In the Matter of an Application by the Honourable John Charles White Pursuant to S86(1) of the Mental Health Act 1963 - [1989] TASSC 126

Serial No B48/1989
List “B”

COURT: SUPREME COURT OF TASMANIA

CITATION:In the matter of an application by the Honourable John Charles White pursuant to s86(1) of the Mental Health Act 1963 [1989] TASSC 126; B48/1989

PARTIES:  IN THE MATTER OF AN APPLICATION BY THE
  HONOURABLE JOHN CHARLES WHITE PURSUANT
  TO S86(1) OF THE MENTAL HEALTH ACT 1963

FILE NO:  M390/1989
DELIVERED ON:  7 November 1989
JUDGMENT OF:  Cox J

Judgment Number: B48/1989
Number of paragraphs:

Serial No B48/1989
File No M390/1989

IN THE MATTER OF AN APPLICATION BY THE HONOURABLE JOHN CHARLES WHITE PURSUANT TO S86(1) OF THE MENTAL HEALTH ACT 1963

REASONS FOR JUDGMENT COX J

7 November 1989

By an application filed on the 11 October 1989 the applicant sought the following orders:–

1That the applicant be appointed as the committee of the estate of Lady Veronica Louise White, pursuant to s86(1) of the Mental Health Act 1963.
2That the applicant be authorised to avoid or purport to avoid the sale by the said Lady Veronica Louise White of a Mercedes 230 SL coupe motor vehicle registered number AE 9575 to P.B. and sC. George of Glen Lusk in Tasmania pursuant to Part V Rule 10(1A) of the Rules of the Supreme Court 1965.
3That P B George, S C George, their servants and agents, the proprietor of the business known as IPEC and all persons served with copies of this order be restrained from selling, charging, encumbering or removing from Tasmania the said motor vehicle.

The application came before Underwood J as a matter of urgency on the same day ex parte. It was supported by material which prima facie established that the applicant's mother, aged nearly 81 years, was a patient within the meaning of the Mental Health Act 1963 and that she had recently sold a Mercedes motor car which it appears she no longer drove regularly and for which she had little further use to the Georges for $32,000, a figure which, on the affidavit evidence, could be significantly less than its true value. The evidence as to value was however far from being of any real cogency and consisted of estimates by persons whose qualifications to express such opinions were not established. Other material suggested that it was intended that the car be removed from the State within 24 hours.

As his Honour, on the material available to him, had reason to believe that the applicant's mother was a patient within the meaning of the Rules of Court, Part V r1, having regard to the apparent risk of the vehicle being taken out of the State within a few hours, in the exercise of the power given him by r10 of Part V of the Rules of Court, he authorised the applicant to make application as next friend of his mother for an order restraining the claimed purchasers of the vehicle, Mr and Mrs George, from removing the vehicle out of Tasmania and further ordered the Georges and others not to…

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

AGLC: In the Matter of an Application by the Honourable John Charles White Pursuant to S86(1) of the Mental Health Act 1963 [1989] TASSC 126
Case: [1989] TASSC 126
Decision Date: 7 November 1989

CaseChat Overview and Summary

The case involved an application by the Honourable John Charles White, who sought to be appointed as the committee of his mother, Lady Veronica Louise White, under section 86(1) of the Mental Health Act 1963. The application was necessitated by concerns that Lady White, who was nearly 81 years old and a patient within the meaning of the Act, had sold a Mercedes 230 SL coupe motor vehicle to P.B. and S.C. George of Glen Lusk, Tasmania, for what was considered to be significantly less than its true value. The applicant sought orders to prevent the sale and removal of the vehicle from Tasmania.

The primary legal issues before the court were whether John Charles White should be appointed as the committee of his mother's estate and whether an injunction should be granted to prevent the sale and removal of the motor vehicle. The court also needed to determine the appropriate costs orders in relation to the application.

The Supreme Court of Tasmania, in granting the application to appoint John Charles White as the committee, noted the urgency of the situation and the risk of the vehicle being removed from the state. The court found that the applicant acted with genuine concern for his mother's interests and that the application, though hastily prepared, was not improperly taken. The court also ruled that the applicant should be indemnified for his costs of and incidental to the application, including those ordered to be paid to the respondents. The court emphasised that the applicant should be fully indemnified for all properly incurred costs, aligning with the principles established in relevant case law.

Orders