Martin & Anor v Individual Homes Pty Ltd (in liquidation) C1/2000 [2000] HCATrans 222 (12 May 2000)

IN THE HIGH COURT OF AUSTRALIA

Registry No C14 of 1999

B e t w e e n -

ANTHONY GILBERT MARTIN

Applicant

and

FRANCIS JOHN PURNELL

First Respondent

BARRY ANTHONY TAYLOR

Second Respondent

MALCOLM PETER BRENNAN

Third Respondent

Registry No C1 of 2000

B e t w e e n -

ANTHONY GILBERT MARTIN and SUE DOLORES MARTIN

Applicants

and

INDIVIDUAL HOMES PTY LTD (in liquidation)

First Respondent

BARRY ANTHONY TAYLOR (liquidator of First Respondent)

Second Respondent

Applications for special leave to appeal

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 MAY 2000, AT 10.15 AM

Copyright in the High Court of Australia

_____________________

MR A.G. MARTIN: If your Honours please, I appear for myself as the applicant in the first matter and in the second matter it is myself and my wife.

HAYNE J: You wish to speak on behalf of your wife, do you, in respect of the second matter, do you, Mr Martin?

MR MARTIN: Yes, your Honour, and your HonourS, if I could get leave to read from what I have written.

HAYNE J: Just a moment; we had better take an appearance from Mr Harrison first, if we may. Yes, Mr Harrison.

MR I.G. HARRISON, SC: If your Honours please, I appear for the respondents in each matter. (instructed by Mallesons Stephen Jaques)

HAYNE J: Yes, and there is no reason, is there, why we should not hear these matters together, is there?

MR MARTIN: No, your Honour.

HAYNE J: Thank you very much, Mr Martin. Now you said you wanted to read a statement to us, is that right?

MR MARTIN: Yes. I have written out eight pages - handwritten. If I could be given leave to read it, your Honour.

HAYNE J: By all means. As you know, as you have seen, there are some time limits, 20 minutes, but I suspect that that will not trouble you.

MR MARTIN: Your Honour, there is a mistake on page 53 of the second matter - - -

HAYNE J: That is the Individual Homes matter, is it?

MR MARTIN: That is right, your Honour.

HAYNE J: Yes.

MR MARTIN: Line 2, it should be "section 51 subsection (xxxi) of the Australian Constitution", because section 52 does not have that subsection, and if you look at page 90, again that mistake is again repeated, your Honour.

HAYNE J: Yes, thank you.

MR MARTIN: So, 52 should read 51. Your Honour, my submission is only a broad submission because I have attended to what I wanted to say in my written submissions in detail and if your Honours could give me intelligence to finish it off, you will see in a messy fashion what I am trying to get at. The primary issue in both cases, that is C14 of 1999 and C1 of 2000, is possession.

The secondary issues flowing from this central issue of possession are: a, b, c and d, that I will refer to below. The denial of natural justice, or to put it in different words, the administration of justice at the Magistrates Court level, the Supreme Court level and the Federal Court level; (b) jurisdiction issues in relation to the Supreme Court and Federal Court; (c) whether the rulings of law, made at the Federal Court level in particular and to a lesser extent at the Supreme Court level, are correct in law; (d) the issue of public interest.

And my third point I have written out. Third: if I could address this honourable Court on the concept of possession. According to Lord Bentham and others, the courts have not, and certainly not seriously, looked at the concept. Here I quote:

This, then, is a matter which ought to be investigated in every court, but it has not been done in any. To prevent perpetual equivocation, it is necessary to distinguish between physical and legal possession. We here refer to the former: it does not suppose any law, it existed before there were laws.

The fourth point: the comments of Lord Bentham, that the subject matter of physical possession ought to be investigated in every court, but it has not been done in any, seems to be confirmed in the reading of the reasons of Justice Toohey about possession in common law in the Mabo and the Wik decisions. Justice Toohey's comments in this area are from the book "Possession in Common Law" by Pollock and Wright, a book published in 1888. In fact, I think Justice Toohey's comments on the possession in common law from Pollock and Wright comes via a book by McNeil, "Common Law, Aboriginal Title", 1989. Justice Toohey comments that this is the most commonly quoted book on land rights cases. I have quoted extensively from Pollock and Wright in the applicants' summary of argument in C1 of 2000.

