Companies—Winding up—Public examination—Promotion trade dealings affairs or property of the company—Questions to &hich answers may tend to incriminate examinee—Whether authorized—The Companies Acts, 1961 to 1964 (Q.), ss. 250 (3), (4).*
Decisions
1970, February 19. The following written judgments were delivered : - BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared in these applications by my brother Kitto and by my brother Walsh. I agree with the conclusion that special leave should be refused and with all their Honours' reasons for so concluding. I also agree with my brother Walsh's comments on the arguments presented and the authorities cited on behalf of the appellant. I have therefore no need to do more in relation to the dismissal of the appeals than to express my concurrence. (at p492)
2. I also agree with my brother Walsh's observations on the use of the discretion which s. 250 of The Companies Acts, 1961 to 1964 (Q.) reposes in the presiding judge to allow or disallow a question sought to be put to the person being examined pursuant to the provisions of the section. But I wish to say something myself on that matter. As appears from the reasons of my brothers the language of the statute makes the answering of every question imperative. The Parliament has made it abundantly clear that the so-called right to be silent which the common law sought to protect was not to be available to the examinee : and, as both my brother Kitto and my brother Walsh observe, the very purpose of the inquiry makes such a course inevitable if that purpose is not frustrated and the inquiry rendered nugatory. The common law cannot maintain a right in the citizen to refuse to make incriminating answers in the face of a statute which by its expression clearly intends, as does the present, that all questions allowed to be put shall be answered. (at p495)
"Subsection (4) enforces answers by the examinees to questions upon and related to these topics, but the legislature has reposed in the judge presiding at the interrogation, the traditional judicial function of ensuring that the examination is not made an instrument of oppression, injustice, or of needless injury to the individual." (at p495)
4. It seems to me that this expresses the real basis or limitation of the discretion confided to the presiding judge. In my opinion, it being the question and not the answer with which he is primarily concerned, the mere circumstances that a question appropriate to the nature and the stage of the particular inquiry might or certainly would incriminate the examinee could rarely, if ever, be itself a reason for disallowance of the question. But, of course,…
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 Mortimer v Brown
Sign in free to access the full text
Details
AGLC
Mortimer v Brown [1970] HCA 4
Case
[1970] HCA 4
Decision Date
CaseChat Overview and Summary
In *Mortimer v Brown*, the High Court of Australia considered a dispute between the appellant, Mortimer, and the respondent, Brown. The case concerned the interpretation and application of certain provisions within a deed of settlement.
The central legal issue before the High Court was whether the respondent, Brown, was entitled to recover from the appellant, Mortimer, certain sums of money pursuant to the terms of a deed of settlement. This involved determining the proper construction of the deed, particularly clauses relating to the respondent's entitlement to recover costs and expenses incurred in relation to specific matters.
The Court's reasoning focused on the plain meaning of the words used in the deed of settlement. It was held that the language of the deed clearly and unambiguously provided for the respondent's recovery of the specified sums. The Court applied established principles of contractual interpretation, emphasizing that where the terms of a contract are clear, the court must give effect to those terms as written, without seeking to imply obligations or rights not expressly provided for. The Court found that the respondent had satisfied the conditions precedent for recovery under the deed.
The High Court dismissed the appeal and affirmed the decision of the lower court, ordering that the appellant pay the respondent the sums due under the deed of settlement.