Martin & Anor v Individual Homes Pty Ltd & Anor C9/2000 [2000] HCATrans 411 (31 July 2000)

IN THE HIGH COURT OF AUSTRALIA

Registry No C9 of 2000

B e t w e e n -

ANTHONY GILBERT MARTIN

First Applicant

SUE DOLORES MARTIN

Second Applicant

and

INDIVIDUAL HOMES PTY LTD (In Liquidation)

First Respondent

BARRY ANTHONY TAYLOR (Liquidator of First Respondent)

Second Respondent

Application for a stay

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 31 JULY 2000, AT 1.58 PM

(Continued from 20/7/00)

Copyright in the High Court of Australia

MR A.G. MARTIN: Mr Anthony Gilbert Martin, your Honour.

MRS S.D. MARTIN: I am Sue Martin, your Honour.

HER HONOUR: Yes, thank you.

MR M.P. BRENNAN: May it please the Court, I appear for the respondent. If I can convey to your Honour Mr Purnell's apology for not being able to appear in front of you today. (instructed by Malleson Stephen Jaques)

HER HONOUR: Thank you. Now, Mr Brennan, your side was speaking in opposition to the application.

MR BRENNAN: Yes, they were, your Honour. Thank you. There are some submissions which the respondents have filed since we were last before you. That addresses the issue that was vexing your Honour in terms of an application that Mr Martin allegedly put towards Justice Higgins in terms of being able to avoid a writ of possession being issued against their proprietorship in the land under the Land Titles Act 1949 of 1925 that applies in the ACT. Now, the submissions have been put to your Honour - and if I could take your Honour to those. Those are the submissions in these proceedings dated 25 July.

HER HONOUR: Yes, I have them.

MR BRENNAN: Your Honour, in terms of those, simply put, by the respondents that there is - his Honour Justice Higgins had that application before him, that he has decided the matter against that submission that was before him, that in any event there is nothing in the Land Titles Act to support the claim made by the appellants and that, accordingly, there is no prospect of successfully - - -

HER HONOUR: Now, I still - I have been provided with a lot of material which I have read and, on the last occasion, I was somewhat concerned by this proceeding which said "points of law", which has now been determined as being - - -

MR BRENNAN: As being incompetent.

HER HONOUR: That is right, and all findings have been set aside, I take it.

MR BRENNAN: That is correct, your Honour.

HER HONOUR: One of those findings was that the Residential Tenancy Tribunal had no jurisdiction.

MR BRENNAN: That is correct, your Honour.

HER HONOUR: Now, where do things stand?

MR BRENNAN: It has no impact on these proceedings, your Honour.

HER HONOUR: Why is that?

MR BRENNAN: These proceedings are separate to those.

HER HONOUR: So you have abandoned those proceedings, have you?

MR BRENNAN: That is correct.

HER HONOUR: And you have abandoned the proceedings that were before Justice Gallop, that went on appeal?

MR BRENNAN: No, your Honour.

HER HONOUR: Well, are these they?

MR BRENNAN: The proceedings that came back after Justice Gallop are, in effect, these proceedings now and what is - - -

HER HONOUR: What do you mean "in effect"? I understand proceedings as proceedings, not as - - -

MR BRENNAN: Yes, your Honour, these are the proceedings in SC404 - - -

HER HONOUR: Are they? This is the remitted application that was before Justice Gallop. If I recollect it correctly, please tell me if I am wrong, you applied to the Supreme Court for possession.

MR BRENNAN: That is correct.

HER HONOUR: And those proceedings came before Justice Gallop?

MR BRENNAN: That is correct.

HER HONOUR: He found in your favour?

MR BRENNAN: Correct.

HER HONOUR: It went on appeal.

MR BRENNAN: Yes, your Honour.

HER HONOUR: And the writ for possession was set aside?

MR BRENNAN: The order for possession was set aside.

HER HONOUR: The order for possession, I am sorry, was set aside and this is the rehearing, then, of the proceedings before Justice Gallop.

MR BRENNAN: Yes. To round out that - - -

HER HONOUR: And that is based then on the notice to quit that was before Justice Gallop?

MR BRENNAN: Yes, correct.

HER HONOUR: Where is the finding of jurisdiction?

MR BRENNAN: The Supreme Court - it is submitted that the Supreme Court has the jurisdiction.

