Wratislaw v Beard

[1991] HCATrans 164

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B8 of 1991

B e t w e e n -

BARBARA JOYCE WRATISLAW

Applicant

and

JOHN DAVID BEARD, KENNETH

JAMES EUSTACE, MAXWELL JAMES

MEAD and CLIVE ALLERT

Respondents

Application for special

leave to appeal

BRENNAN J
TOOHEY J

GAUDRON J

Wratislaw 1 27/6/91

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 27 JUNE 1991, AT 10.08 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend MR B.J. CLARKE, for the

applicant. (instructed by Morrow & Co)

MR J.W. GREENWOOD, QC:  May it please the Court, I appear

with my learned friend, MR C.J. CARRIGAN, for the

respondents. (instructed by Maxwell Mead & Young)

BRENNAN J:	Mr Jackson.
MR JACKSON:	Your Honour, before I proceed to the argument,

may I mention that a further short affidavit which

our solicitor had sworn on the matter is one which

I would seek to place before the Court. It was not

able to be filed in the Registry because of

lateness of it and, of course, notice has been

given. Could I hand to the Court copies of it?

BRENNAN J:  What is your attitude to the production of this affidavit, Mr Greenwood?

MR GREENWOOD:  We have no objection, Your Honour. We have

seen it.

BRENNAN J:  What is the purpose of this affidavit,

Mr Jackson?

MR JACKSON:  Your Honour, it simply provides a basis to one

of the grounds that I propose to argue in relation

to the matter and it simply indicates what the

nature of the ground is.	Your Honour, I propose to
move immediately to it.

BRENNAN J: Yes, very well.

MR JACKSON:  Your Honour, could I say this case, in our

submission, gives rise to three points. Two of

them are of sufficient general importance, we would

submit, to merit the grant of special leave. The

third, and it is the matter the subject of that

affidavit, does not give rise to an issue of

general importance but relates to the particular

case, and it is, Your Honours, that the majority in

the Full Court, in our submission, proceeded upon a

basis which did not give any weight to a finding

made by the primary judge, a finding based on his

perception of oral evidence, as to the agreed

subject-matter of the contract.

Your Honours, may I deal first with that

issue and then proceed to the others?

Your Honours, the case concerned the entitlements of the parties, under a contract, for the sale of property which was a Crown leasehold, a pastoral

holding, which was then in the course of conversion

to a grazing perpetual homestead lease.

Wratislaw 2 27/6/91

By the time the contract was executed,

however, all parties were aware of the steps

being taken by the defendant toward renewal of
the lease, and its proposed conversion to

grazing perpetual homestead lease.

Your Honours, that appears at page 29,

lines 20 to 30, in the judgment of

Mr Justice McPherson.	May I take Your Honours to
that.	The page numbers are at the top-right
corner.	Your Honours will see His Honour's
reference in that passage.	Your Honours, there

were some findings of fact by the trial judge on

the question of the subject-matter of the contract,

which were of, in our submission, critical

importance in the case and, Your Honours, it will

take me just a moment but may I go to them? There

are four passages to which I wish to refer, each of

them is relatively short. The first is at page 8,

commencing at about line 21, and the passage goes through to page 9, line 16. Now, in that passage

His Honour is referring to some of the oral

evidence and, may I say, Your Honours, in

identifying the persons involved, Mr Beard was one

of the purchasers, one of the respondents; Mr Eddy,

referred to at line 55, was the vendor, the

applicant's agent; Mr Mead was one of the

purchasers, one of the respondents and also

solicitor for the purchasers. Your Honours will

see, in particular, in the passage commencing at

page 8, about line 60, going through to page 9,

about line 16, that His Honour records his view of

the essence of the evidence of those two gentlemen

in relation to the subject-matter of the contract.

Could I move from that, Your Honours, to page - - -

BRENNAN J:  I do not quite understand the way in which the

argument is running, Mr Jackson.

MR JACKSON:	I am sorry, Your Honour.
BRENNAN J: There was no application for rectification of

the contract, was there?

MR JACKSON:	No.
BRENNAN J:	So we are concerned simply with the question of construction?

