Re Marshall & Ors, Ex parte Mighell - [1995] HCATrans 306

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IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M59 of 1995

IN THE MATTER OF:

AN APPLICATION FOR WRITS OF PROHIBITION MANDAMUS AND CERTIORARI AGAINST THE HONOURABLE JUSTICE SHANE RAYMOND MARSHALL, A JUDGE OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA, DEREK GRAHAM NICHOLSON and AUSTRALIAN ELECTORAL COMMISSION

ex parte:

MIGHELL and MARSHALL

DAWSON J (In Chambers)

AT MELBOURNE, FRIDAY THE 20TH DAY OF OCTOBER 1995

DR C. JESSUP QC: I appear with my learned friend, MR H. BORENSTEIN, on behalf of the Prosecutors.

MR A. O'DONOGHUE: I appear for the third named respondent, the Australian Electoral Commission.

MR B. SHAW: I appear for the second named respondent, Mr Derek Graham Nicholson.

HIS HONOUR: Dr Jessup.

DR JESSUP: Your Honour, this is an application for prerogative relief in relation to a decision made by a Judge of the Industrial Relations Court in a proceeding from which there is no appeal to the Full Court of that Court because it arises in an election inquiry.

HIS HONOUR: You do have some appeals on foot, do you?

DR JESSUP: We do have some appeals on foot.

HIS HONOUR: But they will not take you the whole distance?

DR JESSUP: They will not, your Honour, no.

HIS HONOUR: No.

DR JESSUP: And, relevantly, they will not take us any useful distance at all if there is an election to be held pursuant to the orders of his Honour.

HIS HONOUR: Yes.

DR JESSUP: Your Honour, there are a couple of matters which need to be dealt with this morning in our submission. There is a consent to remit it to the Court.

HIS HONOUR: There is some difficulty about that, is not there, or maybe?

DR JESSUP: Yes, your Honour. This will not be the first occasion upon which a decision of a Judge of that Court has been challenged this way and the proceeding is remitted back and dealt with by a Full Court of that Court.

HIS HONOUR: I think I have been guilty of remitting something in those circumstances.

DR JESSUP: Yes, your Honour. The matter to which we refer is Re Keely ex parte Kingham, and the Full Court ultimately dealt with that and the Full Court observed that it was a curious procedure that it should come back to a Full Court.
HIS HONOUR: What is the citation?

DR JESSUP: In effect on a jurisdictional challenge.

HIS HONOUR: Yes. What is the citation of that case?

DR JESSUP: That, your Honour, is 129 ALR 255, and we will just draw your Honour's attention to the passage in which the Full Court reflected upon the oddity of the procedure but, nonetheless, it seems to be quite squarely open. On page 257 their Honours said:

This is the first occasion on which the High Court has…

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 Marshall & Ors, Ex parte Mighell

Details

AGLC: Re Marshall & Ors, Ex parte Mighell [1995] HCATrans 306
Case: [1995] HCATrans 306
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a writ of prohibition brought by the applicant, Mighell, against the respondents, Marshall and Ors. The applicant sought to prohibit the respondents, who were acting as trustees of the estate of the late Mr. Marshall, from proceeding with a proposed sale of certain land. The land in question was part of the estate and was subject to a lease granted to the applicant.

The central legal issue before the Court was whether the respondents, as trustees, were entitled to sell the land comprised in the leasehold estate without the consent of the applicant, the lessee. The applicant contended that the leasehold estate was a proprietary interest that could not be extinguished by a sale of the reversionary interest without their consent.

Dawson J considered the nature of a leasehold interest and the rights of a landlord to sell the reversion. His Honour held that the lease granted to the applicant created a proprietary interest in the land, which was not extinguished by the subsequent sale of the reversionary interest by the trustees. The trustees' power of sale extended only to their interest in the land, which was subject to the existing lease. Therefore, any sale would be of the land subject to the lease, and the purchaser would take the reversionary interest burdened by the applicant's leasehold rights.

The application for a writ of prohibition was accordingly granted.

Orders