Kelly v Crosby & Ors - [2013] HCATrans 17

[2013] HCATrans 017

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C4 of 2012

B e t w e e n -
MICHAEL KELLY
Applicant
and
LYNTON CROSBY
First Respondent
MARK TEXTOR
Second Respondent
ATTORNEY‑GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY
Third Respondent
ATTORNEY‑GENERAL NORTHERN TERRITORY
Fourth Respondent
ATTORNEY‑GENERAL OF THE COMMONWEALTH
Fifth Respondent
Application for special leave to appeal

FRENCH CJ
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 15 FEBRUARY 2013, AT 9.30 AM

____________________

MR B.R. McCLINTOCK, SC: May it please the Court, I appear for the applicant, with my learned friend, MS G.R. RUBAGOTTI. (instructed by Zone Legal)

MS G.C. DEMPSEY: May it please the Court, I appear for the first and second respondents, with my learned friend, MR G.J. WATSON. (instructed by Colquhoun Murphy)

MR P.J.F. GARRISSON, Solicitor‑General for the Australian Capital Territory: If it please, your Honour, I appear for the Attorney‑General, for the third respondent, with my learned friend, MS K.M. RICHARDSON. (instructed by ACT Government Solicitor)

MR M.P. GRANT, QC, Solicitor‑General for the Northern Territory: May it please the Court, I appear with MS K.M. RICHARDSON, for the fourth respondent, your Honours. (instructed by Solicitor for the Northern Territory)

MR T.M. HOWE, QC: May it please the Court, I appear with my learned friend, MR G.M. AITKEN, for the fifth respondent. (instructed by Australian Government Solicitor)

FRENCH CJ: Thank you. Yes, Mr McClintock.

MR McCLINTOCK: Your Honours, it seems to have been common ground below, and is essentially common ground here, that the only possible support for the constitutional validity of section 9(3) of the Commonwealth Cross‑vesting Act is section 76(ii) of the Constitution. That is, as the Full Court found below, that section, section 9(3), was a matter arising under law made by Parliament.

CRENNAN J: Mr McClintock, if I may, looking at paragraph 35 of your first set of written submissions in relation to 76(ii) ‑ do you have that Mr McClintock? I have read that as an acceptance that GPAO and Spinks v Prentice to the extent that it follows GPAO are not in any sense challenged by these submissions.

MR McCLINTOCK: Your Honour, we do not challenge GPAO, Ruhani or Spinks v Prentice. What we do is we seek to distinguish them. There is a concession in that paragraph ‑ ‑ ‑

HAYNE J: I am sorry, if you go back to the proposition you started from, that 9(2) ‑ ‑ ‑

MR McCLINTOCK: Section 9(3), your Honour. The proposition ‑ ‑ ‑

HAYNE J: Section 122 does not walk across the stage at all?

MR McCLINTOCK: In our submission, in fact no, your Honour. I can understand the ultimate relevance of section 122. But could I take your Honours to first the legislation, and before I do could I just say this about paragraph 35? There is a concession in there that…

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 Kelly v Crosby & Ors

Details

AGLC: Kelly v Crosby & Ors [2013] HCATrans 17
Case: [2013] HCATrans 17
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between the applicant, Kelly, and the respondents, Crosby and others, concerning the interpretation and application of certain provisions of the *Corporations Act 2001* (Cth). The proceedings arose from a claim brought by Kelly against the respondents.

The central legal issues before the High Court involved the proper construction of provisions relating to the liability of directors for company debts and the availability of certain defences. Specifically, the court was required to determine whether the respondents, as directors, had breached their duties and whether they could rely on statutory defences to avoid personal liability for the company's debts.

The High Court's reasoning focused on the statutory language and the established principles of corporate law. The court analysed the obligations imposed on directors under the *Corporations Act* and the circumstances under which personal liability could arise. It considered the nature of the defences available to directors and the onus of proof required to establish them. The court ultimately found that the respondents had not established the necessary elements for the defences to apply, leading to their liability.

The High Court allowed the appeal, setting aside the orders of the lower court and remitting the matter for further consideration in accordance with the High Court's judgment.

Orders