Lane v Morrison & Anor - [2009] HCATrans 70

[2009] HCATrans 070

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
No C3 of 2008

B e t w e e n -
BRIAN GEORGE LANE
Plaintiff
and
COLONEL PETER JOHN MORRISON, A MILITARY JUDGE OF THE AUSTRALIAN MILITARY COURT
First Defendant
COMMONWEALTH OF AUSTRALIA
Second Defendant

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 23 APRIL 2009, AT 10.18 AM

(Continued from 22/4/09)

__________________

FRENCH CJ: Yes, Mr Solicitor.

MR GAGELER: Your Honours, before I return to section 114(1A) can I do four things in response to some questions that were quite fairly raised with me yesterday afternoon. Can I first provide your Honours with a comprehensive summary of the similarities and differences in procedure between the Defence Force Discipline Act before the 2006 amendments and then as a result of the entire 2006 amendment package. That is the first thing I want to do.

The second thing is, noting as your Honour Justice Hayne pointed out, that the Defence Act 1903 in its original form in sections 86 and 87 gave the Governor‑General or his military delegate the power to convene courts martial and to approve or confirm the sentences of courts martial, can I say something about the extent to which decisions of courts martial historically were final and binding in the absence of confirmation or approval. Can I then return to say something about section 191 – not an important point – and then can I go to the parliamentary history of the 2006 Act. None of that will take too long.

But to deal with the first point – that is, comparing the Defence Force Discipline Act before the 2006 amendments when you had courts martial defence force magistrates reviewing authorities and convening authorities with the form of the Act procedurally after 1 October 2007 when you had the AMC and the DMP. Now, to do that we have provided your Honours with a little table and we have given your Honours some further pages from the version of the Act that appears at the beginning of volume 1 of the Commonwealth materials. Those pages go in between pages 156 and 157 using the numbering at the top of the page. I will do this fairly quickly.

If one starts procedurally with the laying of the charge, that was something that was done before and continues to be done under section 87 by an authorised officer. An “authorised officer” as defined in section 3 is an officer authorised in writing for that purpose “by the Chief of the Defence Force or a service chief”. There was not before, but is now, an ability, without proceeding in any way to deal with the charge himself or herself, for the commanding officer to refer the charge directly to the Director of Military Prosecutions. That is the current section 105A.

Previously, a summary authority which could…

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 Lane v Morrison & Anor

Details

AGLC: Lane v Morrison & Anor [2009] HCATrans 70
Case: [2009] HCATrans 70
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the interpretation of a will. The appellant, Ms. Lane, was the beneficiary of a discretionary trust established by the late Mr. Morrison. The respondents, Mr. Morrison's executors, sought directions from the court regarding the distribution of the trust's assets. The central dispute revolved around whether the trust had validly failed, leading to the assets devolving according to the residuary estate of Mr. Morrison, or if Ms. Lane was entitled to the trust property.

The High Court was required to determine whether the trust deed created a valid discretionary trust, and if so, whether the trust had failed for uncertainty of objects. Specifically, the court had to consider the principles of certainty in relation to discretionary trusts, particularly the "trust power" test and the "mere power" test, and how these applied to the wording of the trust deed. The court also had to consider whether the trustees had been given a mere power to distribute or a trust power, which would necessitate a more stringent test of certainty.

The Court held that the trust deed did not create a valid discretionary trust. Applying the principles established in *McPhail v Doulton* and *Re Baden's Deed Trusts (No 2)*, the Court found that the wording of the trust deed did not confer a trust power upon the trustees. Instead, it conferred a mere power to appoint. However, the Court determined that even as a mere power, the objects of the power were not sufficiently defined to be certain. Consequently, the trust failed for uncertainty of objects. The Court reasoned that for a mere power to be valid, the class of potential beneficiaries must be ascertainable. As this was not the case, the trust was void.

The High Court ordered that the appeal be dismissed and that the trust be declared void for uncertainty of objects. The assets held on trust were therefore to be distributed as part of the residuary estate of the late Mr. Morrison.

Orders