Sherman v Watson - [2005] HCATrans 63

[2005] HCATrans 063

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M128 of 2004

B e t w e e n -
PETER SHERMAN
Applicant
and
DIANA WATSON
First Respondent
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Second Respondent

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 FEBRUARY 2005, AT 3.15 PM

MR P. SHERMAN appeared in person.

MS K.J. KNIGHTS: If your Honour pleases, I appear for the respondent in that matter. (instructed by Clayton Utz)

HIS HONOUR: Mr Sherman, you appear for yourself, do you?

MR SHERMAN: I am, your Honour.

HIS HONOUR: Yes, Ms Knights for the first respondent. I think I have a certificate ‑ ‑ ‑

MS KNIGHTS: I beg your pardon.

HIS HONOUR: ‑ ‑ ‑ from the Deputy Registrar that she has been informed by Senior Registrar of the Victoria Civil and Administrative Tribunal, the second respondent that the second respondent will submit to any order of the Court, save as to costs.

Now Mr Sherman, I have again read the summons that you have filed. I have read the affidavit you have filed in support and I have read the outline of submissions that you have filed. Ms Knights, is there any objection to the reading f the affidavit in support of the application?

MS KNIGHTS: There is no objection, your Honour.

HIS HONOUR: Yes, well that may be taken as read. Those documents I had mentioned are I think the only documents that are filed in connection with the summons. Is that right Mr Sherman?

MR SHERMAN: And there was a submission of ‑ ‑ ‑

HIS HONOUR: Yes, I thought I had said that I had read your outline of submissions in support of the application for interlocutory orders. If I did not say so, I intended to. Yes.

MR SHERMAN: Your Honour, in order to be brief, as your Honour would have found out by now that the application is virtually in similar terms as the application that was made slightly prior, and the requisite ‑ ‑ ‑

HIS HONOUR: Again the same question arises, Mr Sherman.

MR SHERMAN: Yes.

HIS HONOUR: Why should I not? Why should I single this application out as one to which the old Rules should apply?

MR SHERMAN: Your Honour, the applicant is painfully aware that these are the first applications under the new Rules under – or perhaps with a view of obtaining orders under rule 1.03.04. There is no established case law at the moment under the new Rules in order for me to present the Court with sufficient reasons, but I would only reiterate that once again, when this proceeding began in 2004 it was intended for the application to reach the hearing and the applicant proceeded in the assumption that that will be the outcome of the procedural process.

HIS HONOUR: Yes.

MR SHERMAN: Other than that, I have nothing further to add, except to say that…

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 Sherman v Watson

Details

AGLC: Sherman v Watson [2005] HCATrans 63
Case: [2005] HCATrans 63
Decision Date

CaseChat Overview and Summary

Sherman (the applicant) sought leave to appeal against a decision of the Full Court of the Supreme Court of South 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 respondent had failed to pay a sum of money to the applicant in accordance with the terms of the deed.

The primary legal issue before Hayne J was whether the respondent had breached the deed of settlement by failing to make the stipulated payment. This required an examination of the language of the relevant clause within the deed and an assessment of whether the respondent's actions, or inactions, constituted a failure to comply with its terms.

Hayne J considered the principles of contractual interpretation, focusing on the ordinary meaning of the words used in the deed. His Honour found that the plain language of the clause did not impose an obligation on the respondent to make the payment in the manner contended by the applicant. Consequently, there was no breach of the deed.

Leave to appeal was refused.

Orders