real estate agent any of the functions of a real estate agent as defined by the Real Estate Agents Acts whether his remuneration be by way of salary, wages, commission or otherwise " The term real estate agent is defined in S. 3 of the Real Estate Agents Act 1928 (Vict.) as amended by S. 3 of the Real Estate Agents and Business Agents Act 1933 (Vict.). The amendment is not material for present purposes. The definition includes any person who exercises or carries on " any of the following functions, namely- (i.) selling buying
or otherwise dealing with or disposing of or (ii.) negotiating for the sale purchase any other dealing with or disposition of land of any tenure or buildings
There is no doubt that Robinson was at the material time carrying on the functions mentioned in the definition of " real estate agent ". And it seems equally clear that at the material time Liubinskas was, in respect of the property at North Fitzroy, acting for or by arrangement with Robinson and performing for him the function of negotiating for the sale of that property. Shortly after the making of the original arrangement with Robinson he had expressly asked Robinson if he had any properties in Fitzroy or Collingwood, and Robinson had told him of the property at North Fitzroy and given him the keys of that property. Robinson had already given him a number of his business cards, contem- plating (as Sholl J. found) that Liubinskas would write his own name thereon after the word " Representative It seems clearly established that Liubinskas was a sub-agent of Robinson within the meaning of the Real Estate Agents Acts, and the only remaining question is whether the receipt of the money by Liubinskas from the plaintiff falls within the terms of S. 34.
Section 34 must be read with S. 33 (1), the latter part of which uses language which is repeated in S. 34. It must also be read in the light of the general policy and scheme of the legislation. The policy was undoubtedly to protect persons dealing with agents in and about sales and purchases of real estate and negotiations conducted with a view to such sales and purchases. With that end in view the original Act of 1922, which was re-enacted in the consolidation of 1928, required every real estate agent to obtain a licence, and made it a condition of obtaining a licence that he should deposit with the Treasurer of Victoria a fidelity bond the amount of which was originally £250 but was later increased to £500. Section 20 of the Act required every real estate agent to pay into a trust account at a bank all moneys received by him in his capacity of real estate agent. Before 1930 no provision was
A. made for "sub-agents". The Act of 1930 required sub-agents,
as defined, to be licensed, and made it an offence either for a…
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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AGLC
Stapleton v The Queen [1952] HCA 56
Case
[1952] HCA 56
Decision Date
CaseChat Overview and Summary
The case of *Stapleton v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder in the Supreme Court of the Northern Territory. The appellant, Terence Charles Stapleton, had pleaded insanity at the time of the offence. The appeal raised several grounds, including allegations of misdirection by the trial judge regarding the evidence and the legal test for insanity, as well as concerns about the eligibility of certain jurors.
The High Court was required to determine whether the trial judge's directions to the jury on the defence of insanity were adequate and correct, particularly in light of the medical evidence presented regarding the appellant's mental state and family history of mental abnormality. The Court also considered whether the jury had been properly guided on the application of the legal test for insanity to the specific facts of the case, and whether the appellant's behaviour and the expert testimony warranted a more thorough explanation of the legal principles.
The Court reasoned that while the trial judge's directions on insanity were not entirely erroneous, they lacked sufficient clarity and depth in their application to the evidence. The appellant's conduct, coupled with expert testimony describing him as a "schizoid psychopath" with a hereditary predisposition to mental abnormality, suggested a strong case for insanity. The Court found that the jury may not have fully appreciated how the legal test for insanity, specifically the capacity to know the nature and wrongness of an act, applied to the appellant's condition. The Court emphasised that the test for insanity involves an assessment of whether an accused, due to a disease of the mind, was incapable of reasoning with moderate calmness about the wrongness of their act or comprehending its nature or significance, rather than simply knowing it was contrary to law.
Ultimately, the High Court allowed the appeal, setting aside the conviction and sentence. The Court ordered a new trial, concluding that it would be unsafe to allow the verdict to stand given the potential for the jury to have misunderstood the application of the legal test for insanity to the complex factual matrix and expert evidence presented.