Archive for the ‘CLR’ Category


April 18, 2010

Continuing my series.

Page 50 of 5 CLR is part of O’Connor J’s judgment in Amalgamated Society of Carpenters & Joiners, Australian District v Haberfield Pty Ltd [1907] HCA 37; (1907) 5 CLR 33 (30 August 1907). Isaacs (who with Higgins had joined the bench) also sat in this case, together with Griffith CJ.

It concerned whether the Supreme Court could issue a writ of prohibition against the Arbitration Court on the basis that it had wrongly determined that the respondent was an employer. Haberfield said that its carpenters were subcontractors, not employees, so that the award (for which it had been summonsed for breach) did not apply to it. The Arbitration Court decided otherwise. There was no appeal from the decision of the arbitration court and the relevant legislation did not provide for one. The Supreme Court held that the Arbitration Court had made an error on this point and that therefore it had exceeded its jurisdiction, which was a basis for making an order (prohibition), which I presume prevented it from taking any further steps in the proceedings or any enforcement of its orders.

This prohibition and certiorari stuff is something that I have never entirely mastered – something which is compounded by the mystery of error on the face of the record, though one of the cases referred to in the judgments, to do with St Olave’s District Board, is one which I remember the name of from the haze of my studies of administrative law.

The appeal was upheld. I shan’t try to explain why. I think it hinges on the fact that the evidence and the reasons of the Arbitration Court are not part of the record (so that there could be no error on the face of the record), and there is not an error of jurisdiction just because a tribunal decides a fact which is part of what it has to decide. Incidentally, Griffith CJ thought that the Arbitration Court had got it wrong, but that unless the parliament legislated for a right of an appeal, even the High Court couldn’t interfere. Isaacs was “by no means convinced that the decision of the Arbitration Court as to the real relationship of the respondents to the workmen was wrong.” O’Connor, wisely perhaps, expressed no view. From what I can gather (ie, subsequent citations) the case appears to still be good law.

Trivia note:

Solicitors for the [wanting not to be] employer were Dawson, Waldron & Glover – the Sydney ancestor of Dawson Waldron, and hence Blake Dawson Waldron and now Blake Dawson after the merger with the Melbourne successors to Blake & Riggall, who scored a less than glorious guernsey in 4 CLR.


April 12, 2010

This is a continuation of my series of posts inspired by my recent acquisition of a set (or a sorts) of the Commonwealth Law Reports. I am reading the case which is on page 50 of each volume. In volume 4, that is Bayne v Blake [1906] HCA 54; (1906) 4 CLR 1 (17 September 1906).

The Misses Bayne’s father was a builder.  Their mother, his widow, died in 1885 without having made a will.  She left behind substantial real estate and other assets, with a gross value of about ₤17,000 and a net value of about ₤10,000.  Some of the properties were encumbered; there was money in a building society.

The sisters, Grace, Lila an Mary (who were twins), were entitled to equal shares of this, but because there was no will, there was nobody appointed as an executor.

It was possible (as it still is) for a person to be appointed as an administrator of the estate, but it was the practice of the court to require the administrator to give an administration bond: that is, security by deed up to a certain amount, a bit like bail really, against the possibility of maladministration of the estate.  Grace Bayne, the elder sister, applied for letters of administration.  In this case, the bond which would usually be required and was in fact required was in the amount of ₤5,000.  However, possibly because Grace was a beneficiary of the estate and presumably had few if any assets other than the share of the estate, her administration bond was required to be supplemented by sureties.  This is the bit that I am guessing about a bit, but I assume that this was because  in the very circumstances where there was some failure in the administration of the estate, it was as likely as not that Grace Bayne would be in financial difficulties herself.

It was possible to get such trustee or guarantee companies to provide such surety (which they would do by executing a deed in favour of the Chief Justice).  Such companies usually charged 2 or 2½ % commission on the amount of the bond, but also required, as a condition of giving the surety, that the beneficiaries or at least the principal beneficiaries indemnify them.

