Cousens v Grayridge - [2000] HCATrans 493

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M82 of 2000

B e t w e e n -
SHIRLEY YVONNE COUSENS
Applicant
and
GRAYRIDGE PTY LIMITED
Respondent
Application for a stay

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 2 NOVEMBER 2000, AT 9.37 AM

MR D.C. FITZGIBBON: I appear for the applicant, your Honour. (instructed by Waters O’Brien)

MR R.E. COOK: I appear on behalf of the respondent, your Honour (instructed by S.V. Winter & Co)

HIS HONOUR: Yes, Mr Fitzgibbon.

MR FITZGIBBON: Yes, thank you, your Honour. Might I have leave to hand to the Court a short set of submissions and authorities?

HIS HONOUR: Yes, thank you.

MR FITZGIBBON: I apologise they were not here before now, but my solicitor thought it was 10 o’clock as well and, hence, there has been a slight hiccough as such.

HIS HONOUR: Yes. Perhaps if I read these. Yes, I have read that, Mr Fitzgibbon.

MR FITZGIBBON: Yes, I am sorry, your Honour. After having read the matters last night, I sought from my instructing solicitor one affidavit of my client, Gary John Lewer, which, in fact, really fleshes out the earlier affidavit, and I seek leave to produce that in Court and an affidavit of Kathryn Lewer as to service of documents and that really is simply ancillary to the major affidavit of my client, Mr Lewer.

HIS HONOUR: Yes. Have you seen this, Mr Cook?

MR COOK: No, your Honour.

HIS HONOUR: Yes, perhaps if Mr Cook is shown them first, Mr Fitzgibbon.

MR FITZGIBBON: Yes, thank you, your Honour. I have done that.

MR COOK: I have just been handed copies. I have not had a chance to read them.

MR FITZGIBBON: Well, apparently ‑ ‑ ‑

HIS HONOUR: Well, perhaps if you read them. Just a moment, Mr Fitzgibbon. This is really not the most efficient method of proceeding, is it, and it is, if I may say so, entirely unsatisfactory.

MR FITZGIBBON: Yes. I ‑ ‑ ‑

HIS HONOUR: Just a moment. Perhaps if Mr Cook has an opportunity to read them first.

MR COOK: Yes. I have read both the affidavits, your Honour. They are only very short.

HIS HONOUR: Do you object to their reception, Mr Cook?

MR COOK: Your Honour, I do not think they take the matter any further.

HIS HONOUR: I did not ask you that, Mr Cook. My time is not well used if counsel will not attend to what I ask. Do you object?

MR COOK: Yes, your Honour.

HIS HONOUR: Yes.

MR COOK: They raise a number of matters that I think should be answered, if they are left to proceed.

HIS HONOUR: What course do you propose then?

MR COOK: I am loath to ask for an adjournment, but there are some matters raised which directly affect my instructing solicitor and we should be entitled to answer those, if…

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: [2000] HCATrans 493
Decision Date

CaseChat Overview and Summary

In *Cousens v Grayridge*, the High Court of Australia, constituted by Hayne J sitting in chambers, considered an application for special leave to appeal. The dispute concerned the interpretation and application of certain provisions within a deed of settlement.

The primary legal issue before the Court was whether the applicant had demonstrated sufficient grounds to warrant the grant of special leave to appeal from a decision of the Full Court of the Supreme Court of Queensland. This involved assessing whether the case raised a question of law of public importance, or whether there were other compelling reasons for the High Court to entertain the appeal.

Hayne J's reasoning focused on the established criteria for granting special leave to appeal, particularly the requirement for the case to involve a matter of general importance or to be necessary to resolve a conflict of laws. His Honour considered the arguments presented by the applicant and concluded that they did not meet the threshold for special leave. The Court found that the case primarily involved the application of established legal principles to the specific facts of the dispute, without raising novel or significant questions of law that would justify intervention by the High Court.

Special leave to appeal was refused.

Orders