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[1945] VLR(51 results)

Reports in this volume of the Victorian Reports

ALBION QUARRYING CO. PTY. LTD. v. ASSOC. QUARRIES PTY. LTD.VLR 1

HERRING C.J.·21 Apr 1944·Supreme Court of Victoria30p·Vol [1945] VLR Pt 1

ContractValidity — Restraint of trade — Company — Articles of association — Control over business of shareholders — Reasonableness of restrictions — Whether company a trade union — Trade Unions Act 1928 (No. 3788), secs. 3, 6.

IN RE SHARPVLR 31

HERRING C.J.·21 Aug 1944·Supreme Court of Victoria3p·Vol [1945] VLR Pt 1

ExecutorsAppointment as directors of company in which testator had large shareholding — Receipt of remuneration as directors — Whether held for benefit of testator's estate — Conflict of interest and duty — Trustee Companies Act 1928 (No. 3793), sec. 17.

PARSONS v. PAYNEVLR 34

HERRING C.J.·29 Sept 1944·Supreme Court of Victoria6p·Vol [1945] VLR Pt 1

National SecurityLandlord and tenant — Recovery of possession of premises — Exchange of houses by tenants — Whether binding on landlord — National Security (Landlord and Tenant) Regulations — National Security Act 1939-1943 (No. 15 of 1939 — No. 38 of 1943).

CROFT v. KENNAUGHVLR 40

LOWE J.·22 Sept 1944·Supreme Court of Victoria5p·Vol [1945] VLR Pt 1

Transfer of landMortgage — Possession of mortgaged premises — Action for — Right of second mortgagee to bring — Transfer of Land Act 1928 (No. 3791), sec. 151.

RIVERSIDE MOTORS PTY. LTD. v. ABRAHAMSVLR 45

FULL COURT (Macfarlan, Martin and O’Bryan JJ.).·2 Jun 1944·Supreme Court of Victoria12p·Vol [1945] VLR Pt 1

Work and labourClaim on quantum meruit — Defence that work negligently done — Onus on plaintiff to establish work done in a skilful manner.

R. v. HARFORDVLR 57

FULL COURT (Herring C.J., Macfarlan and O’Bryan JJ.).·5 Oct 1944·Supreme Court of Victoria2p·Vol [1945] VLR Pt 1

Criminal lawCommittal for trial of accused — Under seventeen years at time of offence — Over age of seventeen at time of committal — Jurisdiction of Supreme Court to deal with accused.

R. v. THE MEDICAL BOARD OF VICTORIAVLR 60

LOWE J.·30 Oct 1944·Supreme Court of Victoria6p·Vol [1945] VLR Pt 1

Medical practitionerRemoval from register — "Infamous conduct in a professional respect" — Inquiry as to — Notice of inquiry — "Reason" for proposed removal — Meaning — Whether negligence infamous conduct in professional respect — Medical Act 1928 (No. 3730), sec. 7 — Medical Act 1933 (No. 4131), sec. 4.

FRY v. METZELAARVLR 65

MARTIN J.·21 Nov 1944·Supreme Court of Victoria6p·Vol [1945] VLR Pt 1

National securityLandlord and tenant — Expiration of term of lease — Holding over by tenant — Against landlord's will — National Security Regulations — Whether relationship of lessor and lessee within meaning of — National Security Act 1939-1943 — National Security (Landlord and Tenant) Regulations, reg. 15.

HARDMAN v. LYALL & SONS PTY. LTD.VLR 71

MARTIN J.·24 Nov 1944·Supreme Court of Victoria3p·Vol [1945] VLR Pt 1

Workers' compensationInjury to worker — Notice of intention to claim compensation — Commencement of action for damages for negligence — Stay of proceedings — Pending election of remedies by worker — Workers' Compensation Act 1928 (No. 3806), sec. 5 (2) (b).

