Obeid & Ors v Lockley & Anor - [2018] HCATrans 239

[2018] HCATrans 239

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S126 of 2018

B e t w e e n -
EDWARD MOSES OBEID
First Applicant
MOSES EDWARD OBEID
Second Applicant
PAUL EDWARD OBEID
Third Applicant
EDWARD JOSEPH OBEID
Fourth Applicant
and
GRANT LOCKLEY
First Respondent
PAUL GRAINGER
Second Respondent
Application for special leave to appeal

BELL J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 NOVEMBER 2018, AT 10.19 AM

____________________

MR G.O’L. REYNOLDS, SC: May it please the Court, in this matter I appear for the applicants with my learned friend, MR D.P. HUME. (instructed by Deutsch Partners)

MR P.S. BRAHAM, SC: If your Honours please, I appear for the first respondent with my learned friends, MR R.C. SCRUBY, SC and MR B.K. LIM. (instructed by Henry William Lawyers)

MS E.A. CHEESEMAN, SC: If it please the Court, I appear for the second respondent with my learned friend, MS S.A.C. PATTERSON. (instructed by Crown Solicitor’s Office (NSW))

BELL J: Yes.

MR REYNOLDS: Your Honours, can I start with what, we submit, are the special leave points, that is, significant issues of law which may attract your Honours’ interest and attention. The first, as your Honours will have seen from our submissions, is what is the appropriate mental element in relation to damage for the tort of misfeasance? The two competing tests, as your Honours have seen, are, on the one hand, a recklessness test and, on the other, a test of foreseeability of harm. There is a split in intermediate Courts of Appeal on that issue and, we submit, that is a significant question of law which warrants this Court’s attention.

The second issue which we have highlighted is that inevitably there will be an issue raised by way of notice of contention in this case ‑ I do not understand it to be disputed ‑ about what is the appropriate ambit or definition of the notion of “public office” or “public officer” within the meaning of this tort. There is, as the Chief Justice noted below a difference of opinion between the approach taken in Victoria, which was what the primary judge followed, and the approach taken in the New South Wales Court of Appeal. So, pausing there, we say there are two issues significant in their own right on which there are divergences in intermediate Courts of Appeal.

Now, I have gone through that fairly quickly and the reason is that my perception, rightly or wrongly, is that the gravamen of the case against me on leave is not so much that we do not have important questions of law but rather that there are other issues which make this case an inappropriate vehicle for leave. Can I deal with those directly?

The three points which are raised against us in that regard really stem from the judgment of the Chief Justice, in particular at…

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: [2018] HCATrans 239
Decision Date

CaseChat Overview and Summary

The case of *Obeid & Ors v Lockley & Anor* was heard in the High Court of Australia. The dispute concerned the proper interpretation of section 131 of the *Civil Procedure Act 2005* (NSW) (the Act), which deals with the admissibility of evidence of settlement negotiations. The appellants, Obeid and others, sought to rely on evidence of settlement negotiations to establish a defence to a claim brought by the respondents, Lockley and another.

The central legal issue before the High Court was whether section 131 of the Act, which generally renders evidence of settlement negotiations inadmissible, applied to the circumstances of the present case. Specifically, the court had to determine if the evidence of settlement negotiations was being used for a purpose other than to prove liability or non-liability, thereby potentially falling within an exception to the general rule of inadmissibility.

The High Court held that section 131 of the Act was intended to promote settlement by ensuring that parties could negotiate freely without fear that their admissions or concessions would be used against them in subsequent litigation. The court reasoned that the appellants sought to use the evidence of settlement negotiations not to prove or disprove the respondents' claim, but rather to establish a defence based on the respondents' alleged agreement to abandon their claim. This, the court found, constituted a purpose for which the evidence was admissible under section 131(1)(d) of the Act, which permits evidence of settlement negotiations to be used for a purpose other than proving liability or non-liability. Consequently, the appeal was allowed.

Orders