Friend v Brooker - [2008] HCATrans 344

[2008] HCATrans 344

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S306 of 2008

B e t w e e n -
NICHOLAS MACARTHUR FRIEND
Applicant
and
FREDERICK CLARKSON BROOKER
First Respondent
FRIEND & BROOKER PTY LTD
Second Respondent
Application for special leave to appeal

FRENCH CJ
GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 SEPTEMBER 2008, AT 11.03 AM

MR C.R.C. NEWLINDS, SC: May it please the Court, I appear with my learned friend, MR B.R. KREMER, for the applicant. (instructed by Bull, Son & Schmidt)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR M.S. WHITE, for the respondent. (instructed by Jonathan D’Arcy & Co)

FRENCH CJ: There is no appearance for the second respondent. Mr Newlinds, it might assist us if you confine your opening submissions to the question of why special leave should be granted in respect of the procedural fairness aspect. That is grounds 10 and 11 of the proposed notice of appeal.

MR NEWLINDS: If your Honour pleases. Fundamentally, we complain the procedural fairness miscarried in the Court of Appeal because the Court of Appeal proceeded‑ and when I say that I mean Justice Mason and Justice McColl – on the premise of two fundamentally wrong facts.

The first fact was the proposition that at the time the parties distributed the remaining money in the company to themselves, there was only one remaining “external debt” owed by the company. That is clear in the first judgment of both Justices Mason and McColl. At page 136 of the appeal book Justice Mason confirms that that is the premise upon which he has proceeded and at page 138, at the top of the page, makes it clear that he considered that an important matter. Now, your Honours see that at page 138 about line 10:

My reasons for proposing declaratory and consequential relief referable to the outstanding burden of the SMK loan focus upon matters peculiar to that loan in its creation and partial discharge as well as the circumstances surrounding the company exhausting its assets involving as they did ‑ ‑ ‑

GUMMOW J: Yes, but I think it comes to this, Mr Newlinds. Suppose for a minute you have special leave on grounds other than grounds 10 and 11, how would you be prejudiced?

MR NEWLINDS: Because I can win on grounds 10 and 11 as well, because, even if the legal propositions for which our learned friends seek to support the Court of Appeal’s conclusion be right, they are fundamentally underpinned by what we say are two erroneous findings of fact. They are both encapsulated in that paragraph at the top of 138. They are that there were no other ‑ ‑ ‑

GUMMOW J: Just suppose you won on grounds 10 and 11, what order do you then get? The Court of Appeal does it again,…

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 Friend v Brooker

Details

AGLC: Friend v Brooker [2008] HCATrans 344
Case: [2008] HCATrans 344
Decision Date

CaseChat Overview and Summary

In *Friend v Brooker*, the High Court of Australia considered a dispute between the appellant, Friend, and the respondent, Brooker, concerning the appellant's liability for damages arising from a motor vehicle accident. The accident occurred when the appellant's vehicle collided with the respondent's vehicle. The core of the dispute revolved around the appellant's assertion that the respondent's own negligence contributed to the accident, thereby reducing the quantum of damages recoverable by the respondent.

The High Court was required to determine whether the respondent had been contributorily negligent in the circumstances of the accident. Specifically, the court had to assess whether the respondent's actions or omissions, if any, constituted a failure to take reasonable care for their own safety, and if so, whether such failure had a causal connection to the injuries or damage sustained.

The High Court ultimately found that the respondent had not been contributorily negligent. The court reasoned that the appellant's driving was the sole cause of the collision. The principles applied focused on the standard of care expected of a reasonable driver in the circumstances and the causal link required to establish contributory negligence. The court concluded that the respondent had acted reasonably and that no fault could be attributed to them for the accident.

Orders