BLAKISTON AND CO. PTY. LTD. v. TRANSPORT REGULATION BOARDVLR 74

FULL COURT (Herring C.J., Lowe and Gavan Duffy JJ.).·30 Aug 1944·Supreme Court of Victoria17p·Vol [1945] VLR Pt 1

Transport regulationCommercial goods vehicle — Renewal of licence — Licence for a longer period than one year — Review of decision of Transport Regulation Board by Governor in Council — Governor in Council not exercising power to review — Transport Regulation Act 1933 (No. 4198), secs. 31, 37 — Transport Regulation Act 1935 (No. 4298), sec. 4.

MARTIN v. A. G. FOR VICTORIAVLR 91

FULL COURT (Herring C.J., Gavan Duffy and O’Bryan JJ.).·30 Aug 1944·Supreme Court of Victoria4p·Vol [1945] VLR Pt 1

Public ServiceTransfer of officers — Classification and emoluments of transferred officers — Return by Public Service Commissioner — Whether classification finally determined by — Public Service (Transfer of Officers) Act 1937 (No. 4511), secs. 3, 4.

COOK v. DOWNIEVLR 95

FULL, COURT (Herring C.J., Gavan Duffy and Martin JJ.).·6 Dec 1944·Supreme Court of Victoria4p·Vol [1945] VLR Pt 1

National securityLandlord and tenant — Decision of Judge of Supreme Court under National Security (Landlord and Tenant) Regulations — Whether appeal lies therefrom to Full Court — Judiciary Act 1903-1944, sec. 39 (2) (a).

DAWSON v. DAWSONVLR 99

O’BRYAN J.·30 Jun 1944·Supreme Court of Victoria6p·Vol [1945] VLR Pt 1

CompanyTrusts — Shares held by trust estate — Joint holding — Right to split into three joint holdings — Names in different order — Alteration of register.

COX v. COXVLR 105

MARTIN J.·29 Jun 1944·Supreme Court of Victoria2p·Vol [1945] VLR Pt 1

DivorceDomicil — Soldier sent to another State — Intention formed to reside there after discharge from army — Establishment of home there for wife — Residence at home when on leave — Acquisition of domicil of choice.

FRIER & SONS v. O’ROURKEVLR 107

FULL COURT (Macfarlan, Lowe and O’Bryan JJ.).·10 Aug 1944·Supreme Court of Victoria4p·Vol [1945] VLR Pt 1

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

IN RE BULLOCKVLR 111

LOWE J.·24 Oct 1944·Supreme Court of Victoria2p·Vol [1945] VLR Pt 1

Administration and probateInquiries as to next of kin — Reference to chief clerk — Form of order where inquiries previously made.

CAMERON v. JAMESVLR 113

FULL COURT (Herring C.J., Gavan Duffy and Martin JJ.).·20 Dec 1944·Supreme Court of Victoria10p·Vol [1945] VLR Pt 1

JusticesInformation — Trifling offence — Dismissal — Form of entry of dismissal in register — Estoppel — Whether proceedings ended in defendant's favour — Right of defendant to sue for malicious prosecution or false imprisonment — Justices Act 1928 (No. 3708), sec. 72 — Police Offences Act 1928 (No. 3749), sec. 199.

CRUPI v. CRUPIVLR 124

LOWE J.·7 Feb 1945·Supreme Court of Victoria2p·Vol [1945] VLR Pt 1

DivorceDesertion — While period of desertion running respondent interned as enemy alien — Whether period interrupted.

IN RE EDMONDSVLR 126

O’BRYAN J.·13 Feb 1945·Supreme Court of Victoria3p·Vol [1945] VLR Pt 1

Administration and ProbateWill — Appointment of general executors — Testator a trustee of an estate — Separate appointment of executors of the trust estate — Form of grant of probate.

THE KING v. THE GOVERNOR OF THE METROPOLITAN GAOLVLR 129

MacFARLAN J.·14 Mar 1945·Supreme Court of Victoria4p·Vol [1945] VLR Pt 1

General SessionsAppeal from conviction by Court of Petty Sessions — Appellant absent, but represented — Justices Act 1928 (No. 3708), sec. 137 — Justices Act 1938 (No. 4572), sec. 4.

R. v. CURWOODVLR 133

FULL COURT (Herring C.J., Macfarlan and Gavan Duffy JJ.)·12 Nov 1944·Supreme Court of Victoria20p·Vol [1945] VLR Pt 1

Criminal lawEvidence — Character of accused — Cross-examination as to — Imputations against character of prosecution witness — Crimes Act 1928 (No. 3664), sec. 432.

