Riley v Nelson

[1965] HCA 62

HIGH COURT OF AUSTRALIA

Barwick C.J., Taylor and Menzies JJ.

RILEY v. NELSON

(1965) 119 CLR 131

1 December 1965

Torrens System (N.S.W.)—Practice (N.S.W.)—High Court

Torrens System (N.S.W.)—Application to bring land under system—Conflicting claims—Practice—Trial of disputed issues of fact for purpose of determining case stated—Issues tried by judge without jury—Findings not foundation for judgment at law—Made for purposes of opinion upon case stated—Decretal order made upon findings—Appeal to High Court from decretal order—Power of High Court to review findings of fact—The Constitution (63 &64 Vict. c. 12), s. 73—General Legal Procedure Act, 1902 (N.S.W.), ss. 10, 12—Common Law Procedure Act, 1899 (N.S.W.), s. 133—Administration of Justice Act, 1924 (N.S.W.), s. 11—Supreme Court Procedure Act, 1900 (N.S.W.), ss. 4, 5, 6—Real Property Act, 1900-1956 (N.S.W.), ss. 24, 26, 27, 121. Practice (N.S.W.)—Trial of issues by judge without jury—Power to enter judgment at law—Limits of power—Return of findings to court &hich directed trial of issues—Appeal—Power to review findings of fact—Supreme Court Procedure Act, 1900 (N.S.W.), ss. 4, 5, 6—Administration of Justice Act, 1924 (N.S.W.), s. 11—Common Law Procedure Act, 1899 (N.S.W.), s. 133—General Legal Procedure Act, 1902 (N.S.W.)., ss. 10, 12. High Court—Appellate jurisdiction—Powers on appeal—Review of findings of fact—Order of court below based upon findings on issues directed to be tried—State Act providing that findings equivalent to verdict of jury—The Constitution (63 &64 Vict. c. 12), s. 73—Supreme Court Procedure Act, 1900 (N.S.W.), ss. 4, 5, 6—Administration of Justice Act, 1924 (N.S.W.), s. 11—Common Law Procedure Act, 1899 (N.S.W.), s. 133—General Legal Procedure Act, 1902 (N.S.W.), ss. 10, 12.

Decisions

December 1 .
The following written judgments were delivered: -
BARWICK C.J. Part 4 of the Real Property Act, 1900-1956 (N.S.W.) (the Act) enables land, which is not subject to them, to be brought under the provisions of the Act. When the Registrar-General, appointed under the Act, is satisfied that the land the subject of a primary application to bring it under the Act is held by the applicant for the estate or interest which he claims, he is required to advertise notice of the application in the manner set forth in s. 18, and to appoint a time not less than one month and not more than twelve months from the date of the advertisement upon or after the expiration of which he will proceed to bring the land under the provisions of the Act, unless meantime he has received a caveat forbidding him to do so. (at p133)

2. By s. 24 of the Act any person having or claiming an interest in any land so advertised, or the attorney of any such person, may within the time limited by the Registrar-General for that purpose lodge a caveat forbidding the bringing of such land under the provisions of the Act. Every such caveat shall particularize the estate, interest, lien, or charge claimed by the caveator, and the caveator shall, if required, deliver a full and complete abstract of his title. On receipt of such a caveat the Registrar-General is to notify the applicant thereof and suspend further action in the application until the caveat has been withdrawn, or has lapsed, or until a decision has been obtained from the Court having jurisdiction in the matter. (at p134)

3. Section 26 of the Act provides that the caveat shall be deemed to have lapsed after the expiration of three months from its receipt unless meantime the caveator has

"(a) taken proceedings in any court of competent jurisdiction to establish his title to the estate, interest, lien, or charge therein specified, and given written notice thereof to the Registrar-General; or (b) obtained from the Supreme Court an order or injunction restraining the Registrar-General from bringing the land therein referred to under the provisions of the Act, either absolutely or until the further order of the Court and served the order or injunction on or given written notice thereof to the Registrar-General". (at p134)

4. Section 27 of the Act provides that where such a caveat has been lodged by a caveator claiming the land or an interest therein adversely to the applicant, the applicant may state a case for the opinion and direction of the Supreme Court "upon the matter". A caveator may under s. 26 apply for an injunction until the further order of the Court, and the Court may under s. 27 direct the caveator to lodge in the Court within a stipulated time a case on his own behalf stating whether he claims in his own or in another's right together with such particulars as the Court thinks fit to order. Section 27 (2) provides that the Court shall thereupon direct issues to be tried by a jury as to any facts or should no fact be in contest, may decide the matter upon the case stated, and "for the purposes aforesaid make all such orders as the Court thinks fit". The decision of the Court finally upon the matter shall be conclusive on the parties and on the Registrar-General. The cost of the proceedings under the section shall be borne by the party "finally unsuccessful". (at p134)

5. By s. 121 of the Act it is provided that if upon an application to bring land under the Act, the Registrar-General refuses so to do, or if the applicant is dissatisfied with any direction given upon his application by the Registrar-General, the applicant may require the Registrar-General to set forth in writing the grounds of his refusal or the grounds upon which his direction was given, and the applicant may, if he thinks fit, summon the Registrar-General to appear before the Supreme Court to substantiate and uphold the grounds of his refusal or direction. If any question of fact is involved, the Court shall direct an issue to be tried and decided and thereafter the Court shall make such order in the premises as in its judgment the circumstances of the case require. The Registrar-General is to obey any such order. (at p135)

6. Section 6 of the Supreme Court Procedure Act, 1900 (N.S.W.) provides that

"in all cases in which the Real Property Act, 1900, directs applications to be made to the Supreme Court, such applications may be made to the Supreme Court in its equitable jurisdiction as well as to the Supreme Court holden before three judges". (at p135)

7. Sections 26, 27 and 121, in my opinion, satisfy the words of this section so that applications under these sections may be made to the Supreme Court in Equity. (at p135)

8. Section 4 of that Act provides that issues of fact settled under the provisions of the Real Property Act may by consent of both parties be tried by a judge without a jury and a judge when so sitting shall have all the powers of the jury. (at p135)

9. Section 5 (1) provides so far as presently relevant that

"subject to the provisions of this section, the verdict or finding of any judge sitting without a jury on the trial . . . of any issue of fact . . . shall be of a like force and effect in all respects as the verdict or finding of a jury". (at p135)

