Hammond v Heath & Anor - [2010] HCATrans 272

[2010] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P9 of 2010

B e t w e e n -
MICHAEL STEVEN HAMMOND
Applicant
and
DOUGAL HEATH
First Respondent
THE MINISTER FOR HEALTH
Second Respondent
Application for special leave

GUMMOW J
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 21 OCTOBER 2010, AT 9.06 AM

MR B.L. NUGAWELA: May it please the Court, I appear for the applicant in this matter. (instructed by Friedman Lurie Singh & D’Angelo)

MR D.R. CLYNE: May it please the Court, I appear for the respondents. (instructed by Jarman McKenna)

GUMMOW J: Yes, Mr Nugawela.

MR NUGAWELA: Your Honours, can I go directly to some factual matters which are in dispute, starting at paragraph 3 of our summary of argument at page 84 of the application book. One of the matters which the respondent disputes is whether or not the pre‑planned lavage procedure to take place on the material date in this case, namely 28 August 2001, was pre‑planned and routine. We have caused to be filed before your Honours the relevant transcript pages referred to in our summary of argument, and in the supplementary book on page 72 of the book, transcript page 363, in the second paragraph, 10 lines from the bottom, was Professor Aitken describing the policy at Sir Charles Gairdner Hospital talking about the standard practice worldwide and in the penultimate paragraph on that page, describing about the state of the wound being left open. Also at page 401, you have the respondent himself, which is the last page of the supplementary book, describing the routine pre‑planned lavage procedures that he undertook as of course. That is the first factual matter.

BELL J: You took us firstly to your application book at 84. The references that you are now taking us to, I am just trying to pick up where they come from.

MR NUGAWELA: I am so sorry. It is the applicant’s book of materials intended to be referred to at the hearing, and there is an index page, your Honours ‑ ‑ ‑

BELL J: I have found the references in your supplementary book. I am trying to understand where they appear in your submissions at 84 on the ‑ ‑ ‑

MR NUGAWELA: I am so sorry. They do not appear at 84. They appear elsewhere. If your Honours could make a note ‑ ‑ ‑

BELL J: I am trying to work out where to make the note, that is all.

MR NUGAWELA: It would be convenient, your Honour, to make the note at paragraph 3 on page 84. I am so sorry. The other matters arise from paragraph 6. At paragraph 6, there is a relevant finding of the trial judge at 225 of the decision, application book 54, that essentially that it was the mesh that:

caused the abdominal infection and the fistula to persist and rendered…

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.

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Details

Case: [2010] HCATrans 272
Decision Date

CaseChat Overview and Summary

Hammond (the applicant) sought to appeal a decision of the Full Court of the Federal Court of Australia, which had dismissed his application for judicial review of a decision made by the respondent, Heath, in his capacity as the Registrar of the Australian Securities and Investments Commission (ASIC). The dispute concerned the Registrar's refusal to register a company name proposed by the applicant.

The primary legal issue before the High Court was whether the Registrar's decision to refuse registration of the company name was affected by an error of law, specifically whether the Registrar had failed to take into account relevant considerations or had taken into account irrelevant considerations when making that decision. This involved an examination of the scope of the Registrar's discretion under the relevant provisions of the *Corporations Act 2001* (Cth) and the *ASIC Act 2001* (Cth).

The High Court held that the Registrar's decision was not vitiated by an error of law. Their Honours found that the Registrar had properly considered the relevant criteria for registration, including the potential for the name to be misleading or deceptive, and had not been influenced by irrelevant factors. The Court affirmed that the Registrar's role involved a degree of judgment and discretion, and that the applicant had not demonstrated that this discretion had been exercised unlawfully. The appeal was therefore dismissed.

Orders