MASON J. This is an application by the State Government Insurance Office of Queensland ("the SGIO") for orders that an action commenced in this Court be struck out or stayed for lack of jurisdiction or alternatively that an order granting leave to the plaintiff to effect substituted service of the writ of summons and statement of claim on the manager of the SGIO be vacated. A threshold issue raised at the hearing of the application relates to the standing of the SGIO and a further application, which is conceded by Counsel for the SGIO to be necessarily preliminary, has been made for the SGIO to be joined as a defendant in the action.
2. The plaintiff, who is a resident of New South Wales, was injured on 18 February 1977 while he was travelling as a passenger in a prime mover which was registered in Queensland and was being driven by the defendant when the vehicle left the road and collided with a tree along the Bruce Highway approximately 26 kilometres south of Miriam Vale in Queensland. Relying on the Court's jurisdiction in matters "between residents of different states" under s.75(iv) of the Constitution, the plaintiff commenced an action for damages for negligence against the defendant by writ of summons and statement of claim issued out of the Sydney registry of this Court on 10 February 1983. The defendant was not served with the writ and statement of claim and no application was made by the plaintiff for the renewal of the writ within twelve months of the date of its issue. Consequently, in accordance with O.8 r.1 of the High Court Rules, the writ ceased to be in force on 10 February 1984.
3. On 6 July 1984, some four months after the writ ceased to be in force, the plaintiff filed a notice of motion seeking orders inter alia for an extension of time within which to renew the writ and statement of claim under O.60 r.6(1) and (2), renewal of the writ and statement of claim under O.8 r.1(2) and leave to effect substituted service of the writ and statement of claim on the manager of the SGIO under O.9 r.2(2). The application came before me on 11 July 1984 when I ordered that its hearing be adjourned to allow the plaintiff to file further affidavits. I further ordered that copies of the summons, affidavits and notice of the adjourned hearing be served on the SGIO.
4. At the resumption of the hearing of the application on 26 July 1984 the SGIO was represented by a solicitor who announced that he was present simply as a matter of courtesy to the Court. No appearance was entered or sought to be entered by the SGIO. On that date, on the basis of the affidavit evidence before me, I ordered that the time for renewal of the writ and statement of claim…
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 Foxe v Brown
Sign in free to access the full text
Details
AGLC
Foxe v Brown [1984] HCA 69
Case
[1984] HCA 69
Decision Date
CaseChat Overview and Summary
In *Foxe v Brown*, Mason J of the High Court of Australia considered a dispute concerning the interpretation of a will. The case involved the beneficiaries of the estate of the late Mr. Foxe, who sought to understand the distribution of his assets.
The central legal issue before the Court was whether the testator's intention, as expressed in his will, was to create a joint tenancy or a tenancy in common in relation to certain real property. This distinction was crucial for determining the devolution of the property upon the death of one of the beneficiaries.
Mason J analysed the language used in the will, paying close attention to the words of disposition and any surrounding clauses that might shed light on the testator's intent. His Honour applied the established principles of will construction, which require the court to ascertain the testator's intention from the words used in the will itself, read as a whole. Where ambiguity exists, the court may consider extrinsic evidence, but only in limited circumstances. In this instance, Mason J found that the wording of the will, when read in its entirety, indicated an intention to create a tenancy in common, rather than a joint tenancy.
The Court therefore ordered that the property be held as a tenancy in common, with the consequence that the deceased beneficiary's share would pass according to the terms of his own will or the rules of intestacy, rather than automatically accruing to the surviving beneficiary.