In other words, the effect of the bond in such circumstances would be that, if the estate was administered with only loss to the beneficiearies who had indemnified the surety, then they would get no benefit from the sureties because the sureties would ask to be paid back by the beneficiaries the amount of any claim against them, which in the circumstances of a claim by the indemnifying beneficiaries would be a complete defence to any clame.  The sureties would only be there for the benefit of third parties or lesser beneficiaries who had not given the indemnity.

Are you still with me?

Grace, as the elder sister, applied for and obtained appointment as administratix.  [We love those trixy words in succession: executrix, administrix, testatrix, dominatrix – spot the odd one out.]  Blake & Riggall, a very well established firm of Melbourne solicitors which had acted for their mother (in the 1980s it merged with the Sydney firm Dawson Waldron to become Blake Dawson Waldron which has since been renamed Blake Dawson) acted for her.  When the sisters baulked at the ₤100 commission payable to a trustee company to give the guarantee,  Mr Blake and Mr Riggall (it actually was Mr Blake and Mr Riggall at that time)  agreed to act as sureties instead for a commission of ₤75 only.  However, they too were only prepared to do so on terms that the three sisters indemnified them, so that, in 1886, they gave a deed to the chief justice guaranteeing Grace’s performance of her responsibilities as administrix, but had previously received a deed of indemnity from each of the three sisters.

Time passed.  It seems the estate was not properly distributed but rather, Grace took over her mother’s previous role in managing the family assets on behalf of the sisters.  Some extra speculations were embarked upon for which fresh mortgages were given. Money was of course spent.  At some stage the building society failed and ₤700 was lost in the account which was held with it by that time.  By the new century, the bulk of the estate had gone.  In 1904, according to the accepted procedure for claiming on the bond, the bond was transferred by order of the court from the chief justice to Lila and Mary, so that they could sue Messrs Blake & Riggall for up to ₤5,000 for which they were liable as sureties for the breaches of trust or duty as administrix by their sister, Grace.  These were said to be:

  • Failure to distribute the estate assets within time or at all;
  • payment of a sum of ₤75 out ot the estate (ie, Blake & Riggall’s commission for giving the surety);
  • borrowing money upon the security of mortgages resulting in loss of the whole of the estate;
  • the continuation of funds in an unauthorized investment, namely, the building society, whereby the greater part of those funds were lost to the estate.

The key point was the indemnity, which Blake & Riggall said was a complete answer to the claim.  The Misses Bayne said, in essence:

  • the indemnity was void as contrary to public policy, because it robbed them of precisely the protection they needed against maladministration of the estate by their sister which they assumed to the policy basis of the indemnity; and
  • the indemnity was also void or voidable because, as Grace’s and also the sisters’ solicitors, Blake & Riggall should have ensured that the sisters had independent advice before entering into a transaction with them – this is because they were in a fiduciary relationship with all three sisters and the deed conferred an advantage on Blake & Riggall and a corresponding disadvantage on the sisters.

At first instance in the Victorian Supreme Court, the judge reserved one question for the full court, namely whether the deed of indemnity was void on public policy.  When the full court held that it was not (it might be borne in mind that such indemnities were sought and given by trustee companies as a matter of course and the upset from holding otherwise would have been substantial), judgment was given for Blake & Riggall on the indemnity.

The Misses Bayne appealed direct to the High Court.  That is the decision which has occasioned this note. 

Griffith CJ and Barton J both thought there was something fishy about an administration bond with some kind of secret side indemnity, and they would have struck the indemnity down as being illegal for that reason.  O’Connor J thought there was nothing contrary to public policy in beneficiaries indemnifying administrators: the public policy of the administration bond was the protection of the public – ie, creditors of the estate, which is the point he concludes on page 50 of the CLR.  If you want to track that down on the Austlii version above, the passage runs from “relinquishment by a beneficiary” to  “My learned brother the Chief Justice has.”

