Malouf v Prince - [2014] HCATrans 203

[2014] HCATrans 203

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S43 of 2014

B e t w e e n -
JOHN JOSEPH MALOUF
Applicant
and
STEPHEN THOMAS PRINCE
Respondent
Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 SEPTEMBER 2014, AT 10.02 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR A.T.S. DAWSON, for the applicant. (instructed by McCormicks Law)

MR D.F. JACKSON, QC: If the Court please, I appear with my learned friend, MR P.D. HERZFELD, for the respondent. (instructed by Walters Solicitors)

FRENCH CJ: Yes, Mr Walker.

MR WALKER: Your Honours, after exhaustive examination of the facts concerning a complaint sounding in defamation as to a number of different publications by one surgeon about another, the trial judge concluded by finding on some of those publications liability sounding in substantial damages. The Court of Appeal has relevantly reversed that finding, although simultaneously adding a rather less substantial sum of general damages on account of other publications by dint of an approach to the ascertainment whether the publication in question was on an occasion of qualified privilege.

FRENCH CJ: Now, we are looking here simply at the letters to the patients and the question of post‑operative care?

MR WALKER: Yes. Well, the letters to the patients with a particular focus on post‑operative care, yes.

FRENCH CJ: Yes.

MR WALKER: It is our submission that the approach of the Court of Appeal obviates or fails to carry out what this Court, following the lead given more than a century ago in England and Wales, required by way of a close scrutiny of the facts of the case and its circumstances in order to answer the question about public policy. Let me emphasise it is at the most general level of social normative judgments that the question of policy is framed, but at the most particular level specific to the case and the parties and their dealings that the question whether policy requires privilege or not is to be answered.

FRENCH CJ: That embeds this case in particular circumstances?

MR WALKER: Unquestionably. Unquestionably, the principle of law does. It is not possible to say that you can approach this question in any abstracted fashion. It must be rooted in an appreciation of the particular facts, and that is where we say an error worthy of a grant of special leave and this Court’s attention is justified because of the approach taken to a matter which, as we have put it in our written submissions, might be seen as a bare minimum of decent behaviour before allegations of this kind in this kind of milieu should be voiced, and that is such inquiry as the circumstances of the case permit to be carried out.

BELL J: There seems to be some issue about the extent to which it…

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: [2014] HCATrans 203
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the interpretation of a settlement agreement in *Malouf v Prince*. The dispute arose between the appellant, Mr Malouf, and the respondent, Mr Prince, regarding the terms of a deed of settlement that resolved prior litigation between them.

The central legal issue before the High Court was whether the settlement deed, which contained a release of all claims, operated to release Mr Prince from a claim for contribution that Mr Malouf sought to bring against him in separate proceedings. Specifically, the court had to determine the scope of the release and whether it extended to claims that had not yet arisen or been quantified at the time the deed was executed.

The High Court held that the release in the settlement deed was not sufficiently broad to encompass the claim for contribution. The court reasoned that a release of future claims must be expressed with a high degree of clarity and specificity. In this instance, the language of the deed, while releasing existing claims, did not clearly indicate an intention to release claims that were contingent or unquantified at the time of settlement. The principles of contractual interpretation required the court to give effect to the plain meaning of the words used, and those words did not extend to the claim for contribution.

The High Court therefore dismissed the appeal, upholding the decision of the Full Federal Court.

Orders