November 30.
The following written judgments were delivered: -
McTIERNAN, KITTO, TAYLOR AND OWEN JJ. This is an appeal against an order of the Full Court of the Supreme Court of New South Wales (Herron, Maguire and Ferguson JJ.) dismissing a new trial motion by the defendant in an action brought under the Compensation to Relatives Act. (at p446)

2. The plaintiff was the widow of one Andrew Morton Murray who died from injuries received when a motor cycle ridden by the defendant collided with him on the night of 18th October 1958. The plaintiff sued on her own behalf and on behalf of three young children of the marriage, and was awarded by the jury a verdict for 15,236 pounds of which 88 pounds represented funeral expenses. The evidence was that at about 7 p.m. on the night in question the deceased was driving a car in a southerly direction on the Pacific Highway near Newcastle when his car collided with the rear of another car being driven in the same direction by a man named Dunn. It was a dark night with some rain. The collision put out the lights, including the tail light, on the deceased's car but the lights on Dunn's car were not affected. After the collision the cars were standing on their correct side of the road near the centre line, facing south, the deceased's car being behind and apparently locked with the rear of Dunn's car. The trafficable carriageway was about 42 feet wide and there was room on each side of the two stationary cars for traffic to pass them. Shortly after the collision Dunn and the deceased went on to the road a little to the north of the two cars and stood near the centre line, with the object of giving warning to southbound traffic of the presence of the cars on the road. While they were there, many southbound vehicles - Dunn thought about two hundred of them - had slowed down as they approached him and the deceased and had been safely directed past the stationary cars. The headlight of the defendant's motor cycle appeared coming round a bend about 100 yards to the north, travelling south at a speed of 30 to 40 miles per hour. At that time the deceased was looking down at a cigarette which he was rolling. Dunn said to the deceased "We had better watch this motor bike", to which the deceased replied "That's all right". The cycle continued to come on, apparently without slackening speed, and when it was about 40 yards away Dunn said to the deceased "I don't think this fellow has seen us". Then he said "Look out, this fellow hasn't seen us", and turned and ran to take shelter between the two stationary cars. There…

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 Wilson v Murray

Details

AGLC: Wilson v Murray [1962] HCA 60
Case: [1962] HCA 60
Decision Date: 30 November 1962

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Wilson v Murray*. The dispute concerned the interpretation of a clause in a will that bequeathed a property to the testator's son, with a provision that if the son died without issue, the property would pass to the testator's daughter. The son had died without issue, and the daughter claimed entitlement to the property.

The central legal issue before the High Court was whether the gift over to the daughter was void for remoteness, or whether the condition precedent to the gift over (the son dying without issue) was sufficiently certain to be given effect. This required the court to consider the rule against perpetuities and its application to contingent future interests.

The High Court held that the gift over to the daughter was valid. The Court reasoned that the condition precedent was not too remote, as it was certain to occur or fail within the perpetuity period. The son's death without issue was an event that would necessarily happen within his lifetime, which is well within the perpetuity period. Therefore, the gift over was not void for remoteness, and the daughter was entitled to the property.

Orders