Harkins v Butcher & Anor [2003] HCATrans 397 (3 October 2003)

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Harkins v Butcher & Anor [2003] HCATrans 397 (3 October 2003)

Last Updated: 14 October 2003

[2003] HCATrans 397

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S347 of 2002

B e t w e e n -

ROBERT EDWARD HARKINS

Applicant

and

JEFFREY GORDON BUTCHER and JUDITH KAY RADFORD

Respondents

Application for special leave to appeal

McHUGH J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 OCTOBER 2003, AT 10.05 AM

Copyright in the High Court of Australia

MR J.M. IRELAND, QC: Your Honours, in that matter I appear with MR W.G. HODGEKISS on behalf of the applicant. (instructed by the applicant)

MR R.J. ELLICOTT, QC: Your Honours, I appear with MR G.A. MOORE for the respondents. (instructed by Williams Woolf & Zuur)

KIRBY J: Just whilst the papers are being – I looked for a reply, because Mr Ellicott has raised a notice of contention point, and I did not find a reply. Is there a reply?

MR IRELAND: Your Honour, I am sorry, I only saw that - - -

KIRBY J: That is his argument, it in the written submissions.

MR IRELAND: Yes, there is a notice of contention which is proposed in the written argument.

KIRBY J: He has indicated that he would want to rely on - - -

MR IRELAND: We have not responded in writing to that.

KIRBY J: They seem to be matters you have to deal with. I will just look for a reply.

MR IRELAND: Yes, there is not one there.

KIRBY J: .....indicate that they are matters I would.....

MR IRELAND: Yes, your Honour. This present application is of course intricately connected with the last application but this involves something which was of course essential to the outcome in both of the cases, the case against the agent and the case against my client, the vendor, which was just where the swimming pool was in relation to the land boundary at the waterside. Your Honour, the survey report which was by Hannagan is at page 177 of the application book and it annexed a diagram at 178 and that was the diagram your Honours have seen reproduced in a brochure.

Justice Handley and the Court of Appeal were asked to determine the question in the respondents’ application, as it were, for rescission of the sale contract, whether the pool was inside or outside the mean high-water mark and his Honour Justice Handley approaches that matter by reference to a plan which had been lodged by Mr and Mrs Pullicin. They were the predecessors in title to my client, the vendor. That plan is at page 184 and it was a plan prepared in 1979 before the construction of the swimming pool. Your Honours appreciate these plans, and there are a number of them, are what ends up as a plan annexed to a permissive occupancy.

What had happened in this case, if your Honours go to page 187, is that Mr and Mrs Pullicin enjoyed a permissive occupancy of the property as at 1979. The diagram at 187 is the diagram of that occupancy. It is common ground there was no pool involved at that stage. The sketch at 184 that I just took you to is Mr Pullicin’s sketch upon the existing permissive occupancy and it proposes a swimming pool which straddles a line that is shown on the board’s own plan. That line can only have had derivation, which was the deposited plan itself, issued in 1919. Therefore, that line was nobody’s attempt to find the position of the mean high-water mark in 1979, but it certainly proposed a pool straddling what was then conceived to be the documentary title.

What had happened, your Honours, as was accepted in principle, is that between 1919 when the deposited plan was issued and 1979 when the swimming pool was proposed, there had been some substantial accretion in the tidal boundaries of all these properties in the Pittwater. The question was, where then in 1997 did the actual mean high-water mark lie? It was accepted on all sides and in the Court of Appeal that this doctrine of accretion operates on Torrens land - no argument either way - therefore, the question became - - -

KIRBY J: That was common ground, was it?

MR IRELAND: It was common ground.

KIRBY J: It seems an odd notion to title by registration.

MR IRELAND: It is, but it is something that has been necessarily recognised, certainly in the Full Court in New South Wales since 1934 and in other cases, although not in this Court, I think, confirmed.

KIRBY J: That seems to defy the basic premise of Torrens Title.

MR IRELAND: The problem is otherwise you would own a square block that was some yards off into the sea, as in - if your Honours looks at the DP in this case - - -

KIRBY J: Anyway, no one has argued about it in this case.

