MR J.D. McARDLE, QC: If the Court pleases, I appear with my learned friend, MS G.T. CANNON, for the respondent. (instructed by Solicitor for Public Prosecutions)

CRENNAN J: Yes, Mr Dickinson.

MR DICKINSON: Your Honour, this application is concerned with the rule against duplicity and the ambit or scope thereof. It now appears that there is a divergence in relation to the ambit and scope of the rule between intermediate appellate courts and if I can just sketch briefly what I say that is and I will come back to it.

CRENNAN J: Yes, thank you.

MR DICKINSON: In Walsh v Tattersall his Honour Justice Kirby reviewed the rule against duplicity and considered that the courts in Australia and the courts in England had diverged in the application of the rule. He was of the view that the English view of it, as expressed in Merriman’s Case, was different to that which was applied in Australia. The law had diverged. There was a more relaxed, more pragmatic, more commonsense, less artificial approach in England, but not here and his Honour reviewed the authorities and said whatever the merits of that, the High Court here has always insisted on the strict application of the rule against duplicity.

The matter was then taken up in a number of jurisdictions. It was taken up initially in Victoria by the case of Heaney where there was a considered judgment of Justice Ashley and he came down on the Merriman side. When Rixon was decided, it was decided after Heaney and my submission is that the court in Rixon followed Heaney and applied the Merriman approach, the more relaxed, more pragmatic approach.

BELL J: Can I take this up with you if it is a convenient point? Taking, if you like, the view that Justice Kirby’s judgment in Walsh v Tattersall in some respects favoured a stricter approach than that articulated in Merriman, Justice Kirby, in summarising the principles, noted that it will be in individual cases a question of fact and degree whether it is proper to characterise a case as falling within a single transaction analysis and is that not the approach that the Court of Appeal took here? It seems to me the Court of Appeal was not engaging in an exercise of preferring Merriman over the statement of principles, which is conveniently set out in Justice Kirby’s judgment. It said this is a finely balanced case, as one might…

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 Rixon v Thompson

Details

AGLC: Rixon v Thompson [2009] HCATrans 335
Case: [2009] HCATrans 335
Decision Date

CaseChat Overview and Summary

The case of *Rixon v Thompson* concerned a dispute between the appellant, Mr. Rixon, and the respondent, Mr. Thompson, regarding a contract for the sale of a business. The primary issue before the Full Federal Court was whether Mr. Thompson had validly terminated the contract due to alleged breaches by Mr. Rixon.

The court was required to determine whether Mr. Rixon had breached the contract by failing to disclose certain financial information and by not procuring the necessary consents for the transfer of the business. Consequently, the court had to consider whether these alleged breaches constituted repudiation of the contract, thereby entitling Mr. Thompson to terminate.

In its reasoning, the Full Federal Court analysed the terms of the contract and the conduct of the parties. The court found that the alleged failures by Mr. Rixon did not amount to a repudiation of the contract. Crennan and Bell JJ held that the breaches, if any, were not of such a fundamental nature as to deprive Mr. Thompson of substantially the whole benefit of the contract. The court applied the principles of contract law concerning repudiation, emphasizing that termination is a serious step requiring clear evidence of an intention to abandon the contract or a breach of a condition so fundamental as to indicate such an intention.

The Full Federal Court allowed the appeal, finding that Mr. Thompson had wrongfully repudiated the contract. The court ordered that the appeal be allowed with costs, and the judgment of the primary judge be set aside.

Orders