David & Anor v David

[1993] HCATrans 383

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl06 of 1993

B e t w e e n -

JOHN JOSEPH HENRY DAVID

First Applicant

MILWANE PTY LIMITED

Second Applicant

and

JEAN NELLY REA DAVID by her

next friend,	THE PROTECTIVE
COMMISSIONER

Respondent

Application for special leave

to appeal

BRENNAN J

David 1 10/12/93

DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 1993, AT 4.10 PM

Copyright in the High Court of Australia

MR G.D. WOODS, QC:  May it please the Court, I appear for

the applicant, and with me, MR I.R. SANDERSON.

(instructed by Loiterton & Co)

MR D.P.F. OFFICER, QC: If the Court pleases, I appear with

my learned friend, MR H.K. INSALL, for the

respondent. (instructed by Connery & Partners)

MR WOODS:  Your Honours, might I hand up a brief outline.

BRENNAN J: Yes, Mr Woods.

MR WOODS:  Thank you, Your Honour. Your Honours, can I just

correct paragraph 2, it should be ''1983".	The
Protected Estates Act was 1983.

Your Honours, in 1983 some legislation was

enacted in this State which was quite radically

different from that which had preceded it. It had

been the product of a number of years of

discussion. The scope of the new section 13 which

deals with the matter of protective orders was

radically wider than the law previously had

allowed. So that it is the position today that any

person can be subject to such an order.

Your Honours, in the original judgment by

Mr Justice Windeyer, His Honour said he found it surprising that he should be compelled to the

result that he reached. No doubt, anyone involved

in this case would share that surprise.

Your Honours, that is at application book, page 2.

At first glance it would seem somewhat

extraordinary if an order having been made
that the plaintiff was incapable of managing

her affairs, she retained power to dispose of

her estate being estate committed to the

management of the Protective Commissioner.

But first impressions are not always correct

impressions.

Your Honours, we would submit it is a very

strongly arguable proposition for the Court

justifying a grant of special leave that this Court

might reach the view, on a consideration of this

important issue, that the language used in the 1983

Act and adopted in the other legislation which is

cognate with it in later years, results in a
situation where it is possible to discern two

policy positions, and I have referred to this at

paragraph 6, Your Honours, of my outline of

submissions.

It would seem that two different policy

positions can be discerned within the legislation,

David 10/12/93

page 53, lines 20 and following and in the judgment

and these are encapsulated within the judgment of

of His Honour the President, at pages 33 to 36. If

I can take Your Honours to Mr Justice Sheller, he

says:

To construe the Act as enabling the protected person to continue to deal with property the management of which is committed to the Protective Commissioner is to deny the plain

meaning of ss 22A, 24 and 26. Parliament

cannot have intended, contrary to the language

used, to give the Protective Commissioner the

power, authority and duty to manage the estate

and, at the same time, leave in the protected

person a right to defy that authority.

Now, by contrast, His Honour the President

took the view at 33 to 36, following an argument

revolving around the scheme of the Act, that the

language of section 26, in particular, and

section 75 is an insuperable obstacle to the view

that the Protective Commissioner must have

inevitably the sole management.

BRENNAN J:  The Act may lend itself to one of two

constructions.	The majority have taken one
construction; the minority another.	What is the

question of general public importance which should

justify a grant of special leave, instead of

leaving this to the ultimate New South Wales court

to determine?

MR WOODS:  Your Honours, although it is specific to New

South Wales, it is very important legislation,

dealing with a fundamental common law right, we

say, the right to deal with one's property. Now, I

have emphasized in my outline the point that was

taken up by the President but I would hope would

attract the attention of this Court, and that is

the proposition that it is a fundamental common law

right for a person to be able to deal with his

property, subject to the law generally, as he sees

fit.

BRENNAN J:  That can be accepted. Does the question of

construction raise any general question of

statutory construction? Is there some new

principle that has to be considered?

MR WOODS:  Your Honour, yes, it does. The application of -

the notion of the right to deal with one's property

as a fundamental right.

McHUGH J: There is nothing novel about that, is there?

David 3 10/12/93

MR WOODS:  Your Honour, its application in this case is

unique and very important, we would say.

BRENNAN J: It is important, no doubt, to those who are

under the application of the Act but why is it that

the New South Wales Court of Appeal should not be
the court to determine the construction of an Act

which, to use Justice Kirby's observations about

it, is full of disharmonious provisions? There is

no ultimately right answer, perhaps, if you have an

Act which is constructed in this way.

MR WOODS:  Your Honour, there are certain cases where

disharmony in the Act produces the result which I

have submitted here might be possible, that there

are two different policy positions that are

discernible. Your Honour, the reason why we would

submit that it is of significance that it would

attract the attention of this Court is because it

is so fundamental. Your Honour Justice McHugh

points out that the right to deal with one's

property has always been recognized as a

significant and fundamental common law right, but

this is legislation which transforms the old lunacy

law, the old mental health law, into a law which

affects everybody in the community, particularly

ageing people.

