Dawson & Anor v Westpac Banking Corporation

[1991] HCATrans 356

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll8 of 1990

B e t w e e n -

JOHN WILLIAM DAWSON and PREMIUM TYRE SERVICE PTY LIMITED

Appellants

and

WESTPAC BANKING CORPORATION

Respondent

Judgment

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 DECEMBER 1991, AT 10.58 AM

(Continued from 12/4/91)

Copyright in the High Court of Australia

Dawson(2) 95 12/12/91

(Reasons for judgment were delivered)

MR G.P.F. RUNDLE:  Your Honour, before you finish with that

matter, the matter when it came on - the special

leave application in October 1990, the Court gave a

limited grant of leave to appeal but did not hear

two other issues which were raised on that leave

application. It would be my application that the

matter could stand over to the next special leave
hearing in Sydney for further consideration of

those two matters.

MASON CJ:  I think you ought to come around to the

microphone so what you say is recorded in the

transcript. The understanding of the Court is that

on the application for special leave to appeal, the

grounds of appeal were restricted. The Court

deliberately restricted the ground of appeal to

that which has been the subject of consideration in

the judgments just delivered.

MR RUNDLE:	Yes, Your Honour.
MASON CJ:	So I do not understand how, in those

circumstances, there can be any question of

widening the grounds of appeal or, as it were,

resurrecting the special leave application with a

view to securing an appeal on other points.

MR RUNDLE:  Your Honour, if I could put this matter:

Mr Downes of Queen's Counsel appeared for the

appellant and sought to address the Court on two

matters, namely mistake and section 51 of the

Conveyancing Act. His Honour Mr Justice Dawson,

who was presiding, indicated at that stage that the

Court was prepared to grant special leave at that

point restricted to that basis, ~nd never heard

argument in relation to those two points.

TOOHEY J: When you say "restricted to that basis", you mean

restricted to a basis which excluded those two

points?

MR RUNDLE:  Your Honour, if I could read page 15 of the

transcript of the special leave application,

Mr Downes said:

One is conscious of adages about gift horses

and the like but would Your Honours just hear

me over perhaps one minute or maybe two on the

two questions of substance which we say arise,

namely mistake and section 51A?

Mr Justice Dawson said:

Dawson(3) 96 12/12/91

Well, if we are going to grant leave on that

basis, there is no point in that, Mr Downes.

So, in my submission, Your Honours, in effect

the appellant in the special leave application

sought to raise three issues. The Court dealt with

one issue; the appellant sought then to deal with
the other two issues and the presiding Justice
indicated that that was not necessary in light of

the special leave in the form it had been granted.

TOOHEY J:  When the matter came before the Full Court, the

argument was confined to the ground upon which

special leave had been granted. Mr Downes sought

to widen the argument to include these additional

matters, but there was no argument addressed to the

Court in respect of them.

MR RUNDLE: Principally, Your Honour, on the basis that the

appeal was dealing with the matter which was the

grant of special leave and that was all.

TOOHEY J: That is so. In other words, that simply confirms

that the grant of special leave was confined and
that, before the Full Court, Mr Downes sought to

widen the grant of special leave to include these

other matters but, as I recall it, they were not

widened.

MR RUNDLE: Well, Your Honour - and I may stand corrected on

my recollection of the hearing - my understanding

was that the Court did not seek to embark on the
widening of the appeal because it was seeking to

determine the issue that the leave was granted.

MASON CJ:  We are obviously confronted with a difficulty

because we do not have before us the transcript of

the special leave application and nor do we have a
transcript of the argument presented to the Court

on the appeal. In the circumstances, it would seem

better that we grant you liberty to apply so that

you can raise this question on some suitable

occasion in the future, rather than proceed with

the argument at this stage.

MR RUNDLE:  Thank you, Your Honour.

MASON CJ: Very well. There will be liberty to apply with

respect to the matter.

AT 11.04 AM THE MATTER WAS ADJOURNED SINE DIE.

Dawson(3) 97 12/12/91