Parramore v Duggan

[1994] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Hobart        No H13 of 1994

B e t w e e n -

COLIN HAROLD PARRAMORE

Applicant

and

VALDA FRANCIS DUGGAN

Respondent

Second Respondent
  Application for special leave
  to appeal

MASON CJ
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 8 DECEMBER 1994, AT 10.43 AM

Copyright in the High Court of Australia

MR W.M. HODGMAN, QC:   May it please Your Honours, I appear with my learned friend, MR M.B. HUNNIFORD, for the applicant, Colin Harold Parramore.  (instructed by Hunnifords)

MR T.J. WILLIAMS:   May it please Your Honours, I appear for the respondent, Valda Duggan. (instructed by Gunson Pickard & Hann)

MR HODGMAN:   May it please Your Honours, the Court of Titles Office this morning advised that there are between 240,000 and 260,000 current certificates of title in the State of Tasmania.  The entire State of Tasmania is now, and has been for several years, under the Torrens system, and excepting islands in respect to which a Certificate of Title is issued, in each case of a Certificate of Title there is an adjoining property or properties each with their own Certificates of Title and this case, we will be submitting, is clearly to be distinguished from the case of Nield v Whittem upon which my learned friend, Mr Williams, will rely, because this case raises matters of fundamental public importance for citizens of Tasmania in relation to the Torrens system which we were taught years ago was to provide:  one, for indefeasible titles and two, that everything would be on the Certificate of Title.  What is.....in this case, which comes from a small country town called Colebrook close to the historic town of Richmond, is that you have two adjoining properties.  In the case of the Certificate of Title of the dominant tenement, a right of way and easement appears over the adjoining property.  In the case of the Certificate of Title of the servient tenement, owned and occupied by Mr Colin Harold Parramore, no such easement or right of way appears.

The question involves the decision of His Honour Mr Justice Zeeman in adding a simple word, but which then created three criteria in the most crucial provision of the Act passed in 1980, namely section 40, and as a result of the interpretation that His Honour placed on what he believed Parliament really meant, where we will argue that what Parliament clearly meant is exactly what it said, the situation was that His Honour concluded by making an order the effect of which was to determine that a right of way and easement applied over the land of Parramore, and you will see the consequential orders which flowed from that decision, which appear on page 8 os the application book:

1. The Court declares that lot 1 on plan P13956, being part of the land comprised and described in folio of the Register Vol 3820 Fol 26, has the benefit of the easement described in that folio of the Register over land comprised and described in folio of the Register Vol 4012 Fol 97.

2. That the defendant -

that is Mr Parramore, the applicant herein -

his servants and agents be, and hereby are, restrained from blocking or obstructing in any way the said right of way or permitting the blocking or obstruction of the same or otherwise preventing the plaintiff from having the full enjoyment of the same.

And 3, which was the crunch:

That the defendant -

the applicant herein, Mr Parramore -

forthwith remove from the land the subject of the said right of way the shed thereon -

which he had erected, a farming agricultural shed -

and all the bee hives, car bodies and other property as now are upon that land.

We submit that the case raises two very important questions: one, whether section 40(3)(e) of the Land Titles Act of 1980 creates an exception to the indefeasibility of a registered Torrens title, whereby the easement created by express grant has been registered on the title of the dominant tenement, but not on the title of the servient tenement; and two, whether section 106 of the Land Titles Act 1980 ought to be read as giving an unqualified finality to a statement in a folio of the register, that the land comprised therein has the benefit of an easement described therein and/or whether section 106 is an evidentiary provision to be read subject to the provisions of section 40(3)(e).

MASON CJ:   Well now you might direct your attention to section 106, because prima facie that would seem to me at any rate to be an answer to the case that you are seeking to present and of course it was section 106 on which Mr Justice Cox relied.

MR HODGMAN:   We would respectfully submit with great respect, Your Honour, no; that we would submit that section 106 is evidentiary only, it is not substantive, and indeed, His Honour Mr Justice Zeeman, who was the judge at first instance, did not rely on section 106, and the majority of the Full Court, Justices Wright and Crawford, did not rely on section 106 at all. Of the four judges who have looked ‑ ‑ ‑

GAUDRON J:   How can it be merely evidentiary when subsection (2) speaks of subsection (1) giving effect as an easement to a right, but it does speak in terms of giving effect, and not merely evidencing?

