Hodgson and ANOR v Lowe and ANOR M19/1998 [1998] HCATrans 471 (11 December 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M19 of 1998

B e t w e e n -

ANN HODGSON and BARBARA HODGSON

Applicants

and

CHARLES CRAWFORD WILSON LOWE and CAROLINE ROSEMARY JONES

Respondents

Application for special leave to appeal

GUMMOW J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 1998, AT 2.05 PM

Copyright in the High Court of Australia

MS A. HODGSON: I am the applicant in this matter.

MR T.J. WALKER: I appear for the respondents in this matter. (instructed by Nevett Ford)

GUMMOW J: For both respondents?

MR WALKER: Yes.

GUMMOW J: Yes, Ms Hodgson. And you will be speaking on behalf of yourself and your sister.

MS HODGSON: Yes, your Honours, I am.

GUMMOW J: And you will observe this 20 minute rule we have?

MS HODGSON: Yes, your Honour, I am aware of this.

GUMMOW J: All right.

MS HODGSON: We would like to have special leave to appeal on the section of 30A.

GUMMOW J: Could you make sure that you speak into the microphone.

MS HODGSON: I am sorry, your Honour.

GUMMOW J: Perhaps your sister would like to move next to you.

MS HODGSON: Section 35A(a)(i) in the judgments which the applicant's.....was proceeding involving the question of law, that is, that public notice, public's importance, on my material application on page 3, 4, 6 and 7, your Honours.

GUMMOW J: Yes.

MS HODGSON: And on the application book on page 3 on the title number six lines down:

Volume 6817 Folio 298

on my material page 1 volume number.

GUMMOW J: Which document are you reading from? The supplementary material?

MS HODGSON: On the application book page 3, line 6, on that volume number 6817 folio 298 and on my material - - -

GUMMOW J: Yes. This is from the County Court judge's judgment?

MSS HODGSON: Yes, your Honour, and on page 1 is the volume number, and on the judge below in the application book page 59, the judge below, section 15 - sorry, I am shaking like a leaf here - saying, a certain piece of land in saying, "a certain piece of land in Yarra Glen", and that is on page 55 section 10, on the judge below's statement:

The plaintiffs had claimed ownership of certain pieces of land in Yarra Glen -

GUMMOW J: Well that is in the Court of Appeal.

MS HODGSON: Yes, that is the judgment below. Saying that as a piece of land, that could have been anywhere in Yarra Glen under a postcode 3775, and that goes north, south and east in area, and I am proving here today that - - -

GUMMOW J: Now the first thing that is required here really; there was a delay in the Court of Appeal and there has been a delay here. You really need an extension of time here.

MS HODGSON: I have an extension of time in the Act. The rules - - -

GUMMOW J: To bring this proceeding here.

MS HODGSON: That is the High Court Rules.

GUMMOW J: Yes, is that opposed, Mr Walker?

MR WALKER: Yes ,it is, your Honour.

GUMMOW J: I see. Yes, go on.

MS HODGSON: On my material - - -

GUMMOW J: Just tell us what the cause for the delay was.

MS HODGSON: Well, if you look at the application book on page - would that be under the notice of appeal, would it, or that - - -

GUMMOW J: Just tell us yourself, what do you say was the cause for being late?

MS HODGSON: Well, when we went to the trial judge we had a barrister and a solicitor, and then our solicitor walked halfway out of the court case - - -

GUMMOW J: No, no, getting here from the Court of Appeal.

MS HODGSON: We did not have any solicitors at the time, we did not have any legal assistance to get here, so I picked up a handbook "Know Your Rights" and saw the High Court ruling and then we went down and saw an Anglicare legal aid thing and then we took the proceedings from there.

GUMMOW J: All right. We have to be persuaded that there is a question of general importance, usually a question of some legal significance, bound up in the case, and that there is a real risk that the court below got it wrong, he or the Court of Appeal.

MS HODGSON: Yes, he did get it wrong, because he said a certain piece of land in Yarra Glen, which, if he never threw my application out in a hurry, page - - -

GUMMOW J: Now, what the Court of Appeal did was to say, well - - -

MS HODGSON: Notice of appeal on page 40, if he did not throw it out in a hurry he would have seen the volume number of 6817 folio 298 on page 40 and on page 43 again, the volume No 6817 folio 298, if he saw that and he did not throw it out in a hurry he would have known what sort of piece of land it would be and he would notice on page 3 in my material, which exactly tells you on the title where it is, and plus the fact we had a caveat put on, on 14/10/91. The respondents put themselves, on page 7 - - -

GUMMOW J: Are you saying it was the whole of the land in this Certificate of Title?

