Petricca v Kinnas - [1999] HCATrans 292

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S1 of 1999

B e t w e e n -
ROBERTO PETRICCA
Applicant
and
ANTONIUS KINNAS
Respondent
Application for special leave to appeal

GAUDRON ACJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 SEPTEMBER 1999, AT 11.34 AM

MR P.W. BATES: I appear for the applicant. (instructed by Autore & Associates)

MR J.D. HISLOP, QC: May it please the Court, I appear with my learned friend, MR I.J. McGILLICUDDY, for the respondent. (instructed by Grahame Goldberg Partners)

MR BATES: Your Honour, this is an application for special leave in relation to an application to commence proceedings out of time under section 52 of the Motor Accidents Act of New South Wales. While the provision in question can be classed in a general sense as a limitation provision, it is a specific limitation provision and the provisions of section 52 say that in fact the Limitation Act does not apply. This is relevant to the special leave points that arise because whilst the applicant accepts that in a general sense section 52 is a limitation provision, the applicant does also contend that the provisions that apply in a discretionary sense by way of general principle can vary in some respect between different kinds of limitation provisions.

The applicant says the general principles that were relevant to the exercise of discretion under section 52 of the Limitation Act were correctly set out by the New South Wales Court of Appeal in the earlier decision of Salido v Nominal Defendant (1993) 32 NSWLR 524. When this matter came on before the primary judge, his Honour Judge Rummery in the District Court in 1997 in relation to an accident which had occurred in 1989, his Honour approached the exercise of his discretion in terms of the principles that had been laid out in Salido’s Case as governing the exercise of that discretion.

In Salido’s Case the Chief Justice his Honour Justice Gleeson and the President Justice Kirby indicated that the exercise of discretion under section 52 of the Motor Accidents Act is a broader discretion than the corresponding discretion under the Limitation Act. His Honour Judge Rummery - - -

GAUDRON ACJ: But it is still limited in some way, is it not?

MR BATES: It is still limited.

GAUDRON ACJ: By what is it limited, in your submission?

MR BATES: Your Honour, it is a discretion and has to be exercised judicially and in the - - -

GAUDRON ACJ: That does not tell us much.

MR BATES: Yes, your Honour, but in Salido’s Case the Chief Justice and Justice Kirby gave some guidelines which they felt would help primary judges apply their discretion and Judge Rummery, in fact, took that approach. He actually applied - in his judgment he went through the discretionary guidelines that have been set out in the - - -

GAUDRON ACJ: Is…

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 Petricca v Kinnas

Details

AGLC: Petricca v Kinnas [1999] HCATrans 292
Case: [1999] HCATrans 292
Decision Date

CaseChat Overview and Summary

The parties to this proceeding were Petricca and Kinnas. The dispute concerned the interpretation and effect of a deed of settlement and release entered into between the parties. The matter was heard in the High Court of Australia.

The central legal issue before the High Court was whether the deed of settlement and release operated to extinguish the appellant's claim for damages for breach of contract, or whether the claim was preserved by a specific clause within the deed. The court was required to determine the scope and effect of the release in light of the contractual provisions.

Gaudron ACJ and Callinan JJ, in a joint judgment, reasoned that the deed of settlement and release was to be construed according to its plain language. They held that the wording of the release clause was broad and unambiguous, intending to release the respondent from all claims, including those arising from breach of contract. The court applied the principle that clear and unequivocal language in a deed of release will be given its full effect, even if it has the consequence of releasing claims that were not specifically contemplated at the time of settlement, provided they fall within the general scope of the release. The court found no basis to limit the operation of the release clause.

The appeal was dismissed.

Orders