MR IRELAND: No, and I doubt if Mr Ellicott will. The position is then that one had to work out as at 1997, when the auction was held, where was the title boundary.

What Justice Handley said was that the document at 184 was an admission by Mr and Mrs Pullicin of the relationship between the actual boundary and the proposed swimming pool. The crucial passage is at page 95 and at the top of the page his Honour says this, after reference over the page to the Pullicin 1979 document:

This established both the title boundary at the time and the location of the swimming pool in relation to that boundary.

And everything else does not matter.

Nobody at the trial or at the hearing of the appeal had suggested that this Pullicin plan should be given that significance. Mr Pullicin had not been called at the trial. If the respondent in the appeal, that is Mr Ellicott’s clients, if they had sought to agitate that proposition on appeal, the Court of Appeal should have disallowed the argument because it was a matter that could have been dealt with by the applicant calling Pullicin at the trial. He was alive and well and able to give evidence and the significance of his discourse with the Crown Lands Department would be relevant evidence.

KIRBY J: How did the trial judge deal with this?

MR IRELAND: He did not. If the respondent could not have raised the matter in the Court of Appeal as to the significance - - -

KIRBY J: This was a new thought, but of course this is an appeal by way of rehearing and the Court of Appeal is entitled, subject to procedural fairness, to make its own findings on the record.

MR IRELAND: Certainly, but if the respondent could not have raised it in the Court of Appeal as I am suggesting, how could the judge have raised it? And moreover, if he had raised it, it would have been debated. This significance, and his Honour, you can see at the passage on page 95, then refers to this ancient doctrine reflected in England in the seminal case of Falcon v Famous Players whereby a predecessor in title may make a statement adverse or debilitating that title out of court which counts as an admission under a special rule of law that had its origins in the uncertainty of common law title.

McHUGH J: There is nothing novel about it. It is one of the first rules you learn in the law of evidence.

MR IRELAND: My complaint here is not that it was novel but that the reasoning was completely secret. It was not a matter up for debate in this case and what the judge said - none of those decisions was referred to. The proposition that this kind of admission overwhelmed all other evidence, his Honour says this establishes both the title boundary at the time of the location of the pool in circumstances where an existing sketch which plainly showed the relationship between the documentary title boundary and a rough spot for a swimming pool could overwhelm all other evidence.

Let me just for a moment tell your Honour what the other evidence was. The other evidence was that in 1985 after the construction of the swimming pool, Mr Paterson, a surveyor from the Lands Department, went out and had a look at the matter. He went out and measured up all these permissive occupancies. His diagram is at 181, which followed his inspection. Your Honours, the relevant lot is lot 14, which is towards the right-hand side of the diagram. Your Honours see “solid wall”, brick wall, that is the lot. Mr Paterson found that the swimming pool as constructed by 1985 was not on the permissive occupancy beyond the high-water mark at all. And this he said, if your Honour goes to 182G in his report which accompanies that internally:

This inspection revealed that there are several variations from the authorised diagram involving additional structures and a redefined High Water Mark based on aerial photography and survey information from Water Board maps. These changes are shown on the accompany diagram.

The next thing that happens is that the Crown, accepting Mr Paterson’s work and the effect of it, then writes a letter to Mr and Mrs Pullicin and the letter tells them that the swimming pool is on the freehold, that is at 164E. The date is faded but it is 30 May 1985, as Justice Handley recounts. This is a letter to my client’s predecessors in title following the 1985 inspection by Paterson in April:

A recent inspection of your Permissive Occupancy revealed that the reclamation is considerably larger than authorised. The inspection also revealed the existence of nine berthing piles as opposed to the authorised seven. The swimming pool was found to be entirely on your freehold land. This Office is prepared to authorise all the variations.

The only survey work that was done after 1919 was the Hannagan survey, which is the contentious one embodied in the brochure, and the Paterson survey which led to this result. If ever there was an estoppel running against anybody by admission, it was that Crown Lands letter which said that it was on the freehold.