MR HODGMAN:   Your Honour, it is our respectful submission that Parliament did not intend that it would, if I could use alternate words to “giving effect”, create or cause to arise an easement. The situation, we respectfully submit, is that section 106 effectively, as His Honour Mr Justice Zeeman held, does not assist the respondent Duggan in this matter. It is our contention that section 106 was a matter raised which in fact only attracted the attention of His Honour Mr Justice Cox and, indeed, our respectful submission is that the entire case in fact turns on section 40(3)(e).

GAUDRON J:   Well one can see that, but why, for example, given that the dominant tenement’s land was brought under the Act first, does not section 106 operate at least to the extent that there was an easement arising under the Land Titles Act and therefore an easement arising under a statute, which satisfies the requirements of paragraph (e)(i)?

MR HODGMAN:   We do argue, of course, that section 40(3)(e) has only two criteria and indeed, I am taking Your Honour’s point, the then Minister, later Premier Holgate, in his second reading speech in the House, to which reference was made both in the judgments and will be made today, said there were two criteria and it is our respectful submission that the two criteria, which provide the exception to which the Minister referred, an easement arising by implication or secondly, under a statute, which would have given rise to a legal interest if the servient land had not been registered land. Your Honour is saying to me, why then does not section 106 fall within that second leg?

GAUDRON J:   In the circumstances of this case.

MR HODGMAN:   Yes. In my submission, it does not, and I have to say this point did not appear below, was not argued in the Full Court at all, although His Honour Mr Justice Cox made a passing reference to section 106. I am just trying to see if it has been dealt with in direct form by His Honour Mr Justice Zeeman. Yes, I am obliged to my learned friend. On page 5 of the application book His Honour Mr Justice Zeeman does deal with it at line 25, and if I might just refer to that:

In the alternative, the plaintiff claims that she is entitled to the benefit of the easement by operation of the Act, section 106(1). That provision is one of a number contained in the Act which provide that particular statements in a folio of the Register shall be conclusive evidence of the facts stated. Section 106(1) ought not to be read as giving an unqualified finality to a statement in a folio of the Register that the land comprised therein has the benefit of an easement described therein.

GAUDRON J:   What Mr Justice Zeeman is not doing is relating it back to paragraph (e).

MR HODGMAN:   No, because he goes on to say:

To do so would derogate from other provisions of the Act in a way plainly not intended.

And I respectfully agree with that statement by His Honour.

If none of the exceptions to indefeasibility operate so as to make the defendant’s land subject to the easement, section 106(1) does not avail the plaintiff.

It is our submission, Your Honour, that section 40 is the paramount section of the Act and in particular section 40(e) deals with the only two exceptions that the Parliament stated would apply to defeat the indefeasibility of the title. It is our submission that if this argument is wrong, the Torrens system as such falls down. I am sorry I cannot address a further argument at the moment, but could I come back to the point please, Your Honour.

Now, Your Honours, I want to move fairly quickly if I may to the factual background, because in this case it is of importance to put it into context.  If Your Honours look at page 1 of the application book, Your Honours will see the facts, and the facts that I just want to refer to you very quickly are that under the general law the easement referred to is set out in some detail on page 1 of His Honour’s judgment.  You will see that that occurred back in 1925, and I now read from the bottom of page 1:

The plaintiff’s land was brought -

and that is Duggan, the respondent -

under the provisions of the Real Property Act 1862 (“the former Act”), which was the predecessor of the Land Titles Act 1980 (“the Act”), on 10 March 1980, apparently pursuant to the provisions of the Deceased Persons’ Estates Duties Act 1978, section 31C. The defendant’s land was brought under the provisions of the Act on 11 April 1983, apparently as required by the Act, section 17.

Which was the provision to make all titles come under the Torrens system.  You will see that the original general law conveyance was back in 1877; you will see that there was a mortgage on 1 April 1925; you will see that the easement came into effect on 2 May 1925; then there are a number, something like 12 dealings with both properties, unless and until eventually - and I am now turned to page 3 - Mr Parramore becomes the owner of the land upon which he has a clear title.  The schedule which was to set out any easement or right of way across that title was blank.  The recorder of titles clearly has made an error, because in relation to the dominant tenement owned by Duggan, the recorder of title has recorded you have a right of way and easement over the next door property; in relation to the servient tenement, no such easement is recorded.  And I read very quickly from page 3:

The plaintiff claims to be entitled to the benefit of the easement by virtue of what appears in the folio of the Register which relates to her land or by virtue of the grant thereof by conveyance 16/8671.  The defendant denies that the plaintiff has such an entitlement.  The defendant bases his case on the statutory indefeasibility of his title and on nothing else.  The defendant accepts that if that provides no answer to the plaintiff’s claim so based then he has no defence.