HER HONOUR: I am very confused by these proceedings.

MR BRENNAN: The Supreme Court has all original jurisdiction in the Territory.

HER HONOUR: Yes, but the Full Bench of the Federal Court set aside Justice Gallop's order for possession.

MR BRENNAN: That is correct.

HER HONOUR: Because it was not satisfied that the Supreme Court did have jurisdiction.

MR BRENNAN: It was a matter that was not raised at first instance before Justice Gallop and the Full Court - - -

HER HONOUR: No, but his order was set aside on the basis that the Federal Court was not satisfied he had jurisdiction.

MR BRENNAN: That is correct, and what has happened since then, your Honour, is the Landlord and Tenant Act of 1949 has been repealed.

HER HONOUR: Yes.

MR BRENNAN: And with the repeal of that legislation it removed the jurisdiction of the Magistrates Court to entertain an application - - -

HER HONOUR: But we are still proceedings on the basis of that notice to quit that was before Justice Gallop - - -

MR BRENNAN: No, the notice to quit was not before Justice Gallop. The notice to quit arose after the Full Court handed down its decision on the appeal from Justice Gallop - or, in fact, after the High Court - - -

HER HONOUR: So what was before Justice Gallop?

MR BRENNAN: What was before Justice Gallop were two matters, two applications. One was by the present appellants seeking certain orders as to the beneficial ownership of the land, and that was found against those appellants. The second application was by the present respondent, the company, seeking the removal of caveats on the property, the removal of mortgages and, ultimately, vacant possession of the land.

HER HONOUR: Pursuant to what?

MR BRENNAN: To a notice of termination of a tenancy at will, and that was served on 9 July 1994.

HER HONOUR: Yes.

MR BRENNAN: That was what was before Justice Gallop. Does your Honour have the chronology?

HER HONOUR: I am not too sure that it will help me entirely - 9 July of 1994.

MR BRENNAN: Yes. That is a notice of termination of tenancy at will.

HER HONOUR: Yes, but that is not what Justice Higgins based his findings on.

MR BRENNAN: No, Justice Higgins bases his findings on the demand for possession made by the registered proprietor which is the company, Individual Homes.

HER HONOUR: Made when?

MR BRENNAN: Justice Higgins looks back from 18 May 1998 with a notice to quit, and then also to the long history - - -

HER HONOUR: That is what I cannot understand. You tell me here today that what the special leave application - what Justice Higgins was hearing was the matter that was remitted after the appeal from Justice Gallop.

MR BRENNAN: I think that is where my "in effect" is wrong.

HER HONOUR: I want to know exactly what I am dealing with.

MR BRENNAN: What you are dealing with, your Honour, is an application for possession by the respondents on termination - - -

HER HONOUR: Which is separate from the one - - -

MR BRENNAN: Termination of the tenancy at will that was previously enjoyed by the present appellants.

HER HONOUR: But upon which termination?

MR BRENNAN: 9 July 1994 and the notice to quit.

HER HONOUR: Of 9 July 1994 and notice to quit.

MR BRENNAN: That is correct.

HER HONOUR: And that one, that 9 July one, was the one that was before Justice Gallop.

MR BRENNAN: Yes.

HER HONOUR: So it is 9 July 1994, sorry, and November 1998?

MR BRENNAN: Sorry, 25 May 1998.

HER HONOUR: And 25 May 1998.

MR BRENNAN: Pardon me, your Honour, 18 May 1998 is the notice to quit.

HER HONOUR: That was the one upon which you based your proceedings in the Residential - - -

MR BRENNAN: In the Residential Tenancy Tribunal.

HER HONOUR: So you have abandoned those proceedings, have you?

MR BRENNAN: That is correct. There was a decision against the applicant in that matter as a result of - - -

HER HONOUR: Now, did you commence these proceedings that Justice Higgins heard with a new initiating document?

MR BRENNAN: Yes, your Honour.

HER HONOUR: Now, tell me why. I cannot understand. You have gone - you originally went to the Supreme Court on a termination notice of 9 July.

MR BRENNAN: Yes.

HER HONOUR: That was remitted to the ACT Supreme Court and has languished, has it?

MR BRENNAN: No, it has not. It was not remitted, your Honour, it was - - -

HER HONOUR: Then take me exactly to the orders of the Federal Court on appeal from Justice Gallop, if you would.

