Hanna v Hanna [2011] HCATrans 67

[2011] HCATrans 67

[2011] HCATrans 067

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M152 of 2010

B e t w e e n -

JOSEPH HANNA

Applicant

and

JACK HANNA

Respondent

Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 2011, AT 12.45 PM

Copyright in the High Court of Australia

MR J.G. KORMAN:   May it please the Court, I appear for the applicant.  (instructed by Sublet & Co Lawyers)

CRENNAN J:   We understand there will be no appearance for the respondent today as he does not wish to present oral argument.

MR KORMAN:   Yes, your Honour.  Your Honours, notwithstanding the Court of Appeal’s comments in the second judgment, the applicant, in my submission, has a good arguable case and that case can be stated in very short compass.  On its face, the clause “ANZ Trustees are the preferred administrator” means something different to “ANZ Trustees are to be the administrator”, and again on the face of that clause, it is not obvious that the insertion of that word “preferred” means ANZ Trustees are the administrator unless they decline or unless the material is put before the court indicating they are unsuitable.

Similarly, clause 5, which was the other controversial clause, contemplates the existence of circumstances where ANZ may not be the appropriate administrator, but it is far from clear from the words of that clause that those circumstances in which ANZ would not be appropriate were restricted to ANZ declining appointment or material being put before the court that ANZ was unsuitable.  On their face, from these clauses, it would appear that ANZ was close to being selected but had not yet passed final muster.  What was revealed in the court’s reasoning process in determining the true construction – what was revealed by a process that necessarily involves examination of the intrinsic and the admissible extrinsic evidence is described in paragraph 29 of the judgment and there is much in that paragraph which can be effectively challenged on appeal.

BELL J:   Accepting there may be points that could be the subject of challenge, as you put it, why would the Court grant special leave to consider this matter?

MR KORMAN:   Yes, your Honour, that is what I wanted to approach now.

BELL J:   You accept, do you not, that there are no matters of principle involved?

MR KORMAN:   Precisely.  I accept that it is just a construction of a private document, it raises no controversial questions of law and the question, as your Honours have asked me, is why is it in a category appropriate to be heard?  What sets this case apart and what, in my submission, makes it suitable for a grant of special leave is the Court of Appeal’s second judgment.  In our submission, the applicant’s submission, the two judges must be looked at together in deciding this question of why should the Court hear the matter.

The applicant’s arguments that the agreement fell short of binding the parties to advance ANZ’s appointment as administrator or that the express preference for ANZ would only become binding if ANZ’s capacity were established seem unremarkable on the face.  It is certainly the fact that the decision at first instance contained no reasoning or explanation as to how the court had arrived at a construction that intuitively did not seem obvious.  Yet the Court of Appeal, with all due respect, was inexplicably scathing in its second judgment. 

The court found the construction advanced was not reasonably arguable, properly advised the appellant should have known it had no prospect of success and that bringing the appeal was an exercise in futility and, naturally, there was more than mere censure, there was indemnity costs awarded.  The judgments together, in the applicant’s submission, your Honours, suggest that the Court of Appeal must have taken more into account than what was merely evident on the face of an ambiguous document.  With respect to the court, it is not clear why it was an exercise in futility for the applicant to argue that the heads of agreement contained no meaningful agreement or reference to a criterion that was not satisfied.

Your Honours, the court devoted a lot of attention, both at first instance and in the second judgment of the Court of Appeal, to the unreasonableness of the appellant’s opposition to ANZ’s appointment.  That factor was an irrelevant factor, in my submission, to the construction on an objective basis of the contract.  Yet even if it was a germane point, the estate included real estate in Lebanon and the Court of Appeal judgment states that ANZ admitted it had no knowledge of the process in Lebanon, to the point that it did not even know whether it had standing to administer that property.  ANZ are a private trustee company operating in a competitive market and it is not unreasonable to expect that given the large Lebanese population in Australia, perhaps there are trustee companies that could more profitably realise the Lebanese property.

