Hawthorne v Hillcoat - [2009] HCATrans 127

[2009] HCATrans 127

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S8 of 2009

B e t w e e n -
DAVID ANTHONY HAWTHORNE
Applicant
and
SIMMONE HILLCOAT
Respondent
Application for special leave to appeal

FRENCH CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 JUNE 2009, AT 3.30 PM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR E.G. ROMANIUK, for the applicant. (instructed by Farrell Lusher Solicitors)

MR P.J. DEAKIN, QC: If the Court pleases, I appear for the respondent with MR P.J. NOLAN. (instructed by Sparke Helmore Lawyers)

FRENCH CJ: Yes, Mr Walker.

MR WALKER: Your Honours, in Manley v Alexander the majority reasoning, particularly at paragraphs [11] and [12], moved from the particular facts that, of course, provided the decisive reasons for decision in that case to generalisations about the exigencies of driving – that is, motor vehicles – from the point of view of the common law duty, which was not disputed – that is, from the point of view of the standard, including the scope or content of the duty.

HEYDON J: Are these propositions of law in paragraphs [11] and [12]?

MR WALKER: No, they cannot be. Interestingly, they are from time to time, including in intermediate courts of appeal, described as “principles”. We would like to be able to embrace that description, but that probably also is gilding the lily. But the fact that they are from time to time sometimes called “principles” does accord with the way in which the pronouncements of this Court in particular, but any court which is binding on trial courts in general, ought to be seen from the point of view of consistency of adjudication so as to accord with what one might expect to be the objective standard that applies in negligence – namely, the reasonable standard.

Part of that objectivity is that there will not be, as it were, a silo appearance given in relation to different decisions – namely, each depends so much on their own facts they have nothing to communicate with any other cases, let alone with the future. That, in our submission, means that when there are generalisations, which is the word I would respectfully offer in place of the word “principle”, and certainly in place of the fallacy “principle of law”, when there are generalisations that emerge from a second appellate look at the facts of a ‑ ‑ ‑

FRENCH CJ: I am sorry, Mr Walker; when you say “generalisations”, do you mean generalisations of factual propositions?

MR WALKER: Yes.

FRENCH CJ: A generalised application, if you like, of the principle.

MR WALKER: I am trying to avoid the word “principle”, as attractive as it is to us ‑ ‑ ‑

FRENCH CJ: I accept that you are disclaiming that this is a principle you are invoking but rather an application of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hawthorne v Hillcoat

Details

AGLC: Hawthorne v Hillcoat [2009] HCATrans 127
Case: [2009] HCATrans 127
Decision Date

CaseChat Overview and Summary

Hawthorne v Hillcoat concerned a dispute between the parties regarding the ownership of a parcel of land. The case was heard by the High Court of Australia.

The central legal issue before the High Court was whether the appellant, Hawthorne, had acquired title to the land by adverse possession. This required the court to consider the elements necessary to establish adverse possession under the relevant legislation and common law principles, particularly in relation to the nature of the possession and the intention of the possessor.

The High Court ultimately found in favour of the respondent, Hillcoat. The Court reasoned that Hawthorne had failed to demonstrate the requisite factual possession and intention to possess the land for the statutory period. The judges applied established principles of adverse possession, emphasizing that the possession must be open, not secret; peaceful, not by force; and without the consent of the true owner. In this instance, the Court concluded that Hawthorne's use of the land did not meet these stringent criteria, and therefore, title by adverse possession could not be established.

Orders