Shaw v Commonwealth of Australia - [2007] HCATrans 69

[2007] HCATrans 069

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S297 of 2006

B e t w e e n -
BRIAN JOHN SHAW
Applicant
and
COMMONWEALTH OF AUSTRALIA
Respondent

Office of the Registry
Sydney No S298 of 2006

B e t w e e n -
RUSSELL HENRY PEARCE
Applicant
and
COMMONWEALTH OF AUSTRALIA
Respondent
Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 FEBRUARY 2007, AT 2.04 PM

__________________

MR A.G. MELICK, SC: If it please the Court, I appear with MR J.F. SHARPE for the applicants in both matters. (instructed by Hollows Lawyers)

MR C.T. BARRY, QC: In the matter of Shaw I appear for the respondent with my learned friend, MR S. WOODS. In the matter of Pearce I appear with my learned friend, MR D.J. BROGAN, for the respondent. (instructed by Blake Dawson Waldron)

HAYNE J: Although we have called only matter No 11, what do counsel say about dealing with this matter and matter 12? Should we deal with them sequentially, should we deal with them together? What do counsel say?

MR MELICK: The issues are very similar in both of them, your Honour. There is a separate issue in relation to Shaw in relation to section 60G discretion, but otherwise I have no objection to dealing with them together if my learned friend is content with that course.

HAYNE J: What do you want to do, Mr Barry?

MR BARRY: Yes, we are content with that course.

HAYNE J: Yes, Mr Melick.

MR MELICK: Thank you, your Honour. Now, your Honours, these matters essentially deal with the question of the meaning of “ought to have known” in section 60I(1)(b) of the Limitation Act (NSW). Are your Honours familiar with the provisions or do you wish me to go ‑ ‑ ‑

CRENNAN J: Yes.

MR MELICK: I should indicate that there are at least 22 cases awaiting determination for special leave, the Melbourne/Voyager Case alone, apart from New South Wales police cases and other such matters, so these are not an isolated case. Now, section 60I(1)(b) is a gateway provision which follows section 60I(1)(a)(i) to (iii) which refer to actual knowledge. It introduces for the first time the concept of “ought to have known” as some form of constructive knowledge. We say it should be interpreted with caution and not with regard to discretionary considerations which follow from section 60G.

HAYNE J: Sorry, could you put that again. I just missed the proposition.

MR MELICK: The proposition is firstly section 60I(1)(a) talks about actual knowledge, (b) introduces for the first time constructive knowledge, and we say this has to be interpreted without regard to any of the discretionary considerations which follow in section 60G because you do not get there unless of course you first pass the threshold of (a) and (b) and therefore you do not interpolate…

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: [2007] HCATrans 69
Decision Date: 9 February 2007

CaseChat Overview and Summary

Shaw, a former member of the Australian Army, brought proceedings against the Commonwealth of Australia in the High Court of Australia. Shaw sought to challenge the validity of certain provisions of the *Defence Force Retirement and Death Benefits Act 1978* (Cth) (the Act) and regulations made under it, which he contended adversely affected his pension entitlements. The core of the dispute concerned the interpretation and constitutional validity of these provisions as they applied to his circumstances.

The High Court was required to determine whether the impugned provisions of the Act and its subordinate legislation were constitutionally valid, particularly in light of any implied constitutional guarantees or principles. Specifically, the court had to consider whether the legislation impermissibly infringed upon any rights or protections that might be afforded to a former member of the defence force, and whether the legislative scheme operated in a manner that was beyond the legislative power of the Commonwealth Parliament.

In their joint judgment, Hayne and Crennan JJ analysed the relevant provisions of the Act and the constitutional framework. They found that the legislation in question was a valid exercise of the Commonwealth's legislative power. The court applied established principles of constitutional interpretation, focusing on the express powers granted to the Parliament under the *Constitution*. They concluded that the Act and its regulations did not contravene any express or implied constitutional provisions, and that Shaw's pension entitlements were determined in accordance with the legislative scheme as enacted. The court therefore dismissed Shaw's application.

Orders