The King v Jacobs Group (Australia) Pty Ltd formerly known as Sinclair Knight Merz - [2023] HCATrans 41

[2023] HCATrans 041

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S148 of 2022

B e t w e e n -
THE KING
Appellant

and
JACOBS GROUP (AUSTRALIA) PTY LTD FORMERLY KNOWN AS SINCLAIR KNIGHT MERZ
Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 APRIL 2023, AT 10.04 AM

MR J.T. GLEESON, SC: May it please the Court, I appear with MR C.J. TRAN for the appellant. (instructed by Commonwealth Director of Public Prosecutions)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend MR N.M. KIRBY for the respondent. (instructed by Jones Day)

KIEFEL CJ: Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honours. The appeal concerns the proper construction of one aspect of the maximum penalty provision for foreign bribery under the Code. The appeal will directly determine the construction of the equivalent provision for domestic bribery of public officials under the same Code, and it will indirectly determine the equivalent provision under various other Commonwealth statutes, such as, for example, the cartel provisions in the competition and consumer law and other provisions of that law. Your Honours, we need to seek leave to amend the notice of appeal to correct a typographical error. I seek that leave.

KIEFEL CJ: Yes, the Court has been advised of that. That is to correct the name of the ‑ ‑ ‑

MR GLEESON: No, it is a typographical error, your Honour, in ‑ ‑ ‑

KIEFEL CJ: I am sorry.

MR GLEESON: ‑ ‑ ‑ the provision that is being dealt with.

KIEFEL CJ: I see. Yes. Thank you very much. Yes, you have that leave.

MR GLEESON: Thank you, your Honours. Your Honours, we seek to organise our oral submissions around six propositions. The first is to pay some attention to the primary offense provision, section 70.2(1), to ascertain how the concept of benefit and the composite concept of value of the benefit is used in the primary offense provision, and for what statutory purpose. That will provide a critical contextual point of reference for the ultimate construction question in the appeal.

In short, we will be submitting that value of the benefit when used both in the primary offense provision and in the maximum penalty is used in a way which values a receipt of money as currency, and is not concerned with corresponding burdens which the recipient may undertake to receive that benefit. If money comes into one’s possession or control and use, it is a benefit and is valued as such without a further inquiry into corresponding burdens.

GLEESON J: Do you accept that what you are referring to as corresponding burdens are relevant to be taken into account in sentencing either as a mitigating factor or as a factor going to the objective sentence seriousness of the offence?

MR GLEESON: Yes,…

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

AGLC: The King v Jacobs Group (Australia) Pty Ltd formerly known as Sinclair Knight Merz [2023] HCATrans 41
Case: [2023] HCATrans 41
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *The King v Jacobs Group (Australia) Pty Ltd formerly known as Sinclair Knight Merz*. The dispute concerned the interpretation of a notice of intention to claim an entitlement under the *Building and Construction Industry Security of Payment Act 2002* (NSW) (the Act). The appellant, the King, sought to challenge a decision of the Court of Appeal of New South Wales which had overturned a decision of the primary judge.

The central legal issue before the High Court was whether a notice of intention to claim an entitlement, which was served on the respondent by the appellant, satisfied the requirements of section 8(1) of the Act. Specifically, the Court had to determine if the notice sufficiently identified the construction work or the related goods or services to which the claim related, and whether it indicated an intention to seek payment for that work or those goods or services.

The High Court held that the notice served by the appellant did not comply with section 8(1) of the Act. Their Honours reasoned that the notice was too vague and did not adequately identify the specific construction work or the related goods and services for which payment was being claimed. The Court emphasised that a notice under section 8(1) must provide sufficient particularity to enable the recipient to understand the nature and scope of the claim being made, thereby allowing them to assess its validity and respond appropriately. The principles of statutory interpretation required a strict adherence to the plain language of the provision, which mandated a clear identification of the subject matter of the claim.

The appeal was dismissed.

Orders