10. Sub-section (2) provides that nothing in the section shall authorize judgment to be signed on the verdict or finding, but judgment may be directed to be entered as provided in the section, and the entry shall have the like force and effect in all respects as the signing of a judgment. (at p135)

11. Sub-section (5) provides that any judgment directed by the judge to be entered under the provisions of that section shall, unless there is an appeal as provided in that section against the judgment, have the same force and effect in all respects as a judgment of the Court. (at p135)

12. Sub-section (6) gives all parties a right to appeal to the Supreme Court in banc against any judgment so directed by a judge to be entered. (at p135)

13. By sub-s. (7) any such appeal shall be by way of rehearing and on the appeal the Supreme Court shall

"(a) have all the powers and duties of the judge as to amendment or otherwise including the power to make findings of fact, . . . (b) have full discretionary power to receive further evidence upon questions of fact . . . ". (at p135)

14. By sub-s. (9) the Supreme Court on appeal is empowered to give any judgment and make any order which ought to have been given or made in the first instance. (at p136)

15. It is out of the inter-relationship of these several statutory provisions that the decisive considerations in this appeal, in my opinion, arise. (at p136)

16. On 20th May 1837 thirty-one acres or thereabouts (the land) situate on the shores of Middle Harbour, Sydney, then known as Lot 26 in an advertisement dated 21st January 1837 of a public auction of Crown land, but now known as Portion 558 of the Parish of Manly Cove, County of Cumberland, were granted in fee simple to Arthur Wellington Elyard. By divers mesne assurances and acts in the law, the documentary title to such land ultimately vested in the present appellants. (at p136)

17. However, about the year 1900, John Dunbar Nelson, whom I shall call the elder Nelson to distinguish him from his son, George Hugh Dunbar Nelson, the present respondent, began to clear portions of the land, and to erect thereon certain buildings. In 1906 the elder Nelson began to live on the part of the land he had cleared, and he resided thereon with his family until his death on 25th October 1933. (at p136)

18. Meantime, before 10th February 1908 he had fenced the side and back lines of the land. The frontage of the land being to Middle Harbour, the grant had been subject to a reservation of one hundred feet along the waterfront in favour of the Crown. Whilst the evidence may not be absolutely clear, it would seem that the side fences or indications of the boundaries of the occupation went to high water mark. (at p136)

19. On 10th February 1908 the elder Nelson conveyed the land which became known as "Killarney" to his wife Annie Nelson. Of his marriage with her, he had a son, the present respondent, and a daughter. His wife died on 15th February 1909 leaving a will whereof she appointed the elder Nelson and one E. C. J. Murray executors, to whom probate was duly granted. Apparently the assets of his wife remained vested in the elder Nelson as executor until his death. (at p136)

20. During the years between 1908 and 1957 the elder Nelson in his lifetime and thereafter the respondent Nelson carried on on the land the business of maintaining and conducting picnic grounds. Apparently for many years "Killarney" was a popular excursion resort, though through the wars and the later years it waned in popularity and its custom diminished. The cleared portion of the land which fronts Middle Harbour is backed by an escarpment of varying height and steepness. It would appear that the elder Nelson made steps up to the top of this escarpment at at least one point and he made and in his lifetime, he, and afterwards the respondent Nelson, maintained paths through the upper area, which, except for simple picnicking facilities, such as fire-places, was left in its natural state and which, by reason of its isolation and the profusion of wildflowers it bore in season, was attractive to the visitors who came to Killarney. These paid a fee to the elder Nelson in his time and later to the present respondent to land on the wharf, which the elder Nelson had erected upon an area of land leased to him by the Maritime Services Board which included portion of the bed of Middle Harbour and a strip over the one hundred foot reservation along the waterfront, thus connecting the wharf with the land the subject of the Crown grant. (at p137)

21. On 20th August 1953 the respondent Nelson, upon a primary application made by him to the Registrar-General in that behalf based on a possessory title obtained by him subsequent to his father's death, was granted a certificate of title under the Act to what I have called the cleared portion of the land which contained an area of about three acres. This land the respondent sold to the Mosman Rowing Club in 1957. (at p137)

22. On 15th January 1954 the respondent Nelson applied to bring the balance of the land under the provisions of the Act, claiming a possessory title thereto, based upon his possession of the land since the date of his father's death in 1933. This application was numbered in the records of the Registrar-General as primary application No. 38671. (at p137)

23. On 28th January 1960 the appellants lodged a primary application in respect of the same land as was the subject of the primary application No. 38671, the appellants claiming a documentary title commencing with the Crown grant to Arthur Wellington Elyard to which I have referred. This application was numbered 41371. (at p137)

24. The Registrar-General, apparently not satisfied that either applicant had made out his or their title to the land as claimed refused to advertise either application. On 11th November 1960 the Registrar-General informed the solicitors for the appellants of certain qualifications which the examiner of the application had made. Two of these related to matters connected with the details of the documentary title proposed by the appellants but the third required the appellants to establish that a conveyance made in 1914 was not made pursuant to a sale of a pretenced title having regard to the evidence furnished by the respondent Nelson in the application No. 38671. (at p138)

25. Thereafter the appellants required the Registrar-General to state the grounds of his refusal to proceed with their primary application. He did so stating two grounds; first, that the examiner's qualifications to which I have already referred had not been disposed of: second, that there was before him another application in respect of the same land, namely application No. 38671, in which a title by adverse possession was claimed. (at p138)

26. Meantime, on 8th August 1960 the Registrar-General had set out at the request of the respondent Nelson his grounds of refusal to proceed with application No. 38671. The grounds he stated in this connexion were -

(1) that he was not satisfied that the respondent Nelson had satisfactorily established a title to the land by adverse possession; (2) that he was not satisfied that he should issue a certificate to the respondent Nelson in view of the fact that application No. 41371 had been made. (at p138)

27. On 8th December 1960 the respondent Nelson caused a summons to be issued out of the Supreme Court in Equity calling on the Registrar-General to attend in the Chambers of the Chief Judge in Equity on 10th February 1961 to substantiate and uphold his grounds of refusal to hold that the respondent Nelson was entitled to the estate or interest in the land which he described in his application No. 38671. This proceeding bore in the Supreme Court in Equity the number 1908 of 1960. (at p138)