Blake & Riggall said that they would never have given the bond if they weren’t given the indemnity (which in fact they had been given first), so that the sisters could not simultaneously “approbrate and reprobrate.”  The bond and the indemnity were the one transaction.  The High Court did not agree.  They saw them as separate transactions, and Blake & Riggall as the family solicitors in a fiduciary relationship with all three sisters.  The deed was voidable by the sisters as a transaction entered into by them with their trusted family solicitors and to those solicitors’ advantage without the benefit of any independent advice.  Blake & Riggall couldn’t rely upon it in their defence so the matter would have to go back to the Supreme Court for determination of damages caused by the breaches of duty by Grace.

To pause for a moment, the allegation was that Grace had administered the estate and lost it, yet it was Blake & Riggall, a reputable firm, who were facing the call to make it good.  If not their Waterloo (in the Napoleonic, not the Wellingtonian, sense) then at the least it was their Hawkins v Clayton

A storm of litigation followed.  Well, that’s not quite correct, because of course the litigation was already well advanced when it reached the High Court.  Lila and Mary Bayne had already been sent bankrupt in February 1906 for the costs of the initial proceedings, even though they were appealing that decision to the High Court.

In November 2006, Blake & Rignall applied to the Privy Council and obtained leave to appeal from the judgment of the High Court. 

On the application of Blake & Riggall, the High Court granted a stay on the judgment in December 1906.

The Misses Bayne applied to the High Court for the stay to be lifted so that the remaining factual elements of their claim could be determined.  That application was at first refused Bayne v Blake [1907] HCA 71; (1907) 4 CLR 944 (15 March 1907) by Griffith CJ, and then subsequently, when further evidence was brought and the matter argued again, granted on 27 March 1907.  So far as the High Court was concerned, this meant that the Supreme Court should go ahead with assessing the damages to be claimed under the bond.

In May 1907 the Victorian Supreme Court annulled the bankruptcy order against Mary Bayne.  Prior to that she had failed to appear for examination by Mr Bailleau, her (modern terminology) trustee in bankruptcy.  In July 1907 Mary Bayne commenced proceedings against Bailleau and Blake & Riggall for damages of ₤20,000 in relation to the warrant and also, in Blake & Riggall’s case, for applying to send her bankrupt at all.  At some stage, Bailleau, Blake & Riggall obtained summary judgment against her: that is, the judge threw out her case as hopeless.  Mary Bayne appealed to the High Court.

In July 1907 on the application of Blake & Riggall, the Victorian Supreme Court  adjourned the proceedings indefinitely – in effect the same thing as a stay.  Hodge J said: :—”The matter is now before the final Court of Appeal, and I think it would be a wicked waste of public time and a wicked waste of the private moneys of the parties to conduct the inquiry whilst that appeal is pending.”

In the meantime, the High Court set aside the sequestration order against Lila Bayne in September 1907: Bayne v Baillieu [1907] HCA 39; (1907) 5 CLR 64 (9 September 1907).  Although there might be circumstances where it was justifiable to sequestrate someoone’s estate on the basis of a judgment which was under appeal, that would require evidence that the creditor had reason for requiring the estate to be administered by the insolvency courts pending the appeal, which was not available in this case. 

In October 2007, the  Misses Bayne made a further application to the Victorian Supreme Court for their damages to be determined – apparently this involved an inquiry by the chief clerk.  The Victorian chief justice knocked them back, saying: “:—”The High Court cannot direct the Chief Clerk of the Supreme Court to proceed with these inquiries; and I am not the servant of the High Court, so that anything I do must be as a Judge of the Supreme Court, according to the procedure of this Court, and there is no authority for the present application in the Rules of this Court.”

