Bride v Milne Feeds Pty Ltd & Anor

[1998] HCATrans 224

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P9 of 1997

B e t w e e n -

EDWARD JAMES BRIDE

Applicant

and

MILNE FEEDS PTY LTD

First Respondent

THE REGISTRAR OF TITLES

Second Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 JUNE 1998, AT 1.23 PM

Copyright in the High Court of Australia

MR E.J. BRIDE appeared in person.

GUMMOW J:   Just before you start, Mr Bride, there are two things I should say.  The first is that the Senior Registrar has been advised by the solicitor for the first respondent, Milne Feeds Pty Ltd, that the first respondent does not seek to supplement its written summary of argument with oral argument.  The Senior Registrar also certifies that she holds a letter from the Registrar of Titles, the second respondent, that the Registrar does not intend to enter an appearance and will abide by any orders made by the Court save as to costs.  You wish to supplement your written material, do you, by oral submissions?

MR BRIDE:   Yes, I do, your Honour.

GUMMOW J:   You appreciate you have 20 minutes to do so?

MR BRIDE:   I understand that, your Honours.  These are purely matters of law and the matters of law are whether the issue of fresh evidence was res judicata.  My argument to the Court is that at law it cannot be res judicata because it was put to the court in an informal manner by myself with an invitation to the court on a previous action to recall the court if it was not correct and, if it was not correct, then I would move the court to do so and put it to the court in a formal manner.

If I could take your Honours to the authorities at pages 103 and 104, basically what it was, there was a matter which was a Full Court matter before the Full Court which dealt with this particular respondent and on 20 October 1994 during the discovery and inspection of the bank and the receiver managers’ papers, bearing in mind that this goes back to 9 August 1984, some 10 years and a few months later.  During the course of discovery and inspection I became aware of the documents listed on page 103 a/ through to f/ which relate to the notices of appointment of receivers and managers as they were handed to me at 8 and there is an identifying mark being PMMJ000021, which is the identification mark for discovery and inspection.  That is a notice of appointment dated 9 August 1984.

The second one which is dated 9 August 1984 - first of all, the first one is at page 105A and that document was served upon me on 10 August 1984 and represented to be a formal and proper ‑ ‑ ‑

GUMMOW J:   Yes, we understand the history of that matter.  We have read the judgments below.

MR BRIDE:   Thank you.  If I could take your Honours to page 104 and the second‑last paragraph of page 104, I write to Justice Kennedy.  First of all, I should perhaps take you to the full contents of the thing:

I would ask that you hand the letter and the attachments thereto to The Honourable Mr Justice Kennedy and copies to Justices Owen and Anderson.

I believe I am within the Rules of The Court in forwarding this evidence to you and my request that copies thereof be handed to the Honourable Judges.

Should this not be the case please advise me and I will then Move The Court to accept the New Evidence.

Your Honours, the fresh evidence, as I have said, is listed at pages 105 to 122.  The Full Court ruled at pages 126 and 134.

GUMMOW J:   This is the Full Court decision of 20 December 1995, is it?

MR BRIDE:   21 November 1995, yes, it is, your Honours.  If I could take your Honours to specifically page 125, the following page, it states ‑ ‑ ‑

GUMMOW J:   The Full Court decision here is of 21 February 1997, is it not?  That is the one we are dealing with now.

MR BRIDE:   Yes, it is, but, if I could take your Honours to ‑ ‑ ‑

GUMMOW J:   You had an unsuccessful application for leave in respect of the earlier decision, did you not?

MR BRIDE:   Yes, on the basis that the evidence had been put to the court and it was in fact res judicata, but that is not the case.

GUMMOW J:   Very well.  You have to persuade us that there is a serious question that the Full Court in the later judgment, the one that they gave on 21 February 1997, is in error.

MR BRIDE:   Yes, your Honours.  At page 125 it states:

The appellant, after judgment had been reserved in this matter, forwarded to the Court a number of documents relating to the appointment of Messrs J D Anderson and D J Young of Peat Marwick Mitchell & Co as receivers and managers under various securities.  As was the case with many of the documents exhibited to the appellant’s affidavits, their significance in the context of this appeal is not self‑evident and the appellant has not sought to, or not been able to, explain how they support his claim.

Quite clearly that is incorrect because the letter to Justice Kennedy dated 24 October 1994, four days after I came into possession of the fresh evidence, clearly invited the court to reconvene and I would put the evidence to the court in a formal manner.

Then if I could go to pages 126 to 134, which is another judgment out of the Full Court of the Supreme Court, which was Justices Ipp, Wallwork and Parker, on a company called Southern Rolled Oats which is a company which owned our operation.  In it Justice Ipp at page 127 states at the bottom - and I apologise for not having these pages numbered.

GUMMOW J:   That is all right.

MR BRIDE:   The second-last paragraph is:

Mr Bride contends that he was entitled to lodge a fresh caveat as, since the delivery of the reasons for judgment by the learned Chief Justice -

and that goes back to 1989 -

he has discovered fresh evidence of fraud on the part of the plaintiff and others involved in the transaction whereby he lost the title to his land.

