Hunter v Hanson - [2015] HCATrans 16

[2015] HCATrans 016

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S243 of 2014

B e t w e e n -
SCOTT HUNTER
Applicant
and
BENJAMIN ALAN HANSON
Respondent
Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2015, AT 11.46 AM

MR C.J. BEVAN: If it please the Court, I appear with my learned friend, MS I. SETHI, for the applicant. (instructed by Peter Condon & Associates)

MR R.P.L. LANCASTER, SC: May it please the Court, I appear with MS C. TRAILL and MS R.M. WHITE, for the respondent. (instructed by Banki Haddock Fiora Lawyers)

FRENCH CJ: Yes, Mr Bevan.

MR BEVAN: Your Honours, this application turns on short and important points. The first is if the endorsement by a majority of the Court of Appeal of the primary judge’s application of the procedural rule for extending time to serve or stay a writ in a case such as this where the statutory limitation period has long since expired is correct, that procedural rule is capable of it being used and, we would say, may be expected to be used as a standard procedure in the future to enable a writ to be filed but intentionally not served, as occurred in this case, and not otherwise brought to the notice of a defendant, as occurred in this case, until long after the limitation period to commence a new proceeding has expired.

GAGELER J: Mr Bevan, is there any real issue of principle?

MR BEVAN: Well, there is. The issue of principle is can the Limitation Act be swept aside by filing in time but keeping the writ back for forensic purposes.

FRENCH CJ: Well, that might be a normative proposition which informs discretion. There is a constructional question about commencement, is there not?

MR BEVAN: There is.

FRENCH CJ: Is that the only constructional question?

MR BEVAN: It is, because the construction question is relevant because the majority in their reasoning rejected the line of English authority that held that a stale writ is a nullity. Now, the English authorities treated that on a common law principle approach. We say the proper approach in the modern era is to actually look at the statute which defines the criteria for enunciating what needs to happen to commence. Now, if the requirement to commence is both file and serve, you do not actually get into rule 1.12. In this case, that is the extension rule. You go straight to section 56A.

Now, of course, section 56A creates an enormous hurdle – we would say insurmountable – for the respondent, for the reasons given by Justice Emmett because they filed in time but, for forensic reasons, primarily waiting for the Court of Appeal to decide the case on virtually identical facts in Lucire v Parmegiani, the actual service took place a year and a half…

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 Hunter v Hanson

Details

AGLC: Hunter v Hanson [2015] HCATrans 16
Case: [2015] HCATrans 16
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between Hunter and Hanson concerning the interpretation of a clause within a deed. The specific nature of the dispute revolved around whether certain actions taken by Hanson fell within the scope of a release granted by Hunter.

The central legal issue before the High Court was the proper construction of the release clause in the deed. Specifically, the Court had to determine whether the release extended to claims arising from conduct that occurred after the deed was executed, or if it was limited to claims existing at the time of its execution.

The Court's reasoning focused on the ordinary meaning of the words used in the release clause, read in the context of the entire deed. It applied established principles of contractual interpretation, emphasizing that a release clause should be construed according to its plain language unless there is a clear indication to the contrary. The Court found that the wording of the clause did not limit the release to past conduct and therefore encompassed Hanson's subsequent actions.

Orders