Now in fact the comments made by the Minister are set out in the judgment of His Honour Mr Justice Zeeman, and I simply refer to what is recorded at line 37 there, in the House - and interestingly it is an extempore comment by Minister, later Premier Holgate, because you will see he draws the attention of some others in the House as to whether they were paying attention, and I read from him, and it is set out quite clearly:

“In Clause 40, two exceptions to indefeasibility - those relating to the interest of a tenant and to easements - are stated in a different form from the present act.  The form in which they are stated in the bill is thought to declare the present law as interpreted by the courts.  The form in which the possibility of two folios of the register existing for conflicting estates on the same land is stated more clearly.”

The clause notes which accompanied the bill, in so far as they dealt with clause 40(3)(e), were in the following terms:

“At common law an easement can only operate at law if it is created by a grant under seal, or where the existence of the grant is implied, eg by prescription under the Prescription Act 1934, or under the doctrine of lost modern grant.  However there are many other kinds of implied easements arising by estoppel, acquiescence or agreement which operate in equity only.

Under this Act an easement can only operate at law if it is created by the prescribed form and registered -

and registered -

but by analogy with Smith v Ritchie [(1919) 15 Tas LR 60], the Bill has been drawn to provide

(i)  That where, but for this Act an easement would have operated at law, the right of a registered proprietor is always subject to it, and

(ii) a person who takes as a bona fide purchaser for value without notice of an equitable easement takes free from it on lodgement of his transfer for registration.

If we go back to page 3 of the appeal book, we submit to you that the two criteria which the Minister made quite clear in relation to section 40(3)(e)(i) are as follows:

(i)  an easement arising by implication -

and one just wonders, how could you register something which arises by implication, unless or until a court says that arises by implication and is now a fact -

or under a statute which would have given rise to a legal interest if the servient land had not been registered land;

and I promise I will come back to Your Honour’s point in a moment, because this is what His Honour Mr Justice Zeeman then said, and with respect, erred, and we submit, erred grievously.  He said, Parliament mucked it up; it did not really mean what it said.  He said, I am going to add the word “or” and immediately he adds the word “or” he creates three criteria, because what he said was this - it appears on page 8:

All that material confirms my view that section 40(3)(e)(i) ought to be construed as if the word “or” appeared after the word “statute”. On that construction it operates so that that part of the plaintiff’s land as is comprised in lot 1 on plan P13956 has the benefit of the easement, it having been granted by deed before either the plaintiff’s land or the defendant’s land was brought under the Act or the former Act. The defendant’s title is not indefeasible so far as regards the easement. Accordingly the question of law asked by the Special Case is answered as follows: “Yes -

So immediately you have gone from two criteria to three, and I come back to section 40, and Mr Justice Zeeman, with great respect, said the Parliament did not understand what it was saying when the Minister said there are two criteria, the Minister really meant to say there were three, because these are the three you get under what we submit is a confected and convoluted interpretation by His Honour Mr Justice Zeeman.  You had the following:  one, an easement arising by implication; two, and I interpolate the words, an easement arising under a statute, and three, which is the Zeeman proposal, an easement which would have given rise to a legal interest if the servient land had not been registered land.

It is respectfully submitted that what His Honour has done, and what the majority of the Full Court have done, have to insert a word “or” which changes it from the two fundamental criteria on which indefeasibility became defeasible.  It is a far cry from Nield v Whittem, 67 ALJR, and this Court said in relation to some technical argument in the Northern Territory that leave would not be granted, and from the judgment I read, on page 514, delivered by His Honour Mr Justice Deane on behalf of himself and Their Honours Justices Dawson and Toohey, he said it involved a question of “punctuation and syntax” and I can understand why leave, with respect, was not granted here, but here it adds a totally new criteria, but more importantly - - -

McHUGH J:   Mr Hodgman, what you are putting on these points is very persuasive, at least so far as I am concerned, but equally what Justice Cox said is persuasive, and you really have not dealt with what he said, particularly at pages 11 and 12 ‑ ‑ ‑

