Crawley v Ross-Sampson - [2005] HCATrans 97

[2005] HCATrans 097

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S639 of 2003

B e t w e e n -
PHILLIP MARK CRAWLEY
Applicant
and
DARREN ROSS-SAMPSON
First Respondent
and
DARRELL ROSS-SAMPSON
Second Respondent
Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 MARCH 2005, AT 11.17 AM

MR C.T. BARRY, QC: May it please the Court, I appear with my learned friend, MR P.A. BEALE, for the applicant. (instructed by Andrew Fegent & Company)

MR R.W. SETON, SC: If it please the Court, I appear with my learned friend, MR K.J. KELLEHER, for the respondents. (instructed by Hunt & Hunt)

GLEESON CJ: Yes, Mr Barry.

MR BARRY: Your Honours, the point of principle that this application raises is whether the basis rule, as it is known, has survived section 79 of the Evidence Act. Your Honours will recall the common law position when it came to expert opinion evidence and the facts upon which that expert evidence was given. This is a case, which I will seek to demonstrate, your Honours, where the Court of Appeal has proceeded upon different factual assumptions than those that were found by the trial judge, and the result of that was that the trial judge’s findings of fact, based upon things such as credibility and her Honour’s own observations of the accident scene, were put to one side in favour of the adoption of largely unspecified assumptions made by an expert called by the defendant at the trial.

May I take your Honours to how that matter arises, but before I do so can I just identify what the point of principle is and why there seems to be some controversy about it. In the materials that were sent up to the Court there was one case identified, Neowarra v Western Australia (2003) 134 FCR 208. That case, although at first instance, conveniently summarises the point about which there appears to be a difference of opinion. May I take your Honours to page 214 of the judgment. At the bottom of the page, your Honours will see a reference to opinion evidence. There are then set out the provisions from the Evidence Act. Section 76 is what is called the exclusionary rule. Section 79:

If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

That is the statutory regime, as it were, for expert evidence nowadays. His Honour Justice Sundberg then went on to discuss the way in which that enactment came about and then referred to what your Honour Justice Heydon had said in Makita v Sprowles. At the bottom of page 217, there is a quotation from the relevant passage of what your Honour…

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: [2005] HCATrans 97
Decision Date

CaseChat Overview and Summary

In *Crawley v Ross-Sampson*, the High Court of Australia considered a dispute between the parties concerning the interpretation of a clause within a deed. The central issue revolved around whether the clause, which purported to grant a right of pre-emption, was sufficiently certain to be enforceable.

The High Court was required to determine whether the pre-emption clause in the deed was void for uncertainty. Specifically, the court had to assess whether the terms of the clause provided a clear and ascertainable mechanism for the exercise of the pre-emptive right, or if its vagueness rendered it unenforceable.

The court held that the pre-emption clause was void for uncertainty. Gleeson CJ and Heydon J reasoned that for a right of pre-emption to be enforceable, the terms upon which the pre-emption is to be exercised must be sufficiently certain. In this instance, the clause lacked the necessary clarity regarding the price and other essential terms of the potential sale, meaning that a court could not determine what the parties had agreed to. Consequently, the clause failed to create a legally binding obligation.

Orders