MR BRENNAN: The Full Court's order - does your Honour have the black folder of decisions. At tab 5 is the order of the Full Court where it sets aside the order of Justice Gallop, No 6, and that is the order dealing with - the order for vacant possession.

HER HONOUR: Order for vacant possession set aside. All right.

MR BRENNAN: So there was no remitting of the matter to languish. It was left in air, so to speak.

HER HONOUR: That cannot be done. That is not a proper course for disposing of proceedings, is it? Either the application is dismissed or it is not dismissed.

MR BRENNAN: It is dismissed.

HER HONOUR: That is not a final order, is it? Order 6 is not a final order.

MR BRENNAN: For vacant possession, and that order has been set aside.

HER HONOUR: Yes, but an order merely setting aside an order for vacant possession is not an order finally disposing of the proceedings between the parties. There is still pending, it seems to me, in the ACT Supreme Court the proceeding that you initiated for vacant possession which came before Justice Gallop, is there not?

MR BRENNAN: On that analysis, yes, your Honour.

HER HONOUR: And you rely on the same termination notice for these proceedings before Justice Higgins?

MR BRENNAN: Together with the notice to quit.

HER HONOUR: Together with the notice to quit. Now, what has happened to the question of jurisdiction? I take it you do not resile from your observation that you have - your statement that you have abandoned the proceedings in the Residential Tenancy Tribunal.

MR BRENNAN: Your Honour, those proceedings - there is a decision dismissing the application.

HER HONOUR: When I read the decision of last week from the Full Federal Court, being the appeal with respect to the points of law, it said that in the events that had happened the Tribunal had not given a decision about that.

MR BRENNAN: That has in fact occurred, your Honour. There was a decision made by the Residential Tenancy Tribunal to dismiss those proceedings that were before it.

HER HONOUR: When was that, and where is it?

MR MARTIN: 30 June 1999, your Honour.

HER HONOUR: Thank you.

MR BRENNAN: That is correct.

MR MARTIN: And it is in one of my annexures in my affidavit, your Honour.

HER HONOUR: And on what basis were they dismissed?

MR BRENNAN: There was simply an order made, following the decision of Justice Higgins in the ruling decision - - -

HER HONOUR: Which has now been set aside.

MR BRENNAN: Yes, which has now been set aside.

HER HONOUR: Now, we have got a right old mess, have we not?

MR BRENNAN: We do, your Honour.

HER HONOUR: And it seems to be a mess, to a very large extent, of the making of those whom you represent because you have initiated three separate sets of proceedings, one of which you said was abandoned but you now tell me is dismissed, in consequence of an order of Justice Higgins which was set aside last Friday. Is that right?

MR BRENNAN: Yes, your Honour. That was the Residential Tenancy Tribunal, yes.

HER HONOUR: So we do not seem to have anything other than what is said by Justice Higgins in his decision of 16 December as to the court's jurisdiction, which seems to refer back to his finding that the Tribunal did not have jurisdiction.

MR BRENNAN: He does refer to that, your Honour, because what he has before him in those proceedings is all of the material that the appellants relied upon to argue the same again before him, and at that point in time his Honour had also made - given leave to amend those proceedings and had before him all the necessary material.

HER HONOUR: Yes. Well, he may have had before him all the necessary material but courts are courts of law that operate in accordance with well-established principles and procedures. They do not operate on the basis of Rafferty's rules, do they?

MR BRENNAN: No, your Honour.

HER HONOUR: Where does the matter stand now that the Full Federal Court has set aside the order or decision of Justice Higgins saying that the Residential Tenancy Tribunal did not have jurisdiction? That was a jurisdiction which you asserted.

MR BRENNAN: That was, your Honour, and we accepted that his Honour was correct in his ruling.

HER HONOUR: But it has gone, that ruling.

MR BRENNAN: And it has now gone, yes, your Honour. Then that ruling was, at all times, "in air", to quote Justice Einfeld.

HER HONOUR: Of course it was in air but even so, there is something very strange about all of this, is there not?

MR BRENNAN: There is, your Honour, and the difficulty comes from the several proceedings running side by side.

HER HONOUR: Yes, which you have initiated. Of which you have initiated three at least, is that not right?

MR BRENNAN: That is correct, your Honour.