MR HODGMAN:   My respectful submission, Your Honour, is that section 106 is - I use the word “evidentiary”; I understand there can be an argument - it simply sets out what the court shall say exists, but does not itself create or cause to arise the right. My submission in a nutshell is, if this application for leave fails, you can tear up the Torrens system, because it means that a stranger wanting to buy Parramore’s land, finding no easement on it, believing the title is indefeasible, believing everything is on the Certificate of Title, that was the whole point of the system. You cannot have a situation where a bona fide purchaser, without notices created, as has happened here, and Parramore effectively is now saddled with, on the decision of the Full Court, Mr Justice Zeeman, a right of way given under general law in 1925, of which he has no knowledge and over which he has built a large farm shed which his neighbour wishes to have removed. That is really what the case is all about. It is so crucial, in my submission, that this honourable Court should grant leave for the simple reason to do otherwise creates a third criteria, which was never the wish of the Parliament. When learned judges say what Parliament intended, I submit they should only say so where it is absolutely clear that Parliament has made a fool of itself yet again. There is no such basis for that submission, in this instant case; in my submission leave should be granted. If Your Honours please.

MASON CJ:   Yes, Mr Williams.

MR WILLIAMS:   Thank you, Your Honour.  I would like to refer to the case of Nield v Whittem, which I have a photocopy of here.  Your Honour, the essence of the respondent’s argument in relation to leave to appeal is that the principle involved here is a principle that only applies in Tasmania.  The legislation through the other States is sufficiently different that the principle involved has no general application outside of Tasmania and that using the same logic that applied in Nield v Whittem, leave should be refused.

McHUGH J:Well except that this involves many titles in Tasmania, does it not?  Or it may well involve many titles.  If you adopt the view of the majority judges, then this decision may have far-reaching effects.

MR WILLIAMS:   Except the argument would be that the law is settled by the majority decision and that that majority decision ‑ ‑ ‑

McHUGH J:Well that is the question whether it is right or wrong.  It seems to me at the moment that there is strong argument in favour of the view that the majority approach is wrong.

MASON CJ:   In any event, I do not think that Nield v Whittem takes you very far; it was not merely a matter that there was no equivalent provision elsewhere apart from the Northern Territory; it was the nature of the question.

MR WILLIAMS:   Yes, Your Honour.  The second point is that the nature of the question in this case relates to statutory interpretation.

MASON CJ:   But it is statutory interpretation of a Torrens Title statute on which many titles do depend in relation to the particular question.

MR WILLIAMS:   Yes, Your Honour.

GAUDRON J:   Had you not better come to the correctness of the decision either on the approach of the majority or on that of Mr Justice Cox?

MASON CJ:   Your reluctance to do so insinuates that you have difficulty in dealing with the question.

MR WILLIAMS:   The starting point, Your Honour, is that the decision that was arrived at either by His Honour Mr Justice Cox or by the Full Court majority and His Honour Mr Justice Zeeman, was in fact the decision that Parliament intended to arrive at.  I would argue strongly with my learned friend’s interpretation of both the clause notes and the second reading speech; both of those are set out with some clarity in the judgment of His Honour Mr Justice Zeeman.  Would it be of assistance to take you through those?  Your Honour, if Your Honours have any difficulty with the proposition I am putting forward, I will take you through in some detail both the clause notes and the second reading speech.  However, if Your Honours do not have any difficulty with that proposition there is no point in going through that exercise.

MASON CJ:   Well I do not think you ought to proceed on the footing that we should keep you informed as to the process of our thinking while your argument is proceeding.  We are not accustomed to answering interrogatories of that nature.

MR WILLIAMS:   My apologies, Your Honour.

MASON CJ:   Sometimes we find it difficult to answer an interrogatory of that kind when we are delivering judgment.

MR WILLIAMS:   I simply wish to avoid taking Your Honour through a tedious process ‑ ‑ ‑

MASON CJ:   Well we will stop you if we think you are putting irrelevant matter to us.

MR WILLIAMS:   If I could take you to page 7 of His Honour Mr Justice Zeeman’s judgment; it refers to the clause notes which accompanied the bill, and down the bottom it then goes on at page 8 and following:

“At common law an easement can only operate at law if it is created by a grant under seal, or where the existence of the grant is implied, eg by prescription under the Prescription Act 1934, or under the doctrine of lost modern grant.  However there are many other kinds of implied easements arising by estoppel, acquiescence or agreement which operate in equity only.

