WARREN PANTZER AS TRUSTEE OF THE ESTATE OF DAVID JAMES GRIFFIN
Respondent
Application for special leave to appeal
McHUGH J GUMMOW J KIRBY J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 17 AUGUST 2004, AT 3.01 PM
Copyright in the High Court of Australia
MR A.W. STREET, SC: May it please the Court, I appear with my learned friend, MR G.D. WENDLER, for the applicant. (instructed by North & Badgery)
MR B.A.J. COLES, QC: If your Honours please, I appear with MS M.A.C. PAINTER for the respondent. (instructed by Peter Kemp Solicitors)
McHUGH J: Yes, Mr Street.
MR STREET: Your Honours, there are, in substance, two issues that arise in relation to these proceedings. The first is one concerning opposed questions at an examination under section 81 and the second relates to select documents that were the finding of a privilege against self‑incrimination and ‑ ‑ ‑
GUMMOW J: What is the section 81 point again?
MR STREET: The section 81 point arises in relation to proposed questions that are sought to be asked. Those questions your Honours will find ‑ ‑ ‑
GUMMOW J: Wait a minute. Section 81 is governed by section 81(11AA), is it not?
MR STREET: It is, your Honour, and I will come to address (11AA) if I may in due course, but I was seeking to identify the substance. If I can deal with ‑ ‑ ‑
GUMMOW J: I think the substance is subsection (11AA). Anyhow, what is the other point?
MR STREET: The other point, your Honour, relates to the production of documents, being select documents that were the subject of a finding that they were protected by the common law privilege of self‑incrimination if it was not abrogated by statute. There are, in substance, four reasons why we say ‑ ‑ ‑
GUMMOW J: What is the statutory source of the production?
MR STREET: The statutory source is sought to be sustained, first of all, under section 77 and then it is sought to be also supported under sections 129 and 130.
GUMMOW J: Yes.
MR STREET: In substance, there is a leap in the construction of section 81 which is sought to be supported by the construction adopted under section 77, but I will come to that if I may. Your Honours, if I can deal first with the questions sought to be the subject of examination. Those questions, your Honours will see, are set out in page 5 of the application book in paragraph 9. Your Honours will see the questions that are sought to be asked in paragraphs (a) to (d). Each are questions patently which would give rise to a real likelihood, not a mere risk, of incrimination.
The subject matter of the proceedings that are referred to in question (d) was itself…
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
AGLC
Griffin v Pantzer [2004] HCATrans 310
Case
[2004] HCATrans 310
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal from the Supreme Court of New South Wales in *Griffin v Pantzer*. The dispute concerned the interpretation of a clause within a deed of settlement, specifically whether it imposed a personal obligation on the appellant, Mr Griffin, to pay a sum of money to the respondent, Ms Pantzer, or if it merely created a charge over certain property. The core of the disagreement lay in whether Mr Griffin had personally undertaken to satisfy the debt, or if the settlement merely provided security for its payment.
The central legal issue before the High Court was the proper construction of clause 7(a) of the deed of settlement. This clause stipulated that Mr Griffin would "pay to the Plaintiff the sum of $1,000,000". The Court was required to determine whether this wording, in the context of the entire deed, created a personal covenant by Mr Griffin to pay the money, or if it was intended to operate solely as a charge over specific assets, meaning payment was contingent on the realisation of those assets.
The High Court, by majority, held that clause 7(a) imposed a personal obligation on Mr Griffin to pay the sum of $1,000,000 to Ms Pantzer. The Court reasoned that the language used, "pay to the Plaintiff the sum of $1,000,000", was clear and unambiguous in creating a personal covenant. While the deed also contained provisions relating to security over certain property, the Court found that these provisions were intended to provide Ms Pantzer with recourse if Mr Griffin failed to meet his personal obligation, rather than limiting his obligation to the value of the secured assets. The principle applied was that clear words creating a personal obligation are not to be cut down by subsequent provisions unless those provisions unequivocally demonstrate an intention to do so.
The appeal was dismissed, and the orders of the Supreme Court of New South Wales were affirmed.