Mark & Ors v Henshaw - [1999] HCATrans 94

IN THE HIGH COURT OF AUSTRALIA

Registry No C6 of 1998

B e t w e e n -
PATRICIA ELLEN MARK, LYNDA STONER, MARGARET MARY SETTER and MARK ANTHONY PEARSON
Applicants
and
GORDON ROBERT HENSHAW

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 APRIL 1999, AT 11.09 AM

MR T.A. GAME, SC: If the Court pleases, I appear for the applicants with my learned friends, MR S.J. ODGERS and MR J.R. CLARKE. (instructed by Friend & Hazard)

MR R.C. REFSHAUGE: May it please the Court, I appear with my learned friend, MS P.J. RUSSELL, for the respondent. (instructed by the Director of Public Prosecutions for the Australian Capital Territory))

GLEESON CJ: Yes, Mr Game.

MR GAME: If the Court pleases. Under the appeal regime in force in the ACT with respect to cases before magistrates where there has been an acquittal, the appeal is on a question of law only. We were acquitted before the magistrate by orders made by Justice Miles and, in due the course, the Full Court of the Federal Court. We were found guilty but not convicted.

The consequence of that, in terms of the approach to the appeal and the special leave application, is that it must be approached, we would submit, on the basis that both appeal courts below found that on the facts found by the magistrate, it was not open to find that there was a reasonable excuse. Any other consequence in terms of errors made by the magistrate might result in some other order, but it could not result in a finding of guilt.

The Full Court of the Federal Court approached the matter, we submit, on the basis that battery hen farming is lawful. The facts found by the magistrate lead inexorably to the conclusion that there was a dominant purpose which was to protest battery hen farming. We challenge both of those conclusions. With respect to the proposition that battery hen farming is lawful, the magistrate found, in our submission, to the contrary. All that is lawful is putting hens in cages. For the very reasons that the magistrate gave, battery hen farming at Parkwood Eggs ‑ ‑ ‑

GLEESON CJ: Battery hen farming may or may not be conducted lawfully, depending on the circumstances of the case.

MR GAME: It could be conducted lawfully if you let the hens out of the cage for exercise every day. It may be lawful if you allow them to ruffle their feathers and so forth, so that there are a series of things that have to be done. They have to have exercise, under the provisions of the Animal Welfare Act and so forth. There is certainly no provision that says that battery hen farming is lawful. That proposition is really central to the Full Federal Court’s reasoning, because the Full Federal Court says, in effect, and 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.

Continue reading Mark & Ors v Henshaw

Details

AGLC: Mark & Ors v Henshaw [1999] HCATrans 94
Case: [1999] HCATrans 94
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between Mark and others (appellants) and Henshaw (respondent) concerning the interpretation of a clause within a deed. The central issue revolved around whether the respondent was entitled to a share of the profits from a joint venture, despite the venture not having been formally established.

The primary legal question before the Court was whether the respondent had acquired a proprietary interest in the joint venture's assets or profits, or alternatively, whether the appellants had breached a contractual obligation owed to the respondent. This required the Court to examine the nature of the agreement between the parties and the circumstances surrounding the purported formation of the joint venture.

The Court analysed the terms of the deed, focusing on the language used to describe the parties' intentions and obligations. It was held that the deed did not create a present proprietary interest in the respondent, nor did it establish a contractual obligation that was breached by the appellants. The Court concluded that the respondent's claim failed because the conditions precedent for the acquisition of rights under the deed had not been met.

Orders