Emer v Queen Victoria Women's Centre Trust [1999] VSC 115

[1999] VSC 115

Supreme Court of Victoria|1999-04-23|Before: McDonald J

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At a glance

Source facts

Court

Supreme Court of Victoria

Decision date

1999-04-23

Before

McDonald J

Source

Original judgment source is linked above.

Judgment (1 paragraphs)

[1]

For the reasons expressed when dealing with each of the questions raised on this appeal, the appeal in my opinion must be dismissed. I accordingly order that the appeal against the final order of the Magistrates' Court made on 24 November 1998, as identified by order of Master Wheeler made 15 December 1998 be dismissed and further that the appellants pay the respondent's costs of the appeal.

Parties

Applicant/Plaintiff:

Emer

Respondent/Defendant:

Queen Victoria Women's Centre Trust [1999] VSC 115

Legislation Cited (4)

Court Act 1989

Victoria Women's Centre Act 1994

Control Act 1987

Liquor Control Act 1984

Cases Cited (5)

[1999] VSC 115

In Buzatu v. Vournazos [1970] VicRp 63; [1970] VR 476, Newton, J at 478 held that in proceedings such as these, there exists the "arbitrary rule" that where there exists a material conflict between parties' affidavits as to evidence given in the lower court, the version which supports the decision of the lower court should be accepted in the absence of a fair and practical method of resolving the conflict. In Aherne v. Freeman [1974] VicRp 17; [1974] VR 121 on an appeal such as the present, Crockett, J referred to authorities relevant to the task to be undertaken by this court on appeal from a lower court in order to reconcile conflicting accounts given as to the evidence before the lower court or what occurred during such proceedings. He stated at p.123 that "the general rule is that an answering affidavit (i.e. a party affidavit) is regarded as conclusive on questions of what occurred in the court below". His Honour then referred to that which was said by Mann, CJ in Thomson v. Lee [1935] VicLawRp 65; [1935] VLR 360 at p.362 where the Chief Justice said that that principle was no more than "a useful working rule (and) is not to be taken too absolutely or it would lend itself to abuse". Further, Crockett, J referred to the judgment of Sholl, J in Thompson v. Cross [1954] VicLawRp 89; [1954] VLR 635 at p.636 where his Honour referring to the practise of the court accepting an answering affidavit said that it, "Ought to be departed from in proper cases. The court cannot by a mere practice based on convenience, be relieved of, and still less can it be precluded from, fulfilling its duty to decide where the truth lies".

In BP Refinery (Westernport) Pty Ltd v. Hastings Shire Council [1977] HCA 40; (1977) 52 ALJR 20 at p.26 the majority of the court summarised the conditions necessary to give rise to an implied term in a contract. They are - "(1) It must be reasonable and equitable; (2) It must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; (3) It must be so obvious that 'it goes without saying'; (4) It must be capable of clear expression; (5) It must not contradict any express term of the contract."

(1985) 59 ALJR 481

(1977) 52 ALJR 20