He then goes on at the following page - and this is Justice Ipp:

Firstly, Mr Bride asserted that, since the learned Chief Justice’s judgment in Southern Rolled Oats Pty Ltd v Bride & Anor, he has discovered new evidence which establishes that when the receivers appointed by the Australian Bank Ltd (“the bank”) took possession of the land in question (which was then owned by Mr Bride) they had not been properly appointed.  According to Mr Bride, possession was taken on 9 August 1984 and he has produced evidence to this Court which tends to show that the receivers were only appointed on 22 August 1984.  Mr Bride informed us that this evidence was not available to him in the proceedings before the learned Chief Justice and it arguably constitutes fresh evidence.

I have included the full judgment of the Full Court there.  If I could then take the Court to page  - if the Court would go to application book index of reference, page 30, which is the judgment your Honour Justice Gummow referred to in this matter ‑ ‑ ‑

GUMMOW J:   That is the judgment in respect of which you seek special leave today, is it not?

MR BRIDE:   That is correct.

GUMMOW J:   Well, you have to focus on that judgment, do you not?

MR BRIDE:   Absolutely correct, but I had to put this other to your Honour prior to it.  My argument is that the evidence which is said to be res judicata, which is fresh evidence, has never been put before the court.  On page 30 between 2 and 3 the court states - and I have underlined it for the Court’s convenience:

On the appeal to this Court in relation to the previous caveat over the subject land, the appellant, after judgment had been reserved, sough to adduce further evidence.  The Court declined to receive that evidence, which was not “fresh” -

which the Full Court in Ipp, Wallwork - and I forget who it was I have just referred to your Honours - said was fresh.  But my argument at law is that if the court has declined to receive the evidence back in that previous judgment, then it cannot be said that this evidence, when it was tried to be argued before Justice Murray, on whose judgment this matter is appealed from, has been dealt with by the court because the court refused to accept it and/or did not seek to have me reconvene the court to put the evidence to the court in the formal manner.

GUMMOW J:   Mr Bride, whilst you are on the judgment of Mr Justice Kennedy, the very last sentence on page 31 indicates an important matter, namely, that the party on the title now is this other company, Milne Feeds Pty Ltd.  Do you see that last sentence on page 31?

MR BRIDE:   Yes, I do.  I understand what your Honour’s question is.  The title of Milne Feeds can certainly be impeached because Milne Feeds is a company which is owned by the firm of Freehill Hollingdale & Page in their superannuation trust fund, Muirwil Nominees, and the evidence of that is contained in the documents which I can take the Court to, and I have put that on purpose.  They were on constructive notice all the time, actual notice, and were in fact representing all the parties to the transactions, so therefore they knew that there was a dispute between the parties.

They also knew that the receiver and managers had not been properly appointed because their deeds of appointment were not executed until 22 August 1984 under the provisions of the mortgages, if in fact they were entitled to be appointed at all.  That comes into what is known as the fresh evidence.  So Milne Feeds, in their contract to purchase the property from Southern Foods, have clearly and at all times known and acknowledged in the contract - and I think it is clause 10.8 of the contract of purchase - the fact that they were aware of and knew that there was a problem affecting the title.

Your Honours, at law the basis of the legal worth of the fresh evidence is - and this is to put it quite clearly - the notices of appointment which are the fresh evidence dated 9 August 1984 of receivers and managers on which they took possession and locked us out of the operation were void.  The receivers and managers endorsed their own notice of appointment as having not yet been appointed and have always falsely pretended that their appointment on 9 August pursuant to the mortgages was lawful.  The vendors have ‑ ‑ ‑

GUMMOW J:   Has it ever been your case that there were no moneys overdue and owing at that time secured by this ‑ ‑ ‑

MR BRIDE:   Yes, it is, your Honour.  Yes, our case quite clearly against the Australian Bank which was listed to start this year in the Supreme Court is that we were not in default of the loan arrangements and also that the - we were not in default of the loan arrangements.  The demand in which the bank had made on 8 August 1984 was at law estopped by the representation to me that it was not a threat of foreclosure, that they were going to renegotiate the loan and on the basis of that, their representation and demand for moneys was - their demand was at law estopped.

There are also two major crucial points of this, and they are that we paid the bank some $50,000 per annum bank advisory service fees to assist us in the running of the business, which is unusual, and also that the bank by the evidence now available were major purchasers of the business from the receiver managers by way of ordinary shares and preference shares in a unit trust company called Southern Foods Pty Ltd.  The crux of this matter is quite simply that on the appointment of receivers and the validity of their appointment, there is no defence by the receivers and managers and the bank to trespass, conversion and fraud relating to the appointment of receivers and managers.