Although it is a New South Wales law, it does

obviously have national significance in the sense

that the problems and the entitlements of citizens
to deal with their property generally is something

that resounds and echoes in all jurisdictions.

Since Watson v Marshall in 1971, I know of no

significant attention that the High Court has given

to this kind of problem. It is an area that

attracts a great deal of practical day-to-day work

from many people who administer these estates; it

affects many thousands of people in this State, but unlike shares, the criminal law which is constantly

litigated in the supreme tribunal of this country,

the area of mental illness and those things flow

from and surround mental illness and its related

aspects are rarely litigated in the supreme

tribunal. My respectful submission would be that

this is a convenient opportunity for the Court to

consider some very fundamental issues that are

raised by this case.

Your Honours, we say that there is a division

of judicial opinion, which is one of the matters

that is sometimes taken into account by this Court.

It has obviously been resolved now in the sense

that there has been a 2:1 decision of the Supreme

Court of New South Wales but it is something that

Your Honours would often take into account. The

David 4 10/12/93

scope of secti?n 13, Your Honour, is something that

I would urge upon you as a consideration of broad

and fundamental significance. It affects every

person in New South Wales. Whereas, previously
under the lunacy laws and the Mental Health Act a

protective order could only be made if a person

were mentally ill as found or mentally infirm; now

the opportunity for that order to be made is, in

effect, with respect to every citizen of the State.

The significance, we say, of this point will

increase as time goes by. The question here is

does the Protective Commissioner, given the order

that is made, have the sole power or is there some

residual power left in the person against whom the

order is made. Your Honours, if it were the case

that the new legislation was not as extensive as it

is and there was simply some wording alterations

that affected the old lunacy principle being

brought forward into the 1990s, I would not be able
to put to Your Honours with such force the

proposition that it is of great importance but it

is precisely because this new principle applies

affecting everybody in the community that the issue

of the correctness of the Court of Appeal decision

is something that ought to be of concern.

Your Honours, as to the proposition which

Your Honour Justice Brennan advances, that it may

be that there are simply two views, one of which

could be chosen, a position that sometimes complex

law forces appeal tribunals to grapple with, we

would respectfully submit that although two views

are discernible, the way this case presents itself admits of only one position, the position taken by

Mr Justice Windeyer and a position taken by ·

Mr Justice Kirby, that is to say, once you accept

that section 26 and section 75 mean that there is a residual power in the person against whom the order is made then it follows, as night follows day, that the blanket proposition, which is the only thing in

contest here, that is to say, the blanket

proposition advanced by the Protective

Commissioner, that in every case he has total

control unfettered by any right in the person

affected, that that principle is in issue.

So, Your Honour, we would respectfully submit

that it is a very important issue. There is a

division of the court. The construction that

Mr Justice Windeyer comes to with, he says,

surprise, is, on the language, correct, and we
would respectfully submit that it is an error to

look broadly at this legislation and to say, "Well, the purpose is such-and-such", so the position that

Mr Justice Sheller finds is correct.

David 10/12/93

The question of purposive interpretation

really only can arise, in my submission, in a

situation where legislation has a very clear

purpose, where it is manifest in the legislation and perhaps even in the second reading speeches, where you have got a lack of clarity, a confused

welter of legislation over some years, as the positions being advanced by one party or another, then the true and correct position for the courts to take is to look to the language. That is the

resort that must be had. The scope of purposive

interpretation, whatever it be, is not in such

cases as this. So, in our respectful submission,

the correct. interpretation is the original

interpretation by the trial judge and, as we say,

we would urge upon you that there are strong

reasons of general principle why this matter should

be dealt with by way of full appeal. Your Honours,

those are my submissions.

BRENNAN J:  We need not trouble you, Mr Officer.

MR OFFICER: If Your Honour pleases.

BRENNAN J:	The question of construction of the Protected Estates Act 1983 (N.S.W.) to which this case gives
rise is clearly a difficult one. As the judgments
in the Court of Appeal show, two constructions, at least, are open. There is, however, no disputed principle of law involved which would justify the
intervention of this Court to enable a further
canvassing of that question of construction.
Accordingly, special leave will be refused.

MR WOODS: If the Court pleases.

MR OFFICER:	I see an order for costs, Your Honour.
BRENNAN J:	Have you anything to say about that?

MR WOODS:	Your Honour, we would respectfully submit that in the circumstance of this case, it being a case in
which, peculiarly, two positions legitimately might
have been advanced and two positions taken,
Your Honours would, in the circumstances, the
respondent being the Protective Commissioner, not
order costs.

It is not merely an arguable case,

Your Honours, we would have said, it is a case that fails before you on a basis where no blame can be

attributed to the applicant for bringing the

litigation forward to this point. If Your Honours

please.

David 6 10/12/93

BRENNAN J: It will be refused with costs.

MR WOODS: If Your Honour pleases.

AT 4.29 PM THE MATTER WAS ADJOURNED SINE DIE

David 10/12/93