JDP v Gop - [1994] HCATrans 189

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S140 of 1993
B e t w e e n -

Applicant

and
~

Respondent

Case stated and cause removed
pursuant to section 40(1) of
the Judiciary Act 1903)

MASON CJ

BRENNAN J

DEANE J
DAWSON J

TOOHEY J

GAUDRON J
MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY. 2 FEBRUARY 1994. AT 11.16 AM

P(2)

2/2/94

MR D.F. JACKSON, OC: If the Court pleases, I appear with my

learned friend, MR R.I. MAURICE, for the applicant

in the Family Court, the mother. (instructed by
Lesley Strong)

MR K. MASON, OC, Solicitor-General for New South Wales: If

the Court pleases, I appear with my learned friend,
MR L.S. KATZ, for the Attorney-General for New
South Wales who made application for the matter to

be removed. (instructed by the Crown Solicitor for
New South Wales)
Subject to directions of the Court, it would be proposed that I would address the Court first.
I understand, Your Honours, that the respondent,
Mr P, is in the presence of the Court and he has
indicated he would wish to address the Court.

MR G. GRIFFITH, OC, Solicitor-General for the Commonwealth:

If the Court pleases, I appear with my learned
friends, MR A. ROBERTSON and MR C.S. STAKER, to
intervene for the Attorney-General of the

Commonwealth to support power. (instructed by the
Australian Government Solicitor)

MR J.J. DOYLE, OC, Solicitor-General for South Australia:

If the Court pleases, I appear with MS G.L. EBBECK for the Attorney-General for the State of South
Australia to intervene in support of the
Attorney-General for the State of New South Wales.
(instructed by the Crown Solicitor for South
Australia)

MR M.G. NICHOLLS: If it please the Court, I appear for the

Human Rights and Equal Opportunity Commission.
(instructed by the Human Rights and Equal
Opportunity Commission)
The Commission will be seeking leave to

intervene in this matter at an appropriate stage

subject to anything the Court may wish to say about
that.

MASON CJ:

You defer making application until later in the

proceedings?

MR NICHOLLS:

At this stage I think it would be appropriate,

Your Honour, but we indicate our intention to
intervene.

MASON CJ:

Very well.

You can make application at some

later stage. If the respondent proposes to address
the Court, then perhaps the respondent should sit

at the bar table if h~ wants to. Yes, Mr Jackson.

P(2)	2	2/2/94
MR JACKSON:	Your Honour, I am happy to go first.	I thought

my learned friend had indicated that as the moving
party he -

MASON CJ:

Does the respondent wish to address the Court

first?

MR P:	No, Your Honour, but I would like to make .....
MASON CJ:	Mr Solicitor for New South Wales?
MR MASON:	I believe Your Honours have just recently been

given copies of the outline of the submissions, and
they are in fact longer than the application book.

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 JDP v Gop

Details

AGLC: JDP v Gop [1994] HCATrans 189
Case: [1994] HCATrans 189
Decision Date

CaseChat Overview and Summary

This case involved an application made in the Family Court of Australia by a mother, identified as Mrs P, concerning a proposed medical procedure for her child, who was 16 years old at the time. The matter was subsequently removed to the High Court of Australia. The Attorney-General for New South Wales and the Attorney-General for the Commonwealth intervened in the proceedings, as did the Human Rights and Equal Opportunity Commission.

The central legal issue before the High Court was the interpretation and application of the Guardianship Act 1987 (NSW), particularly in relation to the capacity of a 16-year-old child to consent to or refuse a medical procedure, and the extent to which the Act prohibited such procedures. The court was required to consider amendments to the Act, some of which had recently commenced operation.

The Solicitor-General for New South Wales, appearing for the Attorney-General for New South Wales, informed the Court that arrangements had been made regarding the costs of the applicant below, Mrs P, meaning no order for costs would be necessary regardless of the outcome. The proceedings focused on the scope of the prohibitions within the Guardianship Act 1987 (NSW) concerning medical procedures for individuals of the child's age.

Orders