Constitutional Law (Cth)—Resident of one State subject to disability or discrimination in another State on ground of residence—Discrimination—Residence—Rules of Supreme Court—Admission to practise—Persons previously admitted elsewhere—Requirement of period of residence in State before admission to practise as person admitted elsewhere—Validity—Rules of Court Regulating the Admission of Practitioners, 1955-1972 (S.A.) rr. 27, 28—The Constitution (63 &64 Vict. c. 12), s. 117.

Decisions

August 30.
The following written judgments were delivered:- BARWICK C.J. Section 117 of the Australian Constitution provides:

"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." (at p485)

2. The plaintiff in this action claims that rr. 27 (1) and 28 (2) of the Rules of Court Regulating the Admission of Practitioners, 1955-1972 made by the Chief Justice and Judges of the Supreme Court of South Australia are inapplicable to him, as a resident of the State of Victoria because they infringe the terms of s. 117. The question whether this is so or not is raised by demurrer in the action which the plaintiff has instituted against the members of the Board of Examiners of the Supreme Court of South Australia and the State of South Australia. (at p485)

3. The plaintiff was admitted to practise as a barrister and solicitor by the Supreme Court of Victoria in 1957 and holds a current practising certificate under the Legal Profession Practice Act 1958 (as amended) of that State. He resides at 48 Parkmore Road, East Bentleigh in the State of Victoria and carries on the practice of a barrister and solicitor in the City of Melbourne. We are assured by the plaintiff's statement of claim that neither Bentleigh nor Melbourne is within fifty miles of the boundary between the State of Victoria and the State of South Australia. Thus an exemption from the provisions of r. 27 is not available to the plaintiff. See r. 27 (2) (ii). (at p485)

4. Rule 5 (1) of the Rules of Court includes amongst those eligible for admission as a practitioner in South Australia a barrister or solicitor of the Supreme Court of a State whom the Board of Examiners of the Supreme Court of South Australia think by reason of legal training and experience to be a fit and proper person to be admitted: such a person is included by the Rules in the description of "an applicant previously admitted elsewhere" -see r. 5 (2). Rules 27 and 28 provide as follows:

"27. (1) An applicant previously admitted elsewhere shall reside for at least three calendar months in the State continuously and immediately preceding the filing of his notice of application for admission. (2) This rule shall not apply to an…

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 Henry v Boehm

Details

AGLC: Henry v Boehm [1973] HCA 32
Case: [1973] HCA 32
Decision Date: 30 August 1973

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning a dispute between Henry and Boehm. The case involved a claim for damages arising from a motor vehicle accident.

The central legal issue before the High Court was whether the appellant, Henry, had established a breach of duty of care on the part of the respondent, Boehm, in the operation of his vehicle, and if so, whether that breach had caused the appellant's injuries. The court also had to consider the principles of contributory negligence, if any, on the part of the appellant.

The High Court, in its judgment, analysed the evidence presented regarding the circumstances of the collision. The court applied established principles of negligence, focusing on the standard of care expected of a reasonable driver in similar situations. It considered the findings of the lower courts and the evidence relating to the actions of both drivers leading up to the accident. The court determined that the respondent had not breached his duty of care to the appellant.

Consequently, the appeal was dismissed.

Orders