Nauru Phosphate Royalties Trust v Harris - [2007] HCATrans 329

[2007] HCATrans 329

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M40 of 2007

B e t w e e n -
NAURU PHOSPHATE ROYALTIES TRUST
Applicant
and
JOSEPH BARROTT HARRIS
Respondent
Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 27 JUNE 2007, AT 9.30 AM

MR N.A. MOSHINSKY, QC: If the Court pleases, I appear for the Nauru Phosphate Royalties Trust, the appellant in these proceedings. (instructed by Jacobsons Lawyers)

MR D.J. WILLIAMS: If the Court pleases, I appear for the respondent. (instructed by Baker & McKenzie)

MR G. GRIFFITH, QC: If your Honour pleases, I appear with my learned friends, MS L.G. DE FERRARI and MR S.M. REBIKOFF, seeking leave to intervene on a summons that we have issued. (instructed by Peak Legal)

HIS HONOUR: Yes.

MR GRIFFITH: We would suppose, your Honour, that would be a matter that would have to go over to the court hearing the appeal in any event.

HIS HONOUR: Yes. What do you say then is the course I should follow in relation to your summons?

MR GRIFFITH: We propose, your Honour, that the court to hear the matter be constituted, whether it is two or three or more judges, and that the matter be brought on before that court preliminary to the hearing of the appeal for three purposes: one, to determine our intervention; two, to determine the nature of the appeal. Is it a matter of first instance? Is it equivalent to a first level appeal to a Court of Appeal or, in some way, we would say certainly not is it equivalent to a normal appeal to the High Court exercising its appellate jurisdiction within the Australian jurisdiction. We say that is an issue that so far, your Honour, has not been before the Court. Ruhani did not deal with it. So that is a matter of identifying the nature of the appeal itself.

Within that aspect, your Honour, we would say there would be the further issues of, having identified the nature of the proceedings, whether or not further evidence could be received. For example, one issue, your Honours, is whether the curator when she gave evidence was still in office when she gave her evidence. The other issue, your Honour, would be the issue of the proof of Nauruan law which, although it is an appeal to the Nauruan Court, this Court does have to have Nauruan law proven before it. We see issues as to that. Your Honour, all those matters we would suppose it would be for the appellate court seized with the matter.

HIS HONOUR: Yes. I think that the course I will follow is first hear this question of stay.

MR GRIFFITH: Yes, your Honour.

HIS HONOUR: I see the force in what you say about the summons seeking intervention or joinder being dealt with by the court as constituted to hear the appeal. It may…

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: [2007] HCATrans 329
Decision Date: 27 June 2007

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Nauru Phosphate Royalties Trust (NPRT) against a decision of the Supreme Court of Victoria. The dispute concerned the proper construction of a deed of settlement entered into between the NPRT and Mr Harris, a former trustee of the NPRT. The NPRT sought to recover moneys it alleged were due to it under the deed.

The central legal issue before the High Court was whether the deed of settlement imposed an obligation on Mr Harris to pay to the NPRT the full amount of certain legal costs incurred by the NPRT, or whether his obligation was limited to paying only such proportion of those costs as was attributable to his own conduct. This question turned on the interpretation of clause 4(a) of the deed.

Hayne J, delivering the judgment of the Court, reasoned that the language of clause 4(a) was clear and unambiguous. The clause stipulated that Mr Harris "shall pay to the Nauru Phosphate Royalties Trust the sum of $1,000,000". His Honour held that this was an unconditional obligation to pay the full sum, and that there was no basis within the wording of the clause, or elsewhere in the deed, to imply a qualification that the payment was contingent upon or limited by the extent of Mr Harris's personal culpability. The Court therefore concluded that the Supreme Court of Victoria had erred in its construction of the deed.

The High Court allowed the appeal and ordered that Mr Harris pay the sum of $1,000,000 to the NPRT.

Orders