HASELHURST v. ELLIOTVLR 153

HERRING C.J.·22 Feb 1945·Supreme Court of Victoria3p·Vol [1945] VLR Pt 1

National SecurityLandlord and tenant — Parol lease of residential business premises — Consent of Treasurer not previously given thereto — Invalidity — Creation of interests in land by parol — Whether lease "a lease taking effect in possession" — Property Law Act 1928 (No. 3754), secs. 53 (1) (a), 54 (2) — National Security Act 1939-1943 (No. 15 of 1939 — No. 38 of 1943) — National Security (Economic Organisation) Regulations, Pt. III A.

GILES v. YUEN DINVLR 156

MacFARLAN J.·6 Dec 1944·Supreme Court of Victoria2p·Vol [1945] VLR Pt 1

National SecurityPrices regulation — Order fixing maximum price — Sale of furniture — Agreement for sale prior to order — Delivery thereafter — Sale in excess of maximum price under order — Whether offence — National Security Act 1939-1943 — National Security (Prices) Regulations (No. 176 of 1940).

HANNABERRY v. COWTHERVLR 158

MacFARLAN J.·6 Dec 1944·Supreme Court of Victoria3p·Vol [1945] VLR Pt 1

Police offencesBehaving in offensive manner — In public place — Man dressed as woman in public street — At night — Whether offence committed — Police Offences Act 1928 (No. 3749), sec. 25.

MAUDSLEY v. COLONIAL MUTUAL ETC. LTD.VLR 161

O’BRYAN J.·16 Feb 1945·Supreme Court of Victoria10p·Vol [1945] VLR Pt 1

InsuranceLife insurance policy — Pounds sterling — Contract made in Australia — To pay in Australia or New York — Currency — Payment in Australian currency.

HOLDEN v. NUTTALLVLR 171

HERRING C.J.·28 Mar 1945·Supreme Court of Victoria9p·Vol [1945] VLR Pt 1

National SecurityLandlord and tenant — Recovery of possession of premises — Hardship — Parties to action — Lease or licence — Sub-lease or assignment — National Security Act 1939-1943 — National Security (Landlord and Tenant) Regulations.

WILSON v. HALTONVLR 180

HERRING C.J.·16 Mar 1945·Supreme Court of Victoria9p·Vol [1945] VLR Pt 1

National SecurityLandlord and tenant — Recovery of possession of premises — Mortgage — Action by mortgagor for possession — Whether consent of mortgagee thereto necessary — Plaintiff requiring part of premises only — Hardship — Transfer of Land Act 1928 (No. 3791), secs. 156, 157 — National Security Act 1939-1943 — National Security (Landlord and Tenant) Regulations.

HIRSCH v. HIRALAL LTD.VLR 189

O’BRYAN J.·12 Apr 1945·Supreme Court of Victoria2p·Vol [1945] VLR Pt 1

PracticeDefault of appearance — Order for trial — Rules of Supreme Court, 1938, Order XIII.

R. v. WOESSVLR 190

GAVAN DUFFY J.·23 Apr 1945·Supreme Court of Victoria3p·Vol [1945] VLR Pt 1

National SecurityEvidence — Admissions — Accused required to answer questions — Oral answers inadmissible in evidence — Answers taken down in writing and signed by accused — Whether writing admissible in evidence — National Security Act 1939-1943 — National Security (Evidence) Regulations, reg. 19 — National Security (Rationing) Regulations, reg. 21.

IN RE BARLOWVLR 193

MARTIN J.·26 Apr 1945·Supreme Court of Victoria2p·Vol [1945] VLR Pt 1

Administration and probatePractice — Executors seeking probate of earlier will — Later will allegedly invalid — Notice to beneficiary under later will — Directions for trial of issue of validity of such will.

IN RE CAMERA ILLUSTRATORS PTY. LTD.VLR 195

O’BRYAN J.·23 May 1945·Supreme Court of Victoria3p·Vol [1945] VLR Pt 1

CompanyDefunct company — Restoration to register after being struck off under repealed Act — Companies Act 1938 (No. 4602), sec. 295 (6).