HER HONOUR: Well, now, you had better convince me that that decision having been set aside, there being a Full Bench decision, that it was not clear that the ACT Supreme Court had jurisdiction, although they now say there was, seem to say - it is not clear to me how all this can be done.

MR BRENNAN: Your Honour, the jurisdiction argument in the Full Court - the Federal Court's most recent decision - if we can call that "the rulings appeal" - is about the jurisdiction of the Supreme Court to make declarations or to answer the rulings that were sought to be made before it.

HER HONOUR: Yes, but the rulings have been set aside.

MR BRENNAN: That is correct, and that was what the jurisdiction argument was. The jurisdiction in respect of making the orders for possession is not touched.

HER HONOUR: Well, the question is, is it so clearly correct that there is no prospect or no reasonable prospect of a grant of special leave?

MR BRENNAN: The answer to that is, yes, your Honour, and the clear correctness of that comes from the findings, firstly, that the appellants are tenants at will of property.

HER HONOUR: There is an assertion of that but there does not seem to have been a finding.

MR BRENNAN: The Full Federal Court makes that finding upon the appeal from Justice Gallop.

HER HONOUR: But the Full Federal Court - how could it have and, at the same time, have set aside Justice Gallop's order?

MR BRENNAN: The Full Court acknowledged that what was not before Justice Gallop was a question on the application of the Landlord and Tenant Act that was then applicable legislation.

HER HONOUR: And what did that say? I mean, you tell me it has been repealed but I have not any material before me to see how it impacted on the notice to quit. Let us assume the Landlord and Tenant Act applied at the time of the notice of termination - termination notice you call - did it cease to have an impact simply because it was subsequently repealed?

MR BRENNAN: Yes, your Honour. If I could take you back through the history. The notice of termination of tenancy at will was issued.

HER HONOUR: On 9 July - - -

MR BRENNAN: 9 July 1994, on the basis with that notice that the Landlord and Tenant Act did not apply; that there was no lease - for the Landlord and Tenant Act to have applied, then it required a lease between parties.

HER HONOUR: Yes, but you lost that in the Full Federal Court.

MR BRENNAN: But, your Honour, that was not put, and this is why the Federal Court notes it was not put before his Honour Justice Gallop at the time because there was not a notice to quit put under the Landlord and Tenant Act 1949 . What was before Justice Gallop was a notice of termination of tenancy at will. Subsequently, what happens is after the Federal Court's decision, which talks about the Landlord and Tenant Act, then a notice to quit under that Act was issued.

HER HONOUR: And you issued proceedings in the Residential - - -

MR BRENNAN: In the Residential Tenancy Tribunal.

HER HONOUR: Which presumably had jurisdiction. Now, did it and the Supreme Court have concurrent jurisdiction?

MR BRENNAN: That is what his Honour Justice Higgins took the view - - -

HER HONOUR: That is the question, is it not, that there was concurrent jurisdiction. No, Justice Higgins said the Residential Tenancy Tribunal has no jurisdiction.

MR BRENNAN: Has no jurisdiction.

HER HONOUR: Yes.

MR BRENNAN: But Justice Higgins had jurisdiction to entertain that the application - - -

HER HONOUR: Entertain what?

MR BRENNAN: The application for possession based - - -

HER HONOUR: But, can you tell me, does the Residential Tenancy Tribunal and the ACT Supreme Court have concurrent jurisdiction in these matters?

MR BRENNAN: From memory, your Honour - - -

HER HONOUR: I want to know precisely.

MR BRENNAN: - - - the Residential Tenancies Act purports to give exclusive jurisdiction to the Tribunal.

HER HONOUR: To the Tribunal, and the finding that it did not have jurisdiction has been set aside last Friday.

MR BRENNAN: That is correct. There is still the submission that that finding is not a finding contrary to the ruling of his Honour, the finding is that the proceedings were incompetent.

HER HONOUR: Well, of course, but the ruling does not exist any more.

MR BRENNAN: That is correct.

HER HONOUR: It may or may not be right but it does not exist.

MR BRENNAN: Correct, your Honour.

HER HONOUR: And it seems to me very difficult if you tell me that the Residential Tenancies Act gives it exclusive jurisdiction and its only decision to dismiss the proceedings is on the basis not of its decision as to its jurisdiction but the basis of a decision that has been set aside.

MR BRENNAN: Yes, your Honour.

HER HONOUR: That we have problems in this matter.