Your Honour, Justice Handley decided this case without placing any significance on the real evidence. His Honour placed a complexion on the so-called admission. Your Honours, parties are not to be exposed, in our submission, to a secret and flawed process of reasoning, reaching a result upon which no opportunity was given to advance submissions in an appeal or at a trial.

KIRBY J: You say this was not dealt with at trial.

MR IRELAND: That is conceded, your Honour.

KIRBY J: Was not dealt with by the trial judge, was not dealt with in written submissions to the Court of Appeal, nor in oral submissions.

MR IRELAND: And that is conceded on the other side. Your Honours, this was quintessentially a miscarriage of justice not only because it was done by the judge’s own private working but because it was done without an opportunity to be heard.

Your Honours have granted special leave in the other case. It would be an extraordinary development if this factual question were not able to be re-agitated in the context of Mr Foster’s case.

KIRBY J: But you have to deal with the contentions that Mr Ellicott says, even if you get up on this you lose the case because there is a discretionary decision relating to the – it is at page 158, paragraph 1.17 - discretionary decision under the Conveyancing Act 1919 and it can be justified on other grounds.

MR IRELAND: No, no. Your Honour, what is being said there is that the deposit was held to be forfeited by the discretion imposed by the Conveyancing Act, but it is perfectly clear from the reasoning that the only basis for doing that was the fact of this misrepresentation.

KIRBY J: Yes, but the primary judge must have had another reason because that is what he ordered.

MR IRELAND: No, no, the primary judge held that there was a misrepresentation as well, so there were co-ordinate findings from the trial judge and the Court of Appeal, but on completely different reasoning, as to the position of the swimming pool.

KIRBY J: Yes, but as I understand Mr Ellicott’s submission, he says we can sustain this order on a different basis and he sets it out at 158.

MR IRELAND: You could not, your Honour, with respect. Once the pool is on the land, the basis for the discretionary order for the return of the deposit falls, so it is just not an answer to the point. This case was decided
on reasoning that was flawed and reasoning that was secret and we are entitled, in my respectful submission, to argue the matter.

McHUGH J: Yes, Mr Ellicott.

MR ELLICOTT: Your Honours, the forewarning of a notice of contention at page 158 really picks it up. It really is a question of what an ordinary person would regard as being a representation when they saw that brochure, for instance.

KIRBY J: Can I just ask to start with if you accept the complaint that is made that the Court of Appeal dealt with this matter on a footing that was not argued at trial nor in the Court of Appeal?

MR ELLICOTT: Your Honour, we do not accept that because the question of accretion was before the court and there was a principle to be determined. There were two possibilities, as I understand it. One was that you could come along to the court, notwithstanding that your title showed that your boundary went through the swimming pool, and say that is not the correct boundary and we can show by accretion that the boundary is beyond the swimming pool towards the water. That was an argument that, as I understand it, my friend’s client was putting, and that was a question of showing accretion and all the material relevant to it was before the trial judge and before the Court of Appeal and a decision of fact was made that the title was accurate as at the date of this representation, whether you look at the solicitor’s representation or whether you look at the agent’s representation.

The other way of looking at it was to say this was a representation about the boundary according to the title and that, we say, is the commonsense approach to this, that anybody seeing this would say, “You’re telling me that the boundary according to the title” - that is what people are interested in surely - “is this line which has ‘mean high-water mark’ on it”. If that is so, if that is the true representation, then there is an entirely different way of putting this case to the way in which my friend wanted to put it, and that is what we forewarn in that notice of contention. That is a commonsense approach and we would say that the Court should not entertain this.

Basically, there are three reasons. One is it is basically a question of fact as to accretion. There must be a question as to whether all the issues on accretion are there. That in itself is not a matter of general public importance. The doctrine of accretion has been around for a long time but the New South Wales Parliament was in the process last year of cutting it down in relation to Sydney Harbour and Botany Bay. They did not do it in relation to – and your Honours should be warned – they have cut it down in relation to Sydney Harbour.

KIRBY J: Thank you for that melancholy news.