28. On 22nd February 1961 the appellants caused a similar summons to be issued out of the Supreme Court in Equity calling upon the Registrar-General to substantiate and uphold his grounds of refusal to advertise the appellants' application No. 41371. This summons was numbered in Equity No. 239 of 1961. (at p138)

29. Ultimately these two summonses, which were each issued pursuant to s. 121 of the Act, came on for hearing before a judge sitting in equity on the same day, 5th April 1961, and were discussed at the same time. As a result the Registrar-General undertook to advertise the appellants' application and the summonses were both stood over generally. (at p138)

30. The Registrar-General did advertise the application of the appellants, that of the respondent Nelson being left in abeyance, as indeed it is to this time. Upon the appellants' application being advertised, the respondent Nelson lodged a caveat against its grant. (at p138)

31. On 30th May 1961 the solicitor for the appellants lodged in the Equity Court in connexion with the appellants' summons a document which is entitled "Statement of Applicant's Case". The document consists of a statement of the appellants' title plus a reference to the respondent Nelson's successful application for a certificate of title to the three acres of land to which I have already referred. This document quite plainly was neither in form nor in substance the statement of a case for the opinion and direction of the Supreme Court under s. 27 of the Act. However, it was so treated without any critical attention being given to it. That assumption seems to have been the basis upon which a judge sitting in equity made an order on 16th June 1961 granting by consent of the Registrar-General an injunction restraining the Registrar-General until further order from proceeding with the appellants' primary application and directing the respondent Nelson to lodge a case on his own behalf. This order and direction were made and given in the proceeding commenced by the appellants' summons to which the respondent Nelson was not a party, though he was represented before the court on 16th June 1961. Thereafter the respondent Nelson filed a case on his own behalf, lodging it in the proceedings commenced by the appellants' summons, No. 239 of 1961. (at p139)

32. A comparison of the statement of the appellants' "case" and of the case filed on behalf of the respondent Nelson indicated that there were contested issues between the appellants and the respondent Nelson but how far they were issues of fact did not so clearly appear. In the light of these circumstances, a "direction" was given by a judge sitting in equity on 13th October 1961 again in the proceedings commenced by the appellants' summons, that all issues of fact should be tried by a judge in equity without a jury and that all evidence to be given at the hearing should be by affidavit subject to the right of the opposing party to cross-examine. Again the erroneous assumption seems to have been made that there was before the Court, pursuant to a combination of s. 27 of the Act and s. 6 of the Supreme Court Procedure Act, a special case for the opinion and direction of the Supreme Court in Equity. However, having regard to the conduct of the parties and the course then and thereafter followed by the Court in Equity itself, this appeal will have to be resolved upon the basis of a supposed special case presented under s. 27 of the Act for the opinion and direction of the Supreme Court. I do not think, for reasons which I shall later express, that the proceedings can be treated throughout as proceedings under s. 121 of the Act. (at p139)

33. Having by a tacit assumption supplied a basic though unobserved deficiency in the proceedings, the Court in Equity then proceeded as if issues of fact had been duly settled by it as required by s. 27 of the Act and had been duly ordered to be tried. But it is quite apparent that issues of fact were not settled at any stage. It is also clear that no settled issues were ordered to be tried. The decretal order ultimately made in the proceedings recites that the Chief Judge in Equity read "the issues for trial lodged herein". These "issues for trial" do not appear in the decretal order. They can only be ascertained by a perusal of the reasons for judgment given by the Chief Judge in Equity. There they consisted of a series of questions not all of which were confined to matters of fact. Further, an examination of the record of the hearing which took place before the Chief Judge in Equity supplemented by statements from the bar table during the hearing of this appeal shows that even these questions were only reduced to form after the hearing of evidence had been concluded and at the end or almost at the end of counsel's addresses. (at p140)

34. The decretal order which was ultimately made in the proceedings does recite the order for the trial of issues of fact to which I have referred but does not indicate that that order was by consent of the parties, nor in fact does there appear to have been any order made by consent of the parties for the trial of issues without a jury. However, it seems that the formal consent of the parties to the making of such an order must be supposed. No doubt both parties were willing to have the issues of fact tried by a judge without a jury. (at p140)

35. The direction given by the judge sitting in equity on 13th October 1961 was that all issues of fact, none having been settled or specified, should be tried by a judge in equity sitting without a jury. But a judge in equity, in my opinion, could have no jurisdiction as such to try issues of fact settled and ordered to be tried under s. 27 of the Act. Without the consent of the parties such issues could only be tried at law by a jury or perhaps in equity by a jury under s. 51 of the Equity Act, 1901 if that section is treated as attracted to proceedings under s. 27 of the Act ; though, in my opinion, such a conclusion is far from clear. Having regard to the terms of s. 27 of the Act, in my opinion, nothing short of the verdict of a jury on the disputed issues of fact or its equivalent could satisfy the requirements of that section. Therefore, even if s. 51 of the Equity Act is regarded as being applicable to proceedings under s. 27 of the Act, it would only be applicable to the extent to which a jury trial took place. Section 51 (2) (c), in my opinion, could not operate to allow a judge without a jury to determine the issues of fact ordered to be tried under s. 27. Nor would s. 139 of the Act suffice to produce that result. (at p141)

36. Thus, it seems to me, that the only basis upon which a judge could try issues ordered to be tried under s. 27 would be by virtue of s. 4 of the Supreme Court Procedure Act, that is to say, by consent of the parties, trying the issues at law without a jury. It would only be such a trial which could give rise to the equivalent of a verdict of the jury so as to satisfy s. 27 : see s. 5 (1) of the Supreme Court Procedure Act. (at p141)

