Clarke v Kerr [1955] HCA 55

H. C. or A.

1956. XN HoLLoway v. McFEETERS.

Kitto J.

HIGH COURT [1956.

evidence against him; but in the present action no admission by the motorist can be receivable as such, for the motorist is not the defendant and an admission forms no part of the facts which constitute the plaintiff's title to recover against the motorist. I express no opinion as to whether the flight of the motorist could properly be treated in an action against him as importing an admission, but in the present action it appears to me to add nothing of any significance to the case.

The jury were entitled to find for the plaintiff if they were reasonably satisfied of the facts constituting her case, and they might be so satisfied on any real balance of probabilities, slight though it might be. On the material before them, however, it seems to me that when all is said and done the true explanation of the collision was left wholly in the realm of conjecture. It provided them with no foundation that I can discern for reaching any state of mind which could properly be called a satisfaction. I am therefore of opinion that the learned trial judge was right in ordering that judgment be entered for the defendant.

The appeal, in my opinion, should be allowed and the order of Gavan Duffy J. restored.

Appeal dismissed with costs.

Solicitor for the appellant, Norman M. Morrison. Solicitors for the respondent, J. W. & F. Galbally.

Re DB.

94 C.L.R.] OF AUSTRALIA. 489

[HIGH COURT OF AUSTRALIA.]

CLARKE . ; : ; ' ; , : APPLICANT 3} INFORMANT, AND KERR f : : ; : ' A : RESPONDENT. DEFENDANT,

Constitutional Law—Industrial arbitration—Conflict between State statute and WY, ©, or A. Federal award—Motor spirit, oil and accessories—Sale thereof—Hours fixed by 1955. statute—Employees' hours for work—Provision in Federal award—Consistency seo end —State statute—Validity—The Constitution (63 & 64 Vict. c. 12), 8. 109— SyDNEY, Conciliation and Arbitration Act 1904-1952—Judiciary Act 1903-1950, s.40— Arg. 8, 9;