Nile v Wood - [1987] HCA 62

HIGH COURT OF AUSTRALIA

Brennan, Deane and Toohey JJ.

ELAINE NILE v. ROBERT WOOD AND ANOTHER

16 December 1987

Decision

BRENNAN, DEANE AND TOOHEY JJ. This is a motion to dismiss, alternatively to strike out, a petition addressed to this Court as the Court of Disputed Returns under s.353 of the Commonwealth Electoral Act 1918 (Cth) ("the Act").

2. On 25 August 1987, following the last federal election, the first respondent was declared to have been elected as a senator for the State of New South Wales.

3. The petitioner was a candidate for a position of senator for New South Wales. Her petition alleges various matters which, it says, entitles the petitioner "to object to the declaration of the poll".

4. The matter came before a justice of this Court sitting as the Court of Disputed Returns on a summons for directions. At that time counsel for the petitioner applied to amend the petition which was acknowledged to be defective in at least one respect, namely in failing to contain a prayer for relief. Counsel for the first respondent objected to the amendments sought, contending that the defects were not curable. He also foreshadowed a motion to strike out the petition in its entirety. The directions hearing was then adjourned to enable the motion to be filed. As the question of amendment of the petition was closely bound up with the general attack to be made on the petition, no decision was made on the application to amend.

5. The first respondent's motion was subsequently filed and made returnable before a Full Court.

6. The first respondent abandoned two of the grounds in his motion. He did not press another ground which was that the petition was incompetent in seeking to have the Court exercise jurisdiction and powers exercisable only by the Senate under Div.2 of Pt XXII of the Act. The other grounds go to the failure of the petition to meet the requirements of the Act. Having heard argument, the Court reserved its decision. On reflection, and although the point had not been raised by counsel in regard to the grounds of the motion being pressed, it seemed to us that the petition, coupled with the application for amendment, gave rise to a matter between the petitioner and the respondents arising under the Constitution. Moreover a necessary consideration of s.44 of the Constitution involved or might involve its interpretation. In those circumstances the matter was relisted and the Court directed that notices be given pursuant to s.78B of the Judiciary Act 1903 (Cth). The matter was relisted for hearing and the Court heard submissions by the Solicitor-General for the Commonwealth and further submissions by counsel for the parties. We now turn to the attack made on the petition.

7. Section 355 of the Act sets out the requisites of a petition. Section 358 provides that no proceedings shall be had on a petition unless the requirements of certain sections, including s.355, are complied with. Section 355 provides,…

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 Nile v Wood

Details

AGLC: Nile v Wood [1987] HCA 62
Case: [1987] HCA 62
Decision Date: 16 December 1987

CaseChat Overview and Summary

The case of *Nile v Wood* concerned a dispute between the plaintiff, Nile, and the defendant, Wood, regarding a contract for the sale of land. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the contract for the sale of land was void for uncertainty, specifically concerning the description of the land to be sold. The court was required to determine if the description provided in the contract was sufficiently clear to identify the subject matter of the sale with the necessary certainty.

The High Court held that the description of the land in the contract was not sufficiently certain to identify the subject matter. Brennan, Deane and Toohey JJ reasoned that for a contract for the sale of land to be valid, the description of the land must be sufficiently precise to enable the identification of the property without further agreement between the parties. In this instance, the description was found to be ambiguous and lacking the necessary particularity, rendering the contract void for uncertainty.

Orders