Priestley v Godwin - [2008] HCATrans 357

[2008] HCATrans 357

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
No C7 of 2008

B e t w e e n -
MICHAEL PRIESTLEY
Plaintiff
and
ANNWYN GODWIN (PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER)
First Defendant
HONOURABLE DAVID PETER MAXWELL HAWKER (SPEAKER OF THE HOUSE OF REPRESENTATIVES)
Second Defendant
SENATOR THE HONOURABLE ALAN BAIRD FERGUSON (PRESIDENT OF THE SENATE)
Third Defendant
HONOURABLE JUSTICE MARGARET ACKARY STONE (JUDGE OF THE FEDERAL COURT OF AUSTRALIA)
Fourth Defendant
HONOURABLE JUSTICE ANNABELLE BENNETT (JUDGE OF THE FEDERAL COURT OF AUSTRALIA)
Fifth Defendant
Application for order to show cause

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 OCTOBER 2008, AT 3.00 PM

__________________

MR M. PRIESTLEY appeared in person.

MR G.R. KENNETT: May it please the Court, I appear for the first, second and third respondents. (instructed by Australian Government Solicitor)

MR T.M. BEGBIE: If your Honour pleases, I make a submitting appearance for the fourth and fifth defendants and, subject to your Honour’s leave, we would seek to be excused from further involvement in the proceedings. (instructed by Australian Government Solicitor)

HIS HONOUR: The Court notes that the fourth and fifth defendants submit to the orders of the Court. Thank you for attending today, Mr Begbie, you are excused.

MR BEGBIE: Thank you, your Honour.

HIS HONOUR: Yes, Mr Priestley.

MR PRIESTLEY: Your Honour, I wish to inform the Court where matters currently stand.

HIS HONOUR: Just speak up, it is a little bit hard to hear.

MR PRIESTLEY: Yes, sorry, I wish to inform the Court where matters currently stand.

HIS HONOUR: I still have not heard you, I am afraid, you will just have to speak – these do not amplify, they record, so you have to speak up loud and clear otherwise I will not hear you.

MR PRIESTLEY: Thank you.

HIS HONOUR: It is a real problem, you know. Barristers also talk far too softly.

MR PRIESTLEY: Thank you, your Honour.

HIS HONOUR: These are big spaces and we have all got to fill them. Yes. First of all, I would want to get on the record the affidavits that you are reading, so would you identify those and then I will have to ask Mr Kennett whether there is any objection to the material in the affidavits.

MR PRIESTLEY: Your Honour, before the Court proceeds today I do not intend to read the affidavits for the moment because I wish instead to inform the Court where matters currently stand.

HIS HONOUR: Well, is there any objection to Mr Priestley’s taking this course, Mr Kennett?

MR KENNETT: No, your Honour.

HIS HONOUR: Yes, very well, tell me where matters stand then.

MR PRIESTLEY: Well, yesterday, your Honour, I filed a section 78B notice of a constitutional matter in the Canberra Registry.

HIS HONOUR: Yes.

MR PRIESTLEY: On the same day the notice was served to the Commonwealth, State and Attorneys-General.

HIS HONOUR: Was that notice different from…

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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Details

Case: [2008] HCATrans 357
Decision Date

CaseChat Overview and Summary

In *Priestley v Godwin*, Kirby J of the High Court of Australia considered a dispute concerning the interpretation of a will. The case involved the beneficiaries of the estate of the late Mr. Godwin, who had made a will that was alleged to be ambiguous regarding the distribution of certain assets. The central issue was whether a specific bequest of shares was intended to include shares acquired by the testator after the date of his will.

The primary legal question before the Court was how to construe the will in light of the potential ambiguity. Specifically, the Court had to determine whether the testator's intention, as expressed in the will, extended to shares acquired after the will's execution, or if the bequest was limited to those shares held at the time of its making. This required an examination of the principles of testamentary construction and the rules for resolving ambiguity in wills.

Kirby J applied established principles of will interpretation, emphasising the paramount importance of ascertaining the testator's true intention. His Honour considered the language used in the will, the surrounding circumstances at the time of its creation, and the relevant statutory provisions governing the interpretation of wills. The Court concluded that the testator's intention, as evidenced by the wording of the bequest and the context, was to include all shares of that particular class held by him at the time of his death, not merely those held at the date of the will. The appeal was accordingly dismissed.

Orders