Mailler v Hohn

[2004] HCATrans 183

[2004] HCATrans 183

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S309 of 2003

B e t w e e n -

EMMA CORNELIA MAILLER AS TRUSTEE FOR THE E.C. MAILLER PROPERTY TRUST

Applicant

and

DENIS RAYMOND HOHN

First Respondent

PAULINE ELIZABETH HOHN

Second Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 MAY 2004, AT 10.59 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:  If the Court pleases, I appear with my learned friend, MR T.A. ALEXIS, SC, for the applicant.  (instructed by Cole & Butler)

MR M.J. SLATTERY, QC:  If the Court pleases, I appear with my learned friend, MR M.J. WALSH, for the respondent.  (instructed by Russell and Company)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, the issue in the case is a short point, namely, whether the lease between the parties entitled the lessee to harvest a crop of sorghum which had been planted a month before the expiration of the lease, the lessee knowing that it could not be harvested during its term.  Your Honours, the relevant clause appears at page 36, paragraph 4 in the reasons of the Court of Appeal.  Your Honours will see that clause 14 gives the right:

if necessary to enter the land after the date of expiration of the term to harvest and remove any growing crops –

with the proviso there referred to. 

GLEESON CJ:  What do you say are the limitations on that right?

MR JACKSON:   Well, your Honour, the limitations, in our submission, are that they entitle the lessee, in circumstances where the lessee has planted a crop which might reasonably have been expected to be harvested before the expiration of the term, to enter upon the premises to harvest the crop in circumstances where the harvested crop has been delayed by circumstances outside the control of the lessee. 

GLEESON CJ:   The expression “any growing crops” means any growing crops that were planted at such a time before the expiration of the lease that they might reasonably be expected to have been harvested by the expiration of the lease?

MR JACKSON:   Yes.  Your Honour that is why, in a sense, one sees the expression “if necessary”.  Now, your Honours, the basic facts appear in the primary judge’s reasons at page 6, paragraph 4.  May I take your Honours to those for just one moment?  Your Honours will see he sets out the term of the lease and then at page 7, paragraph 5, the basic facts, that is, that the crop was planted about a month before the lease was to expire and the crop would take four months to grow.

GLEESON CJ:   Is there evidence that this was some kind of standard form of contractual provision?

MR JACKSON:   Your Honour, in relation to that question, we would rely upon the material that is contained at the back of the application book.  That is the evidence of Mr Butler at page 67.  Your Honours will see he speaks of his expertise and experience in the area and particularly at paragraphs 4, 5 and 6.

GLEESON CJ:   That seems to suggest that this is an unusual clause.

MR JACKSON:   Well, not really, your Honour.  Your Honour will see that the last sentence on page 67 – what happened, as your Honours will see at page 69, was there was a request for this clause to go in by the then solicitors for the respondent, the reason being between 45 and 50 on that page, but ‑ ‑ ‑

GLEESON CJ:   What is the amount of money involved in this case?

MR JACKSON:   Yes, your Honour, there is quite a considerable amount of money.  In fact, your Honours will see that in the judgment in the Court of Appeal which is at page 48 and your Honours will see 3.2:

the proceeds of the harvest and sale of the sorghum crop in the sum of $177,982.00 together with the interest –

so, your Honours, there is by no means a trivial sum involved, plus, of course, costs.

GLEESON CJ:   There might be a lot of people who would have a justifiable cause of complaint that their application for special leave had been refused if we were to grant special leave in a case that dealt with a one‑off clause in a contract between two particular parties and that raised no question of general principle or construction.

MR JACKSON:   Well, your Honour, could I say that the case does, and that is the point that we seek to make.  If it be that the case is one in which the literal construction that would be applied to clause 14.01 is one that says it may be any crop, then what we would seek to say is that this is a case where one applies to it the purposive, if I could use that expression perhaps a little loosely, approach that was taken by the primary judge, because there is a complete difference of approach between the two courts.  The Court of Appeal expressed the view you deal with the provision absolutely literally, and your Honours will see that at page 44, paragraphs 23 to 25.

GLEESON CJ:   That, as I understand it, was not because they reject the importance of purposive construction, but because they thought you could not give it a sensible practical operation in this case, other than a literal operation.

MR JACKSON:   I am sorry, your Honour, with respect, the view that was taken was really paragraph 25 at page 45, and if I could say two things about it.  What appears to have been said is that because it was impossible, in effect, to list every circumstance in which it might operate, that there was difficulty with it.  But the second, your Honour, is really, with respect, a rather curious thing that appears in the last sentence and that is that:

The parties by the terms of the lease accepted that if particular work needed to be done on the land –

that is, after the lease expired – that we had to do it, to keep the lessee’s crop going.  Now, your Honour, that is a rather bizarre result, with respect.  The position, in our submission, is that the view taken by the Court of Appeal was a pure, literal approach to a provision which of its very nature one would expect to be construed in the light of the circumstances in which the industry took place, to put it shortly.  If one goes to the view taken by the primary judge, in our submission that demonstrates the other approach to it.  I will not go through the detail of it, but your Honours will see the approach that he took. 

Now, certainly what your Honour said to me about the relative weight of special leave applications – it is impossible to express a very concluded submission on the point because your Honours see large numbers of cases and they have different attractions sometimes to different members of the Court.  The point we would seek to make about it is this.  It is apparent from the material that clauses of this nature are frequently inserted in lease agreements in the agricultural areas, at least of this part of the country, and the adoption of a literal interpretation of them is one which seems to be a rather surprising thing. 

In our submission, there is no reason why the Court should not entertain a matter of this kind to deal with that issue and particularly, your Honours, where one sees a difference of view between the primary judge and the Court of Appeal on the whole question of approach to it.  Your Honours, those are our submissions.

GLEESON CJ:   We do not need to hear you, Mr Slattery.

This case turned on the construction of a particular contract.  The relevant principles of construction are well settled and the case raises no issue suitable for a grant of special leave to appeal.  The application is refused with costs.

AT 11.08 AM THE MATTER WAS CONCLUDED