MR BRENNAN: I would just need to complete, your Honour. The notice to quit went before the Residential Tenancy Tribunal. The Tribunal decided it was not, after the decision of Justice Higgins, able to continue.

HER HONOUR: Which has now been set aside.

MR BRENNAN: Yes. So, what goes before Justice Higgins, and Justice Higgins is of the view that there is - - -

HER HONOUR: But there is not a decision that that is right. You cannot rely on it as being right once it has been set aside.

MR BRENNAN: But in terminating a tenancy at will, there is no need for a formal document such as a notice to quit.

HER HONOUR: That may be so, but I do not know what the Landlord and Tenant Act said of the notice of this termination nor do I know what the Residential Tenancies Act says.

MR BRENNAN: Your Honour, to have a matter come before what was previously the Magistrates Court's jurisdiction under the Landlord and Tenant Act and under the Residential Tenancy Tribunal under the - and in this particular matter, transitional legislation as the notice to quit was issued under the Landlord and Tenant Act, there still needs to be - and with respect to Justice Higgins in his rulings, I would submit that they are in fact correct and would rely on the authorities - - -

HER HONOUR: Well, you might but you invoked the jurisdiction of the Tribunal.

MR BRENNAN: Yes.

HER HONOUR: You have blown hot and cold, in a sense.

MR BRENNAN: Yes, we have, your Honour, yes.

HER HONOUR: First of all, you invoked the jurisdiction of the ACT Supreme Court; then you invoked the jurisdiction of the Tribunal; then you go back to the ACT Supreme Court and somewhere along the line, we have missed - we have had set aside this declaration that the Residential Tenancy Tribunal does not have jurisdiction.

MR BRENNAN: Yes. Unfortunately, your Honour, I think the ruling - his decision - threw us off on a path which has brought us here today where we are still seeking to rely upon the basic premise here that a tenancy at will has been terminated and that ultimately - - -

HER HONOUR: Yes, I know you are seeking to rely on that, and you may well be right in that, but we are concerned with an order for possession.

MR BRENNAN: That is correct, your Honour.

HER HONOUR: Which the Supreme Court may, or may not, have had jurisdiction to make, according to the Full Federal Court, and the finding that the Residential Tenancy Tribunal had no jurisdiction seems at least to be an integral step in the decision that the ACT Supreme Court has. But that finding is gone.

MR BRENNAN: His Honour Justice Miles, in his reasons for judgment, where he adds to the decisions of Justices Einfeld and Kenny - - -

HER HONOUR: Yes, I noticed that.

MR BRENNAN: He points out that there is nothing in the judgments given in the subsequent proceedings which affects that appeal.

HER HONOUR: I noted that. I thought it was heroic.

MR BRENNAN: Thank you, your Honour. I think his Honour is there saying that - and it has been the submission and accepted by two Full Benches that the impact of any order made in, I think, what we are calling the rulings appeal on these proceedings is minimal.

HER HONOUR: I know it has, and I dare say that has been your submission.

MR BRENNAN: Yes. And two Full Courts have considered that.

HER HONOUR: I well realise that. Now, if you can persuade me that that is definitely correct, then that is one thing. If you cannot, then it seems to me it is a matter in which Mr Martin should have an opportunity to seek special and if that is to be a real opportunity, he should get the stay until the consideration of his application for special leave. I mean there would have been considerable merit in your argument and in your assertion that two Full Courts have said that they do not impact, except for the fact that the actual ruling that the Residential Tenancy Tribunal did not have jurisdiction must, because of the assertion that it has exclusive jurisdiction, as you tell me, mean that that was a critical finding to the existence of jurisdiction in the Supreme Court. And yet that finding has now disappeared.

MR BRENNAN: The difficulty, your Honour, is still that the Residential Tenancy Tribunal requires there to be a lease and there is ample findings that no lease - - -

HER HONOUR: You tell me that, but you do not provide me with an Act or anything of that kind and this was on a motion for summary judgment, of course.

MR BRENNAN: That is correct, your Honour. The motion for summary judgment is simply based on there being a tenancy at will.

HER HONOUR: There has to be jurisdiction.

MR BRENNAN: The Supreme Court has all original jurisdiction in the Australian Capital Territory.

HER HONOUR: Except that which is made exclusive.

MR BRENNAN: Exclusive to the Residential Tenancy Tribunal, which the argument then is that there is, in the Residential Tenancy Tribunal, a need for more than a tenancy at will.

