Chhibber v Barton

[1990] HCATrans 128

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M46 of 1989

B e t w e e n -

RAMONA MARGARET CHHIBBER

Applicant

and

NORMAN BENJAMIN BARTON and

RUTH ZARA RACHEL BARTON

Respondents

Application for special leave

to appeal

DEANE J
GAUDRON J

McHUGH J

Chhibber

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 JUNE 1990, AT 2.59 PM

Copyright in the High Court of Australia

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MS S. MORGAN: If the Court pleases, in this matter I appear

for the applicant. (instructed by Al"wJ11 Samuel & Associates)

MR N. MUKHTAR:  May it please the Court, I appear on behalf

o the respondent. (instructed by Lester Fielden

& Faraone)

DEANE J:	Yes, Ms Morgan.
MS MORGAN:	If the Court pleases, this matter has an unusual

curial history and if Your Honours desire me to

outline that or to answer questions, I would be

happy to do so.

DEANE J:  You can take it that we have read the documents and

are well acquainted with the past rather long

history of these proceedings.

MS MORGAN:  As Your Honour pleases. The applicant is a

suburban housewife who has had, as Your Honour has

observed, a longstanding dispute with her neighbours.

I would submit, however, that the question raised by

this application is a question of public importance.

I would submit that the question of adverse

possession generally, and in particular the significance

of fencing and of the interpretation of section 27(c)

of the LIMITATION OF ACTIONS ACT and the concept of

mistake in the concept of adverse possession are

matters of public importance.

Your Honours, section 27 of the LIMITATION OF

ACTIONS ACT is extracted in the judgment of

His Honour Mr Justice Hampel and appears at page 60

in the application book. I believe that there are

no reported Australian authorities upon this

provision and there is certainly no authority of

this Court; indeed, Your Honours, it appears that
the only reported authority is that of a single judge,

Mr Justice Pearson.

Your Honours have recently had occasion to

consider mistake in a new situation, that of electronic

transfers of funds in WESTPAC V THE ANZ BANK and I

would submit, Your Honours, that an appropriate

occasion now arises to consider section 27 and the

concept of mistake in relation to adverse possession.

I would respectfully submit further, Your Honours,

that the situation presented by this dispute has an

added twist to it, in that the mistake, as I understand

the facts found by the trial judge, was the mistake of

a contractor employed by the defendants - or at least

the defendants'predecessor in title - and the predecessor

in title - I am sorry, the respondents, if Your Honours please - and the predecessor in title of the applicant.

GAUDRON J:  But where is the action for relief from the consequence

of mistake?

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MS MORGAN:  Your Honour, I would submit that in defending these

proceedings as she has, the applicant has sought
relief from the consequences of mistake within the

meaning of section 27. His Honour Justice Hampel, from whose judgment the judgment of the Full Court was an appeal, indicated that if the applicant had been the plaintiff she could not have succeeded on

the basis of section 27. I would respectfully submit

that that was not correct and that on the basis of

section 27, if the applicant had been the plaintiff

in these proceedings, she could have relied upon a

mistake corrnnon to both parties and furthermore - - -

GAUDRON J:  But the action for relief, that is something quite

different, is it not, Ms Morgan?

MS MORGAN:  Yes, it certainly is, Your Honour. I can take that

no further, other than to say that in defending these

proceedings the applicant was seeking relief from the

consequences of a mistake. And if, indeed, she had

pleaded differently in her defence and sought
possession, then in a very real sense she would be
seeking relief from the consequences of a mistake.

Other than that, I do not think I can answer

Your Honour's question any further.

In relation to the interpretation of the word

"mistake" for the purposes of section 27, as I have

already indicated, I would suggest that Your Honours

are unconstrained by contrary authority and I would

corrnnend to Your Honours if I may a brief passage

from Stoljar's Mistake and Misrepresentation, 2nd

Edition, page 2. I cite this, Your Honours, not as

an authority but for the purposes of adopting it as

expressing a definition of "mistake".

