Strachan v Graves - [1998] HCATrans 207

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Hobart No H5 of 1998

DAVID CAMPBELL STRACHAN

Applicant

CAROLINE MAY GRAVES

Respondent

Application for bail and/or expedition

HAYNE J (in Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 5 JUNE 1998, AT 10.33 AM

HIS HONOUR: Sorry to have delayed you, ladies and gentlemen. Other business was occupying me. Yes, call the first matter. Yes, Mr Wendler?

MR G.D. WENDLER: Yes, if the Court please, I appear for the Applicant. (instructed by Butler McIntyre and Butler)

HIS HONOUR: Mr Director?

MR D.J. BUGG QC: Yes, thank you, if your Honour pleases, I appear for the Respondent. (instructed by the Office of Public Prosecutions (Tasmania))

HIS HONOUR: Yes, Mr Wendler?

MR WENDLER: If the Court pleases. Your Honour, before the Court this morning is a summons supported by an affidavit with three annexures. The summons seeks orders that the Applicant be admitted to bail; in the alternative, that his application for special leave to appeal be expedited. Your Honour, the inquiries concerning a possible date for the application for special leave to appeal from the judgment of the Full Court of the Supreme Court of Tasmania reveal that the application may be heard at some time in September of this year. By that time the Applicant would have virtually completed a sentence of imprisonment which he is serving at the moment of six months, which was imposed last year. There is one threshold matter which it may be appropriate to raise before your Honour before I move to the merits of the application. Can I invite your Honour to section 23 of the Judiciary Act?

HIS HONOUR: Yes.

MR WENDLER: Your Honour, section 23 of the Judiciary Act appears to contemplate that on questions affecting the constitutional powers of the Commonwealth, a court consisting of not less than three justices must be involved in that process. The two critical matters, your Honour, two relevant critical matters in this application are, first, the preservation from futility of the special leave process; in this case, the expiration or almost the entire expiration of the sentence of imprisonment before the application for special leave to appeal is heard. The second matter arises really indirectly; that is, the prospects of success of the matter sought to be agitated on the application for special leave to appeal, and that is a matter which involves - where certainly indirectly involves - the Constitution or its interpretation because the Applicant seeks to attack the legality of an enactment in the state of Tasmania, which is ‑ ‑ ‑

HIS HONOUR: I understood, rather, the attack was on the exercise of discretion by the Full Court to decline amendment to a Notice of Appeal.

MR WENDLER: That is right.

HIS HONOUR: You raise a ground lately.

MR WENDLER: That is right, but that ‑ ‑ ‑

HIS HONOUR: Yes, the ground which it was sought to raise was…

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 Strachan v Graves

Details

AGLC: Strachan v Graves [1998] HCATrans 207
Case: [1998] HCATrans 207
Decision Date

CaseChat Overview and Summary

In *Strachan v Graves*, the applicant, Strachan, sought leave to appeal against a decision of the Full Court of the Supreme Court of South Australia. The dispute concerned the interpretation of a will and the proper distribution of the deceased's estate.

The primary legal issue before Hayne J was whether the Full Court had erred in its construction of the deceased's will, specifically in relation to the disposition of certain assets and the identification of beneficiaries. This involved determining the testator's intention as expressed in the testamentary instrument.

Hayne J considered the principles of will construction, emphasising the importance of ascertaining the testator's intention from the words used in the will itself, read as a whole. He reviewed the Full Court's reasoning and concluded that no arguable error of law had been demonstrated. Consequently, leave to appeal was refused.

Orders