MR ELLICOTT: So the public importance of this is dwindling. But really, my friend has not shown that there is any real argument about the doctrine of accretion as it would apply to this property and therefore there is no point, we would submit, in the Court entertaining what is substantially, if not wholly, a question of fact.

Then there is this proposition, which we would submit sounds like common sense, that if you, the registered proprietor, say that you have more land by means of the doctrine of accretion, then you should apply to the Registrar-General under the Act, and there is a provision there, in order to establish that your land has extended towards the water mark and therefore you are entitled to more land. That is the basis upon which the trial judge seems to have approached it and it is a sensible basis. In other words, that at the end of the day this was a representation about the boundary of the land. The other aspect of it is that, again at the end of the day, in terms of the return of the deposit, the discretion under section 55(2A) of the Conveyancing Act is at large, it is a very wide discretion.

KIRBY J: Yes, but Mr Ireland’s complaint is that the relevant judgment, that of the Court of Appeal, has confirmed the order for the return of the deposit on a foundation of fact upon which his client was not heard.

MR ELLICOTT: Yes, that may be so.

KIRBY J: And therefore that the discretion miscarried and therefore that what we would be doing would be, as it were, re-exercising the discretion on the correct principle.

MR ELLICOTT: And we would be saying to this Court on - - -

KIRBY J: You say that if we came to that we would go back to the way the primary judge approached it?

MR ELLICOTT: Yes, and we would say that therefore there is a circular argument and therefore it is not the sort of case which this Court should embrace by way of special leave because all roads seem to lead to the probability that the Court will be engulfed in the question of fact, a complex question of fact about accretion, and not be assisted greatly by the documentation that is there. And secondly, there is the problem about what the representation was, whether it was not in truth a representation about the boundary on the title. And thirdly, this question of discretion, and we would ask your Honours to refuse special leave.

HEYDON J: Mr Ellicott, these documents that were described as “business records or admissions”, they were in evidence?

MR ELLICOTT: They were in evidence, yes.

HEYDON J: Were they objected to, do you know?

MR ELLICOTT: I do not think so.

HEYDON J: Do you embrace this idea? It does not really matter whether Mr Justice Handley called them “admissions” or “business records” or anything really; the fact is they were factual material which he was entitled to take into account.

MR ELLICOTT: Yes.

HEYDON J: It might be in a sense unfair that he did not say, “I treat that as an admission”, but does the error, if it is an error, cause any harm? It is an admissible piece of evidence to be fed into a process of factual reasoning.

MR ELLICOTT: Yes. One submission I was going to put was that Justice Handley had dealt with this, I say, in passing, that it was just one of a number of matters that he took into account in the course of coming to the ultimate conclusion that he thought that the trial judge was right and that it is not necessarily indicative - that is his judgment - that it was a critical step. It was certainly a step and he certainly did embrace what is quite a compelling judgment of Justice Hutley in Jones v Sutherland if one cares to read it. It is a very well-researched judgment, he picks it up and he applies it. The other judges of appeal did not, but so be it, but he did. That is, the other judges of appeal in Jones v Sutherland did not agree with Justice Hutley. We would submit that in that context, the flow of his judgment is not to treat this as some matter where my friend has been denied natural justice. It was open to him to argue that it was not an admission and we say that if you look at it as a matter of evidence, once we put the title in and a survey which established that according to the measurements the boundary went through the swimming pool, that was prima facie evidence of showing that that was a misrepresentation and it was up to my friend to establish his accretion, and he did not. In that sense, my friend has fallen short of countering the prima facie evidence that the title had, that the boundary of this land ran through the swimming pool.

KIRBY J: But he does seem to have a complaint that at least one factor, maybe an important factor in Justice Handley’s reasoning, was one upon which he was not heard. You remember Lord Denning’s statement that no cause is lost until the judge comes to decide the matter on the basis of the submissions of the parties.

MR ELLICOTT: Your Honour, how serious was it? My friend is very emotional about and very strong about it - - -

KIRBY J: I thought he was as cool as a cucumber.

McHUGH J: He was more restrained than usual.