37. The order of the judge sitting in equity of 13th October 1961 provided for the evidence to be taken on the trial of all issues of fact by affidavit subject to cross examination. There must, in my opinion, be at least a considerable doubt as to whether a judge sitting pursuant to s. 4 of the Supreme Court Procedure Act can take evidence on affidavit in the trial of issues ordered to be tried under s. 27 of the Act, even if cross examination on the affidavits is permitted. The trial of issues ordered to be tried under s. 27 of the Act, even if tried by jury before a judge in equity, assuming such a course possible would no doubt be approximated to a trial at nisi prius by virtue of s. 52 of the Equity Act. If such a trial took place by a jury at law it would proceed in a manner akin to the trial of a feigned issue : see General Legal Procedure Act, 1902, ss. 10 and 12 ; indeed the device used by s. 27 of the Act in ordering issues of fact to be tried by jury is very reminiscent of the practice of the Court in Equity by utilizing a feigned issue at law for the determination of disputed facts in a suit in equity : see Chitty's Archbold, Queen's Bench Practice, 10th ed. (1858), p. 855. This practice sprang out of the recognition of the unsatisfactory nature of a trial in Chancery of facts upon written evidence : see Blackstone, Commentaries, Book 3, p. 452 and Holdsworth, History of English Law, vol. 9, p. 353. (at p141)

38. No doubt with cross examination and less technicality about the form and content of the written evidence the trial of some facts by affidavit and cross examination thereon has become more acceptable but it has not yet become a mode of trial at law in New South Wales. Though the Equity Act provides for the trial of facts in a suit in equity by a jury before a judge in equity, such a trial would be upon oral evidence. (at p141)

39. The General Legal Procedure Act, 1902 adopted s. 19 of 8 &9 Vict. c. 109 (Gaming Act, 1845 (U.K.)) in simplifying the procedure for the trial of facts upon what is still, in substance, a feigned issue. If a trial is to take place at law to determine facts which do not arise in an action at law, there must be an issue to be tried. Section 27 supplies that issue by the order settling the issues of fact which are ordered to be tried. It may be that even when issues of fact are duly settled and ordered to be tried under s. 27, the procedures of the General Legal Procedure Act should be followed. But, even if they were not followed the trial of the settled issues is a trial at law. (at p142)

40. Acting upon the order of 13th October 1961 the parties proceeded to a hearing before the Chief Judge in Equity. Affidavits were filed and witnesses were cross-examined before the Court. There was a contest as to whether the elder Nelson and his wife had made evident their possession of the whole of the land as distinct from the cleared portion of three acres to which I have referred and so maintained their possession throughout the period till the elder Nelson's death. There was also a contest as to whether the respondent Nelson had done likewise after the death of his father and for the full and unbroken space of twenty years. There was a subsidiary contest as to whether the respondent Nelson was in actual possession of the land, the subject of his primary application, at the time when the appellants' primary application was made or at the time at which the respondent Nelson lodged his caveat. A question of law was raised as to whether or not the Court could pass upon the validity of the appellants' documentary title unless it found that the respondent Nelson was in possession, either at the date of the lodgment of the appellants' application or of his caveat : cf. Wheeler v. Baldwin (1934) 52 CLR 609 . (at p142)

41. No specific findings of fact were recorded by the Chief Judge in Equity as his finding or verdict as a judge sitting without a jury under s. 4 of the Supreme Court Procedure Act. But, as I have mentioned, the decretal order which was ultimately made recites that issues for trial were read and from the reasons for judgment one can extract what those issues were and, with one possible exception, the answers to them which his Honour gave. It seems to me that, in the circumstances of this case, one ought to treat so much of the questions as are set out in the reasons for judgment as raised issues of fact as being issues of fact settled pursuant to s. 27 and treat his Honour's answers to those questions as being findings of fact made by him as a judge sitting without a jury. (at p142)

42. On that footing the findings in point of fact were -

(1) that the elder Nelson had been in continuous uninterrupted adverse and evident possession of the land for a period of twenty years and upwards prior to 25th October 1933. In so stating the finding I have followed the form adopted in the reasons for judgment though, it seems to me, that it was the estate of the late Annie Nelson which had really been in possession of the land by her executors during the period from the date of her death until the elder Nelson's death. Her estate was entitled to aggregate to that period the time the elder Nelson had been in possession prior to the conveyance of the land to his wife and the time she had been in possession between the date of that conveyance and her death. However, the

distinction is immaterial as the matter has turned out ;

(2) that the respondent Nelson had been in continuous uninterrupted adverse and evident possession of land the subject of his primary application between 26th October 1933 and 15th January 1954. (at p143)

43. There was a further "finding", the exact purport of which is not clear. In answer to questions included in the issues for trial whether the respondent Nelson was in adverse possession upon 18th or 28th January 1960, being the respective dates of the lodgment and relodgment by the appellants of their primary application, or upon the date when the respondent Nelson had lodged his caveat, his Honour answered to each question :

"The caveator was in possession in the sense that I have indicated in my judgment." (at p143)

44. There was evidence that the respondent Nelson was in actual possession on each of the three days ; but this was contested and it may be that his Honour's answers may mean no more than that the respondent Nelson is to be treated as having been in possession on those days because by that time he had acquired a possessory title to the land, a title which was complete at least by 15th January 1954. However, as will later appear, I find no need to resolve what precisely his Honour's answer did mean. (at p143)

45. The appellants have appealed to this Court from the decretal order which the Chief Judge in Equity made on 9th November 1964, the operative parts of which -

(a) dissolved the injunction granted on 16th June 1961 ; (b) declared that as between the appellants and the respondent Nelson, the appellants were the parties finally unsuccessful within the meaning of s. 27 of the Real Property Act ; and (c) restrained the Registrar-General perpetually from further proceeding with the appellants' primary application ; (d) restrained the appellants from lodging any caveat under the Act in respect of the primary application of the respondent Nelson.

