Tooth v Kitto - [1913] HCA 66

the Full Court, who held that the plaintiff did not come under

the provisions of the Public Service Act, and that his services were not dispensed with by the Public Service Board, and they therefore set aside the verdict and entered judgment for the defendant: Markham v. Williams 1.

From that decision the plaintiff now, by special leave, appealed to the High Court.

O'Reilly, for the appellant. Loxton K.C. and Pickburn, for the respondent, were not called upon.

BARTON A.C.J. I think this appeal must be dismissed. There are two things for the plaintiff to establish in order to succeed in his claim under sec. 71 (b)-first, that he was permanently employed in the public service, and, secondly, that his services were dispensed with by the Public Service Board. It is perfectly obvious, and, indeed, it was almost admitted by Mr. O'Reilly, that the plaintiff's services were not dispensed with by the Public Service Board. Without going into the other matter it seems to me on that ground alone that the judgment of the Supreme Court was obviously right, and must be affirmed. Whether the plaintiff was permanently employed in the public service, which it is also necessary for him to establish, is a ques- tion we need not and do not decide. It is quite sufficient to say that his services were not dispensed with by the Public Service Board. Unless they were, he could not claim the gratuity pro- vided for in the section referred to.

ISAACS J. I agree that the appeal should be dismissed. I think that the judgment of Pring J. is correct, and I would only add a reference to sec. 30 of the Interpretution Act of 1897.

GAVAN DUFFY J. I concur. I think the judgment of the Supreme Court was quite right.

113 S.R. (N.S.W.), 1.

17 CLR 422

RICH J. I also agree.

Appeal dismissed. Solicitor, for the appellant, John J. Carroll. Solicitor, for the respondent, J. v. Tillett, Crown Solicitor for New South Wales.

[HIGH COURT OF AUSTRALIA.] TOOTH KITTO

ON APPEAL FROM THE SUPREME COURT OF Contract-Construction-Share-farming agreement-Provision for determination at H. C.

end of any " harvesting season"-Meaning of "harvesting season.'

The plaintiff agreed with the defendant for the term of 3 years 3 months and 12 days to sow with wheat certain portions of the defendant's land, and to reap the crop, clean the wheat fit for market, bag the wheat so cleaned, and cart it to a certain railway station and deliver it in the defendant's name as should be directed. The remuneration to be paid to the plaintiff was a sum of money equal to one-half the value of the wheat, fixed in accordance with the wheat market at the railway station on the day when the wheat should be sold. It was also provided that either party might terminate the agreement "at the end of any harvesting season by prompt notice in writing to the other party."

Held, 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 Tooth v Kitto

Details

AGLC: Tooth v Kitto [1913] HCA 66
Case: [1913] HCA 66
Decision Date: 15 December 1913

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of New South Wales concerning a share-farming agreement between Harold Leo Tooth (appellant) and Richard C. Kitto (respondent). The dispute arose from the respondent's termination of the agreement, which the appellant alleged was wrongful. The appellant also sought damages for conversion of hay, but this claim was unsuccessful at trial and not pursued on appeal. The central issue on appeal concerned the interpretation of a clause allowing either party to terminate the agreement "at the end of any harvesting season" by giving prompt written notice.

The legal issues before the High Court were primarily twofold: first, the correct interpretation of the phrase "at the end of any harvesting season" within the context of the share-farming agreement; and second, whether the trial judge had misdirected the jury regarding an allowance of £93 1s. 2d. for fallowing certain lands. The Supreme Court had held that "harvesting season" referred to the season in the district, not just on the specific farm, and that the trial judge had misdirected the jury on this point, ordering a new trial.

The High Court, by majority, found that the Supreme Court had erred in its interpretation of the contract. The Court reasoned that the phrase "harvesting season" in the agreement should be interpreted with reference to the specific farm and the harvesting operations conducted on that farm, as indicated by the context and the mutual obligations of the parties. The Court held that the trial judge's interpretation, which aligned with the end of harvesting operations on the particular farm, was correct. Furthermore, the Court found no misdirection regarding the fallowing allowance, noting that the respondent had credited the appellant with this amount in his account, thereby acknowledging its validity.

Consequently, the High Court allowed the appeal, set aside the order of the Supreme Court for a new trial, and reinstated the verdict of the jury in favour of the appellant on the first count. The Court affirmed the trial judge's direction and the jury's verdict, finding that the notice of termination was not given promptly at the end of the harvesting season as defined by the agreement.

Orders