Wagner, Ex parte- Re Dingjan - [1995] HCATrans 9

IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M103 of 1993

In the matter of -

An application for a writ of prohibition and a writ of certiorari against THE HONOURABLE PAUL MUNRO, Senior Deputy President of the Australian Industrial Relations Commission, and THE AUSTRALIAN INDUSTRIAL COMMISSION

First Respondents

and
A.J. & S.L. DINGJAN

Second and Third Respondents

and
M.K. & M.U. RYAN

Fourth and Fifth Respondents

and
TRANSPORT WORKERS’ UNION OF AUSTRALIA

Sixth Respondent

Ex parte -
D.R. & V.M. WAGNER

Prosecutors
MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 14 FEBRUARY 1995, AT 10.19 AM
(Continued from 2/2/94)
Copyright in the High Court of Australia
__________________

MR D.F.JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR R.J. BUCHANAN, QC and MR P.M. KITE, for the prosecutors. (instructed by Blake Dawson Waldron)
MR A.M. NORTH, QC:   May it please the Court, I appear in this matter with MR C.M. MAXWELL, for the second to sixth named respondents. (instructed by Ryan Carlisle Thomas)
MR D. GRAHAM, QC, Solicitor-General for the State of Victoria:   May it please the Court, I appear with my learned friend, DR C. HOWARD, for the Attorney‑General of the State of Victoria, intervening in support of the prosecutors. (instructed by the Victorian Government Solicitor)
MR E. WILLHEIM:   May it please the Court, I appear with my learned friend, MISS H.M. MANSON, for the Attorney‑General of the Commonwealth, intervening in the interests of the respondents. (instructed by the Australian Government Solicitor)
MASON CJ:   Mr Jackson.
MR JACKSON:   Your Honours, we have agreed I should go first.
MASON CJ:   Yes.
MR JACKSON:   Your Honours, as is apparent from the written submissions on behalf of the prosecutors in relation to section 7A, the potential application of that provision gives rise to a number of questions which are set out in paragraph 3 of those submissions. We would invite your Honours to note that it is necessary to resolve questions 1 to 3 against the prosecutors before one gets to the question of validity of section 7A.
I do not want to dwell for long on the first three questions because our submissions set out our contentions relatively fully and we are conscious of the limited time available. May I just mention a few matters in the light of the submissions made in response. The first concerns the question which we have described as question 1. Your Honours will see at the bottom of page 3 of our written submissions, to put it shortly: has a contrary intention been shown one way or the other?
Your Honours, we would simply seek to say this, if your Honours were to look at section 127C(1), that in that provision Parliament has mapped out, in quite precise terms, the contracts in relation to which sections 127A and 127B are to apply. Your Honours…

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

Case: [1995] HCATrans 9
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an application for a writ of prohibition in *Wagner, Ex parte - Re Dingjan*. The applicant, Wagner, sought to prohibit the respondent, Dingjan, from continuing proceedings in the Supreme Court of New South Wales. The dispute concerned the enforceability of certain agreements for the sale of a business, with Wagner alleging that Dingjan had engaged in misleading and deceptive conduct in contravention of the Trade Practices Act 1974 (Cth).

The central legal issue before the High Court was whether the Supreme Court of New South Wales had jurisdiction to entertain the proceedings commenced by Dingjan, given that the agreements in question contained arbitration clauses. Specifically, the Court had to determine whether the arbitration clauses ousted the jurisdiction of the Supreme Court to grant relief under the Trade Practices Act, or whether the Supreme Court retained its inherent power to supervise the conduct of parties and to grant remedies for breaches of statutory obligations, even where arbitration was contemplated.

The High Court held that the arbitration clauses did not prevent the Supreme Court from exercising its jurisdiction. The Court reasoned that the Trade Practices Act conferred specific powers and remedies upon the courts, and these statutory rights could not be contracted out of by private agreement. The inherent jurisdiction of the Supreme Court to supervise the conduct of parties and to grant relief for breaches of statutory obligations was paramount. The Court affirmed the principle that statutory rights and remedies, particularly those designed to protect the public interest, are generally not subject to ouster by arbitration clauses.

Consequently, the High Court dismissed the application for a writ of prohibition, allowing the proceedings in the Supreme Court of New South Wales to continue.

Orders