This decretal order was numbered with the number given to the summons issued by the appellants under s. 121 of the Act, which was ordered by the decretal order to stand over generally. The order was entitled in the matter of an application by the appellants, and in the matter of the Real Property Act, 1900, and in the matter of a caveat lodged by the respondent Nelson. In the recitals of the decretal order it was said that the appellants and the respondent Nelson agreed that "this matter is a special case under s. 27 of the Real Property Act, 1900". It is from this decretal order, which must be treated as made upon a case stated for the opinion of the Court under s. 27, that the appellants appeal to this Court. (at p144)

46. They sought in the appeal to canvass and displace the findings of fact which, as I have indicated, can be spelled out of the reasons for judgment of the Chief Judge in Equity, and to contend that, upon the finding that the respondent Nelson acquired a possessory title after the death of the elder Nelson in 1933 being set aside, the respondent Nelson could not set up against the documentary title of the appellants the possessory title which had been acquired by the estate of the late Annie Nelson prior to 1933 because the respondent Nelson was not in possession either on the date of the appellants' primary application or at the date he lodged his caveat against the grant of that application. In this connexion, the appellants claimed that his Honour's answers to the questions as to the respondent Nelson's possession on those dates were not findings that he was then in actual possession but merely a statement of the consequence of the finding that the respondent Nelson had made out a possessory title complete before any of those dates. However, a difficulty arises in limine in the path of the appellants in their endeavour to upset his Honour's findings of fact. (at p144)

47. Due to the failure to pay attention to the basic procedures required by s. 27 of the Act and of relevant provisions of the Supreme Court Procedure Act, the conclusive nature of the findings of fact made by the Chief Judge in Equity has not been observed. The dual capacity in which the Chief Judge in Equity sat in dealing with the matter as a whole has assisted, it seems to me, to obscure this quality of his findings of fact. (at p144)

48. On the assumptions which I think will have to be made in this case, namely, that there was a case stated under s. 27 of the Act and that issues were settled and ordered to be tried, and that the parties did consent under s. 4 of the Supreme Court Procedure Act to a trial of those settled issues by a judge sitting without a jury, his Honour the Chief Judge in Equity sat as a judge at law to hear the evidence, and to decide the questions of fact. It seems to me he must be treated as having notionally followed the procedure which would be appropriate in a case where issues of fact arising in a proceeding in equity have been tried at law. That is to say, the findings of fact should be returned to the Court in Equity by means of a postea with the report of the trial judge thereon: see Chitty's Archbold, Queen's Bench Practice, 10th ed. (1858), pp. 858, 859. It seems to me that the provisions of the General Legal Procedure Act accord with this view. Having made the findings of fact and notionally returned them to the Court of Equity, his Honour then sat as the Supreme Court in Equity to give the opinion and direction of that Court upon the special case supposedly before it, being conclusively bound by the facts as found. For the purpose of deciding the matter, he then had power under s. 27, sub-s. (2), to make all such orders as he thought fit. (at p145)

49. But the validity of these conclusions is contested and it is necessary to examine the statutory provisions closely in order to substantiate them. (at p145)

50. The respondent challenges the right of the appellants to appeal at all to this Court and the appellants not merely claim to have an appeal as of right but to be entitled to canvass the findings of fact which form the basis of the decretal order. Therefore, the answers to two questions must be found. (at p145)

51. In the first place, have the appellants a right of appeal at all to this Court from the decretal order of 9th November 1964; and, secondly, if the appellants have a right of appeal to this Court, can they challenge in this Court the findings of fact which his Honour made in the trial of the issues of fact under s. 27? (at p145)

52. The decretal order was made by the Supreme Court in Equity in exercise of its powers, derived from a combination of s. 27 of the Act and s. 6 of the Supreme Court Procedure Act. These provisions, assisted so far as practice and procedure were concerned by s. 139 of the Act, enabled the Court to give its opinion and direction, binding on the contestants and on the Registrar-General, upon the case which must be supposed to have been stated, under s. 27. It was a final decree of the Supreme Court and it involved a claim to property in excess of the value of 1,500 pounds. The respondent Nelson had in fact contracted to sell and a purchaser to buy his interest in the land the subject of his application for a sum considerably in excess of the sum of 1,500 pounds. (at p145)

53. To say so much is to demonstrate that an appeal as of right could be brought to this Court from the decretal order. But during the argument it was suggested that as no judgment at law had been directed to be entered upon his Honour's findings of fact and as the making of the decretal order could not be regarded as a direction to enter judgment or as the entry of judgment under the Supreme Court Procedure Act, no judgment of the Supreme Court existed from which an appeal could be brought. (at p146)

54. But, in my opinion, judgment at law cannot be signed or directed to be entered upon the findings of fact made upon issues settled and ordered under s. 27 to be tried. In point of substance the purpose of obtaining the findings is to enable the Court which ordered the issues to be tried, whether in banc or in equity, to give its opinion and direction upon the case stated. In point of form, no judgment at law could be signed under s. 133 of the Common Law Procedure Act upon a postea on a trial by jury of such issues of fact. The only judgments which can be so signed are judgments for the recovery of money, land or goods. In my opinion, the same is true as to the judgment which can be directed to be entered under s. 5 (4) of the Supreme Court Procedure Act. In addition, the settled practice where an issue of fact has been ordered to be tried is for the postea to be returned to the Court which ordered the trial. (at p146)

55. It was submitted, however, that by reason of the amendments made to s. 5 of the Supreme Court Procedure Act by s. 11 of the Administration of Justice Act, 1924, any appropriate judgment, even a declaratory judgment, could be directed to be entered at law upon the findings of a judge sitting without a jury under s. 4 and presumably also under s. 3; in other words that those amendments had placed a judge sitting to try facts without a jury under the Supreme Court Procedure Act in the same position as, for example, a judge in equity hearing a suit. Support for this suggestion was sought in the observations of Isaacs A.C.J. in Hazeldell Ltd. v. The Commonwealth (1924) 34 CLR 442, at p 446 et seq and in the opinion expressed by Latham C.J. in Minister for the Army v. Parbury Henty &Co. (1945) 70 CLR 459, at p 486 . (at p146)

56. No doubt the amendments to s. 5, which were made by the Administration of Justice Act, 1924, were prompted by what Isaacs J. then said. But what the legislature chose to do is to be found not in the suggestions made by his Honour but in the words the legislature chose itself to use in the amending Act. If ambiguities in that language had emerged, no doubt some assistance in resolving them might have been obtained from a study of the remarks made by Isaacs A.C.J.; but, for my part, I find no ambiguity in the language of the amended section, and, consequently, derive no assistance myself in the understanding of the amended section from the judgment in Hazeldell's Case (1924) 34 CLR 442 . (at p146)