This drew forth a very tart response from Griffith CJ on behalf of the full High Court in  Bayne v Blake [1908] HCA 5; (1908) 5 CLR 497 (19 March 1908) , where he said:

“Although the learned Chief Justice is not a servant of this Court, yet he is a citizen, and he is a member of a Court of the Commonwealth, and, by the express language of sec. V. of the Commonwealth of Australia Constitution Act, “all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the Courts, Judges, and people of every State, and of every part of the Commonwealth, notwithstanding anything in the laws of any State.” The learned Chief Justice is therefore bound by the Judiciary Act 1903 just as is any private person, and sec. 37 of that Act expressly says that it shall be the duty of the Court to which a cause is remitted to execute the judgment of the High Court in the same manner as if it were its own judgment. So that the learned Chief Justice, although he is not a servant of this Court, is an officer of the law required by law to execute the orders of this Court. Under these circumstances it is manifest that the order he made is wrong; he had no right to order that the inquiries directed by this Court should be adjourned until the decision of the Privy Council was made known. That was a stay of proceedings which this Court had shortly before declared the Supreme Court had no authority to make.”

It is unclear how far the Supreme Court got in that exercise, because on 26 May 2008 the Privy Council allowed Blake & Riggall’s appeal – Blake v Bayne [1908] UKPCHCA 2; (1908) 6 CLR 179 (26 May 1908).  They didn’t agree that B&R were anybody’s solicitors other than Grace’s, which didn’t avail them since, ex hypothesi, she was the party in breach and for whose breach they were suing.

Meanwhile, in the last week of March, Mary Bayne’s appeal against the summary judgment against her claim against Baillieu, Blake and Riggall was heard by the High Court.  Judgment is reported as Bayne v Baillieu [1908] HCA 39; (1908) 6 CLR 382 (22 June 1908).
  The High Court dismissed the appeal in relation to Baillieu (Barton said it was ‘too plain for argument” that Mary Bayne’s case was hopeless) but said that the judge had been wrong to throw out the case against Blake & Riggall without giving it an opportunity to be determined on the merits. 

Since June 1907, Grace and Lila (also referred to as Lilian) had not paid rent for their rented accommodation.  In June 1908, after a new owner, one Love,  gave them notice to quit, judgment for possession was given in the court of petty sessions.  Grace appealed this unsuccessfully to the Supreme Court and then to the High Court, where the matter was heard in March 2009.  Mr Gregory appeared for the appellant.  Mr Davis, for the respondent, was not called upon – which means there was nothing the court needed to hear from him:  the appeal was dismissed.  Judgment was given ex tempore: Bayne v Love [1909] HCA 2; (1909) 7 CLR 748 (4 March 1909).

On 16 February 1909, the twins (LE and Mary) were sent bankrupt on what appears mostly to have been the various costs orders.  They appealed against these.

LE and Mary also brought fresh proceedings against their sister and Blake & Riggall and a third party, not on the administration bond any more, but alleging substantive breaches of duty in relation to various land dealings of which Blake & Riggall and a third party were aware and for which they were answerable.  Summary judgment was given against them in these proceedings in April 1909, on the grounds that the action was frivolous or vexatious and that substantially the action had already been decided in the previous litigation.  LE and Mary appealed against this.

Mary Bayne continued with her claim against Blake & Riggall for wrongfully bringing bankruptcy proceedings against her (that is, the first bankruptcy).  Lila (aka Lilian: this is why the reports keep on just calling her L E Bayne) was joined as an additional plaintiff.  The claims were that Blake & Riggall had fraudulently falsely and maliciously:

  •  sent them bankrupt without reasonable and probable cause;
  •  done so by suppression of the truth that there was not an appeal to the High Court;
  • done so not for the distribution of the sisters’ estates but in order to prevent them taking their appeal;
  • despite a stay of proceedings on the debt founding the bankruptcy, caused the trustee, Baillieu to apply for warrants for their arrest when they didn’t respond to examination summonses. 

Mary and L.E. were unsuccessful at trial.  Rather amazingly, in what must have seemed to the Misses Bayne as an obdurate and scandalous failure to see the bleeding obvious, the trial judge seems to have positively found that Blake & Riggall were not actuated in taking the insolvency proceedings by a desire to prevent the appeal going on, but by a desire to recover any property the appellants might have in satisfaction of their claim for costs.