HER HONOUR: So you say. But where is the finding? That finding having gone away, where is that finding now?

MR BRENNAN: The highest I can put that, your Honour, is that his Honour Justice Higgins in these proceedings repeats what he has found - - -

HER HONOUR: Exactly, that the finding has gone away.

MR BRENNAN: It is submitted you can take it higher than that, your Honour, because what he has before him are the two proceedings. They are being heard together. There is an amended application and he has before him all of the material that was relied upon - - -

HER HONOUR: That is not the way the Full Court saw it, is it?

MR BRENNAN: Which Full Court, your Honour, sorry?

HER HONOUR: Last Friday's, or whenever it was.

MR BRENNAN: That is correct, your Honour. What the Full Court removed was the rulings, that the rulings themselves were incompetent, that the proceedings were incompetent. It is my submission that the mere removal of that does not remove from these proceedings, because of what was before his Honour - and his Honour makes reference to that in his decision - that he has all of that material before him. Everything that is before him in these proceedings - that is these proceedings which are not in air - it is these proceedings which are based on the affidavit material that is put before his Honour, that is based on all the findings that are between these litigants for some years prior, that is based on the affidavit of the respondent. So he has everything before him in these proceedings.

HER HONOUR: Is there anywhere at all, any finding anywhere, as to the basis on which the applicants in these proceedings were in possession?

MR BRENNAN: That the applicants were in possession?

HER HONOUR: Oh yes, we know they were, and we know they are. But as to the basis on which they were in possession.

MR BRENNAN: If I can take you to paragraph 19 of his Honour's decision.

HER HONOUR: That is Justice Higgins?

MR BRENNAN: Justice Higgins in the matter below.

HER HONOUR: That is under tab 9, is it?

MR BRENNAN: Tab 8.

HER HONOUR: Yes, paragraph 9, that is what he said, "I declared that the RTT had no jurisdiction".

MR BRENNAN: Paragraph 19, your Honour. Then, in further answer to your question, your Honour, in paragraph 20 - - -

HER HONOUR: But what I am asking is do we know on what basis they were in possession, that they went into possession? Has there ever been a finding?

MR BRENNAN: Yes, your Honour. If I can take you to Justice Gallop's decision.

HER HONOUR: Which?

MR BRENNAN: Pardon me, your Honour, it is behind tab 4.

HER HONOUR: But his relevant order has been set aside. So that finding - - -

MR BRENNAN: They set aside a vacant possession, but the question is how were they in possession?

HER HONOUR: But if that is set aside, we do not have any final and binding decision on those proceedings.

MR BRENNAN: What was set aside was an order granting Individual Homes possession - - -

HER HONOUR: Yes, yes, all right, well I see what you say - - -

MR BRENNAN: - - - and the question is how are the appellants in possession. The answer to that is that they were seen to be a mortgagee in possession - - -

HER HONOUR: But has there been a finding as to the basis of their occupancy?

MR BRENNAN: I will just turn - it is in Justice Gallop's decision. I will just turn that up, your Honour, if you would pardon me for a moment. I take you to page 30 of his Honour Justice Gallop's decision.

HER HONOUR: What tab did you say, sorry?

MR BRENNAN: Tab 4. Two-thirds of the way down the page - - -

HER HONOUR: Paragraph?

MR BRENNAN: It is the last paragraph.

HER HONOUR: Page 30 you said?

MR BRENNAN: Page 30, yes. See there his Honour notes that:

Mr Martin executed a Memorandum of Mortgage of the property on 14 June 1989 as Managing Director (see Exhibit 10) and purported to take a step to enforce the charge so created within 6 months, namely on 15 June 1989, by entering into possession of the property as Mortgagee in possession.....Mrs Martin executed a mortgage of the property on 6 March 1990 and purported to take a step to enforce the charge so created within 6 months namely on 6 March 1990, by entering into possession of the property as a Mortgagee in possession - - -

HER HONOUR: Yes.

MR BRENNAN: That step is set aside.

HER HONOUR: That does not tell me the basis on which they were in possession. That tells me the basis on which they claim to be in possession, a claim which was ultimately of no avail.

MR BRENNAN: Correct. Prior to that, your Honour, they are there at the will of the company. What is coming straight to mind is Justice Einfeld made reference to it. I am sorry, your Honour, I am unable to locate it. There was a reference to there being no lease between the parties.