MS HODGSON: Only part of 30A, not all.

GUMMOW J: Which part?

MS HODGSON: On the volume number - if you turn to page 8 there is a map there, your Honour. Where the arrows are pointing there is 4 acres, 1 rood and 36 perches and where the arrow is pointing again is 12 acres 1 rood and 15 perches. The respondents are saying 5 acres and 11 acres, which it is not, because this is the respondent's survey, done in 1996 and they are saying, 11 and 5 acres. The 5 acres is on 4 acres in the map and the 11 acres is on the 12 acres, your Honour, and this is only part of 30A and the one in the middle, 7 acres 13 rood and 24 perches, that is another title altogether and the trial judge said on page 3 of the application book the volume No is 6817 folio 298 and that is the title number we are here today, and in the application book on page 24, about 11 lines down:

I suppose any such basis would be relevant only to the mine land which is no part of the subject land.

And that is not the subject land we went to court on, because it was two different titles and why I am here today is saying that if you turn to page 3 on my material there was a caveat lodged on 14/10/91, the respondents put themselves on page 7 on the material, 20 November 1991. That was five weeks when she put herself on the transfer of land and then later on, on 10/1/92 stamp duty paid $3,400.00 and my caveat was still alive and kicking on 14/10/91, and then they elapsed it on 5 June 1992, seven months, it took them seven months to elapse that caveat, while she was on title - - -

GUMMOW J: Now where do you say the District Court judge went wrong in law?

MS HODGSON: Excuse me, your Honour.

GUMMOW J: Where do you say the County Court judge got the law wrong?

MS HODGSON: The County Court? By saying - - -

GUMMOW J: Which passage in his judgment, which is quite a lengthy one?

MS HODGSON: Page 3 on the application book lines 20 - 24. Do I have to read it out, your Honour?

GUMMOW J: No, but where do you say it goes wrong in law?

MS HODGSON: Because the trial judge gave the property to Lowe and Kingston, Mrs Jones, now Woodhouse, and the trial judge knew that she was not on title at the time it went through the courts, and if the judge below saying, if he only saw my application instead of hastily throwing it out, he would have known what title it was on, instead of saying, "a certain piece of land in Yarra Glen", and he said my application was flimsy. Well, if he looked at it hard enough, my application says, fences have got no boundaries on adverse possession, and we have been there since 1972, instead of 85 on the fences and, if you look in my material page 21, the respondents' saying, in their order - it starts from page 19, your Honours - and it is an order from the respondent saying the fences went up in 1982, not in 1985, and if the fences went up in 1982, we had been there for 15 years on the day of the courts, and the access 15 years to be there for adverse possession.

GUMMOW J: Yes.

MS HODGSON: And they have never ever charged us. If you go to my material on page 17, statement of claim of our formal solicitor, and page 18 down to No 6. Sorry, I am getting all tangled up, I am so nervous. They have never, ever tried us to get us off - 5 and 6 it says:

5. Since 1972 the Plaintiffs have occupied and possessed the land to the total exclusion of the Commerfords, Lowe and Kingston and the defendants and at no time was action brought against the Plaintiffs -

GUMMOW J: Well, this was your Statement of Claim.

MS HODGSON: Yes, your Honour, yes, and they have never, ever charged us for trespassing, told us to get off, and if you look at the trial judge with the judge below, saying, I could not make a case out of it, page 59 on the application book, in between 20:

judges below notice of appeal claims that there was error in those findings.

Well, if he looked at those errors in those findings he would have found that there was no boundaries for adverse possession, he would have found the title number, so he would not have said, "a certain piece of land in Yarra Glen", and the judge below stated he thinks:

the applicants have failed to make out a case -

So, if he thinks he can fail to make a case - - -

GUMMOW J: The judge does not make a case; the judge rules on the cases that have been presented.

MS HODGSON: Yes, well it was presented, your Honours; it was presented down below on that title number, and I am saying that the respondents are not on title, because it says on the government Acts in my application book page 64 line 10:

The Registrar upon lodgment of any such caveat -

which we did, lodged the caveat -

and shall not proceed with the application until the caveat has been withdrawn or has lapsed as hereinafter provided or until a judgment or order in the matter has been obtained from the Court.