57. The most noticeable features of the amendments made in 1924 are that the legislature maintained, except to the extent it expressly provided otherwise, the status of the finding of a judge sitting without a jury as being the equivalent in all respects of the verdict of a jury, and that it fitted the amendments into the scheme of the Common Law Procedure Act. Judgment was not to be signed on the postea on the trial of issues of fact by a judge but it might be directed to be entered. When entered, it is to have the like force and effect as the signing of judgment (s. 5 (2)). No provision comparable with s. 10 (b) of the General Legal Procedure Act was inserted. No doubt the draftsman of the amendments was aware of the relationship of the General Legal Procedure Act to the trial of issues of fact in an action at law and realized that s. 10 of that Act would enable the making of appropriate orders upon the verdict or findings upon a feigned issue or in an action commenced under s. 12 of the General Legal Procedure Act. Where a statute enables issues of fact to be tried at law, it could be expected that the statute would provide for the consequences of the verdict or findings made upon that trial as indeed the Act by s. 27 actually does. (at p147)

58. The trial at law of issues of fact could formerly only take place in an action at law. Hence the need for feigned issues or procedure by writ of summons as provided by s. 12 of the General Legal Procedure Act. Both these courses were open to the Supreme Court in Equity as well as at law: see ss. 10 and 12. It may be that where a statute authorizes issues of fact to be settled and ordered to be tried at law, there is now no need to commence an action. The draftsman of the Supreme Court Procedure Act seems so to have conceived the matter in relation to the Real Property Act for he expressly provided for issues settled under that Act as if they would not arise in an action: see s. 4. But it would seem that the trial of all feigned issues, or issues arising under proceedings authorized by the General Legal Procedure Act would arise in an action and result in a postea. It is, in my opinion, clear that a judgment at law could not be signed upon every such postea. The case of issues settled under the Real Property Act is, in my opinion, quite clear. If, for example, settled issues under s. 27 of the Act have been tried by a jury, a judgment at law cannot be signed under s. 133 of the Common Law Procedure Act upon the jury's verdict. In my opinion, the same must be true of the findings of a judge sitting without a jury in the trial of such issues of fact. In each case the verdict or findings are remitted to the court which ordered the issues to be tried. The verdict or finding will become in that court part of the case stated upon which the opinion and direction of that court will then be given. (at p147)

59. In my opinion, therefore, no judgment at law could have been entered upon his Honour's findings of fact but a decretal order could be founded on them from which an appeal can be brought to this Court. (at p148)

60. There remains the second question as to what may be canvassed upon such an appeal. It is conceded by the appellants that if the findings of fact which his Honour made are not set aside, his Honour was not in error in making any of the orders or declarations which he did in fact make. The critical question, therefore, is whether his findings of fact may be reviewed by this Court in an appeal against the decretal order. In my opinion, they may not. (at p148)

61. Once it is perceived that his Honour sat under s. 4 of the Supreme Court Procedure Act in trying the facts of the matter and that no appeal was brought to the Supreme Court from his findings, if such an appeal were possible - a matter to which I return in a moment - it is, in my opinion, evident that his findings of fact are beyond challenge in the appeal to this Court from the decretal order. They are the equivalent in all respects of a verdict of a jury which would be incapable of review in this appeal, if the issues of fact had been tried by a jury. (at p148)

62. In an endeavour to deny this conclusion, it was submitted that if a judgment at law could not be directed to be entered upon the findings of a judge sitting without a jury, then no part of s. 5 applied. This was said to be derived from the qualifying words in s. 5 (1). It was submitted that these words ought to be read as meaning that unless such a judgment could be entered upon the findings so as to give a right of appeal under the section, sub-s. (1) did not apply; and that, therefore, the findings of the judge did not have the effect of a verdict of a jury. I am unable to agree with this construction. Indeed the argument is self-destructive; for if no provision is made elsewhere for the review of the findings of fact by a judge sitting without a jury pursuant to s. 4 - and there is none - to remove the findings from the operation of s. 5 will not make them reviewable. The judge in trying the issues of fact does not sit as the Supreme Court but only as a judge of the Court deriving his relevant authority from the Supreme Court Procedure Act. Also, findings which were not the equivalent of a verdict of a jury may not satisfy the terms of s. 27. (at p148)

63. The purpose of the opening words of s. 5 (1), in my opinion, was to accommodate the sub-section to the provisions thereafter made for the rehearing by the Supreme Court in banc of the issues of fact. The scheme of the remaining provisions of s. 5 is that a judgment may be directed to be entered; that an appeal may be brought to the Supreme Court in banc against that judgment, and that upon that appeal there will be a rehearing, the Supreme Court in banc having power to receive additional evidence which need not be fresh evidence within the rules relating to new trials. It seems to me therefore at best that unless judgment at law was entered and an appeal taken therefrom to the Supreme Court in banc, the findings of his Honour on the facts of the matter were not the findings of the Supreme Court and had the effect of a verdict of a jury in all respects, therefore they could not themselves be the basis of an appeal to this Court: see Musgrove v. McDonald (1905) 3 CLR 132 ; Nathoobhoy Ramdass v. Mooljee Madowdass (1840) 3 Moo PC 87 (13 ER 40) ; Tronson v. Dent (1853) 8 Moo PC 419 (14 ER 159) . Nor, in my opinion, could they be reviewed in an appeal brought against the decretal order made under s. 27 of the Act. They must be accepted as part of the stated case, conclusively supplying the relevant facts. (at p149)

64. Moreover, in the case of issues settled under that section and ordered to be tried, I am of opinion, as I have said, that no judgment at law could be directed to be entered upon them and that therefore no appeal could be brought even to the Supreme Court in banc in respect of the findings of fact on those issues made by a judge sitting without a jury under s. 4. There could be a motion to the Court which directed the trial of the issues for a new trial upon appropriate grounds. But that is all that could be done in respect of the findings: see Brown v. Hutchinson (1849) 13 QB 185 (116 ER 1234) ; Moseley v. Davies (1822) 11 Price 162 (147 ER 434) . Nothing in the General Legal Procedure Act, in my opinion, conflicts with that conclusion. (at p149)

65. In Minister for the Army v. Parbury Henty &Co. (1945) 70 CLR 459 the Court decided that s. 39 (2) (a) of the Judiciary Act 1903-1950 (Cth) did not preclude an appeal to the Supreme Court in banc under the Supreme Court Procedure Act from a judgment entered upon the findings of a judge sitting without a jury under that Act and exercising invested federal jurisdiction. This Court heard an appeal from the judgment of the Supreme Court in banc made in such an appeal against the entry of such a judgment. Thus the decision of this Court in that case does not bear on the instant case. (at p149)

