Hickson v Goodman Fielder Limited - [2009] HCATrans 8

[2009] HCATrans 008

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S470 of 2008

B e t w e e n -
GLENN ANDREW JOSEPH HICKSON
Appellant
and
GOODMAN FIELDER LIMITED
Respondent

GUMMOW J
HAYNE J
HEYDON J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 6 FEBRUARY 2009, AT 10.02 AM

MR A.S. BELL, SC: May it please the Court, I appear with my learned friend, MR D.J. HOOKE, for the appellant. (instructed by Beilby Poulden Costello)

MR J.T. GLEESON, SC: May it please the Court, I appear with my learned friend, MR P. KULEVSKI, for the respondent. (instructed by Eakin McCaffrey Cox)

GUMMOW J: The first question perhaps is this summons, is it not, which is Mr Gleeson’s?

MR BELL: I think that is so.

GUMMOW J: Is there any opposition, apart from the question of costs, which at the moment we are minded to reserve?

MR BELL: Your Honour, there is this position. We have obviously attempted to deal with the matter in writing, but there were four matters we would draw to the Court’s attention in opposing leave being granted. They are these. Firstly, the notice of contention has the accepted vice that it is a point not argued below. That is, of course, not definitive.

GUMMOW J: It does look like a pure point of construction though.

MR BELL: Yes, we accept that. Secondly though, of course, the Court does not have the benefit of judgments below. But, thirdly, and perhaps more of a matter of concern, as our learned friends appear to concede in paragraph 33 of their submissions, a consequence of the acceptance of the notice of contention point would be that two unanimous decisions, or at least considered obiter in two unanimous decisions ‑ ‑ ‑

HEYDON J: Considered dicta.

MR BELL: Considered dicta in two unanimous decisions of the Court of Appeal which have stood for some time would be disturbed. That is significant because those two decisions, though dealing with the same legislation, were not dealing either with precisely the same provisions or indeed factual scenarios. The case of McDonald involved what is now 151Z(1)(d), question of an employer’s indemnity against a tortfeasor, and the case of Norris v Blake concerns really what is now 151Z(1)(e1) and the factual situations in both cases are different to those in the present case in McDonald. There had been a settlement of the common law claim but for no damages and the consequences of that were worked through and there was a further different scenario in Blake.

The point I am making is this. To consider fully this fresh argument would require necessarily the Court to work through the ramifications, not only in the legal and factual scenario or context of this case, but also two cognate but different cases, both legislative and factual, and the absence of decisions of the court below…

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

Case: [2009] HCATrans 8
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Hickson against a decision of Goodman Fielder Limited. The dispute concerned the interpretation of a clause within a deed of settlement, specifically whether it imposed a personal obligation on Goodman Fielder to pay Hickson a sum of money, or if the obligation was conditional upon Goodman Fielder receiving funds from a third party.

The central legal issue before the High Court was the proper construction of clause 4(a) of the deed of settlement. This clause stipulated that Goodman Fielder would pay Hickson a specified amount, but it was qualified by the phrase "provided that Goodman Fielder shall have received payment in full from the purchasers of the shares in Goodman Fielder Australia Limited." The court had to determine whether this proviso created a condition precedent to Goodman Fielder's obligation to pay, or if it merely described the source from which Goodman Fielder intended to make the payment.

The High Court held that the proviso in clause 4(a) constituted a condition precedent. Their Honours reasoned that the language used in the clause clearly indicated that Goodman Fielder's obligation to pay Hickson was contingent upon Goodman Fielder first receiving the specified payment from the purchasers of the shares. The court applied the principle that clear and unambiguous language in a contract or deed will be given its ordinary meaning, and that a proviso introduced by "provided that" typically signifies a condition. As Goodman Fielder had not received payment in full from the purchasers, the condition precedent had not been satisfied, and therefore, Goodman Fielder's obligation to pay Hickson had not arisen.

The High Court allowed the appeal and set aside the orders of the court below.

Orders