GUMMOW J: So, what - - -

MS HODGSON: So, they never ordered us to go to court to take that caveat off, but, in the meantime, our caveat was 11 weeks, when the respondents put themselves on title and that took them 7 months to take that caveat off, intending not to do anything about it. Then in 1994 we put another caveat on and if you look further down on page 64 in my application book, you are not allowed to put a second caveat on, but, because our first one was not taken off by legal means, our solicitor took and put another caveat on, and I found out why it was not, because the respondents had Eales and Mackenzie in 1985, we got Eales and Mackenzie in 1990, and it is the same title number, if you care to look. They used the same solicitor as we did in 1990, and there is the same solicitor in 1985, they used. We did not have any money. If you go on page 59 on the application book, he said we did not have any money to pay, and we offered to pay the $10,000, but he did not give us any time to pay, so we could not go on another hearing, and then he ordered, at the next page 60, he ordered costs against us, and if you look at page 58, he did actually order it, costs against us, there was no costs against us.

GUMMOW J: Now, you have seen the orange light, Ms Hodgson.

MS HODGSON: Yes, I can see the orange light, your Honour, and that is why I am saying it is fought on allegation of fraud on the titles that our caveat was deliberately taken off, or the respondents put themselves on title, and deliberately not taken us to court or letting our solicitor know, at the time, when they went on, and it was five weeks when the respondents put themselves on the transfer, and then it took them seven months to overlapse my caveat, and I do not think that is fair, because caveats are there to stop people of selling it or giving it as a gift; that is what caveats are there for and that is why the Acts are there for, the government Acts.

GUMMOW J: Caveats are there to stop registration of dealings.

MS HODGSON: That is right, and she registered herself, on title, on the application book page 7, transfer of land; she registered herself on 20 November 1991 while my caveat was still alive and kicking. With the caveats it says, I have been there for 19 years on the 1991 caveat and the 1994 caveat we occupied it for 22 years, on 6 and 7 in my application book, under that volume number and that title number. My light is on, thank you, your Honour.

GUMMOW J: Yes. Mr Walker, the Court would like to hear from you on this caveat point at registration.

MR WALKER: The point about the caveat, your Honours, has been incorrectly stated. Registration of the present paper title holders was made on 27 March 1992.

GUMMOW J: Where do we see that?

MR WALKER: We see it at page 3 of the supplementary application book.

GUMMOW J: Just give us a minute to look closely at page 3. Now, where do we see it on page 3, what entry?

MR WALKER: See in the first column there of the title.

CALLINAN J: Fifth of June, is it, 1992?

MR WALKER: That is when the caveat was registered, your Honour, and your Honour will see that the title- - -

GUMMOW J: My brother is ahead of me. Yes, I see.

MR WALKER:- - -of the present documentary owners was registered on 27 March 1992.

GUMMOW J: Where do we see that?

CALLINAN J: Where do we see that?

MR WALKER: That is immediately under the next - that is the next immediate entry.

GUMMOW J: Yes.

MR WALKER: There is no substance in the point, in any event; it is totally irrelevant to the question of whether the requisite elements of an action for a declaration for exclusive and adverse possession had been made out. The point was not taken at trial, the point was not raised as a ground of appeal for the draft Notice of Appeal before the Court of Appeal below and the point is, in any event, without any foundation in fact.

GUMMOW J: And, what do you say about this point about the Certificate of Title?

MR WALKER: It is simply incorrect, your Honour. Your Honours will see in the supplementary application book, the land in respect of which the adverse declaration as to adverse possession was made was that under volume 6817 folio 298. That was precisely the same land that was referred to in the judgment of the judge in the County Court, his Honour Judge Ostrowski, which appeared at page 3 of the original application book. That was the piece of land which was identified in the annexure to his Honour's judgment, which this Court I note has not got, but I have got it if the Court wishes to see copies of it; it identifies the - - -

GUMMOW J: We have not got it with the colouring.

CALLINAN J: I would like to see it.

MR WALKER: Your Honour has got it, in any event; I will hand copies up if I may.

GUMMOW J: But we have not got it with the colouring.

CALLINAN J: Is it the same plan as is at page 8 of the supplementary book?

MR WALKER: Yes, it is, your Honour, and in relation to the handwritten annotations, I should say that what I have given to your Honour is a coloured copy of the version of the plan of survey that appears in the application book. That was not the plan of survey in precisely the same form that was annexed to his Honour's judgment; the difference is, the handwritten annotations as to the area, represented by the two blocks of - - -

GUMMOW J: It covers about 5 acres - - -

MR WALKER: And 11 acres was the other.

GUMMOW J: About 5 and about 11, he said.

MR WALKER: Well, that was the nomenclature of the witnesses during the course of the trial; it was not meant to express the precise measurements. In any event, there is no evidence before the court as to these handwritten measurements of the land, but it is quite beside the point.