Point 5. The point the applicants would like to make is that it is important to the people of Australia to look into the concept of physical possession in common law because it affects every Australian via their common law rights, equity law rights and beneficial ownership rights.

Point 6. In my humble view, the Aboriginal people of Australia got next to nothing in the Mabo decision and, if you consider the qualifications, nearly half the High Court felt that that was too much in the Wik decision.

Point 7. It is important that the principles of physical possession in common law, as addressed by Justice Toohey, both in the Mabo and Wik decisions, be examined by the High Court of Australia, because if the Aboriginal people's physical possession in common law is ignored, not recognised or marginalised, then this puts the common law, equity law and beneficial ownership rights of all Australians in jeopardy. Martin Luther King's statement "a denial of justice anywhere is a threat to justice everywhere" is the underlying basis of this particular submission. That is all the applicants propose to say in relation to the concept of physical possession in common law.

Point 8. I would now like to address this honourable Court on the secondary issues that fall from the central issue of physical possession. I only propose addressing the secondary issues in a broad manner because the applicants have addressed these secondary issues in detail in their draft notices of appeal and in the applicants' summary of argument submissions. The main point the applicants would like to emphasise is the interrelationship between these two special leave applications, namely, C14 of 1999 and C1 of 2000. This morning I saw it was, in fact, interrelated and reference was made even way back in August last year when I prepared those documents, your Honours. In C14, the first-named applicant took this - sorry, your Honour, I missed something out in it.

HAYNE J: Take your time, Mr Martin.

MR MARTIN: Sorry, your Honour. If I could go back to my paragraph - - -

HAYNE J: Yes, of course.

MR MARTIN: The main point the applicants would like to emphasise is the interrelationship is between these two special leave applications, namely C14 of 1999 and C1 of 2000. The interrelationship is that they are both about a notice to quit, dated 18 May 1999, and they are both about summary dismissals of the matters. In C14 of 1999, the first-named applicant took this notice to quit to the ACT Magistrates Court. In C1 of 2000, the respondents, using this same notice to quit, applied for and obtained a summary common law order for possession. I have got here, "see AB 102 line 24-44 C14/1999". I do not even recall what it is, I put it this morning.

Point 9. It is the submission of the applicants in relation to the denial of natural justice issue that Magistrate Madden did not hear the substance of the subject matter. Instead he said he would hear the abuse of process issue, but then decided the matter, not on the abuse of process issue, but on the grounds that the pleadings were defective, issues specifically he asked the applicant not to address him on. Then, for good measure, he put a restraining order on the applicant, an order that was not even sought by the respondents.

HAYNE J: And the Full Court has said that that order is null and void?

MR MARTIN: Yes, your Honour.

HAYNE J: Yes.

MR MARTIN: I have to put my glasses on to see, your Honours, and I have to take them off to read, your Honour.

HAYNE J: Some others of us have that difficulty too, Mr Martin. Yes.

MR MARTIN: Point No 10, your Honours. Appeals from these orders of Magistrate Madden were dismissed by Justice Higgins on the grounds that the Australian Capital Territory Supreme Court had no jurisdiction, cum the applicant had no standing. Dismissed in the first instant without even giving the applicant an adjournment to prepare his case.

Point No 11. The Federal Court then upheld Justice Higgins' ruling principally on the grounds that there was no denial of natural justice because the applicant did not have a right of appeal in the first place. The point the applicant wants to make here is that it is unarguably a denial of natural justice to summarily dismiss an appeal to the Supreme Court on the grounds of lack of jurisdiction cum standing, regardless of whether there was jurisdiction or standing. This is the submission in relation to C14, except to state that C14 of 1999 is about the ACT Supreme Court exercising jurisdiction, when it had no jurisdiction.

At this point, the applicants would like to draw this honourable Court's attention to the authorities, copies of which were submitted yesterday.

HAYNE J: Yes, we have those.

MR MARTIN: While both the authorities are applicable to both the special leave applications, the first authority, "The Judicial Power of the Australian Capital Territory" by David Mossop, and most of the second authority, "Ritchie's Supreme Court Procedures New South Wales", volume 1, apply especially to C14 of 1999. The second authority, page 1073, halfway up section 23.11, Statutory limits on jurisdiction, applies particularly to C1 of 2000.