MR JACKSON:  No, with respect, Your Honour. It is a

question of - Your Honour, one could always adduce

evidence to show what was meant, what was

contemplated by the contract, what subject-matter -

if there were two black acres which is the one

referred to - but one could identify what the

subject-matter of the contract was .. Now,

Your Honour, the point I am getting to - I am

Wratislaw 27/6/91

sorry, I am doing it a little obliquely - is this,

that the subject-matter of the contract was found

by the primary judge to be the lease which had then

existed, together with, at it were, the bundle of

rights in relation to the conversion of it to the

new type of lease. He found, in effect, that the

purchasers agreed to buy, the vendor agreed to sell

whatever was the then state of the lease in the

course of conversion.	Your Honour,	I am
putting - - -

BRENNAN J:	Did he arrive at that conclusion as a process of construction of the instrument?
MR JACKSON:	Your Honour, he arrived at it by a combination

of two ways, if I can put it this way. It was
apparent that at the time when the contract was

entered into the parties were buying and selling

something. The parties knew that what they were

selling and buying respectively was a pastoral lease, but a pastoral lease which had been, in

effect, surrendered prior to that with a view to

obtaining a lease in substitution for it, and it

was that, if I can put it somewhat inelegantly,

that they were buying. Now, he arrived at that

conclusion first by looking at the term - the

description in the contract, that is, "pastoral

lease as identified", but then, looking at what the

parties meant by that term, identifying in effect

the subject-matter of the contract, and identified
it as being the pastoral lease in the course of

conversion and - - -

BRENNAN J:  I do not understand that term, perhaps you could explain it.

MR JACKSON: Perhaps I can take Your Honour to what

His Honour said about it. It will appear in, I think, the third of the passages to which I am

about to refer.	May I take Your Honours through it
in this order?

TOOHEY J: Just before you embark on that process,

Mr Jackson, it may be a convenient starting point

of the finding which, as I understand from the

supplementary affidavit, is referred to in

subparagraph 3(a). Now, is that the trial judge's

finding as to the subject-matter of the contract?

MR JACKSON:	Yes, Your Honour.
TOOHEY J:	And it is the Full Court's interference with that

finding of which you complain?

MR JACKSON:  Yes, Your Honour. When one says

"interference", perhaps it is, in fact, the lack of

interference that is the ground of complaint in a

Wratislaw 4 27/6/91

sense. What I mean by that is that that was a

finding which would have the consequence, if it

remained in operation, in our submission, that the

entitlement of the purchaser at the time for

completion was to take, in effect, whatever there

then was. If that finding were set aside then
there was then the basis for saying that the

entitlement of the purchaser was to have a

document, an instrument of lease, of one kind or

another. But unless that finding was set aside the

position was that the purchaser was entitled to

receive, the vendor required to give only what
there was to give at the time then fixed for

settlement, Your Honour, so that - - -

TOOHEY J:	But on either view of the matter, or on one or other view, are we not being asked to grant special
leave in respect of the construction of a contract peculiar to these parties, or to consider the manner by which the Full Court arrived at findings of fact, different from those reached by the trial
judge?
MR JACKSON:	Your Honour, on this point I entirely accept

that the point - Your Honour, I thought, with

respect, I had said that, that this point does not

involve a question of general principle. What we

are saying in relation to this point is that the,

if I could use the expression in section 35(a), the

interests of the administration of justice in the

particular case case would require it, and I make

that submission on the basis that for no very good

reason an error occurred in the Full Court and what

the Full Court did was not to apply a finding of

fact as to the subject-matter of the contract made

by the judge after hearing oral evidence and that

finding seems not to have been adopted or set aside

by the Full Court. The Full Court had really -

there was no choice - nowhere in between really -

and either had to accept it or set it

aside.

GAUDRON J: Well they set it aside.
MR JACKSON:	No, they did not, Your Honour.

GAUDRON J: Well, they did not do so expressly, but the

tenor of the majority reasoning was that that
finding just did not sit with the provisions of
clause 2 - could not sit with the provisions of

clause 2, and when clause 2 was properly construed

it led to one result, or it led to a result which

was inconsistent with that finding.

MR JACKSON: But, Your Honour, what was involved in that was

to say clause 2 is a provision which has an

Wratislaw 27/6/91

operation purely according to its terms; one

accepts that. But what there was was a situation

where the property to which clause 2 applied was

property which, on the finding by the primary

judge, might or might not be in a position where

there was an instrument of lease which could be

handed over at settlement. So clause 2 had an

operation which was, in relation to the

circumstances, ambulatory.

Now, Your Honour, once one takes that

position, it is to elevate the condition of

condition 2 of the contract above the finding as to

the subject-matter of the contract, and to set that

aside for no very good reason. Your Honour, I am

sorry, not to set it aside, but clause 2 operated

perfectly well within the terms of the finding as

to subject-matter made by the judge. What the

Full Court did was, in effect, to disregard that finding, not set it aside, but say, "Assuming

everything, clause 2 operated." Well, of course

clause 2 operated, but the subject-matter upon
which clause 2 operated depended on the nature of

the contract.

