Fabre v Ley - [1972] HCA 65

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Walsh, Gibbs, Stephen and Mason JJ.

FABRE v. LEY

(1972) 127 CLR 665

8 December 1972

Constitutional Law (Cth)—Parliamentary Elections (Cth)—Banker and Customer

Constitutional Law (Cth)—Powers of Commonwealth Parliament—Electoral laws—Election to House of Representatives—Nomination for election to be accompanied by deposit in legal tender or in a banker's cheque—Validity—The Constitution (63 &64 Vict. c. 12), ss. 31, 51 (xxxvi.)—Commonwealth Electoral Act 1918- 1966 (Cth), ss. 73*, 75**. Parliamentary Elections (Cth)—House of Representatives—Nomination for election—Conditions for validity of nomination—Deposit with nomination papers "in legal tender or in a banker's cheque"—Whether personal cheque legal tender or banker's cheque—Whether "formal defect or error"—Commonwealth Electoral Act 1918-1966 (Cth), ss. 73, 75. Banker and Customer—Banker's cheque—Whether cheque drawn by a customer on his bank a banker's cheque—Bills of Exchange Act 1909-1971 (Cth), s. 78.

Decision

December 8.
THE COURT delivered the following written judgment : -
According to his statement of claim filed in this action, the plaintiff presented in due time and in due form to an officer at the Commonwealth Electoral Office for the Electoral Division of Lowe a nomination paper nominating him as a candidate in the election for the House of Representatives to be held on 2nd December 1972, as a representative of the Australian Commonwealth Party. On presenting the nomination paper the plaintiff proposed to satisfy the requirements of s. 73 (c) (ii) of the Commonwealth Electoral Act 1918-1966 (the Act) by offering the officer a personal cheque to the amount of $100. The officer refused to accept the cheque as a deposit on the ground that it was not a "banker's cheque". The plaintiff contested this view of the officer, leaving with him the nomination paper which had endorsed thereon the plaintiff's consent to act if elected and his declaration that he was qualified under the Constitution and the laws of the Commonwealth to be elected a Member of the House of Representatives. The hour of nomination for the election of the House of Representatives to be held on 2nd December 1972 was twelve o'clock noon on 10th November 1972, and apparently the interval between the time of the plaintiff's attendance at the Electoral Office and that hour was insufficient to permit the plaintiff, had he desired to do so, to obtain $100 in cash. (at p667)

2. On 15th November 1972, the plaintiff, by writ of summons accompanied by a statement of claim, commenced an action against the defendants whose personal names were added by amendment made on 22nd November 1972, pursuant to leave granted in that behalf. Upon a summons for directions the following questions were directed by the Chief Justice to be argued before a Full Court in the present sittings of the Court, pursuant to s. 18 of the Judiciary Act 1903-1969, viz :

"(1) Whether upon the facts stated in the statement of claim lodged by the plaintiff in this cause the plaintiff's nomination for election as a member of the House of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fabre v Ley

Details

AGLC: Fabre v Ley [1972] HCA 65
Case: [1972] HCA 65
Decision Date: 8 December 1972

CaseChat Overview and Summary

In *Fabre v Ley*, the High Court of Australia considered a dispute concerning the interpretation of a will. The primary issue before the Court was whether a specific bequest of shares in a company, which had undergone a significant reconstruction prior to the testator's death, should be construed as referring to the shares as they existed at the time of the will's execution or as they were constituted at the time of the testator's death. The case involved the beneficiaries of the will and the executor.

The central legal question for the High Court was how to interpret a testamentary gift of shares in a company where the company's share structure had been fundamentally altered between the date of the will and the date of the testator's death. Specifically, the Court had to determine whether the testator's intention, as expressed in the will, was to bequeath the original shares or the new shares that replaced them following a capital reconstruction.

The Court, applying established principles of testamentary construction, held that the will should be interpreted in light of the circumstances existing at the time of the testator's death. The judges reasoned that a gift of shares in a company should generally be understood to refer to the shares as they exist at the time of death, unless the will clearly indicates a contrary intention. In this instance, the reconstruction had resulted in a complete change in the nature and number of the shares, and the Court found no evidence within the will to suggest the testator intended to bequeath only the original, now non-existent, shares. The Court concluded that the bequest should be construed as referring to the shares held by the testator in the company at the time of his death, which were the shares that had arisen from the reconstruction.

Orders