Under this Act an easement can only operate at law if it is created by the prescribed form and registered, but by analogy with Smith v Ritchie[(1919) 15 Tas LR 60], the Bill has been drawn to provide

(i)  That where, but for this Act an easement would have operated at law, the right of a registered proprietor is always subject to it -

and I need not trouble you with subsection (ii) ‑ ‑ ‑

GAUDRON J:   Does the Act provide that?

MR WILLIAMS:   It says that ”where but for this Act an easement would have operated at law”, and I would submit that the previous legislation, which was the Real Property Act 1862, as interpreted by Wilkinson v Spooner, clearly arrived at the result that an easement that was created by deed would override the exception to ‑ ‑ ‑

GAUDRON J:   Where is “where but for this Act” to be found in the Act itself?

MR WILLIAMS:   That is perhaps some explanation of why the Act is drafted the way it is; that wording does not find its way into the Act unfortunately, but it is ‑ ‑ ‑

GAUDRON J:   There is some difficulty in relying on the second reading speech when it does not actually marry up with the Act itself, is there not?

MR WILLIAMS:   Those are the clause notes that accompanied it, but it would indicate that the intent was that where you had easements that operated at law, they were to prevail, in the same way that the Act recognised that an implied easement, or an easement arising under a statute was intended to override indefeasibility.

GAUDRON J:   It really would have been quite easy for the Act to say what was said in the clause note, if that was what was intended.

MR WILLIAMS:   Yes, in fact I think His Honour Mr Justice Crawford in the Full Court expressed some surprise at why it was drafted the way it was, but nevertheless we are faced with the problem that under an interpretation of that section, instead of looking to find a meaning to the last part of that section, as drafted, and as His Honour Mr Justice Zeeman put it, it becomes otiose unless you look to the overall meaning of Parliament and particularly when you look to the law that applied previously in a consolidating statute it should be taken as a first step that it was not intended to alter the existing law, particularly if you look at the results which I would submit would be fairly capricious and irrational if you applied what is a literal interpretation.  You would have a situation where implied easements were recognised as an exception to indefeasibility, but an easement arising from a clear grant by deed, and registered in the deed’s registry, would not.  It would leave a situation where you would have a permutation of results that could apply.

If, in the first example, you had two easements that were created when both pieces of property were under the general law system, if they were both brought under the Real Property Act 1862, then both easements would have applied, even though the servient tenement did not have an easement registered on it, but then you would find that when you got to the promulgation of the 1980 Act, all of a sudden that would arguably change and people that had rights would, by the mere promulgation of an Act, lose those rights, yet there are no provisions for compensation or any transitory provisions provided for, which one would have expected if Parliament had intended that result.

McHUGH J:Has the commercial copies and the government printer’s copy of this Act been checked against the original parliamentary ‑ ‑ ‑

MR WILLIAMS:   I am unable to assist you with that, Your Honour, except to say that I would assume that His Honour Mr Justice Zeeman in the course of his judgment may well have entered into that process.

MASON CJ:   But why would he have entered into that process?

MR WILLIAMS:   Partly, if I can assist Your Honour, by the fact that the argument that he adopted was not raised before him, so that I can only make that assumption; it certainly was not raised at the initial trial and therefore counsel did not have the opportunity to check that argument at that time.  If you follow through with the other permutations that could follow, you might have a servient tenement that operated at general law; dominant tenement was then converted under the Real Property Act; it would still be OK.  You pass the Lands Titles Act, there would be no difference to that.  But then on the servient tenement being registered, all of a sudden you would have the loss of the easement and you can go through and apply different permutations, depending on which title is the dominant and servient tenement and the permutations that might arise as you go through the acts with their passing.  And it just arrives at a capricious and irrational result, I would submit.

That result was dealt with by His Honour Mr Justice Cox in the decision he arrived at, which I would submit to the Court has a great deal of logic to it.  As Your Honours have pointed out, what His Honour has said is that an easement arising under a prior Act, be it an easement which was registered under the Lands Titles Act or an easement registered under the Real Property Act could be said to be an easement arising under statute, and that therefore, on the facts of this case, given the effect of section 106, that would be a clear answer to the problem in this particular instance.

GAUDRON J:   How do you relate section 106 then to Justice Zeeman’s analysis?