As Griffith CJ commented on the appeal:

As I understand that finding, it is that the respondents had not that object in view in any way—that it was quite absent from their minds. If that is the meaning of the finding, I have very great difficulty in accepting that conclusion on the evidence before us.

Nevertheless, the appeal to the High Court was dismissed: Bayne v Blake (No 1) [1909] HCA 55; (1909) 9 CLR 347 (10 September 1909).  At least judgment was reserved.  The problem was that damage needed to be shown, which was hard in the face of the final judgment of the Privy Council, even though one result of the bankruptcy orders was that the Misses Bayne only had ₤20 to brief counsel on that appeal.

Griffith CJ said:

But there is one thing quite clear, namely, that, assuming this was an abuse of process of Court and that it is actionable, actual damage is an ingredient of the action, just as it is in an action for fraud. Fraud without damage is not a cause of action. Therefore, the appellants in order to succeed must show that they have sustained some damage owing to the improper conduct of the respondents, and the connection between the conduct and the damages must be such that the Court can take notice of it. Now the damage the appellants have sustained, assuming either of the causes of action to lie, undoubtedly is that they were seriously hampered in the defence of their case, and so much so that they practically became inopes consilii. But it has been determined by the highest Court of Appeal that the appellants never had a cause of action, so that they have only been hampered in putting forward an untenable claim. In my opinion the Court cannot take notice of that as damage to sustain their present cause of action. That the appellants never had a cause of action has been decided in litigation between the same parties, and even if it appeared in the clearest way that the judgment was mistaken, or was given upon mistaken evidence, or that fresh evidence had been discovered—no matter what the circumstances were—so long as that stands as the final judgment between the parties their claim is untenable, and I do not think that being hampered in such an action can be regarded as giving rise to a cause of action.

For that reason I think the appellants fail. As to the other points, I reserve my judgment until the question arises for decision, which I think will be never.

Hardly an encouraging note.

On 30 September 1909 the twins’ last two appeals (on the fraudulent prosecution of bankruptcy and the “fresh” claim about breaches of duty) were heard by the High Court.  Lila appeared in person – that is, they were both unrepresented.  Both appeals were dismissed:  Bayne v Blake (No 2) [1909] HCA 61; (1909) 9 CLR 360 (30 September 1909) and Bayne v Blake (No 3) [1909] HCA 60; (1909) 9 CLR 366 (30 September 1909).

The truth is by now more than ever lost in the mists of time.   An unwarranted slur upon the upright conduct of the reputable solicitors, Blake & Riggall?  A terrible wrong done to the vulnerable orphans?  So far as the actual losses to the “estate” are concerned, there is much at least initially appealing in the findings of the Privy Council, which really amounted to the view that in substance the estate was distributed and the sisters agreed that Grace would run the show on their behalf as their mother had before them.  It is telling that at the meeting (leaflet above, from the National Library – see formal notice below) Mr Fitzgerald stated that:

“the three sisters are absolutely united and at one in this matter, and have been so all through.  And their interests are and have been throughout identical – that is to say if victory is theirs, they will all share it equally, and if defeat is theirs, they will all suffer it equally.”

The meeting at which the address was given was held to drum up subscriptions for a fund to support a fresh appeal to the Privy Council. The justification for this offered by Mr Fitzgerald is misrepresentations by which (so Misses Bayne said) the special leave to appeal to the Privy Council had been obtained, the unfairness of the circumstances where, with only ₤20 brief fee, their counsel only spoke for two hours on the actual appeal (which does rather colour the superficial attraction of the Privy Council’s findings of “fact”, and the undesirability of the Privy Council hearing appeals on purely domestic matters.  The pamphlet records a unanimous resolution to collect funds for this purpose. Presumably it was printed after the meeting, in anticipation of the second meeting and in order to solicit donations.