Point 12. In relation to C1 of 2000, the applicants make the following submission. The applicants went to Justice Higgins for declaratory orders in relation to the ACT Land Titles Act 1967 and the ACT Residential Tenancies Act in SC 182 of 1999. Again in connection with the previously mentioned notice to quit dated 18 May 1998.

Point 13, your Honours. The respondents applied for the said action, SC182 of 1999, to be struck out on the grounds it was an abuse of process, vexatious litigants and no issues to be decided. In the hearing of this and only in this strike-out application hearing Justice Higgins implicitly dismissed the strike-out application of the respondent and then gives his findings on the substantial declarations sought without a hearing. This was given on 26 May 1999.

Point No 14. Within days, and before the appeal from it was put on the Federal Court, based on this ruling of Justice Higgins, the respondents make an application in SC404 of 1999 for summary judgment for possession under the same notice to quit dated 18 May 1998. And, the summary judgment application was granted, your Honour, which I have not written down.

Point No 15. The question of jurisdiction here is that Justice Higgins had no jurisdiction to make the summary common law order for possession on two grounds. Firstly, almost an identical, except it was not made summarily, order of Justice Gallop was set aside by the Federal Court on 24 April 1998 because the Federal Court had doubts on whether the ACT Supreme Court had jurisdiction to make such an order. Secondly, this honourable Court's attention is drawn to page 1073 of the applicants' second authority at section 23.11, statutory limits on jurisdiction.

Two points need to be made here. The first point is that there are various legislations in different States of Australia which place statutory limits on the jurisdiction of the Supreme Court. The second point the applicants would like to make here is that summary common law order for possession is per se null and void when statutory limits on jurisdiction are involved. In this connection, the reference to Interpretation Act reinforces this point. If the applicants could once more reinforce that C14 of 1999 is where summary jurisdiction was not exercised when there was jurisdiction and in C1 of 2000, summary jurisdiction was exercised where there was none. The key word in both is "summarily" or "summary". I have confused both of them, your Honour. With both words I mean summarily and summary. I have to stop soon, your Honour.

HAYNE J: That means you have another three minutes, Mr Martin. Yes.

MR MARTIN: Three minutes, your Honour. I will not need it.

HAYNE J: Yes.

MR MARTIN: Point No 16. With respect to the Federal Court in C1 of 2000, what the applicants would like to submit to this honourable Court is twofold. First Justice Finn had dealt with physical possession as an issue of no consequence. In this respect, the applicants would like to draw this honourable Court's attention to the comments of Lord Bentham. Secondly, whether a single judge of the Federal Court has jurisdiction to make the orders Justice Finn made on 23 December 1999 under the Federal Court Act and the Federal Court Rules.

Your Honours, my injustice - there might be a bit of confusion here, your Honour, because in the - I am looking for my glasses which I have lost. In Justice Finn's reasons, there is no comment where he said that he was citing the jurisdiction of the Appeal Court but I have brought the transcript and - - -

HAYNE J: But if you come directly to the points that you want to make I think it will be better for us all.

MR MARTIN: Yes, and the transcript makes that point and it was given to the Registry and I have looked at it this morning, your Honour, because I thought that was critical.

Point 17. Again, the technical questions whether the orders made were correct in law have been addressed by the applicants in their draft notice of appeal and in the applicants' summary of arguments in C1 of 2000. The final point the applicants would like to make is that these two matters have come to this honourable Court as special leave applications because they were both dealt with summarily in the ACT Supreme Court with judicial sophistry instead of proper judicial decision-making. Judicial sophistry is no substitute for proper judicial decision-making. Judicial sophistry is against public interest. Thank you, your Honours, for the patience you have.....me.

HAYNE J: Thank you, Mr Martin. Yes, Mr Harrison.

MR HARRISON: Your Honour, can I state at the outset, as a general proposition, with great respect to Mr Martin, he has not identified any matter that would attract in either case the attention of this Court on a special leave application. Could I remind your Honours that the Full Federal Court dismissed both of the appeals, that was 87 and 92, on procedural grounds, that is to say, that he did not have a right of appeal. He dealt with matters in relation to the correct - - -

HAYNE J: To say that they were dismissed for procedural reasons may perhaps understate the position.

