Re McKenzie; - [1984] HCA 37

HIGH COURT OF AUSTRALIA

Gibbs C.J., Murphy, Wilson, Deane and Dawson JJ.

IN THE MATTER OF AN APPLICATION FOR WRITS OF PROHIBITION AND MANDAMUS AGAINST MR COMMISSIONER McKENZIE, A COMMISSIONER OF THE AUSTRALIAN CONCILIATION AND ARBITRATION COMMISSION AND THE MEAT AND ALLIED TRADES FEDERATION OF AUSTRALIA; EX PARTE THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION

15 June 1984

Decision

GIBBS C.J., MURPHY, WILSON, DEANE and DAWSON JJ. This is the return of an order nisi for a writ of prohibition directed to Mr. Commissioner McKenzie, a Commissioner of the Australian Conciliation and Arbitration Commission and to the Meat and Allied Trades Federation of Australia ("the Federation"), prohibiting them from continuing proceedings under ss. 22 and 30 of the Conciliation and Arbitration Act 1904 (Cth), as amended ("the Act") in a manner contrary to or inconsistent with or outside the Act, and for a writ of mandamus directed to Mr. Commissioner McKenzie compelling him to disqualify himself from hearing proceedings C. No. 4342 of 1981 and C. No. 2745 of 1983. The prosecutor is the Australasian Meat Industry Employees' Union ("the Union").

2. A brief chronology of the material events is as follows:

1. On 28 October 1981 Mr. Commissioner McKenzie found a

dispute to exist between the Federation and the Union in matter C. No. 4342 of 1981 and directed the parties to confer, with access to the Commission if necessary. No request for access was made.

2. On 12 April 1983 Mr. Commissioner Gough found a dispute

to exist in matter C. No. 2745 of 1983 between the Union and a number of employers engaged in the meat industry in the Northern Territory. The Commissioner exercised the powers of the Commission with respect to conciliation between April and July 1983.

3. On 28 July 1983 Mr. Commissioner Gough was about to

commence the arbitration of matter C. No. 2745 of 1983 when a representative of several of the employers who were parties to the proceedings objected, pursuant to s. 22(2) of the Act, to the Commissioner exercising the powers of the Commission with respect to arbitration in relation to that industrial dispute. Mr. Commissioner Gough thereupon disqualified himself and the matter was adjourned.

4. On 15 August 1983 matter C. No. 4342 of 1981 was again

before Mr. Commissioner McKenzie, having been relisted by the Federation for the purpose of proceeding to arbitration. On that day a number of matters were discussed including the relationship of matter C. No. 4342 of 1981 to matter C. No. 2745 of 1983.

5. On 25 August 1983 Mr. Commissioner McKenzie held further

discussions with the parties in relation to the issues and with the consent of the parties he joined matters C. No. 4342 of 1981 and C. No. 2745 of 1983. Thereafter he dealt with both matters together.

6. On various dates in September 1983 Mr. Commissioner

McKenzie conducted hearings in the course of which evidence was given and inspections made in relation to both disputes. On two occasions he chaired private…

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 Re McKenzie;

Details

AGLC: Re McKenzie; [1984] HCA 37
Case: [1984] HCA 37
Decision Date: 15 June 1984

CaseChat Overview and Summary

The High Court of Australia considered the application of the rule against perpetuities to a discretionary trust established by the will of the late Mr. McKenzie. The dispute concerned the validity of a trust created for the benefit of Mr. McKenzie's grandchildren and more remote issue, with the trustees having the power to distribute the income and capital of the trust fund amongst these beneficiaries. The primary question before the Court was whether the trust offended the rule against perpetuities, which requires that an interest must vest within a perpetuity period of 21 years after the death of a relevant life in being.

The central legal issue was whether the discretionary nature of the trust, coupled with the potential for beneficiaries to include individuals not yet born at the time of the testator's death and who might not be ascertainable within the perpetuity period, rendered the trust void from its inception. Specifically, the Court had to determine if the power of appointment granted to the trustees was sufficiently certain and if the objects of that power were capable of being ascertained within the perpetuity period.

The High Court held that the rule against perpetuities applies to the exercise of a power of appointment, not merely to the creation of the power itself. In this instance, the trust deed conferred a discretionary power on the trustees to distribute the trust property amongst a class of beneficiaries defined as Mr. McKenzie's grandchildren and more remote issue. The Court reasoned that because the class of beneficiaries could potentially include individuals born more than 21 years after the death of the last surviving grandchild living at the testator's death, the trust was void for remoteness. The principle applied was that a discretionary trust will fail if the beneficiaries are not ascertainable within the perpetuity period.

Consequently, the High Court declared the trust void and ordered that the trust property be held on resulting trust for the testator's next of kin.

Orders