Your Honours, it was not only the conduct of the appellant that was criticised in relation to ANZ.  The judgment recites in detail the appellant’s pre‑trial conduct.  It seems at one stage he was represented by two different law firms, at another stage he represented himself.  The long delay in having the will administered was attributed solely to the applicant’s conduct.  He failed to submit affidavits on the primary trial and then sought leave to admit them on appeal.  Perhaps it could be said that the applicant was a troublesome litigant, but – and this is the point, your Honours, which I feel sets this case apart.  The point is that troublesome litigants, even in civil cases, deserve to have their cases heard and decided on the merits of those cases.  The merits of this case could be determined solely by engaging in a careful process of constructing a problematic document.

CRENNAN J:   You have got concurrent findings against you in relation to the argument that was put.

MR KORMAN:   Yes, your Honour, but my submission to this Court is that those findings could not have been based solely on the construction of that document because it was a problematic document without an obvious construction in the way the courts found it to be.  My submission, your Honours, is that in this particular matter the ‑ ‑ ‑

CRENNAN J:   Was not the argument put on behalf of your client that when construing the provision for the preferred administrator, it bestowed a right on him to refuse to consent to the administrator’s appointment?  Was that not the way the argument was put, and that was rejected?

MR KORMAN:   Yes, your Honour, on appeal that was rejected, but putting it that way is merely another way of saying that ANZ being preferred administrator did not mean ANZ was selected.  In other words, what our point is, or what the applicant’s point is, your Honours, is that the agreement was merely an agreement to agree.  An agreement to agree means that either party can simply refuse.  So that point was merely another way of saying that the agreement had not settled anything, and that is the point perhaps put in an inelegant fashion to the Court of Appeal, but the point is that an agreement which states ANZ is to be preferred and then does not state how or why it is to be selected is merely an agreement to agree.

Your Honours, my submission to this Court is that the fact of the way that this matter was handled by the litigant should not stand in his way of getting his matter decided on its merits.  Litigants have no less right – who are troublesome, to approach the court and seek justice and to expect that justice will be done.  Your Honours, I realise this is a very unusual case to be granted special leave, but, in my submission, the decisions of the courts at both instances – and I accept that at both instances it was rejected out of hand, and it is precisely the fact that it was rejected out of hand and with the second judgment adding insult to injury, with respect ‑ ‑ ‑

BELL J:   Mr Korman, the court did not reject the proposition out of hand.  It delivered a reasoned judgment.

MR KORMAN:   I am sorry.  Yes, your Honour.

BELL J:   The explanation at paragraph 29 of the principal judgment of the Court of Appeal provides an explanation for why their Honours came to the view that they did.

MR KORMAN:   Yes, your Honour.  I withdraw those words “out of hand”.  That is the end of my submission, your Honours.

CRENNAN J:   Thank you. 

This application concerns the construction of a document called “Heads of Agreement” executed in settlement of a dispute as to the appointment of an administrator for an intestate’s estate.  The Court of Appeal (Mandie, Hansen and Tate JJA) dismissed an appeal from a decision of the primary judge (Harper J).  The primary judge found that the reference in the heads of agreement to ANZ Trustees as the preferred administrator bound the parties to treat ANZ Trustees as the preferred appointee unless ANZ Trustees declines appointment, or unless material is put before the court which indicates that for some sufficient reason ANZ Trustees should not be appointed.  In upholding the decision below, the Court of Appeal was satisfied that fresh evidence, which the applicant sought to lead, would not have produced the opposite result. 

It is conceded by the applicant that the application does not raise any question of public importance or of principle.  It involves the construction of a document in accordance with settled principles.  We are not persuaded that the application has sufficient prospects of success so as to warrant a grant of special leave.  Nor are we persuaded that it is in the interests of justice, either generally or in this particular case, that there be a grant of special leave.  Accordingly, special leave to appeal is refused with costs.

Adjourn the Court till 10.15 am on Tuesday, 29 March in Canberra.

AT 12.57 PM THE MATTER WAS CONCLUDED