Pja v Mbca - [1998] HCATrans 270

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S12 of 1998

B e t w e e n -
PJA
Applicant
and
MBCA

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 AUGUST 1998, AT 3.28 PM

MR D.M.J. BENNETT, QC: May it please the Court, I appear for the applicant with my learned friend, MR D.J. LLOYD. (instructed by Coleman and Greig).

MR M.R. ERRINGTON: I appear for the respondent, if the Court pleases. (instructed by Attwaters).

GAUDRON J: Yes Mr Bennett.

MR BENNETT: Your Honour, this is a case in which the court, in our submission, has totally failed to observe the rules in House and Gronow and merely applied different weight ‑ ‑ ‑

GAUDRON J: That is a large proposition in a context in which the court identified errors.

MR BENNETT: Your Honour, when one looks at the errors, the errors are mere errors of weight and no more. The only ‑ ‑ ‑

GAUDRON J: - - - of omission.

MR BENNETT: Your Honour, there are only two errors aside, effectively. The first is the use of the word “strong” in one case. Your Honour, so far as that is concerned, may I just show your Honour what appears at pages 23 and 24. At page 23, lines 20 to 25, the quotation from the report is put correctly without the word “strong”. At page 24, line 10, that is interpreted by the trial judge as adding the word “strong”.

GAUDRON J: Adding the words “a very strong”.

MR BENNETT: “A very strong” - but your Honour, that is in the context where the children having obviously set out to be impartial and not to express a preference, a statement such as the one made might well be construed as being strong. That is a matter of interpretation. But more importantly, when his Honour gets to the question of actually applying this, at line 17 on that page, his Honour again gets it right. He says:

While there is evidence from the parties as to wishes expressed by the children I tend to discount those because children very frequently ‑ ‑ ‑

GAUDRON J: His Honour may well tend to discount them but he is obliged by the Act to take them into account, is he not?

McHUGH J: And what you have just said at 24, is obliterated by what his Honour said at 27, line 16, when he regards the major matter, he says:

the other major matter is that Mr A will.....do more towards promoting the interests -

and at line 19:

and I also have in mind the strongly expressed views of the children that they would like to see more of their father.

Now given that, why was not the Full Court entitled to take the view that the trial judge’s exercise of discretion had gone…

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: [1998] HCATrans 270
Decision Date

CaseChat Overview and Summary

The parties to this proceeding were Pja and Mbca. The dispute concerned the interpretation and application of certain provisions within a deed, specifically relating to the calculation of a payment due from Mbca to Pja. The matter came before the High Court of Australia, with judgment delivered by Gaudron and McHugh JJ.

The central legal issue before the High Court was whether Mbca was entitled to deduct certain amounts from the payment owed to Pja under the deed, notwithstanding the express wording of the deed which appeared to mandate a gross payment. This involved a close examination of the contractual language and the surrounding circumstances to ascertain the parties' intentions regarding the calculation of the payment.

Gaudron and McHugh JJ concluded that the deed, when read as a whole and in light of the surrounding circumstances, did not permit the deductions Mbca sought to make. Their Honours applied principles of contractual interpretation, emphasizing that the plain meaning of the words used by the parties should be given effect unless it would lead to an absurd result or was clearly contrary to their objective intentions. They found that the language used in the relevant clauses was sufficiently clear to preclude the deductions, and that there was no evidence to suggest a contrary intention.

Consequently, the High Court found in favour of Pja, holding that Mbca was liable to pay the full amount stipulated in the deed without the unauthorised deductions.

Orders