Cullen v. Trappell.

Judges: Barwick CJ
Gibbs J
Stephen J
Mason J
Murphy J
Aickin J

Wilson J

Court:
Full High Court

Judgment date: Judgment handed down 1 May 1980.

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Wilson J.

In 1955 the House of Lords delivered its decision in the case of
British Transport Commission v. Gourley (1956) A.C. 185 . That decision sparked a wide ranging controversy which eventually found expression in the decision of this Court in
Atlas Tiles Ltd. v. Briers 78 ATC 4536 ; (1978) 52 A.L.J.R. 707 . In that case by a majority decision the Court determined that the rule in Gourley's case should no longer constitute the law for Australia.

This case requires the Court to reconsider its decision in the Atlas Tiles case . In doing so, it has had the benefit of detailed written submissions from the parties.

Each of the Justices who constituted the Court in the Atlas Tiles case delivered detailed reasons for the conclusions to which they came. Collectively, the judgments in that case amount to a thorough and comprehensive review of the issues that are involved. In the circumstances, I do not think that anything is to be gained by my writing a detailed opinion. The matter has been so fully canvassed that I am unable to contribute any fresh material to the debate.

It suffices for me to say that I agree entirely with the dissenting views expressed by Gibbs and Stephen JJ. in the Atlas Tiles case .

There were a number of other questions to be determined in this case. With regard to

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ATC 4206

these questions I have had the advantage of reading the reasons prepared by my brother Gibbs . I agree with those reasons.

I would therefore allow both the appeal and the cross-appeal, and make an order in the terms proposed by Gibbs J.

ORDER:

Allow the appeal and the cross-appeal.

Order that para. 2 of the order of the Court of Appeal of the Supreme Court of New South Wales be varied by substituting the words and figures ``the sum of $125,322'' for the words and figures ``the sum of $137,662''.

Order that the appellant pay the respondent's costs of the appeal and cross-appeal.