Boreland v Docker & Ors - [2007] HCATrans 309

[2007] HCATrans 309

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S204 of 2007

B e t w e e n -
JOHN LESLIE BORELAND
Applicant
and
SHANE DOCKER
First Respondent
DANIEL THOMAS DOCKER
Second Respondent
LIQUOR ADMINISTRATION BOARD OF NEW SOUTH WALES
Third Respondent
Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 JUNE 2007, AT 10.02 AM

MR J.M. IRELAND, QC: If the Court pleases, I appear with my learned friends, MR G.A. MOORE and MR A. HATZIS, on behalf of the applicant. (instructed by Mavrakis & Associates)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR J.B. CONOMY, for the first and second respondents. (instructed by JDK Legal)

GLEESON CJ: Yes, Mr Ireland.

MR IRELAND: Your Honour, we understand that the third respondent has submitted. This case concerns the significant market that has developed in New South Wales for trading in what are called “poker machine entitlements”, that is, that is a right to operate the poker machine in licensed premises. This situation arises by virtue of the New South Wales Act, the Gaming Machines Act 2001 which in an act of social engineering was supposed to cap in the first instance and then reduce the number of poker machines in operation in the State.

That was achieved by, as I mentioned, a freeze or a cap imposed with effect by the government in 2001 on 19 April coupled with an essential mechanism which was a system of transferability of the poker machine entitlements which were in that universe so established which would entail a reduction of the numbers. So the New South Wales Act freeze these poker machine entitlements for transfer but insist upon a reduction of three for two when that takes place with some small exceptions.

So what became limited in supply became the subject of increased demand and instantly – such as in the old days with taxi plates when they were in finite numbers – the poker machine entitlements which allowed the operation of what proved to be such enormous revenue earning businesses attracted a premium. All this, as I say, came out of the blue. At page 147 of the application book there is an extract attached to an affidavit sworn on behalf of the first and second respondents of a seminar that was held about two weeks before this government announcement by the person who is a witness on a question relating to the general applicability of this case, which is a Mr Bulford who is an expert in the field, and he said:

I wish I knew what the Government was up to in respect of proposed changes to hotel and club gaming. It might be the case that by the time I present this seminar paper I will be commenting upon a whole raft of changes introduced [by…

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.

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Details

Case: [2007] HCATrans 309
Decision Date: 15 June 2007

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of New South Wales in *Boreland v Docker & Ors*. The dispute concerned the proper construction of a deed of settlement and release entered into between the parties, which purported to resolve all claims arising from a prior contractual relationship. The appellant, Boreland, sought to argue that certain claims were not covered by the release, despite its broad wording.

The central legal issue before the High Court was whether the release contained in the deed of settlement was effective to extinguish all claims that Boreland had against Docker and the other respondents, including those that were not specifically contemplated or known to Boreland at the time of execution. The court was required to interpret the scope and effect of the release clause within the context of the entire deed and the surrounding circumstances.

Gleeson CJ and Callinan J, in a joint judgment, held that the language of the release was sufficiently clear and comprehensive to encompass all claims, whether known or unknown, arising from the contractual relationship. Their Honours applied the principle that clear and unambiguous contractual language should be given its ordinary and natural meaning. They found that the deed was intended to provide a final and complete resolution of all disputes between the parties, and that Boreland had voluntarily entered into the deed with full knowledge of its terms and effect. The appeal was accordingly dismissed.

Orders