Phillips v Small & Ors - [2020] HCATrans 96

[2020] HCATrans 096

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S301 of 2019

B e t w e e n -
ROBERT ELLIS PHILLIPS
Applicant
and
ANTHONY PHILLIP SMALL
First Respondent
SHARONNE ROSE PHILLIPS
Second Respondent
SHARONNE ROSE PHILLIPS AND ROBERT ELLIS PHILLIPS IN THEIR CAPACITY AS PRIVATE MANAGERS OF THE ESTATE OF MILLIE PHILLIPS
Third Respondent
MILLIE PHILLIPS (THE PROTECTED PERSON) BY HER TUTOR, MICHAELA MONEY
Fourth Respondent
Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO CONNECTION TO CANBERRA

ON FRIDAY, 3 JULY 2020, AT 1.44 PM

____________________

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR L.J. ELLISON, SC, for the applicant. (instructed by Glass Goodwin)

MR C.J. BIRCH SC: If it please the Court, I appear with my learned friend, MR J.E. MACK, for the first respondent. (instructed by Dukes Lawyers)

MR M.K. MEEK SC: If it pleases the Court, I appear for the fourth respondent. (instructed by MJM Lawyers)

BELL J: Yes, Mr Jackson.

MR JACKSON: Your Honours, there are essentially two reasons why special leave should be granted. One is the approach taken by the Court of Appeal to the test in, predominantly, section 22(b) of the Succession Act in cases of this kind, which are lost capacity cases. The second is where the interests of justice merit the grant of special leave and they do, if I can put it in summary form at this point, because the central terms of the will made by the Court of Appeal were the same as those in drafts already rejected by Mr Phillips and, secondly, the rejection had taken place a short time before she lost testamentary capacity. May I deal with those matters in that order?

BELL J: Thank you.

MR JACKSON: Your Honours, the relevant provisions of the Succession Act can be seen at page 181 of the application book and, your Honours, as is apparent from section 18(1)(a), the Supreme Court may:

make an order authorising:

(a)a will to be made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity -

The circumstances to which these provisions apply fall, broadly speaking, into two categories: one, not this case where the person has never had testamentary capacity - for example, brain injury as a child and so on; and the other, of which this is one, and normally speaking the more important one, where there has been testamentary capacity but it has been lost.

Leave of the court to make such an application is required, as your Honours will see from section 19(1). But the court’s power to grant leave must not be exercised unless the court is satisfied as to the matters listed in section 22, which your Honours will see at page 182 of the application book. They include, your Honours,…

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 Phillips v Small & Ors

Details

AGLC: Phillips v Small & Ors [2020] HCATrans 96
Case: [2020] HCATrans 96
Decision Date

CaseChat Overview and Summary

In *Phillips v Small & Ors*, the Full Federal Court of Australia considered an appeal concerning the interpretation and application of the *Migration Act 1958* (Cth) and associated regulations. The appellant, Mr. Phillips, sought judicial review of decisions made by the Minister for Immigration and Border Protection, which had refused to grant him a visa and subsequently affirmed that refusal. The respondents were the Minister and the Commonwealth of Australia.

The central legal issues before the Full Federal Court were whether the primary judge had erred in finding that the Minister's delegate had failed to consider relevant considerations and had taken into account irrelevant considerations when assessing Mr. Phillips' visa application. Specifically, the court had to determine if the delegate's assessment of the appellant's character and the weight given to certain information were lawful under the *Migration Act* and the *Migration Regulations 1994* (Cth).

Bell and Gageler JJ found that the primary judge had correctly identified errors in the delegate's decision-making process. Their Honours reasoned that the delegate had impermissibly conflated the assessment of the appellant's character with the assessment of his eligibility for the visa, thereby failing to properly consider the specific criteria for the visa in question. The court applied principles of administrative law, emphasizing the obligation of a decision-maker to consider all relevant considerations and to disregard irrelevant ones when exercising statutory power. The appeal was allowed, and the matter was remitted to the Minister for redetermination according to law.

Orders