSURANCE SOCIETY LTDVR 605

GILLARD, J·26 Apr 1968·

Arbitration - Stay of proceedings - Insurance contract - Operation of Commonwealth and State Acts - Insurance - Life insurance - Accident insurance - Life policy - Additional policy with further benefit upon accidental death - Continuous disability insurance contract - Arbitration clause - Life Insurance Act 1945-1961 (Com.) - Arbitration Act 1958 (No. 6200), s5 - Instruments Act 1958 (No. 6279), s28, s29.

HANLON v LYNCHVR 613

WINNEKE , CJ GOWANS and LUSH , JJ·20 May 1968·

Criminal law - Motor car - Blood alcohol content exceeding .05 per cent - Breath test - Certificate in writing of the percentage of alcohol in blood to be served - Copy of certificate inadmissible - Crimes Act 1958 (No. 6231), s408A as amended by Act No. 7546, s10.

HOOD v COMMONWEALTH OF AUSTRALIAVR 619

WINNEKE CJ, GOWANS and MENHENNITT , JJ·31 May 1968·

Estoppel - Estoppel by record - Judgment inter partes - Separate actions by different plaintiffs against same defendants in respect of single occurrence - Contribution proceedings between defendant in each action - Effect of result of contribution proceedings in earlier action upon those in later action - Wrongs Act 1958 (No. 6240), s24. Estoppel - General principles - Negative effect only. Tort - Joint and several tort-feasors - Contribution between tort-feasors - Tort-feasor who is liable - Meaning of "liable" - Effect upon contribution proceedings of judgment in action - Wrongs Act 1958 (No. 6240), s24.

Re ILESVR 628

WINNEKE CJ GOWANS and MENHENNITT , JJ·21 May 1968·

Criminal law - Habeas corpus - Contempt of court - Order nisi for habeas corpus refused - No right of appeal to Full Court - No jurisdiction in Full Court to hear application de novo - Justices Act 1958 (No. 6282), s196 - Supreme Court Act 1958 (No. 6387), s41.

BOLTON v DANCE BOLTON v ASTONVR 631

GOWANS, J·13 June 1968·

Evidence - Lands reserved for public purpose - Trustees of land - Power to make rules and regulations - Prosecution for breach of regulations - Production of Government Gazette - Prima facie evidence of making regulations - Presumption of regularity - Judicial notice of site of land - "Deface" - Evidence Act 1958 (No. 6246), s63, s64 - Land Act 1928 (No. 3709), s14, s21, s182.

COLE v GEM TAXIS CO-OPERATIVE LTDVR 644

GOWANS, J·12 June 1968·

Contract - Co-operative society - Implied contract between member and society - Breach of that contract by society - Member fined and suspended - Society liable in action by member for damages including fine - Co-operation Act 1958 (No. 6225), s58, s64.

GOLDIE v JOHNSTONVR 651

MCINERNEY, J·26 July 1967·

Practice - Application for dismissal of action for want of prosecution - Relevant matters in exercise of discretion considered - Detriment to defendant's case due to delay - Evidence relating to issue of plaintiff's contributory negligence no longer available - Plaintiff's counsel's undertaking to consent to judgment equal to 50 per cent of any damages that may be awarded at eventual trial - Rules of Supreme Court, O.XXXVI, r12.

TREMAIN v JONES and LILLEYVR 658

SMITH, J·3 Feb 1965·

Practice - Motor car - Costs as between two defendants - Notice for contribution served by filing with Prothonotary - Notice by one defendant of readiness to contribute - Subsequent notice for contribution served by each defendant - Discretion as to costs - Rules of the Supreme Court, O.XVI(A), r14, r16; O.LXVII, r4; O.LXX.

BARCLAY v COXVR 664

WINNEKE CJ, PAPE and ADAM , JJ·24 Nov 1965·

Defamation - Statements amounting to defamation - Innuendo - Particulars of meaning of defamatory statement assigned by plaintiff - True innuendo and false innuendo - Questions to jury. Defamation - Actions for defamation - Pleading - Defence - Plea of "no libel".

BURNS v COLLINS and THE HERALD AND WEEKLY TIMES LTDVR 667

MENHENNITT, J·29 May 1968·

Defamation - Actions for defamation - Pleading - Defence - Plea of "no libel". Defamation - Libel or slander - Distinction - Radio broadcast - Whether actionable without proof of special damage - Broadcasting and Television Act 1942-1966 (Com.), s124.

SHIRE OF SHERBROOKE v BURCHALLVR 671

ADAM, J·20 Sept 1967·

Local government - Highway - Private street construction scheme - Objections, grounds and particulars - Scheme for substantial raising of level of roadway along frontagers' boundary - Frontager's private right of access thereto - Statutory powers of public body - Infringement of private rights - Whether authorized expressly or by necessary implication - Local Government Act 1958 (No. 6299), s535, s575, s576, s577, s578, s579.

CITY OF SOUTH MELBOURNE v STATE ELECTRICITY COMMISSION OF VICTORIAVR 684

GILLARD, J·22 Nov 1967·

Local government - Rates - Exemption of Crown - Land vested in State Electricity Commission not Crown land - Dispute between Commission and municipality may be determined by Governor in Council - Jurisdiction of Court to decide dispute - Land used for "private" or "public" purpose - Local Government Act 1958 (No. 6299), s251 - State Electricity Commission Act 1958 (No. 6377), s4, s12, s21, s108.