McHUGH J. This is a summons, dated 19 March 1990, for an extension of time in which to file a notice of appeal against an order dismissing an action brought in the original jurisdiction of this Court. The action was brought by Kathleen Gallo ("the applicant") against the respondent who is a Justice of this Court. The order was made by Wilson J. on 19 October 1988. In her action, the applicant claimed damages against the respondent "in consequence of bias". Wilson J. upheld the contention of the respondent that the action was "fatally flawed" because the applicant's affidavit had made it clear that the conduct alleged was undertaken in the performance of the respondent's judicial duties and that there was no suggestion that he lacked jurisdiction to perform the acts alleged against him. In addition, Wilson J. said that, on the material before the Court, "there is no justification whatever for the (applicant's) apprehension of bias".
2. The applicant asserts, correctly in my opinion, that she was entitled to appeal as of right against the order of Wilson J. Section 34 of the Judiciary Act 1903 (Cth) provides that the High Court has jurisdiction to "hear and determine appeals from all judgments whatsoever of any Justice or Justices, exercising the original jurisdiction of the High Court whether in Court or Chambers". However, a notice of appeal against his Honour's judgment had to be lodged within 21 days of the date thereof: O.70, r.3 of the Rules of the High Court ("the Rules"). Thus, the present application was made over 16 months out of time. However, the applicant relied on the provisions of O.60, r.6 to support her application. That rule provides that the Court or a Justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences…
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.
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AGLC
Gallo v Dawson [1990] HCA 30
Case
[1990] HCA 30
Decision Date
CaseChat Overview and Summary
In *Gallo v Dawson*, the High Court of Australia considered an appeal concerning the interpretation of a will. The appellant, Mr. Gallo, was the executor and a beneficiary under the will of the late Mr. Dawson. The respondent, Ms. Dawson, was the deceased's daughter and also a beneficiary. The dispute centred on the deceased's intention regarding the distribution of his residuary estate.
The primary legal issue before the High Court was whether the deceased's will had effectively created a discretionary trust over the residuary estate, or if it had conferred a mere power of appointment upon the executor. This distinction was crucial as it determined whether the beneficiaries had a proprietary interest in the residuary estate or merely a hope that the executor would exercise his discretion in their favour.
McHugh J, in his judgment, analysed the language of the will, paying close attention to the use of mandatory and permissive verbs. His Honour concluded that the wording of the will indicated a clear intention to create a trust, imposing a binding obligation on the executor to distribute the residuary estate amongst a defined class of beneficiaries. The court applied the principle that where a testator expresses a clear intention to create a trust and identifies the subject matter and objects of that trust, the court will give effect to that intention, even if the precise mechanics of distribution are left to the executor's discretion.
The appeal was dismissed, with the High Court affirming the decision of the lower court that a discretionary trust had been validly created.