66. In the course of expressing his opinion that the order of the trial judge in that case under s. 53 of the Supreme Court Procedure Act directing judgment to be entered was a judgment of the Supreme Court (see (1945) 70 CLR, at p 486 ), Latham C.J. appears to have regarded the findings of fact made by the trial judge as being themselves the subject of appeal to this Court when such an order had been made. But, if this is the proper understanding of his Honour's judgment, the expression of this opinion was obiter being unnecessary to the decision of that case and, with very great respect, for reasons I have already given I would find myself unable to accept it. (at p150)

67. In Simons v. Gale (1958) SR (NSW) 273 the Supreme Court held that an appeal would lie to the Privy Council from the judgment entered upon the findings of a judge sitting without a jury under the Supreme Court Procedure Act but did not decide whether or not the findings of fact upon which such judgment was directed to be entered could be reviewed on any such appeal. In the Privy Council in Simons v. Gale (1958) SR (NSW) 283 no question was raised or decided in this connexion. (at p150)

68. In my opinion, the result of the trial of issues of fact by a judge without a jury under the Supreme Court Procedure Act is that, unless judgment at law is entered upon them, the findings of fact by the judge are not reviewable. If judgment at law is directed to be entered upon them and an appeal is brought to the Supreme Court in banc against such judgment the findings of fact are completely reviewable by that Court. If an appeal is brought to this Court from the decision of the Supreme Court in banc given in an appeal from a judgment entered upon such findings, this Court may review the initial findings or any findings substituted for them by the Supreme Court in banc. But otherwise the findings of the trial judge cannot themselves form the basis of an appeal to this Court nor can they be reviewed by this Court in an appeal brought to it. It follows that the question of law which the appellants sought to raise as to the extent to which the respondent Nelson could challenge the appellants' documentary title, does not arise. (at p150)

69. I have throughout treated this matter as if a case had been stated by the appellant pursuant to s. 27 of the Act. The parties evidently so treated it, as apparently also did the Chief Judge in Equity (see the recitals of the decretal order). Although formally all the documents in the proceedings and the decretal order itself bore the number of the appellants' application under s. 121, the matter cannot, in my opinion, be regarded as having been throughout an application by the appellant under that section. Whilst the decretal order recites the presence of a representative of the Registrar-General, it is clear that he took no part in the contest which was regarded as one between the appellant as applicant and the respondent as caveator. Section 121 appears to contemplate the determination of questions arising between the Registrar-General and an applicant. It provides no means of adding any party to the application. Sub-section (3) does enable the court which is hearing the summons to direct an issue of fact to be tried and by resort to the provisions of the General Legal Procedure Act (s. 12 (1)), the court could provide for a defendant party upon the trial of such issue. Such a trial will not be by the court hearing the summons: it is not authorized itself to try the issues of fact. Although unlike s. 27 there is no express reference to a trial by a jury, it seems to me that that is the only way an issue of fact directed to be tried under s. 121 could be tried, unless the parties consented under s. 4 of the Supreme Court Procedure Act to the trial of those issues by a Judge of the Supreme Court without a jury. Thus, although I do not think the proceedings could be regarded as being under s. 121, even if they were so treated, the result in relevant respects so far as the findings of fact are concerned, would be the same as I have expressed in relation to the findings of fact upon issues tried pursuant to s. 27. (at p151)

70. The parties have been put to considerable expense in this case which might have been avoided had any attention been paid at the outset to basic procedures and to the distinction between the capacities in which his Honour sat in the hearing of the facts in the decision of the matter. However, the facts of the case were fully canvassed before us and it may be of some solace to the appellants to know that, in my opinion, there was not only ample evidence to justify his Honour's findings of fact but that, in my opinion, he reached the right conclusion. (at p151)

71. The appeal should be dismissed with costs. (at p151)

TAYLOR J. I agree, for the reasons given by the Chief Justice, that although an appeal lay to this Court from the decretal order of the Chief Judge in Equity, it is not in the nature of a rehearing and that it was not open to the appellant to seek a review of the facts found by his Honour to supplement the case which, in the circumstances, it must be assumed he had before him. Since it is conceded that there was evidence capable of supporting his Honour's findings the appeal should, I think, be dismissed. (at p151)

2. However, as the matter was fully argued I feel constrained to add that not only were his Honour's conclusions justifiable but they were in accordance with the views I have formed upon the evidence. (at p151)

MENZIES J. The respondent lodged a caveat against the appellants' application - No. 41371 - to bring under the provisions of the Real Property Act certain land, having an area of about twenty-eight acres and being part of the land known as "Killarney" on the shores of Middle Harbour. This application was based upon a documentary title. The respondent himself had earlier made a similar application - No. 38671 - based upon a possessory title. Some years earlier he had succeeded in having about three acres of "Killarney" brought under the provisions of the Act and a certificate of title had been issued to him based upon his adverse possession of that land. (at p152)

2. This appeal is from an order of the Supreme Court in Equity made on 9th November 1964, seemingly in proceedings arising out of application 41371 whereby -

(1) it was ordered that an injunction made on 16th June 1961, restraining the Registrar-General from bringing the land in question under the provisions of the Real Property Act, be dissolved; (2) it was declared that, as between the appellants and the respondent, the appellants were the parties finally unsuccessful within the meaning of s. 27 of the Real Property Act, 1900 in respect of application No. 41371; (3) it was further ordered that the Registrar be restrained from further proceeding with application 41371; and (4) it was further ordered that the appellants be restrained from lodging any caveat in respect of application 38671.

