Rudolphy v Lightfoot - [1999] HCATrans 155

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Perth No P22 of 1999

B e t w e e n –

FREDERICK HENK RUDOLPHY
Petitioner
and
PHILIP ROSS LIGHTFOOT
Respondent
Application for dismissal of election petition

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 JUNE 1999, AT 12.01 PM

MR S.J. GAGELER: If the Court pleases, I appear for Senator Lightfoot, the respondent to the petition and the applicant on the summons. (instructed by Freehill Hollingdale & Page)

HIS HONOUR: Yes, you are moving on the summons dated 28 May and filed that day.

MR GAGELER: That is correct, your Honour.

MR J. COURTIS: If your Honour please, I appear for the petitioner. (instructed by Wojtowicz Kelly)

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please your Honour, I appear on behalf of the Attorney-General for the State of Western Australia intervening. (instructed by the Crown Solicitor for the State of Western Australia)

MR GAGELER: Your Honour, the application is for the dismissal of the election petition, the sole ground of the application being that the petition fails to comply with section 355(e) of the Electoral Act.

HIS HONOUR: Yes, can I ask you what is the balance of the term of your client as a senator?

MR GAGELER: I cannot answer your Honour exactly but I will seek some instructions.

HIS HONOUR: Yes, right.

MR GAGELER: Your Honour, I move on the summons dated 28 May.

HIS HONOUR: Yes.

MR GAGELER: I read in support ‑ ‑ ‑

HIS HONOUR: I have an affidavit of Mr Pontifex.

MR GAGELER: That is correct.

HIS HONOUR: That was sworn 31 May.

MR GAGELER: Yes, and that is the entirety of the evidence upon which I rely.

HIS HONOUR: And then Mr Courtis, his side has an affidavit by the petitioner sworn on 4 June. Is that right?

MR GAGELER: That is correct, sir, yes and I rely on that affidavit.

HIS HONOUR: And then there are some written submissions, I think, from the Attorney as well. That is right, is it not, Mr Solicitor?

MR MEADOWS: Yes, very short submissions.

HIS HONOUR: Yes, Mr Gageler.

MR GAGELER: Your Honour, the answer to your Honour’s question is that the term expires on 30 June 2002.

HIS HONOUR: Yes, thank you. Now, in addition to the authorities both sides have referred to there is a decision of Justice Dawson which the parties may or may not be aware of. It is Re Barry Ceminchuk of 28 October 1993 which was a dismissal of a summons seeking an extension of time to file a petition which was refused.

MR GAGELER: Yes, I was not aware of that, your Honour.

HIS HONOUR: But is there any decision of the Full Court, it would have to be on a stated case, I suppose, dealing with this…

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 Rudolphy v Lightfoot

Details

AGLC: Rudolphy v Lightfoot [1999] HCATrans 155
Case: [1999] HCATrans 155
Decision Date

CaseChat Overview and Summary

Rudolphy (the applicant) sought leave to appeal from a decision of the Full Court of the Supreme Court of Western Australia. The dispute concerned the interpretation of a clause in a deed of settlement, which the applicant argued had been breached by the respondent. The applicant contended that the Full Court had erred in its construction of the settlement deed.

The primary legal issue before Gummow J was whether the Full Court had correctly interpreted clause 10 of the deed of settlement. This clause dealt with the circumstances under which the respondent was obliged to pay a further sum of money to the applicant. The applicant argued that the Full Court’s interpretation had effectively rendered a significant part of the clause otiose.

Gummow J considered the principles of contractual interpretation, including the importance of giving effect to the plain and ordinary meaning of the words used in the deed, whilst also having regard to the context in which the clause appeared. His Honour found that the Full Court’s interpretation was not demonstrably wrong and that the applicant had not established a sufficient basis to grant leave to appeal on this ground.

Leave to appeal was therefore refused.

Orders