IN RE DE LITTLEVLR 198

FULL COURT (Macfarlan, Lowe and Martin JJ.).·25 May 1945·Supreme Court of Victoria10p·Vol [1945] VLR Pt 1

Administration and ProbateExecutor's Commission — Trustee company's right to commission on income — Meaning of "income" — Trustee Companies Act 1928 (No. 3793), sec. 17.

KNIGHT v. PORTERVLR 208

GAVAN DUFFY J.·4 May 1945·Supreme Court of Victoria4p·Vol [1945] VLR Pt 1

JusticesEvidence — Order to review — Proof of conviction — Minute of conviction not exhibited on affidavit — Leave to file further affidavit — Justices Act 1928 (No. 3708), sec. 150.

CRAVEN v. CRAVENVLR 212

MacFARLAN J.·25 Sept 1944·Supreme Court of Victoria2p·Vol [1945] VLR Pt 1

DivorceCollusion — Petition tainted by collusion — Cross-petition — Whether hearing of cross-petition should proceed.

IN RE WILLIAMSVLR 213

FULL COURT (Gavan Duffy, Martin and O’Bryan JJ.).·28 May 1945·Supreme Court of Victoria14p·Vol [1945] VLR Pt 1

Conflict of lawsMortgages on real estate — Movables or immovables.

O’KEEFE v. CITY OF CAULFIELDVLR 227

GAVAN DUFFY J.·19 Jun 1945·Supreme Court of Victoria5p·Vol [1945] VLR Pt 1

Local GovernmentBuilding by-law — Reference to regulation made by council — By-law printed in Government Gazette — Regulation not set out at length — Whether by-law published — Local Government Act 1890 (No. 1112), sec. 204.

BELFIELD v. BELFIELDVLR 231

O’BRYAN J.·19 Jun 1945·Supreme Court of Victoria8p·Vol [1945] VLR Pt 1

DivorceDesertion — Three years and upwards — Whether statutory period complete — Marriage Act 1928 (No. 3726), s. 75 (a).

BURGESS v. THE HERALD & WEEKLY TIMES LTD.VLR 239

HERRING C.J.·12 Jun 1945·Supreme Court of Victoria4p·Vol [1945] VLR Pt 1

LibelInterrogatories — Juror alleging newspaper article meant he had not performed his duty — Defence of fair comment — Interrogatories as to plaintiff's belief in evidence heard by him as a juror — Relevancy.

DE LONGVILLE v. DE LONGVILLEVLR 243

GAVAN DUFFY J.·20 Dec 1944·Supreme Court of Victoria3p·Vol [1945] VLR Pt 1

Administration and probateMaintenance — Order for support of children — Arrears owing at death of defendant — Whether a debt or liability executor under a duty to pay.

HENRY v. INSP. FACTORIES & SHOPSVLR 246

GAVAN DUFFY J.·19 Jun 1945·Supreme Court of Victoria4p·Vol [1945] VLR Pt 1

Factories and shopsRefusal by wages board to deal with dispute — Jurisdiction — Whether such refusal infringed "any legal or equitable right" depending on the construction of a statute — Rules of Supreme Court 1938, Order LIV (A), r. 2 — Factories and Shops Act 1928 (No. 3677), sec. 147 — Factories and Shops Act 1936 (No. 4461), sec. 5.

IN RE MADDERVLR 250

GAVAN DUFFY J.·19 Jun 1945·Supreme Court of Victoria9p·Vol [1945] VLR Pt 1

Administration and probateWill — Beneficiary signing as witness — Share undisposed of — Closer settlement lease — Purchase money owing to establish freehold right — Whether testator's real estate or undisposed of part of testator's estate primarily liable for balance of purchase money — Intestacy — Division between widow and daughter — Whether daughter liable to bring share in testator's estate into hotchpot — Probate and Estate duty — Fund from which payable — Meaning of "residue" — Administration and Probate Act 1928 (No. 3632), secs. 34, 35, 47 (1)(f), 48 (a), 163 — Closer Settlement Act 1938 (No. 4597), secs. 22, 23, Second Schedule — Estate Duty Assessment Act 1914-1944, sec. 35 et seq.

