Shergold vTanner M63/2001 - [2001] HCATrans 577

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M63 of 2001

B e t w e e n -
PETER ROGER SHERGOLD, AS DELEGATE OF PETER KEASTON REITH, MINISTER OF STATE FOR EMPLOYMENT, WORKPLACE RELATIONS AND SMALL BUSINESS
Appellant
and
LINDSAY TANNER
Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 15 NOVEMBER 2001, AT 10.22 AM

MR A.L. CAVANOUGH, QC: I appear with my learned friend, MS W.A. HARRIS, for the appellant. (instructed by Australian Government Solicitor)

MR K.H. BELL, QC: If the Court pleases, I appear on behalf of the respondent with my learned friend, MR S.G.E. McLEISH. (instructed by Maurice Blackburn Cashman)

GLEESON CJ: Yes, Mr Cavanough.

MR CAVANOUGH: In this matter the drafting positions of the parties might be stated as follows. The appellant says that a certificate under sections 33A or 36 of the Freedom of Information Act if regular on its face establishes conclusively, subject only to Part VI of the Act, that the relevant document has the certified characteristics.

McHUGH J: But that is not the issue, is it? The issue as stated in paragraph 1 of your submissions is not the issue at all in the case. Surely the question is whether the certificate is immune from judicial review. That is the issue in the case, not whether the certificate is conclusive. Your opponent does not suggest otherwise than conclusive. So long as they cannot be reviewed or being reviewed, they are not challenged. It is quite misleading to state that the issue is whether or not a conclusive certificate is conclusive. Of course it is conclusive. The question is whether it can be reviewed.

MR CAVANOUGH: The question is, in my respectful submission, whether any of the grounds that are advanced are grounds that are able to be entertained in a challenge to a certificate of this kind.

KIRBY J: This is the debate, this is the realm of debate?

MR CAVANOUGH: Yes, your Honour.

KIRBY J: It is important, as Justice McHugh has said, to get the actual issue clear at the outset and the respondent says that your ground of appeal accurately states the issue, but your argument does not.

GUMMOW J: We went through all this, and there was a special leave question that was formulated by the Bench, I think, after some difficulty, but is that not right, is not what Justice McHugh says right? That is why the question was formulated that way after a lot of toing‑and‑froing.

MR CAVANOUGH: Your Honour, with respect, I would submit it is two different ways of looking at the same question and Justice Burchett’s approach is one approach to the problem and the majority approach, although they differ between themselves, is another approach to looking at the problem. We submit that Justice Burchett’s approach is correct and that the judgments of the majority are not…

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 Shergold vTanner M63/2001

Details

AGLC: Shergold vTanner M63/2001 [2001] HCATrans 577
Case: [2001] HCATrans 577
Decision Date: 15 November 2001

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Shergold v Tanner*. The dispute concerned the interpretation of a clause in a deed of company arrangement, specifically whether it conferred a right on the company to recover moneys paid by it to the respondent, Tanner, under a guarantee. The appellant, Shergold, was the liquidator of the company.

The central legal issue before the High Court was whether the liquidator, on behalf of the company, could recover payments made to Tanner pursuant to a guarantee, given that the company had subsequently entered into a deed of company arrangement. This involved determining the effect of the deed on the company's rights and obligations, and whether the payments made under the guarantee were recoverable as a preference or otherwise.

The Court considered the nature of the guarantee and the payments made under it. It was held that the payments made by the company to Tanner were not recoverable by the liquidator. The Court reasoned that the payments were made in discharge of the company's liability under the guarantee, and that the deed of company arrangement did not operate retrospectively to extinguish or alter this liability in a way that would render the payments recoverable. The principles of company law regarding deeds of arrangement and the recovery of payments were applied, with the Court finding that the payments were made in accordance with the company's obligations at the time.

Orders