Mr Fitzgerald claims at the meeting that he and other legal advisers had formed the view that the initial claim under the administration bond was too narrow and that it trapped the Misses Bayne in technicalities. This makes me wonder whether he had, in an informal way, advised them in their “fresh” claim which had gone beyond the bond.

I’ve been unable to establish whether anything came of it.

Picture at head of post reproduced from the following pamphlet held in the National Library:

Bayne v. Blake & Riggall : address / delivered by W.J.P. Fitzgerald, at a public meeting held on 18th July, 1912 at Sargent’s Cafe, Elizabeth Street.
Fitzgerald, W. J. P.
s.n., [Melbourne : 1912]
SR N 080 PAM v. 247, no. 4490 mcN 1475 item 4490 RAS mcN 1475 item 4490 (806270)


April 10, 2010

Continuing my series of posts based on page 50 of each volume of my newly acquired Commonwealth Law Reports.

How soon will I tire of this?

Application of my criteria to volume 3 yields two cases, as one case ends and another starts on page 50.

They are:

Dettman v Williams [1905] HCA 67; (1905) 3 CLR 43


Miller v McKeon [1905] HCA 33; (1905) 3 CLR 50.

Dettman v Williams concerned the entitlement of a NSW public servant to a gratuity on the basis that his services had been dispensed with. The relevant legislation empowered the Public Service Commissioners to reduce the salary of an officer and, if it did so by more than one-fourth, the officer had the option to resign and receive certain entitlements. This is what happened to Dettman. You might say he had been constructively dismissed. Subsequently, in 1899, additional entitlements to superannuation were introduced for public servants “whose services were dispensed with…for a cause other than an offence.” The High Court held that his services had not been dispensed with, because he had elected to retire. As Toby “Tosspot” Barton observed:

“It may be that there is a hardship on the appellant, but if there is a hardship it is one created by the law.”

Dettman’s appeal from the NSW Supreme Court was unanimously dismissed with costs.

The case has not been cited, at least on any case in Austlii, since.

Miller v McKeon has had a longer after-life, because it touches on the longstanding issues of when negligence or nuisance will be found in relation to the construction or maintenance of roads.

Mr McKeon was travelling at night on a road between Gunnedah and Manila in a buggy driven by a friend. The buggy had no lights. Originally the road had turned to the left to approach the river gradually but about 25 years earlier a cutting had been made and a new road had been fenced off through crown land which crossed the river directly. The driver wondered if they had somehow missed the cutting. McKeon got out at his friend’s request to look. It turned out that they were within the fence which ran at the side of the road as now constructed but at the top of the cutting and on the side of the road. McKeon fell down a steep bank (I take it, to the road as it descended through the cutting to the river) and was injured.

McKeon said that the road was dangerous and it was the fault (in negligence or nuisance – that is half the point of the confusion in this area) of those who built it and did not fence it off or cause some warning light to be displayed. At trial in Tamworth, the judge refused to leave the case to the jury. On appeal, the full court of the NSW Supreme Court said that it was a jury question and should have been left to them. The High Court held, on the one hand, that English cases which said that the public must take a road as it is given to them did not apply, but on the other that there was no evidence in this case that those who built the cutting (in a remote place, some 25 years ago) had done so negligently.

Counsel for McKeon was Albert Piddington. I always think of him when I cross Phillip Street at Martin Place because it was near here (though obviously not at Martin Place itself which was then still a street) that Piddington was knocked over when crossing Phillip Street in 1938 at the age of 75. That case too went to the High Court.

It seems to have been assumed by all that the plaintiff needed to sheet such negligence home to those who constructed the road. This suggests that some version of the misfeasance/non-feasance rule was accepted by all. This is the sort of thing which is difficult to grab hold of when reading historical cases.

Much was made of the road’s remoteness, and that the driver had been negligent in not staying on the road or using lights. These were not matters which the government ought reasonably to have anticipated and protected against. Apparently he should also have made inquiries of the locals about the road. That seems a bit steep.

I can’t say that I have been able to get particularly excited about either of these cases.