This order records that the appellants and the respondent agreed that the matter before the Court was a special case under s. 27 of the Real Property Act, 1900. (at p152)

3. The circumstances in which the order was made are set out in detail in the judgment of the Chief Justice and I share his opinion that, despite what was agreed, there was in strictness no special case under s. 27 of the Real Property Act before the Supreme Court. I also agree that, although it is apparent that there were facts in contest between the appellants and the respondent, no issues of fact were settled as is required by s. 27. Furthermore, it appears that the learned Chief Judge in Equity, who heard the matter, did not direct judgment to be entered as s. 5 of the Supreme Court Procedure Act requires in proceedings where issues of fact which have been settled are tried by a judge without a jury. His Honour did no more than make the order to which I have already referred. It may be that when at the hearing of this appeal it became apparent that the proceedings before the Chief Judge in Equity had been fundamentally irregular, we should have declined to continue with the hearing of the appeal upon the merits and have simply treated the order appealed against as one made without authority. However, the parties were anxious to have the merits determined, and I cannot now escape from the conclusion that in the circumstances there is but one course to be followed. It is (a) to treat the order appealed against as though it were one made by the Supreme Court in a matter under s. 27 of the Real Property Act where there was a special case for the opinion and direction of the Court upon a matter consisting of the assertion by the caveator of an interest adverse to the appellants' application to bring the land under the Act; (b) to assume that the Court did, at some stage and in some fashion, direct issues, which can now be spelt out, to be tried; (c) to regard those issues as tried by a judge without a jury pursuant to the Supreme Court Procedure Act, s. 5; and (d) to treat the order from which this appeal has been brought as based upon a determination of those issues and as one finally disposing of the whole matter before the Court. On this footing, the order appealed from is an order of the Supreme Court appealable in this Court by virtue of s. 73 of the Constitution. (at p153)

4. It was argued, however, that the appeal which lies to this Court from the order of the Supreme Court is not the usual full appeal because, although the issues were tried by a judge without a jury (Supreme Court Procedure Act, s. 4), the judge who tried the issues could do no more than reach a verdict or finding having "like force and effect in all respects as the verdict or finding of a jury" (Supreme Court Procedure Act, s.5). It was said, as a consequence, that the authority of Musgrove v. McDonald (1905) 3 CLR 132 ; The King v. Snow (1915) 20 CLR 315 and The Commonwealth v. Brisbane Milling Co. Ltd. (1916) 21 CLR 559 prevents this Court from considering the correctness, as distinct from the reasonableness, of those determinations falling within the description of the learned judge's "verdict or finding", notwithstanding that the order appealed from was based upon those determinations made by a judge of the Supreme Court in the exercise of his judicial power. To support this contention, reliance was placed upon the judgment of Isaacs A.C.J. in Hazeldell Ltd. v. The Commonwealth (1924) 34 CLR 442 . (at p153)

5. I do not regard this as an appropriate case in which to come to a final conclusion upon what seems to me to be a contention involving a very important constitutional question which affects the constitutional powers of this Court and therefore of the Commonwealth. The point arose in the course of argument before a court consisting of but three justices, and the case can be decided upon other grounds. My present inclination, however, is against accepting the contention which would limit us to deciding whether or not there was evidence to support the findings which were made, because I do not think it is within the legislative competence of a State, by an enactment such as s. 5 of the Supreme Court Procedure Act, to determine the character of the appeal to this Court which has been given by the Constitution from any judgment, decree, order or sentence of the Supreme Court of a State. I regard it as fundamental that in an appeal from a judgment or order, any act of the Court upon which that judgment or order is based is examinable by this Court to determine its correctness. The correctness of a verdict of a jury is, of course, a different matter for, as was said by Barton J. in The Commonwealth v. Brisbane Milling Co. Ltd. (1916) 21 CLR 559:

"It will be observed that the notice of appeal in the present case deals only with the verdict. At the time it was filed judgment had not been signed. As my learned brother Higgins observed in R. v. Snow (1915) 20 CLR, at p 355 , 'one cannot appeal from a verdict, which is the act of a jury; one can only, under s. 73 of the

Constitution, appeal from the judgment, &., of a Court'.

But if judgment had been signed before the filing of the notice and the notice had in form appealed from the judgment as well as the verdict, it would have been useless to impeach the judgment if the verdict on which it was merely consequent must stand" (1916) 21 CLR, at p 567

It does not follow, however, that, for the purposes of appeals to this Court, State law can give part of the decision of the Supreme Court the character of the verdict of a jury so that, upon appeal under s. 73 of the Constitution, it must stand unless it is found to be unsupported by evidence or otherwise unreasonable. Nor, as at present advised, do I consider that Hazeldell's Case (1924) 34 CLR 442 governs the question. There, a judge of the Supreme Court of New South Wales had, pursuant to s. 5 of the Supreme Court Procedure Act, assessed the value of land compulsorily acquired by the Commonwealth at 12,500 pounds. The Full Court had set aside this "verdict" as unreasonable and had ordered a new trial. It could do no more. The appeal to the High Court from this order of the Full Court was allowed. The point of the protest made by Isaacs A.C.J. was that the Supreme Court Procedure Act did not allow the Full Court of the Supreme Court to do any more than decide whether the "verdict" was unreasonable. The question with which we are here concerned did not arise because, upon the appeal there, the only question was whether the Full Court was correct in deciding that the assessment was unreasonable. Moreover, following the protest made by Isaacs A.C.J. amendments were made to the Supreme Court Procedure Act in 1924 and it is clear that now this Court could, in a case such as Hazeldell's Case (1924) 34 CLR 442 , consider the correctness of the verdict and not merely its unreasonableness simply because it is now within the competence of the Full Court to do so. The difference made by the 1924 amendments in relation to appeals to this Court was adverted to by Latham C.J. in Minister for the Army v. Parbury Henty &Co. (1945) 70 CLR 459, at pp 486, 487 . (at p155)

6. I have said enough to indicate my unwillingness to decide unnecessarily what seems to me to be a real constitutional question involving the powers of this Court in determining an appeal from the Supreme Court of a State and also involving a determination of the character and effect of s. 5 of the Supreme Court Procedure Act. These important and difficult questions do not have to be decided in order to determine this appeal because, even if the appeal which we are considering is a full appeal upon which this Court should examine the correctness of the findings upon which the order appealed from was based, I consider that the appeal ought to be dismissed. In short, I agree with the other members of the Court, for the reasons which they give, that the appellants have not shown that the order appealed from was wrong. The attempt to do so rested ultimately upon the contention that the land in question was at all relevant times so physically separated by topographical features from the three acres of land which formed that part of "Killarney" to which the respondent did in 1956 obtain a certificate of title, that possession of those three acres did not evidence possession of the whole of "Killarney". This fundamental contention has not, however, been made out and the evidence did, I think, show that the respondent has been in possession of the land as a whole. Accordingly, I agree that the appeal should be dismissed. (at p155)

Orders

Appeal dismissed with costs.