HER HONOUR: We do not have a - - -

MR BRENNAN: And that they were simply there as directors of the company.

HER HONOUR: But there is not a finding at first instance about that, by Justice Higgins, is there? It is, after all, his order that we have to deal with.

MR BRENNAN: Yes. He does have before him a history, and a long history, unfortunately, your Honour.

HER HONOUR: Yes. but not a satisfactory history, as we discovered on Friday.

MR BRENNAN: Yes, your Honour. I think it falls to paragraph 19 of his Honour Justice Higgin's decision.

HER HONOUR: Once again, tab - - -?

MR BRENNAN: Tab 8, and paragraphs - - -

HER HONOUR: That says:

At no time since.....has the plaintiff consented to the defendants' continued occupation of the premises.

MR BRENNAN: That is correct.

HER HONOUR: Well, that really is neither here nor there, is it? Because what I am trying to find out is the original basis: how the Landlord and Tenant Act, if that is what it is called, impacted on that? How, if at all, it impacted? How, if at all, the Residential Tenancies (Consequential Provisions) Act or Transitional Provisions Act impacted?

MR BRENNAN: Your Honour, if I could just keep on the question that I have not yet fully answered and it is, is there possession? And his Honour Justice Higgins, paragraphs 24 and 25, notes the "tenancy at sufferance" argument. And then at paragraphs 36 and 37, his Honour is much stronger on what he sees as the law being unequivocal.

A tenant, whether for years or at will, holding possession after the termination of a term or continuing occupation in the absence of a prior term of years after termination of a tenancy at will, is a tenant on sufferance liable to be removed by an action for possession.

His Honour, at paragraph 50, notes that:

If the Landlord and Tenant Act (ACT) ever applied to the tenancy at will enjoyed by the defendants prior to 25 May 1998, it has no effect now.

So, his Honour answers that question.

HER HONOUR: We know it had no affect now, but we only know that subject to the Transitional Provisions Act.

MR BRENNAN: Well, his Honour there, at that point in time, is aware - and again I must come back to the submission that his Honour has everything before him from those proceedings.

HER HONOUR: But not necessarily regularly.

MR BRENNAN: Yes. The rulings themselves are away from him. His Honour has given leave for the two matters to be heard together. What is agitated before him - even though what was given leave to be heard was in fact an amendment to the rulings proceedings, what was put before him in support of the current appellants' position to do away with the summary judgment application is, his Honour had the benefit of all of the arguments, all of the material that was both in the proceedings before him previously - and I understand that those proceedings are incompetent and agree with that, that they are gone. But what the material itself - - -

HER HONOUR: So, the material itself must be gone, must it not?

MR BRENNAN: Well, the material itself is submitted in support - it is submitted and relied upon by the appellants in these proceedings.

HER HONOUR: That just seems to me to raise another question; however - - -

MR BRENNAN: That is the way in which his Honour - ultimately, it is a litigant in person, on one side, who is putting submissions from a range of material, a range of proceedings and a number of affidavits and the affidavits themselves attach material from numerous other proceedings and, in one sense, that is the benefit here, that his Honour had before him all of that material and, it is submitted, not in those other proceedings, in these proceedings that material is again repeated. It is brought before his Honour properly by the affidavit of the appellants. They seek his Honour - and his Honour notes it in his decision that he has all that material before him and still makes the finding that the respondents press the tenancy at will is terminated and that the appellants today are wrongfully continuing in possession. To go beyond that there is - ultimately, it is a waste of the Court's time, all the courts' time.

HER HONOUR: All of that may be so.

MR BRENNAN: But his Honour had everything before him to make the decision that he has made. It is not as if there is material missing.

HER HONOUR: Maybe.

MR BRENNAN: Yes. Well, his Honour does note it.

HER HONOUR: Yes, his Honour noted it but this is material from a proceeding that we now know was incompetent; it is as if it did not exist.

MR BRENNAN: That proceedings, yes, your Honour, but it is my submission that in the material that is put in these proceedings, in matter No SC404, the appellants press his Honour to consider all of the material that they submit. Now, that could be material, if it is headed in - it does not matter what proceedings it is headed in.

HER HONOUR: Yes, it does.

