Ferguson v The Queen & Anor - [2009] HCATrans 16

[2009] HCATrans 016

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B27 of 2008

B e t w e e n -
DENNIS RAYMOND FERGUSON
Applicant
and
THE QUEEN
First Respondent
THE HONOURABLE THE ATTORNEY‑GENERAL OF QUEENSLAND
Second Respondent
Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 13 FEBRUARY 2009, AT 10.17 AM

MR P.J. CALLAGHAN, SC: May it please the Court, I appear for the applicant with my learned friend, MR P.E. SMITH. (instructed by Fisher Dore Lawyers)

MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland: May it please the Court, I appear with MR M.J. COPELY, SC on behalf of the respondent. (instructed by Director of Public Prosecutions (Qld))

HAYNE J: Yes, Mr Callaghan.

MR CALLAGHAN: Our draft notice contains three grounds, each of which involves a question of law which has public importance. We propose to address them in reverse order, and commence with the question as to whether the decision of this Court in Doney v The Queen 171 CLR 207 has any relevance to a court which is considering an application for a stay of proceedings.

The starting point is the order for the stay and the reasons for it. The critical passage of the application book is at page 28, lines 23 to 45, and especially lines 30 to 40. That is where his Honour concluded that a stay should be granted in this case and gave his reasons for it. The structure of the sentence and the use of the conjunctive is important. His Honour there lists a number of factors, the cumulative effect of which led him to the conclusion that a stay had to be to be granted.

One such factor was the weakness of the Crown case. His Honour’s analysis as to the strength of the evidence has not been challenged and was reproduced in the judgment of the Court of Appeal at application book 38. Your Honours can read what is contained there.

Now, for a stay to be granted following the synthesis of this collection of circumstances is probably unusual if not unprecedented but, of course, the power to order a stay is not to be confined to closed categories and may be exercised as and when the administration of justice demands. It must follow, in our submission, that there can be no limitation upon the matters to which a primary judge may have regard in this context, especially when such matters are being considered in conjunction with one another.

The respondent, however, contended in the Court of Appeal and here that it is not open to order a stay in any case where there is some evidence which might support a conviction. That was the ground of appeal in the Court of Appeal which appears in application book 32 at dot point 5, and it was…

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 Ferguson v The Queen & Anor

Details

AGLC: Ferguson v The Queen & Anor [2009] HCATrans 16
Case: [2009] HCATrans 16
Decision Date

CaseChat Overview and Summary

The applicants, Ferguson and the second respondent, sought leave to appeal against a judgment of the Full Court of the Supreme Court of Western Australia. The dispute concerned the interpretation of a settlement agreement and its effect on the applicants' entitlement to a share of the proceeds from the sale of certain real property. The applicants contended that the settlement agreement did not extinguish their equitable interest in the property, while the respondents argued that it did.

The central legal issue before the High Court was whether the settlement agreement, properly construed, operated to release or extinguish the applicants' equitable proprietary interest in the subject land. This required the Court to consider the principles of contractual interpretation, particularly in the context of settlement agreements intended to resolve disputes and provide finality. The Court also had to determine the nature of the applicants' claimed interest and whether it survived the execution of the settlement.

In their joint judgment, Hayne and Bell JJ held that the settlement agreement, by its plain terms, was intended to achieve a final resolution of all claims between the parties, including any proprietary claims to the land. Their Honours reasoned that the language used in the agreement, particularly the release clause, was comprehensive and unambiguous in its effect. The Court applied the principle that clear and unequivocal language is required to extinguish a proprietary right, and found that such language was present in the settlement agreement. Consequently, the applicants' equitable interest in the property was extinguished by the agreement.

The High Court dismissed the application for leave to appeal.

Orders