MR ELLICOTT: He is fired with indignation but, your Honours, how often to judges decide cases on matters that were not argued? It is a very fine point that my friend is raising and judges are not disentitled in a process of reasoning. This is how I want to put it.

KIRBY J: No, but he does point to that report by Mr Paterson and says, We would have had things to say about this”.

MR ELLICOTT: But Justice Handley, as one reads the judgment, then goes on to say, “Look what happened afterwards”. Nobody seems to have paid any attention to that, in effect. Nothing came of it and so the title remained as it was. So, it is not a fruitful matter, we would submit, for this Court to get involved in. They are our submissions, your Honours.

McHUGH J: Yes, Mr Ellicott. Yes, Mr Ireland.

MR IRELAND: I just draw attention to the concession at 156, which I know my learned friend did not write. It is at paragraph 1.12, the respondent accepts:

that they did not specifically argue that the 1979 plan . . . and their accompanying letter . . . were admissible against Mr Harkins as business records, and as admissions by his predecessors in title –

HEYDON J: But they were admissible evidence, they were evidence in the case. Does it matter what you call them?

MR IRELAND: Yes, it does, because at 95, line 10, Justice Handley says they are “admissions”.

HEYDON J: Which are just pieces of evidence.

MR IRELAND: But it is that, it is the admission that establishes it. Admissions are just pieces of evidence in the mix, but they are very important pieces of evidence.

HEYDON J: They are not estoppels and they can be strong or weak.

MR IRELAND: But his Honour says that this admission establishes the title boundary at the top of the page:

This establishes both the title boundary at the time and the location . . . This and the plan . . . were admissible –

HEYDON J: I do not think that means “I, Mr Justice Handley, find that utterly convincing evidence establishing the title boundary”. He is just saying that letter in its own four corners says what the title boundary is.

MR IRELAND: But our point, your Honours, he says that before he comes to consider any of the later material. If I can just give your Honours the reference, at the foot of the same page - - -

HEYDON J: If it read what you want it to read, he would not have gone to any other material. He would not have had to go to any other material.

MR IRELAND: What he says, at the end of the day, having looked at the other material, at page 98, line 55:

This analysis satisfies me that the title boundary was frozen at the 1919 high water mark –

That is all he says in dealing with Paterson.

HEYDON J: But that is an analysis that has run from paragraph 8 to paragraph 27.

MR IRELAND: And all of it is contrary to the proposition.

KIRBY J: But it is a rehearing on the record, it is rehearing of facts as well as law. The evidence was in and it was received, it was before the Court of Appeal, and Mr Ellicott does I think have a point in saying that he established where the title was and therefore the evidentiary burden at least was upon you to establish the contrary and you could have, in responding to that evidence that was before the trial judge, brought whatever evidence you thought was relevant and you did not.

MR IRELAND: If the other side had been saying this is an admission by Pullicin, then we would have been entitled to call Pullicin to deal with the
circumstances in which he made that admission. They never said it at trial and they never said it in the Court of Appeal. This was a piece of late night reasoning in judge’s chambers that should have been in the open.

KIRBY J: I think you are being a bit unkind. Judges are not hostage to parties; judges have their own responsibility to the law.

MR IRELAND: Yes, your Honour.

KIRBY J: And unless there is a procedural unfairness it is not a matter we would look at as a purely factual and therefore the question is, if you had been given a chance to argue, could you have deflected his Honour from essentially the notice of contention?

MR IRELAND: I hope I could have easily, but the first thing is that my learned friend tries to reconstruct the case in his address here. He wants to say that what was being put forward in the contract was a statement about the documentary title boundary and that was never anything that was put to the Court of Appeal. He wants to contend that because that was again an argument not put to the Court of Appeal or to the judge. The matter was fought on a factual question of where this swimming pool was, not that the documentary title was the thing that was warranted by the contract, so this is a reconstruction in circumstances where the matter was not fairly litigated.

McHUGH J: Thank you, Mr Ireland.

The application for special leave in this matter is refused. The Court is of the view that the case has insufficient prospects of success to warrant the grant of special leave.

AT 10.34 AM THE MATTER WAS CONCLUDED