McNamara v Freeman

[1990] HCATrans 15

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl06 of 1989

B e t w e e n -

ELIZABETH McNAMARA

Applicant

and

MICHAEL JAMES FREEMAN and

PAMELA MARY FREEMAN

Respondent

Application for special

leave to appeal

l-'f.ASON CJ
GAUDRON J.

McNamara

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 FEBRUARY 1990, AT 11.13 AM

Copyright in the High Court of Australia

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MR R.W. CAMERON:  May it please the Court, I appear for the

applicant. (instructed by Lyons & Lyons)

MR B.W. COLLINS, QC: If Your Honours please, I appear

with my learned friend, MR J.W.T. STEVENSON, for
the respondent. (instructed by P.W. Smyth King

& Son)

MR CAMERON:  I apologize for not having handed up a list of

authorities as required by the Rules. I was not

briefed in sufficient time to be able to do that.

In the event, I would not be seeking to rely upon

authority. I would prefer to mention or refer to

two authorities. I have copied those. I will

hand those copies up together with reference to

the Supreme Court Rules and a reference to the

STAMP DUTIES ACT. I will hand those up in due

course.

Your Honours, the matter was heard in the

New South Wales Supreme Court of Appeal where

the appeal was dismissed. That, in turn, was an appeal from a decision in the equity division of

the court by His Honour Mr Justice Young. The

proceedings before His Honour were brought before

him by way of a notice of motion and sought - - -

MASON CJ:  Mr Cameron, I might say we are familiar with the

history of the matter. We have read the application

book including the judgments in the courts below

so we are familiar with the way in which the

questions arose and how they were disposed of. We

are really concerned, I think, to know from you
what are the points that you are proposing to
argue if leave is granted and whether those points
are of sufficient importance to justify the grant
of special leave. In particular, we would be
concerned to inquire whether it is appropriate to
grant special leave in relation to points that were

not raised and dealt with by the courts below.

MR CAMERON: Yes, Your Honour's observation is quite accurate,

that obviously I would need to address this question

of what exactly was argued before the Court of Appeal.

I think that in answer to Your Honour's inquiry

that the judge below, His Honour Mr Justice Young

identified the question at pages 10 and 11, I think,

starting from about point Q and then going over to

the next page where he deals with the problem

raised and finally resolves it at about point Q on

page 11, but essentially it is this, that as

His Honour saw the position, the orders he was

being asked to make required the applicant, my client, to transfer her house to two people; we will call them

Band C. They were the first and second plaintiffs

in the proceedings. There were various declarations

sought, no doubt as a foundation to those particular

orders.

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The declarations sought related to an option

and also another contract which was supposed to

have been a compromise made in earlier proceedings.

Now, the option, of course, was an option given by

my client to A, not to Band C, and so, quite fairly,

His Honour is asking how he could be asked, in effect,

to specifically perform or order due execution of an

agreement between A and B whereby the court is

required to order that the property be transferred

to Band C. He did not deal with that question.

It was not argued, so far as I can ascertain,before

the Court of Appeal. It raises fairly and squarely

an important matter of public importance, namely, the

power of the court, (a) to declare in matters such
as that, dealing with applications for specific

performance of contracts for the sale of land and,

(b) whether or not the court has a power at all to

deal with an application which, in my submission, was

brought contrary to the SUPREME COURT ACT itself.

Now, I say that because the Act requires all

proceedings to be instituted either by sunnnons or by

a statement of claim except as provided for in, as

it turns out, Part 19 rule 1.

Part 19 rule 1 requires or says that applications

shall be or must be brought. by way of motion where they

are in or relate to existing proceedings. We would

say that Part 19 rule 1, in terms, could not have

applied to the circumstances as they existed. In
other words, there should have been a fresh action or

a new suit brought. That was not done, therefore, we say there was no power. What has happened is a

nullity.

GAUDRON J: Was that point taken?

MR CAMERON: It was not taken, no.

GAUDRON J:  By reason of it not having been taken, does that not

amount to an acquiescence in the exercise of

jurisdiction to which you must be now held?

MR CAMERON:  We say not. We say it is still fatal because

one cannot clothe a supreme court with a

jurisdiction it cannot have.

GAUDRON J: But it is a procedural defect to jurisdiction only,

is it not?

MR CAMERON:  No, the jurisdiction in this regard is a limited jurisdiction. I mean - I withdraw it and put it this

way: that the supreme court's jurisdiction is

unlimited except as proscribed by the SUPREME COURT ACT.

GAUDRON J: But it is a procedural limitation only.

