Registrar General of New South Wales v Van Den Heuvel [2010] HCATrans 334 (10 December 2010)

Last Updated: 22 December 2010

[2010] HCATrans 334

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S184 of 2010

B e t w e e n -

REGISTRAR GENERAL OF NEW SOUTH WALES

Applicant

and

ELIZABETH VAN DEN HEUVEL

Respondent

Office of the Registry
Sydney No S185 of 2010

B e t w e e n -

REGISTRAR GENERAL OF NEW SOUTH WALES

Applicant

and

ELIZABETH VAN DEN HEUVEL

First Respondent

PERPETRUAL TRUSTEES VICTORIA LIMITED ACN 004 027 258

Second Respondent

Applications for special leave to appeal

GUMMOW J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 2010, AT 10.28 AM

Copyright in the High Court of Australia

__________________

MR B.A.J. COLES, QC: May it please the Court, I appear with MR P.B. WALSH for the applicants. (instructed by Land and Property Information NSW)

MR A. LEOPOLD, SC: May it please the Court, in the appeal S185 of 2010 I appear with my learned friend, MR D.F.C. THOMAS, for the second respondent. (instructed by Gadens Lawyers)

GUMMOW J: There is a submitting appearance for the respondent in the first matter and the first respondent in the second matter. Yes, Mr Coles.

MR COLES: Thank you, your Honours.

GUMMOW J: Before you get too deeply into this, you may be right when you refer to Helicopter Utilities as to what brings you here as a matter of legal capacity to do so, but your client is a public body. It is in the nature of a trustee, in a sense. It now knows what its responsibilities are. It has been told that by the highest court in the State. Why does it want a second go here or, to put it more accurately, why should we permit it to have a further go here?

MR COLES: The interests of the applicant of course is that as your Honour describes, but the - - -

HAYNE J: No, the interest of the applicant is solely the proper administration of the fund under its control, the administration according to law.

MR COLES: Yes, quite. Absolutely. The facts of the case and the legal principles that may attend those facts have, however, other relevance so far as persons in the position of the submitting party is concerned and, in our respectful submission, although the consequence produces the engagement of my client in the administration of the fund, the question which the case agitates is of importance so far as persons in the position of the co-owner of the property. For that reason we would suggest your Honours would be willing to entertain the matter, having regard to the issue that arises in connection with the proper approach to the contract law point. That is all I really want to say about that, your Honours. If your Honours are minded to dispose of the application on competency points, there is nothing really I want to add.

GUMMOW J: We will see what Mr Leopold says. Yes, Mr Leopold. What do you say on this preliminary matter we have raised with Mr Coles?

MR LEOPOLD: On the competency issue, your Honours, we probably do not have more to say about it than appears in our written submissions at 176 to 177 of the application book. The decision of the High Court in Helicopter Sales was of course obiter.

GUMMOW J: That is all about “can”. We are asking about “should”.

MR LEOPOLD: Yes. There really ought to have been an appeal from the primary judge’s orders by the Registrar General if the Registrar General was to agitate this through the judicial hierarchy. There has not been, and we adhere to what we put at 176 to 177, but do not wish to say much more about it.

GUMMOW J: Thank you. Is there anything more you want to say, Mr Coles, on this point we have raised with you and Mr Leopold?

MR COLES: No, your Honour.

GUMMOW J: Given the position of the applicant, the Registrar General of New South Wales, as a public officer administering the fund provided by the statute of the State and given the position established by the decision of the New South Wales Court of Appeal and the absence of an active application by an immediate party, this is not an appropriate case for the Court to enter into the questions which the Registrar-General wishes to agitate in this Court. For those reasons, it not being in the interests of justice to grant special leave, special leave in each of matters S184/2010 and S185/2010 is refused with costs.

MR COLES: May it please the Court.

MR LEOPOLD: May it please the Court.

GUMMOW J: We will adjourn to reconstitute.

AT 10.33 AM THE MATTERS WERE CONCLUDED