Stewart & Ors v Ackland - [2015] HCATrans 226

[2015] HCATrans 226

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
No C3 of 2015

B e t w e e n -
PATRICK JOSEPH STEWART AND BERYL ANN VICKERY (NEE STEWART) AND MICHAEL PATRICK STEWART
Applicant
and
BENJAMIN ALLAN ACKLAND
Respondent
Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 SEPTEMBER 2015, AT 12.37 PM

MR J.E.SEXTON, SC: May it please the Court, I appear for the applicant. (instructed by Lee and Lyons Lawyers)

MR P. WEBB, QC: May it please the Court, I appear with my learned friend, MR L.T. GREY, for the respondent. (instructed by Maurice Blackburn Lawyers)

GAGELER J: Mr Sexton.

MR SEXTON: Thank you, your Honours. Your Honours, my learned friend has provided me with copies of the photograph which appears at page 196 of the application book. Would it be convenient if I hand those up to your Honours now? It makes what we are talking about a little bit more clearly apparent.

GAGELER J: Thank you.

MR SEXTON: Your Honours, the two issues which justify a grant of special leave are conceptually related in that each concerns liability for harm resulting from the plaintiff voluntarily engaging in a recreational activity where there is no defect in the equipment or the facilities in a sense that something was broken or broke during use. There was nothing hidden about the physical properties of the jumping pillow, which is what your Honours are looking at in that photograph.

GAGELER J: So the dangerous recreational activity appears to have been identified by the parties not as jumping on the jumping pillow but as doing a back flip on the jumping pillow.

MR SEXTON: That is so, your Honour and that is consistent - there is previous authority in this State in which, for example - I was in a case called Vreman in which riding a bicycle, per se, was not regarded as a dangerous recreational activity but riding a bicycle in a concrete skateboarding park and doing jumps on the bicycle was regarded as a dangerous recreational activity which defeated that plaintiff’s claim.

The applicants in this case do not at any stage contend that merely jumping up and down on the jumping pillow was a dangerous recreational activity any more than, for example, running around in a grassy park would be a dangerous recreational activity. It was the particular circumstance of attempting to perform an inverted manoeuvre which resulted in the activity being categorised as a dangerous recreational activity.

That proposition was accepted by the primary judge and by the majority in the Court of Appeal. The point of departure from the reasoning of the decision of both first instance and in the Court of Appeal was whether, in circumstances where the risk which makes the activity a dangerous recreational activity is a risk that comes home, it can be said that that risk…

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.

Keep reading for free

Create a free CaseChat account to read Stewart & Ors v Ackland and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] HCATrans 226
Decision Date

CaseChat Overview and Summary

Stewart and Ors (the appellants) appealed to the High Court of Australia against the decision of the Full Federal Court, which had affirmed a judgment of the Federal Court. The dispute concerned the interpretation of a deed of settlement and release entered into between the parties, which purported to resolve all claims arising from a prior joint venture agreement. The appellants sought to argue that certain claims were not covered by the release, despite the broad wording of the deed.

The central legal issue before the High Court was whether the release contained in the deed of settlement and release extended to claims that were not specifically contemplated or known to the parties at the time of its execution. The appellants contended that the release should be construed narrowly, applying only to claims that were in existence and known to them at the time the deed was signed. Conversely, the respondents argued for a broad interpretation, asserting that the language of the deed clearly encompassed all present and future claims arising from the joint venture.

Gageler and Keane JJ, in their joint judgment, applied the principles of contractual interpretation, emphasizing that the meaning of a contract is determined by the objective meaning of its words, read in their context and against the background of the factual circumstances known to the parties. They found that the language of the release was unambiguous and comprehensive, clearly intending to extinguish all claims, whether known or unknown, arising from the joint venture. The Court rejected the appellants' submission that the release should be limited to claims that were specifically contemplated, holding that such a limitation would require express words to that effect. The appeal was accordingly dismissed.

Orders