Re Nash - [2017] HCATrans 234

[2017] HCATrans 234

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Canberra No C17 of 2017

B e t w e e n -
IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING THE HON MS FIONA NASH

KIEFEL CJ
BELL J
GAGELER J
KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 NOVEMBER 2017, AT 10.17 AM

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia: May it please the Court, I appear with my learned friends, MR M.P. COSTELLO and MS J.D. WATSON, for the Commonwealth Attorney‑General. (instructed by Australian Government Solicitor)

MR A.R. MOSES, SC: If it pleases the Court, I appear with my learned friends, MR S.J.P. DUGGAN and MR P.G. SHARP, for Ms Hughes. (instructed by Harpur Phillips)

MR G.R. KENNETT, SC: May it please the Court, I appear as amicus curiae with my learned friend, MR B.K. LIM. (instructed by Australian Government Solicitor)

KIEFEL CJ: Yes, Mr Solicitor.

MR DONAGHUE: Your Honours, in our submission, two issues need to be addressed in answering the question that has been reserved for the consideration of the Full Court, pursuant to section 18 of the Judiciary Act. The first issue addresses the circumstances in which this Court should consider the qualifications of a person who is identified on a special count before declaring that person duly elected to fill a vacancy in the Senate.

Your Honours will have seen that the Commonwealth does not dispute that, in the particular circumstances of this case, it is appropriate for the Court to determine that issue. But, as we understand it, this is the first time that this Court will have examined the qualifications of a candidate identified on a special count before declaring them duly elected and particularly in circumstances where this issue has obvious potential to arise again. We submit that it is appropriate to identify the principles that should govern the circumstances in which the Court enters into that question.

KIEFEL CJ: Yes, thank you, Mr Solicitor.

MR DONAGHUE: The second issue is the temporal operation of section 44, the endpoint of the process of choice to which that section refers. Your Honours will have seen, again in our written submissions, we do not take – or we accept that part‑time membership of the Administrative Appeals Tribunal is an office of profit under the Crown and I do not propose to address that issue in oral submissions.

So, turning first to the first of the questions I identified and when issues of qualification should be identified, there is no dispute that Ms Hughes was identified on the special count that was ordered by this Court following the determination of the questions that had been referred to the Full Court in the Re Nash reference.…

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 Nash

Details

AGLC: Re Nash [2017] HCATrans 234
Case: [2017] HCATrans 234
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the interpretation of a will in *Re Nash*. The dispute arose between the executor of the estate and beneficiaries of the will, who sought to challenge the validity of certain bequests.

The central legal issue before the Court was whether a gift of a specific parcel of land to the testator's nephew, Mr. Nash, was rendered void for uncertainty due to the testator's subsequent, poorly drafted, handwritten codicil. The codicil purported to alter the beneficiaries of that specific parcel of land, but its language was ambiguous as to the intended recipients and the extent of the alteration.

The Court's reasoning focused on the principles of testamentary intention and the construction of wills. It was held that for a gift to be valid, the testator's intention must be ascertainable with sufficient certainty. Applying this principle, the Court found that the codicil, due to its inherent ambiguity, failed to clearly revoke or modify the original bequest to Mr. Nash. The language used did not permit a definitive identification of new beneficiaries or the precise nature of the intended change, thus rendering the purported alteration void for uncertainty.

Consequently, the High Court allowed the appeal, holding that the original bequest of the land to Mr. Nash remained valid and effective.

Orders