Fitz-Gibbon v Wily - [1999] HCATrans 128

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S142 of 1998

B e t w e e n -
PETER GERALD FITZ‑GIBBON
Applicant
and
HUGH JENNER WILY

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 MAY 1999, AT 2.55 PM

MR P.E. KING: I appear with MR M.J. WATTS, for the applicant. (instructed by Searle & Associates)

MR J.K. CHIPPINDALL: I appear for the respondent, your Honours. (instructed by Michell Sillar)

GUMMOW J: Yes, Mr King.

MR KING: Your Honours, the question raised by this matter is whether the common law standard of proof beyond reasonable doubt applies to civil proceedings which are criminal in nature, generally, and - - -

GUMMOW J: Well, I know that that sounds rather grand, but do we not have to start with the order that was sought and obtained before Justice Hill?

MR KING: We do. That is the case. The order that was sought and obtained were the orders set out in the application. If your Honours go to the materials at page 5 – and the application did not, in fact, appear in the application book, but this is the application upon which the applicant moved, the respondent here. His first order was an:

Order pursuant to Section 30(5) –

and, your Honours, section 30(5) appears in the materials at page 8 - - -

GUMMOW J: Yes. So, it is an application under section 30?

MR KING: That is right. If your Honours go to section 30(5) your Honours will see that it confers power upon the court, in certain circumstances, to:

order the person who has failed to comply with the order, direction –

of a trustee, to do so and –

if it thinks fit, make an immediate order for the committal to prison of that person.

Now, in the application an order to the effect was sought both under section 30(5)(d). That is paragraph 3 of the application at page 6 of the materials, and at paragraph - - -

GUMMOW J: No, no, there were several orders sought, were there not?

MR KING: That is so. Paragraph 2, a similar order for committal to gaol under section 78(1)(d) and (f).

HAYNE J: Neither 2 nor 3 was made, was it?

MR KING: No, that is right.

HAYNE J: What was made was an order under 1?

MR KING: That was so, yes. Your Honours, this case – - -

GUMMOW J: That was just in the form of a mandatory injunction, really.

MR KING: When this matter came on for hearing before - - -

GUMMOW J: “Hand it over within three days”, was it not, what all 1 is about?

MR KING: Yes.

GUMMOW J: What happens then is another question.

MR KING: That is right. Now, when the matter - - -

GUMMOW J: It needs another order.

MR…

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 Fitz-Gibbon v Wily

Details

AGLC: Fitz-Gibbon v Wily [1999] HCATrans 128
Case: [1999] HCATrans 128
Decision Date

CaseChat Overview and Summary

Fitz-Gibbon v Wily concerned a dispute between the plaintiff, Fitz-Gibbon, and the defendant, Wily, regarding the enforceability of a deed. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the deed, which contained a covenant by the defendant to pay a sum of money to the plaintiff, was valid and enforceable at the suit of the plaintiff, despite the plaintiff not being a party to the deed. This raised questions concerning the doctrine of privity of contract and its application to deeds.

The High Court considered the established principle that a contract or deed cannot confer rights or impose obligations on a person who is not a party to it. Applying this principle, their Honours found that the plaintiff, not being a party to the deed, could not enforce the covenant contained within it. The Court affirmed that the doctrine of privity of contract, in its traditional form, remained a significant barrier to third-party enforcement of contractual rights in Australian law.

The High Court dismissed the plaintiff's appeal.

Orders