April 7, 2010

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.


April 6, 2010

A colleague, Rw, is selling his room in preparation for a long-announced but still postponed retirement.

He has to show his wife he is doing something in this direction, and as he increasingly spends time visiting his son and the grandchildren in New York, he might as well economise on the capital commitment and business outgoings. I should explain that when you sell a room as a barrister, in my chambers at least, what you really sell is a share in a company with an associated right to occupy a room in premises which the company rents, and obligation to contribute to the company’s running expenses and, in particular, a share of the rent. Unless the lease is on particularly favourable terms (and ours, you can be assured, is not) the company’s assets amount to nothing more than the office fitout, the library and the goodwill of the association of its members. That last thing is the tricky and (to some minds) the iniquitous bit. Nevertheless, when you consider the ongoing liability, you may well wonder why a share in such a company can be sold for anything at all. [In some chambers, shares have been offered for a dollar.]

Anyway, Rw has given me his set of the Commonwealth Law Reports, which runs (though the last volumes are unbound and there are a couple of volumes towards the end missing) up to volume 222. Whilst this is a generous gift, it is also a burden. They take up a lot of space and, as another colleague’s set is housed in a bookshelf in the corridor outside my room, they are at present of very marginal utility. However, it would be graceless of me to refuse them.

I contemplated whether they might make good toilet reading at home. D put paid to that. “Don’t bring them home!” he said, straightaway.

So I have rearranged my bookshelves. Some of the Reports are still in boxes, including the oldest, which have the most handsome leather binding.

As it is my fiftieth year, I have decided, as an occasional exercise, to work through the set, reading page 50 and (unless it is unbelievably lengthy or boring) the case which is reported at the pages including that page.

The lucky first case is Chanter v Blackwood (No 1) [1904] HCA 2; (1904) 1 CLR 39.

This is the first case brought before the High Court sitting as the court of disputed returns under the Commonwealth Electoral Act.

Mr Chanter, the sitting member for Riverina, lost the 1903 election by a mere 5 votes to Mr Blackwood.

Three questions were referred by the chief justice, Sir Samuel Griffith, to the Full Court. Two of these concerned votes cast in the elections and whether they had been propertly rejected or accepted. The first was to do with whether the statute by using the word “shall” directed or positively mandated the use of boxes and voting in them. This really hinged on the point which you see Griffiths CJ making in argument in the picture above, and for which the case is still occasionally cited (basically: “shall” does not necessarily mean “must”). Gratifying, Austlii does not reproduce those parts of the report. The second was concerned whether absentee votes could be cast by writing in the name of the candidate on a blank form. The court held that they could not.

The third question was whether the court had any jurisdiction to declare an election void if it found offences against the electoral act (amongst other things, Mr Chanter said that Mr Blackwood had dismissed one Healey, employed as a cook on Mr Blackwood’s property, because Healey was supporting Chanter’s candidature). The court held that it could not: the court only had specific jurisdiction conferred upon it and the consequence of electoral offences at that time only indirectly led (in the event of disqualification on conviction) to the setting aside of an election affected by them. That has been remedied (to a limited extent) by section 362 of the Electoral Act, though the general proposition (that there is no “common law” of electoral misconduct) seems to remain.

The election was declared void (that’s Chanter v Blackwood No 2.) Mr Chanter got his costs (that’s No 3, also in 1 CLR). Chanter wasn’t happy about how expensive and legalistic the whole thing was or that the court wasn’t interested in the electoral misconduct allegations. The Australian Dictionary of Biography entry about Blackwood quoted above says “He was later cleared of all allegations (known as the Healy charges).” If so, it wasn’t in the High Court. He never stood for parliament again. More intriguingly, the ADB says:

A slim, elegant man of great integrity and little humour, Blackwood devoted himself to music and business while [his wife] Constance dwelt mostly overseas.

and, unsurprisingly perhaps, that “there were no children.”

Regular readers will know what I’m wondering.