BRENNAN J:  I am afraid the problem I am having, Mr Jackson,

is your basic proposition that there was a finding

of fact as to the subject-matter of the contract.

MR JACKSON: Your Honour, I am sorry. There was,

Your Honour, and may I proceed - - -

BRENNAN J: 

I see that the trial judge purported to express

himself in those terms, but to elevate what he said
there to the situation of a relevant finding of
fact seems to me to be inconsistent with the notion

of construction of a contract.

MR JACKSON: 

Your Honour, there is no doubt that once one

identities what the contract is, the contract is

then construed, but the anterior question is, "What

is the contract?" and - - -

BRENNAN J:  No, the anterior question is, "What is the

meaning of the terms which are used in the

instrument?"

MR JACKSON: .. Your Honour, I am sorry, I accept the way

Your Honour puts it to me. But in determining what

the terms of the instrument mean, one is entitled

to look to evidence dehors the contract to identify

what is meant by "pastoral holding" whatever it is

called. Now, Your Honour, in determining that

question, "What is the subject-matter of the

contract?", one is entitled to look to oral

evidence. Now the oral evidence to which

His Honour made reference is that to which I

Wratislaw 6 27/6/91

referred at pages 8 and 9. Now, His Honour then,

having done that, proceeded to make a finding

which, of its nature, was a finding as to fact

about the subject-matter of the contract, meaning

by that, what, in the circumstances contemplated by

the parties, was meant by the term to which I

referred a moment ago. Having done that the

finding as to the subject-matter then became, if I can put it this way, part of the contract, and one

had to look at clause 2 in that context, not, as

the Full Court did, to look at clause 2 and then

proceed to do anything else.

TOOHEY J:  Mr Jackson, it seems to me there is some

difficulty in erecting this aspect of the matter

into a special leave point, even focusing upon

administration of justice in the particular case.

You have a contract which neither side contended was invalid. There was some dispute as to its

construction. You have a purchaser who was

prepared, apparently, to complete; delays that were
brought about by problems with the mechanics

connected with the issue of a lease, and then a

termination by the vendor. Where is the

administration of justice in the particular case?

MR JACKSON:  In this way, Your Honour: if what the vendor

was prepared to give at settlement and was ready to
give at settlement was exactly what she was
required to give at settlement, and if what the

Full Court has done has been to say, "Well we take

an entirely different view, and we taken an

entirely view because we·. disregard", and I do not

mean that in any way offensively, "a finding made

by the judge as to the core obligation of the

contract", then, Your Honour, that means that the

case has not been determined in the Full Court

according to the basic findings made by the primary

judge, and Your Honour, that is the administration

of justice.

I do not suggest for a moment that every time

that happens the Court has to give special leave,

and not every time it happens people apply for

special leave, but when the error of that kind

occurs in the Full Court, one does not have much
choice about where to go and, Your Honours, it is

something that, in our submission, should militate

in favour of the grant of special leave where it

occurs.

Your Honours, I could develop that point

further, but perhaps I could just give Your Honours
the other references in that regard.

Wratislaw 7 27/6/91

BRENNAN J: Is this correct, that paragraph 3(a) of the

affidavit identifies the point that you wish to

make in this regard?

MR JACKSON:  Yes, Your Honour, and the primary judge,

consistently with the view that he took of the
contract, held that the applicant did all that she

was required to do at the agreed time for

settlement. That is at page 19, Your Honours,

line 44, and going through to page 21, line 65. Your Honour will see, for example, reflected at

page 21, between lines 25 and 45, the finding which

he made about the subject-matter of the contract.

I say "reflected", Your Honour, because the finding

itself had earlier been made, and it appears at

page 14, lines 10 to 24.

Your Honours, that finding was not set aside

in the Full Court and if the subject-matter of the

contract was such rights as the applicant had, then

clause 2 of the contract had to be read in that

light. There was no basis on which to disregard

the finding and it went to the core of the case.

Your Honour, perhaps I might move from the

second basis on which we would seek to obtain

special leave.

BRENNAN J:  Mr Jackson, is the contract, as whole, set out

anywhere in the appeal book?

MR JACKSON:  Yes it is, and it is page 98. You will see the

reference to "pastoral" -holding, about line 27 on

page 98. ·

BRENNAN J:  The question that you have thus far agitated is

whether or not the description of the property sold

that appears at page 98 is to be understood in the

terms in which the trial judge found it as set out

in paragraph 3(a) of the affidavit?

