This is the second instalment in what could potentially be a very long sequence of posts.

As explained before, I aim to read the cases which include page 50 of each of the 222-odd volumes of the Commonwealth Law Reports which have recently been given to me.

In volume 2 of those reports, that case is Davies v Western Australia [1904] HCA 46; (1904) 2 CLR 29.

Young Mr Davies inherited a share of his father’s estate. His father died in Western Australia. The relevant Western Australian legislation provided that death duties were normally payable at 9%. That was subject to the further proviso:

in so far as beneficial interests pass to persons bonâ fide residents of and domiciled in Western Australia and occupying towards the deceased the relationship set forth in the third schedule, duty shall be calculated so as to charge only one half of the percentage on the property acquired by such person.”

In other words, in respect of bequests to close relatives (and son was one of the relationships specified in the third schedule), only half the usual rate of death duties was payable, but only if those relatives were bonâ fide residents of and domiciled in Western Australia.

Young Mr Davies lived in Queensland. The executors paid the full rate of death duties under protest (if they hadn’t, they would have been unable to get a grant of probate) and then sought recovery of half the duties payable in respect of young Mr Davies’ share. This amounted to ₤362 9s 8d (young Mr D’s share of the estate was just over ₤8,000).

The basis of their claim was section 117 of the Australian Constitution – then, of course, an act of the UK parliament, which provided and still provides that:

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

The High Court held accepted giving a privilege to WA residents by means of a concessional rate of death duties was capable of being discrimination against residents of other states within the terms of the section, but that the section only caught discrimination which was purely on the ground of residence. Here, it wasn’t just residence which was the criterion, but also domicil, which was a separate and distinct legal concept. As a result, young Mr Davies’ claim was dismissed or, to be precise, WA’s demurrer to it was upheld.

Page 50 of the report is part of the judgment of O’Connor J, which deals with the distinction between residence and domicile. I have added in brackets ([ ] ) a small amount from the preceding and following pages for context.

[There is no difficulty about the first few words—”bonâ fide resident” is an expression frequently used in the legislation of all the Australian States. It may be said to have acquired a settled meaning as] conveying the idea of “habitual physical presence” in a locality, or in other words, “permanent residence.”

As to the words “domiciled in Western Australia” I attach no importance to the participial form in which “domiciled” is used. I take “domiciled in” to have exactly the same meaning as “having their domicil in” or “whose domicil is in.” The real question is what is the true interpretation of the word “domicil” in the context in which it stands. The word has a well known legal meaning; it also has acquired a popular meaning, A very good definition showing both uses of the word is to be found in Dicey’s Conflict of Laws, at p. 79: “The domicil of any person is, in general, the place or country which is in fact his permanent home, but is in some cases the place or country which, whether it be in fact his home or not, is determined to be his home by a rule of Law.” The law ascribes to every man a domicil, that is to say, a country by whose laws his rights of property are in certain respects to be regulated. For instance, questions arise as to the laws to be applied in the distribution of or succession to property on the death of its owner, as to the laws which govern the validity of his will, or the liability of his property to legacy duty. None of these questions can be settled until it is determinedin what country the deceased person was domiciled at the time of his death. To ascertain therefore the country which the law ascribes to a man as his domicil at the time of his death well-known rules of law are applied. Generally speaking the country in which a man permanently resides is his domicil, but that is not always so. Of this the case of Winans v. Attorney-General[10] cited to us in argument is a very strong illustration. Lord Westbury in Bell v. Kennedy[11] explains the distinction between residence and domicil. “Residence and domicil are two perfectly distinct things. It is necessary in the administration of the law that the idea of domicil should exist, and that the fact of domicil should be ascertained, in order to determine which of two municipal laws may be invoked for the purpose of regulating the rights of parties. We know very well that succession and distribution depend upon the law of the domicil. Domicil, therefore, is an idea of the law. It is the relation which the law creates between an individual and a particular [locality or country. To every adult person the law ascribes a domicil, and that domicil remains his fixed attribute until a new and different attribute usurps its place.]”

[10] (1904) A.C., 287.

[11] L.R. 1 H.L. Sc., 307, at p. 320.

As a result of this decision, section 117 of the constitution became pretty much a dead letter. As late as Henry v Boehm [1973] HCA 32; (1973) 128 CLR 482, the High Court held that requirements of periods of continuous residence in South Australia for the issue of a practising certificate as a barrister and solicitor in that state did not discriminate against a Victorian barrister and solicitor, though in that case Stephen J at least managed an (in retrospect) sensible dissent.

It was not until the decision in Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461, on an application brought by the young Sandy Street (sometime commenter on this blog in response to a rather dismissive evaluation by me of a seminar presentation by him on the subject of Machiavelli) that some teeth were finally returned to section 117, when restrictive conditions in Queensland were struck down. For that he remains a hero to the NSW bar.

It can probably therefore be said that, on the main point, Davies no longer represents good law.

2 Responses to “2 CLR”

  1. ken n Says:

    A great trove, M. My CLR and ALJ are long gone. Perhaps I’ll wander into the State Library one day and take a lucky dip like yours.

    • marcellous Says:


      I’m inclined to say (with Harry Joy in Bliss when the maitre d’ suggested that the maitre d’ might come back to life after he died of cancer – a line wonderfully delivered by Peter C-W ):

      “Don’t. It isn’t worth it.”

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