MR CAMERON:  It goes to the heart of it, in my respectful

submission, that is to say, whether or not there is

a jurisdiction. There has got to be an application.

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GAUDRON J: Well, it goes to whether the jurisdiction was invoked

with procedural correctness. It is not a question of

the existence of jurisdiction at all, it is only a

question of the correctness or otherwise of its

invocation in that manner, is it not?

MR CAMERON:  If I conceive or assume that I would still answer

that in this way, Your Honour, by saying

there is no power to overcome it or amend it.

GAUDRON J:  But there is very considerable authority, is there

not, that procedural irregularities in the invocation
of jurisdiction can be waived and when waived by

acquiescence, by not taking the point, you cannot

be heard thereafter to complain.

MR CAMERON: There is a particular provision, I think, in this

very same Act dealing with it as there are

in a lot of Acts but the submission still is -

and I will go to the section now, that it does not

in terms cover this particular provision.

The court can only deal with proceedings. It

knows nothing of anything unless it has got a

proceeding before it and the proceeding can only be

recognized if it has a certain shape. That is the

short point, I cannot labour it much more. But if

I could just grab my Supreme Court Rules .....

and will just take Your Honour to the provision in

it about irregularity. While I am looking at that

too, · I do not forget that the particular jurisdiction

being exercised was an original or exclusive

jurisdiction in equity, not just a supreme court

generally, and there were various rules relating to

that which are not in the SUPREME COURT ACT and which

are still existing.

Section 81(1) of the Act, in terms, says:

Where, in beginning or purporting to

begin any proceedings or at any stage in the

course of or in connection with any

proceedings, there is, by reason of anything

done or left undone, a failure to comply

with the requirements of this Act or of
the rules whether in respect of time, place,

manner, form or content or in any other

respect -

(a) the failure shall be treated as an

irregularity and shall not nullify the

proceedings, or any step taken in the
proceedings, or any document -

or -

judgment -

I should hand that to Your Honour because

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MASON CJ: Thank you.

MR CAMERON:  And subsection (2) is also, of course, relevant

there.

MASON CJ: Yes.

MR CAMERON:  Could I just then hand up some copies of a

decision in ROBERTS V GIPPSLAND AGRICULTURAL AND

EARTH MOVING CONTRACTING CO PTY LTD, (1956) VLR 555

and specifically at pages 557 and 561. Here they

are talking about the very question of whether or

not separate proceedings ought to be connnenced,

whether there should be ..... motion. On

page 557, referring to the problem, in the joint

judgment of Mr Justices Lowe ~nd O'Bryan, at about

point 3 down to about point 8, where they refer to the

Daniell's Chancery Practice:

Where an action is compromised by agreement

out of Court, it was formerly necessary to

institute an action for specific performance

of the agreement in the event of any party
refusing to carry it out. But since ·the

JUDICATURE ACT such a compromise may be converted into an order of the Court upon a

motion by any party interested and enforced

like a judgment. But a consent order,

embodying a new agreement between the parties

beyond the scope of the action, can only be enforced in a fresh suit, which is also the proper method of determining the validity

of the compromise, if disputed.

So that it is quite clear from there that, as in

this case where some totally new agreement was

enshrined in the terms for settlement and it was

that agreement which was sought to be enforced

by way of motion, it would not accord with the

practice as recorded there in Daniell's Chancery.

The judgment of Smith J goes into it in some

more detail, at the beginning of page 561, with
his conclusions at page 562 point 8 through to

563.      I will not read them because they do not

depart from it and they support me there.

The question then is whether or not we are

confronted herewith what is described in

section 81 as being simply an irregularity in

terms of a failure, something which is:

-:!c,ne, or left undone, · a. fa_i+u:re·,·co·. comply

with the requirements of this Act or of
the rules whether in respect of time,
place, manner, form or content or in any

other respect -

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that the requirement antedates or precedes the Act

and the rules. I mean, it has been there ever since

equity began. It is enshrined in the practice,

Daniell's Chancery Practice, and in my respectful

submission, is not an irregularity.

McHUGH J:  But Mr Cameron, assuming the Court granted special

leave and upheld. your submission on this point,

the result would be that the matter would just go

back to be heard again on the merits, would it not?

MR CAMERON: Exactly, Your Honour, yes.

McHUGH J:  Why should the Court grant special leave to appeal

for that purpose?

MR CAMERON:	Because at the moment, as ·I understand it - - -
McHUGH J:	You have lost on the merits. What is there to

suggest that you would get any different result?

