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High Court of Australia Transcripts |
Office of the Registry
Sydney No S121 of 1997
B e t w e e n -
DAWN ALICE HERLIHY
Applicant
and
ELAINE LORETTA LEITCH
Respondent
Application for special leave to appeal
McHUGH J
KIRBY J
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 19 MAY 1998, AT 12 NOON
Copyright in the High Court of Australia
McHUGH J: There being no appearance in this matter and as we were informed there would not be, I am in a position to give the reasons of the Court in respect of this application.
The applicant failed in her claim for further provision from the estate of her father, the only substantial asset of which, a house, was left to her sister, the respondent. The applicant and the respondent are both aged pensioners. It was submitted that the Social Security benefits should have been, but were not, disregarded by the courts below in considering whether the deceased had failed to make adequate provision for the applicant's maintenance.
The jurisdictional question posed by the Family Provision Act 1982 is strictly one of fact, notwithstanding that it involves the exercise of value judgments, see Singer v Burghouse [1994] HCA 40; (1994) 181 CLR 201, at 210, per Chief Justice Mason, Justice Deane and myself citing White v Barron [1980] HCA 14; (1980) 144 CLR 431, at 441 to 443, per Justice Mason, 448 to 449, per Justice Aickin, 456 to 457 per Justice Wilson; Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, at 509 per Justice Aickin; Hunter v Hunter (1987) 8 NSWLR 573, at 576 per President Kirby. That being so, we are not persuaded that the point of principle with the applicant seeks to agitate arises in this matter, nor is it shown that there is any occasion to reiterate what was said in Singer v Burghouse.
Finally, given the size and nature of the deceased estate, the competing claims on his bounty, and the other considerations which bear on the jurisdictional question, as to which see Singer v Burghouse [1994] HCA 40; (1994) 181 CLR 201, at 209 to 210, are we persuaded that the decision of the Court of Appeal dismissing the applicant's appeal was attended by sufficient doubt to attract a grant of special leave.
Accordingly, special leave is refused, with costs. Notwithstanding the respondent's contention to the contrary, there is no occasion to order that those costs be taxed as between solicitor and client.
AT 12.03 PM THE MATTER WAS CONCLUDED
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URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/1998/160.html