MILLEN v. GROVEVLR 259

GAVAN DUFFY J.·1 Aug 1945·Supreme Court of Victoria4p·Vol [1945] VLR Pt 1

National SecurityLandlord and Tenant — Recovery of possession of premises — Required for personal occupation — Defendant a "protected person" — Reasonably suitable alternative accommodation — Whether "less congenial" than the premises occupied — Meaning of "congenial" — National Security Act 1939-1943 — National Security (Landlord and Tenant) Regulations — National Security (War Service Moratorium) Regulations.

STRAUSS v. ROTHFIELDVLR 263

MacFARLAN J.·22 Aug 1945·Supreme Court of Victoria2p·Vol [1945] VLR Pt 1

National SecurityLandlord and tenant — Recovery of possession of premises — Statement of claim — No allegation of compliance with National Security regulations — Whether statement of claim should be struck out.

R. v. FLANAGANVLR 265

LOWE J.·22 Aug 1945·Supreme Court of Victoria2p·Vol [1945] VLR Pt 1

Criminal LawEvidence — Cross-examination of accused — Name of accused — Whether accused can be asked if his name is other than that given by him in the witness box.

CRITERION v. MELB. & METRO. BOARD OF WORKSVLR 267

LOWE J.·11 Jun 1945·Supreme Court of Victoria9p·Vol [1945] VLR Pt 1

Money paidCrown — Water — Rates — Exemption — Property in occupation of Crown — Crown in right of Commonwealth — Payment under duress — Threat to cut off water supply — Right to recover payments made in respect of rates and of excess water — Melbourne and Metropolitan Board of Works Act 1928 (No. 3731), secs. 72, 213.

DE LA RUE v. MATTHEWSVLR 275

O’BRYAN J.·8 Aug 1945·Supreme Court of Victoria7p·Vol [1945] VLR Pt 1

National SecurityPerson other than manufacturer or distributor acquiring tyre — Onus of proof as to being or not being a manufacturer or distributor — Whether on informant or defendant — Time limit for prosecution — National Security Act 1939-1943, sec. 10 — Crimes Act 1914-1941, secs. 14, 21.

R. v. HORNBUCKLEVLR 281

FULL COURT (Macfarlan, Lowe and Martin JJ.).·14 May 1945·Supreme Court of Victoria10p·Vol [1945] VLR Pt 1

Criminal lawDrunkenness — Rape — Intent — Direction to jury.

CITY OF CAMBERWELL v. WALDMANNVLR 290

LOWE J.·20 Jun 1945·Supreme Court of Victoria5p·Vol [1945] VLR Pt 1

Local GovernmentStreet construction — Road on Crown land — Whether road formed means of back access to or drainage from premises abutting thereon — Liability to contribute — Local Government Act 1928 (No. 3720), sec. 574 (1).

IN RE HOLLOLEVLR 295

O’BRYAN J.·28 Aug 1945·Supreme Court of Victoria8p·Vol [1945] VLR Pt 1

WillTrust — Ultimate residue — Gift of to executor and trustee "to be disposed of by him as he thinks best" — Whether gift or trust — Creation of trust — Trust void for uncertainty — Property Law Act 1928 (No. 3754), sec. 131.

IN RE PENNELLVLR 302

O’BRYAN J.·28 Aug 1945·Supreme Court of Victoria7p·Vol [1945] VLR Pt 1

Executors and administratorsEstate comprising business and real estate — Management and control by one only — Right of others to inspect documents, vouchers, etc., relating to administration — Whether same right possessed by beneficiary — Inspection by auditor — Form of order.

EPSTEIN v. MEDICAL BOARD OF VICTORIAVLR 309

LOWE J.·23 Jul 1945·Supreme Court of Victoria4p·Vol [1945] VLR Pt 1

Medical practitionerRemoval from register — "Infamous conduct in a professional respect" — Meaning — Appeal from decision of Medical Board — Nature of appeal — Medical Act 1933 (No. 4131), secs. 4, 9.