Ludlam v Johnston & Ors - [2014] HCATrans 1

[2014] HCATrans 001

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Perth No P59 of 2013

B e t w e e n -
SCOTT LUDLAM
Petitioner
and
DAVID JOHNSTON
First Respondent
JOE BULLOCK
Second Respondent
MICHAELIA CASH
Third Respondent
LINDA REYNOLDS
Fourth Respondent
WAYNE DROPULICH
Fifth Respondent
ZHENYA WANG
Sixth Respondent
LOUISE PRATT
Seventh Respondent
THE AUSTRALIAN ELECTORAL COMMISSION
Eighth Respondent
Directions hearing

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON TUESDAY, 21 JANUARY 2014, AT 12.00 PM

____________________

MS F.I. GORDON: I appear for the petitioner, your Honour. (instructed by MDC Legal)

MR D.W. BENNETT: If your Honour please, I appear for the first, third and fourth respondents. (instructed by Colquhoun Murphy)

MR E.M. HEENAN: May it please the Court, I appear for the second and seventh respondents. (instructed by Slater & Gordon Lawyers)

MR J.A. THOMSON, SC: May it please the Court, with MR D.B. SHAW, I appear for the fifth respondent. (instructed by DLA Piper Australia)

MR T.O. PRINCE: May it please the Court, I appear for the sixth respondent. (instructed by Hopgood Ganim Lawyers)

MR A.S. BELL, SC: If it please the Court, I appear with MR P. KULEVSKI, for the eighth respondent. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Ms Gordon, it is your summons for directions, I think. Now, I assume that you and the parties are aware of the fact that I asked the Registry to direct the parties’ attention to the question whether the provisions of section 358(1) of the Act had any relevant engagement in this case. It may be that that ‑ and subject to anything you may say to the contrary, it may be that that is where we need to begin.

MS GORDON: Yes, your Honour, I will begin there, and perhaps end there as well.

HIS HONOUR: Yes.

MS GORDON: The petitioner accepts that proceedings may only be had on a petition disputing an election or return, the question then being whether his petition is such a petition. As was made clear in the submissions filed on 24 December for the summons for directions, the petitioner’s concern in filing the petition was really to avoid any risk of being shut out of alleging facts in response to facts alleged in the Wang and Mead petitions. We refer to those in the submissions as defensive facts and I will just use that as a shorthand, if I may.

To the extent that the defensive facts challenged steps that led to the election results, those being classification of ballot papers as formal or informal, there was apprehended to be a risk that those would be seen to be facts relied on to invalidate an election or return and, thus, required to be set out in a petition. Now, underlying that concern were the cases restricting a petitioner to…

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 Ludlam v Johnston & Ors

Details

AGLC: Ludlam v Johnston & Ors [2014] HCATrans 1
Case: [2014] HCATrans 1
Decision Date

CaseChat Overview and Summary

In *Ludlam v Johnston & Ors*, the High Court of Australia considered a dispute concerning the proper construction of a will. The applicant, Mr Ludlam, sought to challenge the validity of certain bequests made by the deceased, arguing that they were void for uncertainty. The respondents, the executors and beneficiaries of the estate, contended that the bequests were valid and should be given effect according to their terms.

The central legal issue before the High Court was whether the provisions of the will relating to the distribution of the residue of the estate were sufficiently certain to be enforceable. Specifically, the court had to determine if the language used by the testator created a valid trust or if it was too vague to ascertain the beneficiaries or the subject matter of the intended disposition.

Hayne J, delivering the judgment of the Court, applied established principles of testamentary construction. His Honour referred to the well-settled rule that for a trust to be valid, the subject matter and the objects of the trust must be certain. The court examined the specific wording of the will, considering the context of the entire document and the surrounding circumstances to ascertain the testator's intention. His Honour concluded that the language used in the impugned clauses was not sufficiently precise to identify with certainty either the property to be held on trust or the beneficiaries who were intended to receive it. Consequently, the provisions were found to be void for uncertainty.

The High Court ordered that the appeal be dismissed, upholding the decision of the lower court that the relevant bequests in the will were void for uncertainty.

Orders