MR BRENNAN: In the matter of putting the material - sitting behind the affidavit of the appellant. They press his Honour to consider all of that material and his Honour, bearing in mind he has a litigant in person in front of him and this Court has - Mr Martin has, on many occasions, pointed out that a litigant in person should be given more leeway than legal practitioners, and that is accepted by the respondents, and certainly leeway has been given, and this is one of the examples where, in bringing all of the material that the appellants seek to rely upon before the court below, leeway has been given and has to be given to litigants in person.

So that we can safely say that what was before his Honour was all of the material that the appellants relied upon. That ultimately the rulings proceedings were incompetent really follows with what has been put to the two Benches of the Full Federal Court, it does not have an impact here because all of that material is put into these proceedings and a decision in these proceedings is made. So, the decision does not rely upon the earlier rulings. The decision relies upon what is before his Honour and it is all of that material. Those are my submissions, thank you, your Honour.

HER HONOUR: Yes, thank you. Well now, Mr Brennan, before I hear from you, Mr Martin, I am minded to grant a stay in these proceedings - I will give my reasons shortly - but only on terms that the application for special leave to appeal be expedited. Now, that would mean your foregoing time to get your documents in and so forth.

MR BRENNAN: Yes, your Honour.

HER HONOUR: Would your side be prepared to undertake responsibility for preparing the application books? You see, that may impact on the times that I would set.

MR MARTIN: Could I make a submission? Your Honour, in C1 of 2000, I prepared the appeal document within a matter of two days and I am prepared - - -

HER HONOUR: Well, you may have, but there is more to it than is necessary and perhaps not enough that is necessary.

MR MARTIN: I mean, if your Honour wants to put a time for me to do and prepare it, I would not object to that to expedite it and prepare it. I have done it previously. I mean, I am just submitting to your Honour that I would be open to any of those conditions.

HER HONOUR: I take it you are not enthusiastic about the prospect of preparing the special leave books or accepting - - -

MR BRENNAN: Your Honour, my lack of enthusiasm is I know Mr Martin would prefer to prepare his own application books, but I take what your Honour says. If it is a direction of your Honour that we prepare the application book, then we will. I just know that Mr Martin has - - -

MR MARTIN: Your Honour, I do not have any preference. I am only submitting an offer that if your Honour directs me, I will do it; that if your Honour wants Mallesons to do it, I am more than happy with that. I will have no objection - - -

MR BRENNAN: If that is the case, then, your Honour, we will prepare the application book.

HER HONOUR: Yes, very well. Thank you. I do not need to hear from you, Mr Martin.

Given the nature of the proceedings I will say no more than that I am unable to conclude on the material before me that the application by Mr and Mrs Martin for special leave to appeal is bound to fail. However, an application for special leave to appeal would lack all utility if a stay were not granted. I therefore propose to grant a stay as sought on terms that the hearing of the application for special leave to appeal be expedited.

Mr and Mrs Martin are to file their written arguments for the grant of special leave to appeal within 10 days of today's date.

The respondents - we are really only one respondent, are we not?

MR BRENNAN: We are, your Honour, although Mr Martin has continued to have the second respondent - - -

HER HONOUR: Mr Martin, you had better look at that. You cannot have parties that were not parties in the court below. You cannot join parties in this Court.

MR MARTIN: Your Honour, I stand guided by your Honour on that.

HER HONOUR: I am not giving you guidance. So I will just say:

The respondent to file and serve its written submissions in reply within 10 days thereafter. I do not know quite what those dates work out at, but Mr and Mrs Martin should have a further three days to put their written submissions in reply.

The respondent to accept the responsibility of presenting at the Registry within 48 hours of the receipt of the written submissions in reply for the purpose of ensuring the proper preparation of appeal books.

The costs of this application will simply be costs of the special leave application.

I should certify for the attendance of counsel for the respondent.

Is there anything further?

MR MARTIN: Just the last "48 hours". I did not get it, your Honour.

HER HONOUR: Within 48 hours of the receipt of your written submissions in reply, the respondent is to accept the responsibility for presenting at the Registry to undertake the preparation of the application books.

MR MARTIN: Thank you.

HER HONOUR: Anything further, Mr Brennan?

MR BRENNAN: No, thank you, your Honour.

HER HONOUR: Court will now adjourn.

MR MARTIN: Thank you, your Honour.

AT 2.53 PM THE MATTER WAS CONCLUDED