MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR D.J.C. MOSSOP, for the appellant. (instructed by Hunt & Hunt)
MR F.X. COSTIGAN, QC: If the Court pleases, I appear with my learned friend, MR G.J. LUNNEY, for the respondent. (instructed by Romano & Co)
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Your Honours, may I say two things before I get to our submissions. The first is that your Honours will have a slightly amended form of our written submissions. There were some mistakes that had not been corrected, that a few words were left out and a wrong reference given. The amendments are in relation to some parts of paragraph 6 but they do not alter what was there.
The second thing is, your Honours, we have given your Honours a number of extracts from dictionaries in relation to terms that are referred to in the definition of “disease” in the enactment – it is in question – and also some other expressions that may be of some significance but, your Honours, may I come to that later. Your Honours, the course which I would propose to follow in these submissions is, first, to go, and I will do so briefly, to the facts; secondly, then to the statutory provisions; and, thirdly, to the Court’s two most recent decisions on related questions, namely Hockey v Yelland and Zickar v MGH Plastic Industries Pty Limited.
Your Honours, if I could turn, first, to the factual circumstances. The respondent suffered from a form of heart disease which gave rise to blood clots which could be washed to the brain with the flow of blood through the body. That occurred and blocked the supply of blood to the brain causing a stroke. Your Honours, the medical evidence as to what happened was not in contest and the medical doctors were not called as witnesses. Their reports were simply tendered.
It was not in contest that the stroke was not contributed to by her work, and one would also see from the medical reports that her condition was described by the doctors as being a disease.
Your Honours, could I give your Honours the references to the most relevant parts of the reports. If I could take your Honours very briefly to that part of the record. One commences at page 17, Dr Cassar, and your Honours will see at page 17, lines 45 to 50, where he refers to an “indication of underlying mitral valve disease”. Then at ‑ ‑ ‑
KIRBY J: Does that doctor refer to…
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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AGLC
Kennedy Cleaning Services v Petkoska [2000] HCATrans 433
Case
[2000] HCATrans 433
Decision Date
CaseChat Overview and Summary
Kennedy Cleaning Services Pty Ltd (Kennedy) and Ms Petkoska were the parties involved in proceedings before the High Court of Australia concerning a dispute arising from a contract for cleaning services. The core of the disagreement related to the termination of this contract and the subsequent entitlement to payment for work performed.
The High Court was required to determine whether Kennedy had validly terminated the cleaning contract with Ms Petkoska. Central to this was the question of whether Kennedy's conduct constituted a repudiation of the contract, thereby entitling Ms Petkoska to accept the repudiation and claim damages for breach of contract. The court also considered the nature of the obligations under the contract and the effect of any alleged breaches on the parties' respective rights and responsibilities.
The High Court ultimately found that Kennedy's actions did not amount to a repudiation of the contract. The court reasoned that the alleged breaches by Kennedy were not of such a fundamental nature as to deprive Ms Petkoska of substantially the whole benefit of the contract. Therefore, Ms Petkoska was not entitled to treat the contract as at an end and claim damages for breach. The court's reasoning focused on the established principles of contract law regarding repudiation, emphasising that a party must demonstrate a clear intention to no longer be bound by the contract or a breach of a condition so fundamental that it goes to the root of the contract.
The High Court ordered that the appeal be allowed and the judgment of the Full Federal Court be set aside. Consequently, Ms Petkoska's claim for damages was dismissed.