NB & Ors v SB & Ors - [2020] HCATrans 168

[2020] HCATrans 168

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D1 of 2020

B e t w e e n -
NB
First Applicant
MB
Second Applicant
PB
Third Applicant
and
SB
First Respondent
MS
Second Respondent
CF
Third Respondent
RF
Fourth Respondent
CEO, TERRITORY FAMILIES
Fifth Respondent
Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 OCTOBER 2020, AT 11.34 AM

____________________

MR A. WYVILL, SC: If it pleases the Court, I appear for the applicants. (instructed by Piper Ellis Lawyers)

MS R.J. WEBB, QC: If it please the Court, I appear with MS S.G. OZOLINS for the first respondent. (instructed by Margaret Orwin)

MR A. BOE: Your Honours, I am appearing for the third and fourth respondents with MS P. MORREAU in Sydney and MR B.P. DIGHTON by video link from Brisbane. (instructed by Michael Whelan Associates)

MR D.C. McCONNEL: Your Honours are unable to see me, I am appearing with my learned friend, MR P.J. MORGAN, for the second respondent. (instructed by Katherine Women’s Legal Service)

BELL J: Thank you, Mr McConnel. Mr McConnel, you are content for the matter to proceed in circumstances where we can only hear you - you are not on video link?

MR McCONNEL: Your Honour, I am in the same room as Mr Wyvill, so after Mr Wyvill finishes I will take his place in front of the camera.

BELL J: Thank you. Yes, very well. Yes, Mr Wyvill.

MR WYVILL: Thank you, your Honours. Your Honours, the proposed appeal concerns a narrow but important point about the construction of section 8 of the Act, and particularly, but not only, its relationship with the paramountcy principle in section 10 and also in section 90 in relation to jurisdiction of the court. May I proceed firstly by outlining our points about construction, dealing then with how it arises in the decisions of the courts below before addressing the issues of special leave.

BELL J: Yes.

MR WYVILL: If I can take your Honours first then to the application book at page 278, where the relevant extracts of the Act are set out. We make the following points about those provisions. Firstly, by reference to section 4(b), your Honours can see that there is a preferred mode for advancing or promoting the wellbeing of the children, that is by assisting families. Your Honours will then note, secondly, that section 5 confirms that the Act is capable of harmonious construction, to achieve harmonious goals of the Act, and that can be seen particularly in relation to:

the powers of the Court –

that are referred to in (a)(iii) of section 5, so it should be of no surprise that the Act is capable of being given a single harmonious goal, or capable of being construed to achieve harmonious goals.

Thirdly, turning to section 6, which introduces the underlying…

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: [2020] HCATrans 168
Decision Date

CaseChat Overview and Summary

The applicants, NB and others, sought to appeal a decision of the Full Court of the Federal Court of Australia concerning the interpretation of a settlement agreement. The respondents were SB and others. The dispute centred on whether the settlement agreement, which resolved prior litigation between the parties, encompassed a claim for damages arising from alleged breaches of a deed of confidentiality.

The primary legal issue before the High Court was whether the settlement agreement, by its terms, operated as a release of the claims for breach of confidentiality. This required the Court to consider the principles of contractual interpretation, particularly in the context of settlement agreements intended to bring finality to disputes. The Court also had to determine whether the language used in the settlement agreement was sufficiently broad to encompass the confidentiality claim, even though it was not explicitly mentioned.

The High Court's reasoning focused on the ordinary principles of contractual interpretation, emphasising the importance of the text of the agreement itself. Their Honours noted that a settlement agreement, like any contract, should be construed according to its plain meaning, considering the context in which it was made. They found that the language of the release clause in the settlement agreement was comprehensive and intended to cover all claims, known or unknown, that had arisen between the parties up to the date of the agreement. Consequently, the claim for breach of confidentiality, having arisen prior to the settlement, was held to be released.

The appeal was dismissed.

Orders