MR CAMERON: Well, as I read the - I am not sure whether it

is in here or not but for some reason or other

there was no contest on the enforcement proceedings,

no factual contest. I do not know what the real

merits would be but I would still submit this, that

whatever else happened, the defendant must - the client -

the applicant now must have won, could not have lost
the proceedings, otherwise than in the way she did. That

is the compromise of things. I mean, His Honour

even adverts to the fact that she was going to win

it. But in answer to Your Honour's question, to

take it back to square one, one would assume that

~ same course as ensued before would not happen

again, and she would proceed .and win the case.

GAUDRON J:  You would have to set aside the compromise.

MR CAMERON: That is right.

GAUDRON J: Whether or not there was a compromise has been the

subject of a hearing on the merits, has it not?

MR CAMERON: It has. His Honour Mr Justice Young certainly

dealt with that aspect of it. He raised it, identified

it and dealt with it. Unfortunately, it was not or
does not appear to have been waived before

the Court of Appeal. But, however, the question being,

from my point of view, if it were, is that fatal?

I mean, if the objection had been taken, could it

have been answered in any,way, shape or form and
my submission has to be there it could not have

been, so consequently I would not be debarred from

raising the point in these proceedings and the get rid of it that we can only come here. So, that
obstacle being the judgment which has already gone
through the Court of Appeal and the supreme court.

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is the dilennna. If my submission is correct that

what has happened before would not necessarily

happen again, that if the observations were

correct that my client ought to have won that

case, then perhaps she would win it again.	She
would, in fact, pursue that course but to get

there she has got to get rid of this judgment

and there are contempt proceedings already on foot,

stayed, pending the outcome of these proceedings

and we cannot defend them by saying that these

orders are not any good. There is an issue estoppel

against us simply because the point was not raised.

I do not think that I could usefully take this

much further. The other authority - rather, in

His Honour's judgment at pages 10 and 11 in resolving this dilemma that he raised,- be does refer to an

1895 English decision in the Weekly Notes. I

managed to be able to find that with some
difficulty and I have extracted it and if I could
just hand a copy of it up to Your Honours.

His Honour Mr Justice Young had relied upon it

assupport for authority that in suits for specific

performance that you can make declarations that

you otherwise could not make. Well, the case does

not support that at all. All it says is that in
cases for specific performance the declaration is

a necessary foundation for the order, the decree,

that the contract I have declared will - ought	be
carried into execution. Perhaps if I could just
hand those up. That appears on page 54 of the
particular judgment.

So I would just conclude this by submitting that

the question is real enough. It does not appear
to have been decided by anybody, raised by His Honour,

not resolved in accordance with any authority -

there does not appear to be any authority to support

the view he took. I would submit clearly that it is

not an irregularity under section 81. It is -

the existing - or the practice in equity

prohibited the bringing of the application this way.

There was no jurisdiction to make it. The order is a

nullity and ought to be set aside.

MASON CJ:  The Court need not trouble you, Mr Collins.

MR COLLINS: If Your Honour pleases.

MASON CJ:  The applicant seeks a grant of special leave to

appeal in order to challenge the judgment of the
Court of Appeal on five grounds which are set out

in the draft notice of appeal as grounds (a), (b),

(c), (d) and (e). Ground (a) asserts that the

court erred in its construction of the short minutes of order. This ground raises no question of general

principle and would not warrant the grant of special

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leave. Likewise, ground (b) raises no question of
general principle and turns on a matter of fact.

Ground (c) was not argued in the courts below and it would in any event require ~elevant

findings of fact which were neither made nor sought

in the courts below. Grounds (d) and (e) were

neither argued nor dealt with in the courts below.

In the circumstances, the case is not an appropriate case for the grant of special leave to appeal and the

application is refused.

MR C.A.MERON:	If Your Honour pleases.
MASON CJ:	Mr Collins, do you wish to make any application?
MR COLLINS:	Your Honours, it would be our respectful

submission, having regard to.what Your Honour

the Chief Justice has just said, that the

application should be dismissed with costs.

MASON CJ: What do you say about that, Mr Cameron?

MR CAMERON:  I have nothing to put, Your Honour, that

MASON CJ: Well, it is the ordinary course that follows, is it

not?

MR CAMERON: It is, Your Honour.

MASON CJ: There are no circumstances in this case which would

justifyany departure from that course.

MR CAMERON:  No, I cannot - - -

MASON CJ: Very well, the application is refused with costs.

AT 11.35 AM THE MATTER WAS ADJOURNED SINE DIE

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