Room v Baird [1915] HCA 3; (1915) 19 CLR 283 (15 February 1915)

HIGH COURT OF AUSTRALIA

Room and Others Appellants; and Baird and Others Respondents.

H C of A

On appeal from the Supreme Court of Tasmania.

15 February 1915

Griffith C.J., Isaacs and Gavan Duffy JJ.

Martin and Tasman Shields, for the appellants.

Dennis Butler, for the respondents,

Griffith C.J.

This is an appeal from an order of Dobbie J. dismissing an originating summons which asked for the determination of certain questions as to the construction of the will of Christina Room. The testatrix gave a sum of £10,000 (which was ultimately reduced in consequence of a deficiency of assets) upon trust to pay the income to her husband for his life and after his death to pay and divide the income equally between her five children for their respective lives, with power to appoint the capital of their respective shares by deed or will. The husband is still alive. Three of those children claim to be entitled to exercise the power of appointment by deed in their own favour, and claim that, as upon such appointment the life interest and the remainder in each share will be vested in the same person, they will respectively be absolutely entitled to the capital subject only to the life interest of their father. One of the children has already executed such a deed of appointment. Dobbie J. thought that their claim could not be entertained on the ground that the matter was res judicata, the point having been already determined against them by McIntyre J. in 1908 on an originating summons taken out by the trustees of the will. The present appellants were parties to that summons, and were represented by counsel on the argument. The question whether these three children were entitled to exercise the right they now claim was not specifically asked by the summons, but in the order as drawn up it was declared that they took life interests after the death of their father with general power of appointment by deed or will of their respective shares of the sum representing the £10,000, "the said respective shares to remain in the hands of the trustees during the respective lives" of such children. This was in substance a declaration that upon the proper construction of the will such appointments, whether made by deed or by will, would not take effect in possession until after the death of the appointors. The appellants contend that that decision has not the effect of res judicata.

As I understand the argument, it is contended that a decision upon an originating summons is not a judgment inter partes. It has often been assumed, and has, I think, never been doubted, that a decision inter partes on a question of construction upon an originating summons is on the same footing as any other decision of the Court. The order of McIntyre J. could only have been made under the provisions of sec. 45 of the Trustee Act 1898, since the alternative provisions of a former Statute, which allowed trustees to ask for the advice of the Court, had been repealed. The form of the proceedings under which the order was obtained appears to have been rather in accordance with the repealed provision, but the order must be taken to have been made under sec. 45. Although the particular question was not asked specifically, I find on looking at the papers that the Court was asked to answer "any other questions that might arise," and it appears from the report of the case in 4 Tas. L.R., 18, that this question was solemnly argued and decided. That decision was not appealed from, and it is impossible for any Court afterwards in proceedings between the same parties to re-open the question.

The learned Judge, in giving his reasons for his judgment, referred to the language of McIntyre J. as reported. Strictly speaking, of course, we can only look to the formal judgment of the Court, which alone is matter of record and operates as res judicata. But upon reading the words of the order it is clear that the matter now sought to be raised was solemnly decided. The appellants are, therefore, not entitled to have the question re-opened, and the appeal fails.

Isaacs J.

I agree. I think this case is absolutely covered by the case of Badar Bee v. Habib Merican Noordin[1].

Gavan Duffy J.

I concur.

Appeal dismissed with costs.

Solicitors, for the appellants, Martin & Hobkirk.

Solicitor, for the respondents, W. Mosey.

[1] (1909) A.C., 615.