MR WILLIAMS:   I would submit His Honour Mr Justice Zeeman was wrong in the way he approached section 106 and that, as Mr Justice Cox indicated, you have to read section 106 in conjunction with section 40(3).and when you look at the overall intent of the statute, it is clear that an easement arising under a prior statute, for example the Real Property Act, could well be regarded under section 40(3) as an easement arising under statute.  The fact that the statute is now repealed should not affect the fact that the easement arose under a statute.

GAUDRON J:   And this would have the result that there would be no effect to an easement if it were not recorded on either title, but that apart, presumably the easements would operate.

MR WILLIAMS:   I agree with that, Your Honour, yes.

GAUDRON J:   Maybe only if a dominant tenement was the first brought under the Act.

MR WILLIAMS:   Yes, Your Honour.  Of course what His Honour Mr Justice Cox’s judgment does is deal with the facts of this case particularly; it does not raise such general principles as the decision of the majority

of the Full Court.  So that I would submit that particularly if His Honour Mr Justice Cox is correct, that that ought to be an end to the matter and that would resolve it in the particular circumstances of this case and the particular circumstances of this case where you have an easement that was actually registered under the general law system, that simply a mistake is made and it is not carried forward on to the register, would be of limited application, I would concede that if the majority of the Full Court’s logic is applied then that is of far greater general application.  But I would nevertheless submit that the result arrived at at the end of the day was correct.

Your Honour, given that the judgments of the court, I would submit, are succinctly set out, there is little I can add to those, and that those are my submissions.

MASON CJ:   Thank you, Mr Williams.  Mr Hodgman.

MR HODGMAN:   Your Honour, very briefly in reply, my learned friend is really between a rock and a hard place, I submit.  In his written submissions he virtually says, well there is an error of law in the Full Court, but it is de minimis; it does not matter. In my respectful submission, you are dealing with 260,000 Certificates of Title, it does matter. He is now in the situation where he does not really wish to own the majority in the Full Court, but wishes to take on board His Honour Mr Justice Cox in respect to which Mr Justice Zeeman took a completely contrary view.

Your Honours, I just want to read verbatim, if I may, from the summary of argument as to what the Minister said in a government of which I was not a member, I might add, but which the Minister said in relation to what he thought he was doing and what the Parliament supported, and you will find it on page 3 of the summary and I just read it very quickly, over on to page 4.  This was Minister the Honourable Harry Holegate on pages 598 and 599.

“In clause 40, two exceptions to indefeasibility -

and I emphasise the word “two” -

those relating to the interest of a tenant and to easements - are stated in a different form from the present act.  The form in which they are stated in the bill is thought to declare the present law as interpreted by the courts.  The form in which the possibility of two folios of the register existing for conflicting estates on the same land is stated more clearly.  The clause adopts for the first time the word ‘indefeasible’ in relation to Torrens title.

Indefeasible.

Let my colleagues listen -

he said, obviously being distracted by somebody chattering -

they might have to use it some time.  This word has, of course, become the classic word used to describe the essential feature of Torrens title by judges and textbook writers.”

In answer to Your Honour Justice Gaudron, clause 40 is the most important clause in the whole Act, and we submit therefore that section 106 merely means that if, for example, at a trial, the proving of an easement can be effected by production of the title, but it is still subject to section 40, and my respectful submission is that even His Honour Mr Justice Cox says as much, on page 2 of the appeal book His Honour’s judgment - actually page 12 I am sorry - and I will just read it very quickly. It is from line 16:

The statutory recognition accorded the easement was given added strength when the Act was passed, for section 106 extended the evidentiary weight to be given to the record from conclusive evidence as to the registered proprietor’s entitlement (which is preserved in any event by section 39) -

Section 40(b), nobody believes helps in the matter.  Finally I, with respect, adopt one part of His Honour Mr Justice Cox’s judgment where he says on page 12:

A court should be very cautious before reading into an Act of Parliament a word which is not there.

And I respectfully submit that where this whole thing went wrong was that His Honour Mr Justice Zeeman thought the Parliament had missed out the word “or”, but by adding the word “or” he jumps from two to three criteria.  We respectfully submit, leave should be granted.

MASON CJ:   There will be a grant of special leave in this case.

MR HODGMAN:   If it please Your Honours.

AT 11.21 AM THE MATTER WAS ADJOURNED SINE DIE