GUMMOW J:   The immediate crux, though, of this particular case that now comes here from this decision of the Full Court is whether the Full Court appears to have been in error in its treatment of that particular litigation.  The particular issues appear at page 35 in the first paragraph of Mr Justice Heenan’s judgment.  It is all about an attack through the caveat on the title of Milne Feeds, together with some subpoena questions.  I know you see it in larger terms but we have to look at this immediate term, this immediate situation.

MR BRIDE:   Your Honour, the immediate terms to this application for special leave to appeal is simply:  was the evidence by which I considered justified to lodge a fresh caveat on the property, as the Chief Justice said in 1989 was possible if fresh evidence became available, then had that fresh evidence been dealt with by the earlier court in 145 in relation to a caveat, or was that fresh evidence not accepted by the court?  If it was not accepted by the court - and by that I am talking about Justices Kennedy, Heenan and Franklyn - as evidence, then it cannot be said to have been heard and/or determined prior to.

It is a simple fact of:  was the evidence accepted by the court earlier?  Did it take the evidence or did it not?  Did it accept my invitation which I read to the Court to reconvene the court and have that fresh evidence put to the court in a formal manner, or did it not do so?  Then in a later judgment Justice Kennedy, in his judgment at page 30 which I have brought the Court to, stated:

The Court declined to receive that evidence, which was not “fresh” -

Clearly, if it declined to receive the evidence, it cannot be said that the evidence was res judicata because it had not been dealt with and/or determined by the court.  If I could go back to where I was addressing your Honours on the basis of the legal worth of the fresh evidence, I told your Honours that the receivers managers - where they had endorsed their documents.

(c) The vendors have at no time ever held good title to the properties.

There was an argument between the vendors whether they would be the bank and/or the receivers managers.

(d) The vendors, not having good title, could not convey to any purchaser on notice good title.

It is indisputable that Milne Feeds, the respondent in this action, were not on notice.

(e) The first respondent holds the title on constructive trusts for the rightful owners.

GUMMOW J:   Mr Bride, you have five minutes remaining.

MR BRIDE:   I understand that, your Honour.  In relation to the subpoena of witnesses, your Honours, if I could take the Court to the authorities book and the comments of Justice Malcolm at page 139.  This was purely on the fact of where his Honour on the evidence in 1988/89 removed the caveats which I had put on the property to protect them from further improper dealing.  I have highlighted the area and it says:

Although in the normal way it is not appropriate for a judge in proceedings such as this to resolve conflicts of evidence on affidavit this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation allegations of the kind which have been made against the plaintiff in this case.

What I wanted, your Honours, was to be able to subpoena witnesses relating to (a) duces tecum, because we knew the documents we wanted; and (b) the affidavits which were already on foot.

Your Honours, there is an important point which I would just like to close, and that - if you can bear with me, I just do not want to go over time.

GUMMOW J:   Yes, take your time to find it.

MR BRIDE:   This is extremely important.  If your Honours could go to page 137, please.  This is the comments of the Chief Justice on 27 January 1989 in relation to the lifting of caveats.  It is the second paragraph, and I apologise because I have put it in dark highlighter instead of a light one.

GUMMOW J:   No, it is legible.

MR BRIDE:   His Honour says:

I suppose the position is this, Mr Pringle, is it not:  even if the caveats were removed, that doesn’t foreclose an action for a declaration based upon allegations of fraud or constructive knowledge to set up the constructive trust, claim a declaration of a beneficial interest in the land and for the transaction of sale to be set aside, if and when sufficient evidence of the alleged fraud is available to enable it to be pleaded and proved.

Your Honours, I believe that in 1994 we got absolutely irrefutable evidence that there had been a fraud, that the receiver managers were not properly appointed, that they knew that they were not properly appointed.  I put it to the Court that that evidence has never ever been tried and tested by a court and therefore it cannot be said, apart from Justices Ipp, Wallwork and - I forget who the other one was - simply the evidence has never been tried and tested and on the basis of that, it cannot be said to be res judicata. 

There has been a massive problem with ourselves being unrepresented.  I do not use that as a crutch, but quite simply the matter of what has happened in relation to this and the relation to the appointment of the receivers which was not proper and not lawful, regardless of the fact of whether they had come in 13 days too early or not, quite simply this matter of res judicata on this important fact is just an absolute gross miscarriage of justice against us because the matters have never been determined.  I thank you.

GUMMOW J:   Thank you, Mr Bride.

The applicant, Mr Bride, seeks to reagitate a significant number of issues which were the subject of earlier proceedings in the Supreme Court of Western Australia concerning the appointment of receivers and managers to certain property.  The only question which falls for our consideration today, and upon which we may rule, is whether special leave should be granted to appeal against the judgment of the Full Court given on 21 February 1997 concerning the lodging of a further caveat by the applicant over land.  The caveat claimed that the applicant or interests associated with him is the rightful owner of that land.

We are not persuaded that an arguable case of error in the application of principle by the Full Court has been demonstrated and, accordingly, special leave to appeal is refused.

The Court will adjourn until 10 am on Monday next in Brisbane.

AT 1.50 PM THE MATTER WAS CONCLUDED