Jennings & Anor v Cheshire & Anor

The applicants, Jennings & Anor, sought special leave to appeal to the High Court of Australia from a decision of the Full Court. The dispute concerned the interpretation of question 2(5) in Form 1, a statutory disclosure document required for the sale of land in South Australia. This question asks whether the vendor is aware of any environmental assessment of the land, and if so, to provide details. The applicants argued that the Full Court's construction of this provision imposed an overly onerous obligation on vendors, potentially exposing them to civil and criminal proceedings.

The primary legal issue before the High Court was the proper construction of question 2(5) in Form 1. Specifically, the applicants contended that the Full Court erred in its interpretation by finding that the question was not confined to assessments of the land itself, but could extend to assessments of an area that merely encompassed the land. Furthermore, the applicants argued that the Full Court’s interpretation of "environmental assessment" and its application of constructional aids, such as other provisions within Form 1 and definitions in the Environmental Protection Act, were erroneous. A secondary issue raised was the meaning of "aware" in the context of the question, with the applicants submitting it requires actual knowledge of both the constituent facts and their legal consequences, a standard they argued was not met by the Full Court's findings.

The applicants' central submission was that the phrase "of the land" in question 2(5) should be interpreted narrowly, referring only to assessments directly concerning the specific parcel of land being sold. They argued that the Full Court’s expansive interpretation, which allowed for assessments of a wider area that included the land, departed from the plain wording of the provision and was not supported by the definition of "environmental assessment" or other related sections. The applicants also contended that the concept of "awareness" required actual knowledge of the facts and an understanding of their legal implications, citing *Deming* for the proposition that awareness of a statutory condition necessitates knowledge of both facts and legal consequences. They argued that the Full Court failed to make findings to this effect, leading to an unjust outcome given the potential for severe penalties.

The respondents, conversely, argued that the Full Court's interpretation was correct, asserting that the purpose of the disclosure form was to put purchasers on inquiry. They submitted that the definition of "environmental assessment" was intentionally broad to capture a range of investigations, including those whose purpose was to identify potential site contamination at the land, even if the assessment itself was conducted over a wider area or its source was external. The respondents also contended that the criminal liability provisions were unlikely to apply to vendors who were genuinely unaware, and that a narrow interpretation of "awareness" could facilitate "studied ignorance" by vendors, undermining the consumer protection aims of the legislation. The High Court ultimately granted special leave to appeal on these grounds.