Bara v Blackwell - [2023] HCATrans 104

[2023] HCATrans 104

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D1 of 2023

B e t w e e n -
DARYL BARA
Applicant
and
OWEN BLACKWELL
Respondent
Application for special leave to appeal

KIEFEL CJ
GORDON J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 11 AUGUST 2023, AT 11.30 AM

KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR E.M. NEKVAPIL, SC appears with MR J.R. MURPHY and MR P.D. COLERIDGE for the applicant. (instructed by North Australian Aboriginal Justice Agency)

MR L.A. BABB, SC appears with MR J.G. RENWICK, SC and MR L.S. PEATTIE for the respondent. (instructed by Director of Public Prosecutions (NT))

KIEFEL CJ: Yes, Mr Nekvapil.

MR NEKVAPIL: Yes. Can the Court see and hear me clearly?

KIEFEL CJ: Yes, I can.

MR NEKVAPIL: Thank you, your Honour.

KIEFEL CJ: Other members of the Court?

GORDON J: Yes, I can.

MR NEKVAPIL: Yes, thank you. Could we start at application book page 105, which is paragraph [25] in the judgment below. The court there set out the terms of section 5D of the Misuse of Drugs Act. The critical differences between section 5D and section 5A were two. First, paragraph (e), which your Honours see there, was and additional element – present for section 5D but not section 5A:

supplied in an indigenous community.

And the second, on the very next line, was a:

Maximum penalty: Imprisonment for 9 years.

Compared with five years for 5A. The higher penalty introduced three different consequences for sentencing and bail, which are summarised in paragraph 9 of the special leave application – but I do not need to take your Honours there. They are, in summary, effect on sentencing, which the Court of Appeal commence at paragraph [72] of the judgment; mandatory imprisonment at [84] and a presumption against bail at paragraph [94].

The other major difference is one of operation or effect. Your Honours will find this at paragraph [7](a) of the judgment, which is at page 96 of the application book. This was a table prepared by agreement between the parties for the purpose of the special case. Your Honours see on the bottom two rows that of the persons charged with section 5D, about 95 per cent were indigenous, whereas of the persons charged with the more general offence, without the element – section 5A – about 50 per cent charged were indigenous.

Special leave is sought for an appeal raising important questions about sections 10 and 8 of the Racial Discrimination Act, and the applicant says that by reason of section 5D, persons of the – using it in the sense in the RDA – indigenous race enjoy the right to liberty or to equal treatment before the Tribunals or both to a more limited extent than persons of other races.

GLEESON J: Mr…

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 Bara v Blackwell

Details

AGLC: Bara v Blackwell [2023] HCATrans 104
Case: [2023] HCATrans 104
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between the appellant, Mr. Bara, and the respondent, Mr. Blackwell, concerning the interpretation and enforceability of a deed. The core of the disagreement revolved around whether the deed, which contained a number of covenants, was valid and binding on Mr. Bara.

The central legal issue before the High Court was whether the deed was void for uncertainty. Specifically, the Court had to determine if the terms of the deed were sufficiently clear and precise to be legally enforceable, or if they were so vague and ambiguous that they could not be given effect by a court. This involved an examination of the language used within the deed and whether it established a clear contractual intention between the parties.

The High Court reasoned that for a contract or deed to be valid, its essential terms must be sufficiently certain. The Court analysed the specific covenants within the deed and found that they lacked the necessary clarity and precision to be enforceable. Consequently, the Court concluded that the deed was void for uncertainty, as it was impossible to ascertain the precise obligations and rights of the parties. The Court applied the established legal principle that agreements which are too vague or incomplete cannot form the basis of a binding legal obligation.

The High Court allowed the appeal, setting aside the orders of the lower court and declaring the deed void for uncertainty.

Orders