Your Honours, the ultimate conclusion to which the trial judge arrived appears in the application book at page 29, commencing at line 3, and what is critical to his Honour's finding was the erection of a fence along the northern boundary of the land in 1985. That was not only the common basis upon which the trial was conducted; it was also a matter of express admission in the opening of the applicants' counsel at trial. There is evidence of that and it appears in the affidavit of Mr Hodgson, which appears in the application book. The whole trial was conducted upon the basis of this fence having been erected in 1985, thus it was impossible for the 15 years to accrue in order for this action to have any substance, and that was his Honour's finding, which is referred to again at the bottom of page 30 of the application book. They found it:

on the balance of probabilities -

they simply could not demonstrate that they had had possession of the piece of land for the requisite 15 years under the statute, and that finding, I might add, your Honours, that ultimate conclusion, was based upon numerous careful findings of fact. There were seven witnesses called by the respondents and there were five witnesses called by the applicants.

GUMMOW J: How many days did the trial run?

MR WALKER: The trial went for 10 days, your Honour; eight days of evidence and two days of submissions. His Honour took a view, after hearing the applicants' counsel open the case on the first day of the trial; a careful view was taken. His Honour also had the expert's survey evidence, which was uncontradicted, advanced by the respondents at trial.

In relation to the acts of user, which his Honour refers to and has made a number of findings about, if your Honours turn to the notice of appeal, which appears at the application book at page 41, commencing at paragraph 3 through to the paragraph 12, what is complained of is a series of evidentiary findings. In fact, if I may just refer your Honours to some of the findings that his Honour did make, just by reference to the witnesses, and, as to the acts of user, which he found had been made in respect of the land, it is patently clear that there is no foundation for the allegation of adverse possession. The first deals with Mr Commerford, and your Honours will find that in the application book at page 17, commencing at line 10. Mr Commerford was a dairy farmer, who operated the land as a dairy, from 1948. His Honour found - - -

GUMMOW J: I do not think we need to hear from you any more, Mr Walker.

MR WALKER: If your Honour pleases.

GUMMOW J: Ms Hodgson, is there anything you want to say in reply?

MS HODGSON: Yes, your Honour, if you go to page 19 of the application book down to line 15, you will see:

She insisted, however, that she and Dr Lowe had the slashing and -

but further down:

One of the twins, she said, was quite vitriolic and sometimes it was -

I am sorry, your Honour, I just cannot read the words.

CALLINAN J: Whereabouts are you reading from?

MS HODGSON: It is on page 19 in the application book line 20.

CALLINAN J:

She told the children that perhaps it would be wiser not to go where a confrontation might happen with the twins.

MS HODGSON: That is right, you know, they were kicked off that property of Nesta Kingston and Frank Hodgson was kicked off at page 21 line 15, he was told to leave that property and then if you look on page, my government Acts, page 65, it is just below line 5:

Limitation of Actions Property Land

75(2),(3)

The person claiming adverse possession must intend not -

CALLINAN J:

not merely to trespass -

MS HODGSON:

but to use the land as his or her own and to exclude all others including the true owner.

And which we did, as you saw, and that is a judge below saying that we did not know where it was, we know exactly where it was, and Mr Walker was saying, on the application book, that that was just their survey and I have got photos here, by the survey pegs, if you care to sort of look at them - - -

CALLINAN J: No, we cannot.

MS HODGSON:- - -survey pegs, where he would like to put the fences on leisurely at 5 acres, and our shed is on the property where their survey pegs are, and I have got photos here, and at the back exactly the same, the survey pegs are still there of today, and they were put up in 1996, and at the northern boundary on the mine land, as you said on the mine land is not the subject land, and as on page 24 on my application book, the trial judge saying:

the mine land which is no part of the subject land.

And that 7 acres did not go to trial, it is a different title number altogether, and he did not defend his title. We are going on adverse possession on the title and volume number, which we have got two caveats on it and which the respondents had put their name. If you see in my material page 7, and we did everything right, what those government Acts said, and if you look at page 13 on my material, we advertised we was going for adverse possession and the government Act says, on page 64 line 20:

once at least in a newspaper circulating in the city of Melbourne or in the neighbourhood of the land -

which page 13 is the Lillydale & Yarra Valley Express, and we did all that before we put the caveat in, in 1991. Thank you, your Honour.

GUMMOW J: The Victorian Court of Appeal refused an extension of time within which to appeal against the judgment of the County Court. Their Honours said there was no such doubt attending the decision of the County Court as would justify an extension of time to appeal to the Court of Appeal.

There are insufficient prospects of success in this Court to warrant a grant of special leave. We would extend the time for the application for special leave to this Court but refuse the application for special leave.

Do you seek costs?

MR WALKER: I do, your Honour.

GUMMOW J: Yes. I think it must be with costs.

MR WALKER: If the Court pleases.

AT 2.38 PM THE MATTER WAS CONCLUDED