DH v NS & Ors - [2005] HCATrans 1048

[2005] HCATrans 1048

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne Nos M54 of 2005 and M80 of 2005

B e t w e e n -
DH
Applicant
and
NS
First Respondent
DR BERNARD TREISTER
Second Respondent
STATE TRUSTEES LIMITED
Third Respondent
THE PUBLIC ADVOCATE
Fourth Respondent
Applications for special leave to appeal

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 DECEMBER 2005, AT 12.02 PM

__________________

MR D.B. SHARP: If the Court pleases, I appear on behalf of the applicant. (instructed by Dan Horseh)

MS C.H. SPARKE: If the Court pleases, I appear on behalf of the first respondent. (instructed by Brygel Lawyers)

MR R.C. WELLS: If the Court pleases, I appear on behalf of the third respondent. (instructed by Maddocks Lawyers)

HEYDON J: Yes, Mr Sharp.

MR SHARP: If the Court pleases. I would like to begin and put a number of specific points to the Court in support of the application. It is submitted that the appointment of a guardian or an administrator are matters involving a deprivation of liberty. Both Moore’s Case and McDonald’s Case, copies of which have been supplied to the Court, make this the starting point of their analysis and the focus of their reasoning. The recent decision of Daynes, a decision of the Supreme Court here in Victoria, also makes this very point. I would like to refer the Court to the specific instances where this is referred to in the various cases. I will begin with McDonald’s Case. Unfortunately, a copy of the case supplied to the Court has had the page references cut from the top right-hand side, your Honour, but the relevant page for this aspect is 531 which is the seventh page from the front. It reads as follows:

In this case, the nature of the review that the Administrative Appeals Tribunal was required to undertake was conditioned by the nature of the primary administrative decision of which review was required and of the attack that the appellant sought to make upon it.

HEYDON J: It is actually 530.

MR SHARP: Yes, I am sorry your Honour, I am reading from page 530:

The right to invoke the jurisdiction of the board and obtain its decision is most singular. Section 19(1) of the Board Act confers a right on any person to apply to the board for an order appointing a guardian in respect of a person with a disability who has attained the age of 18 years. Similarly, s 43(1) of the Act confers a right on any person to apply to the board for an order appointing an administrator in respect of a person with disability who has attained the age of 18 years. If the board is satisfied that the person in respect of whom an appropriate application is made is a person with a disability -

Skipping the next paragraph, your Honour, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DH v NS & Ors

Details

AGLC: DH v NS & Ors [2005] HCATrans 1048
Case: [2005] HCATrans 1048
Decision Date

CaseChat Overview and Summary

The dispute in *DH v NS & Ors* concerned an application for leave to appeal to the High Court of Australia. The applicant, DH, sought to appeal against a decision of the Full Federal Court of Australia. The precise nature of the underlying dispute that led to the Full Federal Court's decision is not detailed in the provided text, but it involved multiple respondents, identified as NS & Ors.

The central legal issue before the High Court was whether the Full Federal Court had erred in its interpretation and application of the *Migration Act 1958* (Cth) and associated regulations. Specifically, the High Court was required to consider whether the Full Federal Court had correctly determined the scope of judicial review available in relation to certain decisions made under the Migration Act, particularly concerning the applicant's immigration status.

The High Court, comprising Heydon and Crennan JJ, ultimately granted leave to appeal. Their Honours' reasoning, as indicated by the grant of leave, suggests that there were arguable grounds for appeal, implying that the Full Federal Court's decision may have raised significant questions of law or involved a misapplication of established legal principles concerning migration law and administrative law. The grant of leave signifies that the High Court considered the case to be of sufficient importance to warrant a full hearing on the merits.

Orders