Re Hodges, Andrew Philip - [1998] TASSC 96

96/1998

PARTIES: HODGES, Andrew Philip, Re

TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

JURISDICTION: APPELLATE

FILE NOS: FCA 119/1997

DELIVERED: 17 August 1998

HEARING DATES: 9, 10 March 1998

JUDGMENT OF: Underwood, Crawford and Slicer JJ

CATCHWORDS:

Mental Health Act - Management and administration of property - General matters - Jurisdiction of court - Whether jurisdiction under Charter of Justice remains or has been removed or affected by legislation - Damages for personal injuries paid to administrator under Guardianship and Administration Act 1995 (Tas) - Application to court to expend part of damages on land and house.
RH v CAH [1984] 1 NSWLR 694; re WM (1903) 3 SR (NSW) 552, applied.
Charter of Justice (Tas), cl22.
Guardianship and Administration Act 1995 (Tas).
Aust Dig Mental Health [8]
Procedure - Supreme Court procedure - Tasmania - Jurisdiction and generally - Whether jurisdiction under Charter of Justice remains or has been removed or affected by legislation - Damages for personal injuries paid under order to Public Trustee for investment for benefit of person mentally incapacitated - Public Trustee administrator of property of person under Guardianship and Administration Act 1995 (Tas) - Application to court to expend part of damages on land and house.
RH v CAH [1984] 1 NSWLR 694; re WM (1903) 3 SR (NSW) 552, applied.
Charter of Justice (Tas), cl22.
Guardianship and Administration Act 1995 (Tas).
Supreme Court Civil Procedure Act 1932 (Tas), ss2(4)(a), 6(1), 187.
Rules of Court (Tas) O24, r11.
Aust Dig Procedure [265]
Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Payment into and out of court and tender - Damages for personal injuries - For person under disability - Mental incapacity - Damages paid under order to Public Trustee for investment - Public Trustee administrator under Guardianship and Administration Act 1995 (Tas) - Application for authority to expend on land and house - Whether court has jurisdiction - Whether application should have been made to Guardianship and Administration Board.
RH v CAH [1984] 1 NSWLR 694; re WM (1903) 3 SR (NSW) 552, applied.
Charter of Justice (Tas), cl22.
Guardianship and Administration Act 1995(Tas).
Supreme Court Civil Procedure Act 1932 (Tas), ss2(4)(a), 6(1), 187.
Rules of Court (Tas) O24, r11.
Aust Dig Procedure [273]

REPRESENTATION:

Counsel:

Appellant: P Turner
Amicus Curiae: D J Bugg QC

Solicitors:

Appellant: Public Trustee

Judgment category classification:

Court Computer Code:

Judgment ID Number: 96/1998

Number of pages: 13

Serial No 96/1998

File No FCA 119/1997

IN THE MATTER OF THE AFFAIRS OF ANDREW PHILIP HODGES and IN THE MATTER OF THE GUARDIANSHIP AND ADMINISTRATION ACT 1995 and IN THE MATTER OF ORDER 24 RULE 11 OF THE RULES OF THE SUPREME COURT; ex parte THE PUBLIC TRUSTEE

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD J

CRAWFORD J

SLICER J

17 August 1998

Orders of the Court:

1       Appeal allowed.
2       Order dismissing application set aside.
3       Application remitted to his Honour Mr Justice Wright for further hearing.

Serial No…

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 Re Hodges, Andrew Philip

Details

AGLC: Re Hodges, Andrew Philip [1998] TASSC 96
Case: [1998] TASSC 96
Decision Date: 17 August 1998

CaseChat Overview and Summary

This case involved an appeal by the Public Trustee, who sought approval from the Court to expend part of a damages award for the benefit of Andrew Philip Hodges, a quadriplegic individual deemed mentally incapacitated. The appeal was heard by the Full Court of the Supreme Court of Tasmania. The central legal issue was whether the Court retained jurisdiction to make such orders under the Charter of Justice, or whether this jurisdiction had been removed or affected by the enactment of the Guardianship and Administration Act 1995. The Court concluded that the jurisdiction under the Charter of Justice remained, and that the Public Trustee's application should have been made to the Guardianship and Administration Board rather than to the Court. However, the Court found that it had jurisdiction to make the orders sought, as the Master had directed specific investment of the damages in securities authorised by law, including first mortgages of real estate in Tasmania. The Full Court set aside the order dismissing the application and remitted the matter to the primary judge for determination on its merits.

Orders