Dinko Tuna Farmers Pty Ltd v Markos - [2007] HCATrans 690

[2007] HCATrans 690

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A24 of 2007

B e t w e e n -
DINKO TUNA FARMERS PTY LTD
Applicant
and
IAN MARKOS
Respondent

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 16 NOVEMBER 2007, AT 11.19 AM

MR R.J. WHITINGTON, QC: May it please the Court, I appear with my learned friend, MR T.P. MARTIN, for the applicant. (instructed by Minter Ellison).

MR C.J. KOURAKIS, QC (Solicitor‑General for the State of South Australia): May it please the Court, I appear with my learned friend, MR K.W. SOETRATMA. (instructed by Crown Solicitor for the State of South Australia)

GLEESON CJ: Yes, Mr Whitington.

MR WHITINGTON: May it please the Court, this application seeks to have this Court settle the proper interpretation of the common but vexed expression an employer must “so far as is reasonably practicable” in industrial health and safety legislation. Generally, that prescription requires an employer to take precautions directed at eliminating or minimising the risks to the health and safety of workers in the workplace.

The Court has the relevant provision reproduced in the judgment of his Honour Justice Gray at paragraph 16 in the application book at page 152 and, truncating it, relevantly that section provides that:

An employer must . . . ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health –

The expression “so far as is reasonably practicable” has a fairly lengthy history and is employed in a similar context in the legislation of New South Wales, Tasmania, Victoria and Western Australia. The Tasmanian provision is virtually identical to the South Australian provision. The Victorian and Western Australian provisions are each in substantially the same terms and equivalent to the South Australian provision, although they speak of providing and maintaining a safe workplace rather than ensuring a safe workplace as is prescribed in South Australia.

In New South Wales the primary obligation, like that in the South Australian provision, is couched in terms of ensuring the health, safety and welfare of workers. However, the provision does not include as an element of the primary obligation the qualification insofar as is reasonably practicable. Instead it is a defence to show that it was not reasonably practicable to comply with the prescription. In the Australian Capital Territory and Commonwealth equivalent legislation the counterpart provisions use the expression “reasonably practicable” but in the context of a qualification to the steps to be taken rather than as an element of obligation to ensure or provide or maintain.

The Northern Territory provision is the counterpart of the Victorian and Western Australian provisions except that it lacks the qualification “reasonably” in the expression “provide and maintain so far as is practicable”. After that survey of the legislation around the country I need briefly to recount something…

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 690
Decision Date: 16 November 2007

CaseChat Overview and Summary

Dinko Tuna Farmers Pty Ltd (the applicant) sought leave to appeal to the High Court of Australia against a decision of the Full Federal Court concerning the interpretation of a settlement agreement. The dispute arose from a prior proceeding in the Federal Court where Dinko Tuna Farmers had sued Markos for alleged breaches of contract and misleading and deceptive conduct. A settlement agreement was reached, and the applicant sought to enforce certain terms of that agreement, specifically concerning the release of claims.

The central legal issue before the High Court was whether the settlement agreement, properly construed, operated to release Markos from all claims that Dinko Tuna Farmers had or might have had against him, including those that were not specifically contemplated or discussed during the settlement negotiations. The applicant argued that the wording of the release clause was broad enough to encompass all existing claims, regardless of their specific nature or whether they were known to the parties at the time of settlement.

Gleeson CJ and Gummow J, in their joint reasons, considered the principles of contractual interpretation, emphasizing that the meaning of a contract is to be determined by what the parties agreed to, objectively ascertained from the language they used. They held that the broad wording of the release clause, which referred to "all claims, demands, actions, suits, causes of action, debts, accounts, sums of money, costs, expenses and demands whatsoever," was not limited to claims that were specifically identified or discussed during negotiations. The court concluded that the plain and ordinary meaning of the words used in the settlement agreement indicated an intention to release all existing claims, irrespective of whether they were known or contemplated at the time of its execution.

Leave to appeal was granted, and the appeal was allowed. The High Court ordered that the appeal from the Full Federal Court be upheld, and the orders of the Full Federal Court be set aside. The matter was remitted to the Federal Court for further proceedings consistent with the High Court's judgment.

Orders