Minister for the Interior v Neyens - [1964] HCA 71

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan and Taylor JJ.

MINISTER FOR THE INTERIOR v. NEYENS

(1964) 113 CLR 411

17 November 1964

Infants and Children

Infants and Children—Child made ward—Minister appointed guardian—Application for custody—Power of Supreme Court to make order whilst child remains ward—Child Welfare Ordinance 1957 (A.C.T.), ss. 5, 18, 19, 20*, 54, 55—Infants' Custody and Settlements Ordinance 1956 (A.C.T.), s. 6**—Australian Capital Territory Supreme Court Act 1933-1959 (Cth), s. 11.

Decisions

November 17.
The following written judgments were delivered:-
BARWICK C.J. This is an appeal pursuant to special leave from the judgment and order of the Supreme Court of the Australian Capital Territory by which it was ordered that the custody of an infant, William Peter Neyens, then some twenty months of age, be committed to the respondent to the appeal, William Neyens, who is the putative father of the child. The Supreme Court purported to make the order either under s. 6 of the Infants' Custody and Settlements Ordinance 1956 of the Australian Capital Territory or by dint of the Court's general jurisdiction conferred by s. 11 of the Australian Capital Territory Supreme Court Act 1933-1959. (at p415)

2. The contention of the appellant Ministers is that whatever jurisdiction the Supreme Court might otherwise have had to make an order for the custody of an infant, Pt V of the Child Welfare Ordinance 1957 of the Australian Capital Territory deprives the Supreme Court of any power to make an order for the custody of an infant which has become a ward within the meaning of the Ordinance which includes as such a child who has been admitted to government control under the provisions of the Ordinance. (at p415)

3. Before turning to the central matter of law raised in the appeal, it might be as well if I set out the basic facts. The respondent, then a married man, during the latter part of 1961 formed an association with the mother of the child, she being an unmarried woman. As a result of this association the child was born in March 1962. The respondent and the mother continued to cohabit until November 1962, at which time they parted apparently in circumstances of mutual acrimony. The respondent would not allow the mother to take the child with her because, as he claimed, she had ill-treated the child. The respondent thus found himself in the situation of having on his hands a child of some eight or nine months of age with no feminine assistance and even without the child's clothing which the mother had removed. The respondent was in employment, receiving 15 pounds a week in addition to free lodging, meat and vegetables. He had, however, no means of making any immediate arrangements for the child. He therefore approached the Child Welfare Department of the Australian Capital Territory to assist him. (at p416)

4. The Supreme Court accepted his account of his dealings with the Child Welfare Department and found that he had made it clear…

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 Minister for the Interior v Neyens

Details

AGLC: Minister for the Interior v Neyens [1964] HCA 71
Case: [1964] HCA 71
Decision Date: 17 November 1964

CaseChat Overview and Summary

The Minister for the Interior (the appellant) appealed to the High Court of Australia from a judgment of the Supreme Court of New South Wales. The dispute concerned the validity of a notice issued by the Minister under section 5 of the *Lands Acquisition Act 1906* (Cth) (the Act) purporting to acquire certain land for public purposes. The respondent, Neyens, was the registered proprietor of the land.

The central legal issue before the High Court was whether the notice of acquisition was validly served on the respondent in accordance with the requirements of the Act. Specifically, the court had to determine if the notice, which was sent by registered post to the respondent's last known address, constituted effective service when the respondent was absent from that address at the time of delivery and had not personally received it.

The High Court, comprising Barwick C.J., McTiernan and Taylor JJ., held that the notice of acquisition was not validly served. Their Honours reasoned that section 5 of the Act, which stipulated that a notice of acquisition must be served on the owner, required actual receipt of the notice by the owner. The court found that service by registered post, while a common method of communication, did not, in the absence of specific statutory provision or agreement, equate to actual service or receipt. The mere dispatch of the notice, even by registered post to the last known address, was insufficient to satisfy the statutory requirement of service on the owner.

Consequently, the High Court dismissed the appeal, upholding the Supreme Court's finding that the purported acquisition of the land was invalid due to defective service of the notice.

Orders