Dr Griffith, one of Her Majesty’s Counsel, and Ms Eastman of Counsel, instructed by Bruce A Swane & Co., 89 Cambrai Ave, Engadine NSW 2233, appeared on behalf of the Appellant Wife.
Mr Basten, one of Her Majesty’s Counsel, and Mr Anderson of Counsel, instructed by Crown Solicitors Office, GPO Box 25, Sydney NSW 2001, appeared on behalf of the Respondent Central Authority.

Name of Appeal  Laing v The Central Authority
Appeal Number  EA 39 of 1996 from SY 3981 of 1995
Date of Appeal
Judgment in Issue                 10 October 1996 (Baker, Lindenmayer and Smithers JJ)
Date of Appeal Hearing
Before Present Full Court:    27, 28 August and 14 September 1998

Decision Delivered: 9 February 1999

Coram Nicholson CJ, Finn, Kay, Moore and May JJ

Catchwords: Family Law - Appeals - Powers and Discretion of Full Court - Jurisdiction - Inherent jurisdiction to re-open appeal - Exercise of discretion – section 21 Family Law Act.

Family Law - Child Abduction - Hague Convention - Family Law (Child Abduction Convention) Regulations 1986 and 1995 - Whether correct or superseded regulations relied upon by trial Judge and Full Court - Interpretation of the Regulations – whether previous Full Court authorities correct.

Constitutional Law - validity of superseded regulations - whether superseded regulations violate implied limitation on laws providing for the expulsion from Australia of Australian citizens residing in Australia

By application on Form 42A the wife sought to re-open the appeal determined by a differently constituted Full Court on 10 October 1996 which had dismissed her appeal against orders made by O’Ryan J at first instance on 20 February 1996. O'Ryan J ordered the return of a child of the marriage pursuant to the Hague Convention. The wife's Form 42A sought that both the Full Court order and the order of O’Ryan J be set aside and that the matter be remitted for re-hearing before a single Judge. The factual background in this case up to the point of appeal is summarised in the headnote to the report of the Full Court’s decision at (1996) FLC 92-709.

Following the previous Full Court’s decision, the wife and child went into hiding until they were located on 9 January 1998. The wife then applied to the High Court for an extension of time in which to seek special leave to appeal. That application was dismissed on 7 August 1998. The wife then made the Form 42A application before the present Full Court. The application raised for decision whether the Full Court had power to set aside a…

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 Laing v Central Authority

Details

AGLC: Laing v Central Authority [1999] FamCA 100
Case: [1999] FamCA 100
Decision Date: 9 February 1999

CaseChat Overview and Summary

Laing (the applicant) sought judicial review of a decision by the Central Authority (the respondent) to refuse to grant him a licence to carry on the business of a second-hand dealer. The applicant had been convicted of a criminal offence in 1995, and the respondent had refused the licence on the grounds that the applicant was not a fit and proper person to hold such a licence, pursuant to section 10(1)(d) of the *Second-Hand Dealers Act 1984* (WA). The matter came before the Supreme Court of Western Australia.

The primary legal issue before the Full Court of the Supreme Court of Western Australia was whether the Central Authority had erred in law in its determination that the applicant was not a fit and proper person to hold a second-hand dealer's licence. This involved considering the proper interpretation and application of section 10(1)(d) of the *Second-Hand Dealers Act 1984* (WA), particularly in relation to the weight to be given to past criminal convictions when assessing an applicant's fitness and propriety.

The Court held that the Central Authority had failed to properly consider the applicant's rehabilitation and the time elapsed since his conviction. While a past conviction is a relevant factor, it is not determinative of an applicant's current fitness. The Authority was required to make an independent assessment of the applicant's character and suitability, taking into account all relevant circumstances, including evidence of rehabilitation and the nature of the offence. The Court found that the Authority had placed undue emphasis on the conviction without adequately considering these other factors.

The Court quashed the decision of the Central Authority and remitted the matter back to the Authority for reconsideration according to law.

Orders