MR HARRISON: Quite so.

HAYNE J: Rights of appeal are granted by statute. If they are there, they are there; if they are not, they are not.

MR HARRISON: And in neither case, as the circumstances fell out, were they extant in this case.

HAYNE J: Yes.

MR HARRISON: Doing the best I can, your Honour, Mr Martin - - -

HAYNE J: Do you say that that is the answer in the first of the matters in which the first respondent is Purnell?

MR HARRISON: I do, your Honour.

HAYNE J: Yes. What about the second matter?

MR HARRISON: I say it in all of them, your Honour.

HAYNE J: Yes, but in the second matter, the Individual Homes matter - - -

MR HARRISON: I am sorry, I have misunderstood your Honour.

HAYNE J: Yes. No, in the Individual - - -

MR HARRISON: In all three information matters in the first special leave application I say it is the same.

HAYNE J: Yes, I understand that.

MR HARRISON: In the second matter, your Honours will see in the first seven or so paragraphs of our written submissions the position is this, Mr Martin sought from Justice Finn a stay.

HAYNE J: That was refused and he now has a stay by order of Justice Higgins, is that the position?

MR HARRISON: It is, if he did not have it de facto by reason of the undertaking that was sought and given.

HAYNE J: Yes, I see. No, we need not trouble you further then, Mr Harrison. Is there anything you wish to say in answer to what Mr Harrison has just said to us, Mr Martin?

MR MARTIN: Yes, your Honour. A quick one, your Honour.

HAYNE J: You will have five minutes in which - - -

MR MARTIN: Five minutes.

HAYNE J: Yes.

MR MARTIN: In the second matter, your Honour - in the second matter Justice Finn refused a stay. A stay was applied in this Court.

HAYNE J: But you now have a stay from Justice Higgins, do you not?

MR MARTIN: Not a stay of the order, your Honour. The application to Justice Higgins was that we took - the respondents went and applied for - the respondents indicated they wanted possession. They gave us arbitrary possession. They said they were going to apply for a writ of possession. So we went to Justice Higgins and asked for the writ of possession cannot be issued under the circumstances - writ of possession, not for a stay - and that the writ of possession cannot - and the reason is - and the substantial reason given - it was before the Supreme Court. That is a point I would like to make to your Honours. I think, basically, the submission is that will only be one special leave hearing on both matters anyway - is the way the applicants would put it.

HAYNE J: Yes, thank you.

MR MARTIN: Thank you, your Honour.

HAYNE J: In the matter of Martin v Purnell and Others, Mr Martin seeks special leave to appeal from two orders made by the Full Court of the Federal Court of Australia dismissing appeals to that court from the Supreme Court of the Australian Capital Territory. We are not persuaded that an appeal to this Court from those orders would enjoy sufficient prospects of success to warrant the grant of leave. In any event, we note that the third of the orders made by the Full Court of the Federal Court, an order which he does not challenge, gives to the applicant some substantial part of the relief which he would seek to obtain by appeal to this Court if leave were granted.

In the other matter, Martin v Individual Homes Pty Ltd, Mr Martin seeks special leave to appeal from a refusal of a stay of proceedings. Having, in effect, obtained that stay by another application, there is no point to the grant of the leave which the applicant seeks. Accordingly, in each matter, special leave will be refused. Mr Harrison.

MR HARRISON: I seek costs in both matters, your Honour.

HAYNE J: Yes. Mr Martin - - -

MR MARTIN: Your Honour, costs, I think, was specifically not requested in both matters, if I recall from the written submission. I - - -

HAYNE J: Let me just - - -

MR MARTIN: My memory - if I recall - I am a bit surprised costs has been asked. I thought in written submission, at least in the first one - - -

HAYNE J: I am looking at in the matter of Martin v Purnell, that is Matter No C14 at page 95:

Any special order as to costs sought by the respondents.

None

That would be the ordinary way in which a respondent indicated that it sought no special order but would seek the ordinary order that would follow. It seems to me that you cannot resist.

MR MARTIN: I misunderstood, your Honour.HAYNE J: Yes. Special leave will be refused in each matter, with costs.

MR HARRISON: May it please the Court.

AT 10.42 AM THE MATTER WAS CONCLUDED