DEANE J:  Ms Morgan, can I divert you? One real problem ~hat

you face is that the application for leave to extend

time for appealing was not made until 15 months after

judgment and the grounds which are sought to be raised

in an appeal were not raised in the course of a very
long trial.	Now, we are concerned here with, as it

were, an appeal from a decision of the Full Court dismissing an appeal from His Honour's refusal to

extend time. We have read, of course, what has been

said in the affidavits and so on about that. Is there

anything that you can add on that aspect of the matter?

MS MORGAN:	With respect, Your Honour, it is conceded, of course,
that the section 27 and "mistake" point were not

argued before the trial judge, Mr Justice Teague. It

was, however, argued before His Honour Mr Justice Hampel

and indeed - - -

DEANE J:  But that was only on the application for leave to

appeal out of time.

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MS MORGAN:	Yes, Your Honour.
DEANE J:	It would really need an absolutely extraordinary case

for a Judge to be justified in granting leave to

appeal 15 months after the case was over on grounds

that had never been raised in the case. Now, that

is the area - as I say, we have read what is there.

If there is anything you would like to add about

that.

MS MORGAN:  Only this, if I may, Your Honour, that Justice Hampel

did consider the argument based upon mistake in some

detail.

DEANE J:  Yes, but at the end of his judgment he said, in any

event, he would not have exercised his discretion

because of the circumstances I have adverted to.

MS MORGAN:  Yes, Your Honour, and I cannot deny, of course,

that there was a considerable lapse of time. All I

can say in relation to that is that Your Honours

will have, from a reading of the papers, observed

that the applicant has had a series of legal

practitioners. With respect to some of them, the

relationship has certainly been a happy one and I

would submit that those are exceptional circumstances

which go sorre way towards explaining the delay in lodgiI1g

the appeal. I do not believe I can take that matter

any further, if Your Honour pleases.

McHUGH J:  Could I ask a question? What do you say is the

action for which a period of limitation is
prescribed by this Act within the opening words of

section 27?

MS MORGAN:  What I would say to that, Your Honour - and I think

this is all that I can say - is that if the

applicant had been the plaintiff, then the period

of limitation would have been the period of

limitation provided in respect of actions for the

recovery of land and I would submit that if that had

been the case, that the application of section 27

would entail that the limitation period began to run

when the mistake was discovered in 1984.

McHUGH J:  But the facts are the reverse?

MS MORGAN:  The facts are certainly the reverse. I cannot deny

that. I cannot put the point any more strongly.

If Your Honour pleases, the applicant's case

is that in dismissing her appeal as hopeless the

Full Court made - the discretion of the Full Court

miscarried. My submission is that her appeal was

not hopeless; that there was an argument based upon

section 27; that in the words of Justice Hampel

mistake was the gist of her defence, and that the

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application of the doctrine of mistake and the

common meaning of mistake should have resulted in

her successfully defending these proceedings.

Those are the matters I wish to put before

Your Honours, if Your Honours please.

DEANE J:  The Court need not trouble you, Mr Mukhtar.

Ms Morgan has said all that could be said on

behalf of this applicant. We are of the view,

however, that the actual decision of the learned

primary judge refusing to extend time for appealing

some 15 months after judgment was delivered, in

circumstances where the proposed grounds of appeal

were not raised in the course of a long hearing,

was plainly correct. That being so, we do not think

that the actual decision of the court below is

attended by sufficient doubt to warrant the grant

of special leave to appeal.

Special leave to appeal is accordingly refused.

MR MUKHTAR: If it please the Court, I seek an order for costs.

DEANE J:	Ms Morgan, I presume you oppose an order for costs.
MS MUKHTAR:	Yes, Your Honour.

DEANE J: In the circumstances the Court will make the

ordinary order for costs, that is special leave is

refused with costs.

AT 3.12 PM THE MATTER WAS ADJOURNED SINE DIE

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