MR JACKSON:  Yes, and, Your Honour, if one accepts that

finding then what His Honour says as to the

operation of clause 2 is plainly correct, in our

submission, and that appears in the passage at

page 19.

BRENNAN J: If one translates what is in paragraph 3(a) of

the affidavit on to page 98, then you construe

clause 2 accordingly?

MR JACKSON: 

Yes, Your Honour.

TOOHEY J: 

Is there any problem with the construction of

clause 2 that does not stem from the difficulty
associated with the identification of the
subject-matter of the contract?

Wratislaw 

27/6/91

MR JACKSON: Well, Your Honour, yes, there is. What I mean

by that is that if one is left in a situation where the point to which I have just referred does not go

any further, well then the situation which then

arises is that there are two further questions, the

first of which I was about to come to, and that is

what the obligations of the parties were in

circumstances such as this, and that is a question not peculiar to this contract but it is one which,

on the evidence, would arise relatively frequently,

or perhaps I should say, not infrequently.

TOOHEY J: But it is not a question, as you put it, of the

operation of clause 2 generally, but of its

application to a fact situation comparable to this

one.

MR JACKSON: Well, to fact situations comparable to this

one, and by that I mean to circumstances where one

has, in relation to Crown leasehold, changes in the

nature of the tenure. I do not suggest it

happens 10 times a day, but according to the - as

Your Honours will see from the affidavit in support

of the application, it is an issue that arises not

infrequently, as it were.

TOOHEY J: But it is a matter which, in that situation, you

might expect the parties to cover by the terms of

the contract, might you not? That is, where there

may be some delay in the conversion process or in

the issue of a formal lease?

MR JACKSON: Yes, what Your Honour says is always right in

respect of every point that can arise that is based

on particular documents. However, Your Honour,

there are thing that, of course - may I say two

things about it: the first is that what one has

are dealings that occur in relation to Crown

leasehold throughout Queensland in circumstances

where a form - and Your Honour, notwithstanding

what was said by Mr Justice Moynihan, the evidence

is - in an aside at the start of his judgment -

that they are - at least, this is a common form use

of these transactions, but what one sees is that

the common form is likely to continue to be used.

It would be difficult perhaps to frame something

that-it might cover all the possible cases, and the

second thing is that there are events which can

occur over which the parties have no control and

that is referred to, for example, in the affidavit

where there has been a freeze placed on these types

of transactions by the government, of some kind.

BRENNAN J:  Now, Mr Jackson, are the two general special

leave points that you wish to agitate founded on

your construction of the contract based upon

paragraph 3(a)?

Wratislaw 9 27/6/91

MR JACKSON:  No, Your Honour.

BRENNAN J: Very well then, perhaps we can go on to those.

MR JACKSON: Your Honour, the first of those points is the

one on which there was a difference of view in the

Full Court. Your Honours, the essence of the point

is whether the obligation of the vendor, in

circumstances where a change of holding is being
processed, is to take all reasonable steps to

procure the issue of the new lease or, as the

majority said, the obligation was, in effect, to

procure the lease.

GAUDRON J: But that really does depend on the

subject-matter of it. It does depend - - -

MR JACKSON:  Only in the sense, Your Honour, that one

necessarily is talking about circumstances where a

lease is in the course of conversion. Your Honour,

I accept that if one is talking about that kind of

case. The question otherwise would not arise.

Your Honour, in relation to it, the position was

that without default the applicant had not been
able to obtain the new lease by the agreed time for
settlement and the question is whether, in those

circumstances, she was entitled to bring the

contract to an end.

Now, Your Honours, the view that she was

entitled to do so was a view taken by the minority,

that is by Mr Justice Derrington. The majority was

of the view that that was not the

obligation. Your Honours, if I could go first to

Mr Justice Derrington, at page 50, line 9 - - -

TOOHEY J: Just before you do - sorry, Mr Jackson - could

you just tell me this: did the applicant determine

the contract by reason of default, or by reason of
the contract having come to an end?

MR JACKSON:  Your Honour, she purported to bring it to an

end by reason of default on the part of the other

side. However, that course - that was not

persisted in, as it were, at the trial. She did

not, for example, at the trial, seek to forfeit the

deposit, but agreed to pay back - but her case at

the_trial was really based on a notion similar to

that to which I have just referred, and that was

the form of relief that she obtained.

TOOHEY J:  And yet, in terms, the termination was expressed

to be reason of the purchasers' default, was it

not?

MR JACKSON: Yes. But, Your Honour, of course, as happens

so often in contract cases, the issue is one - the

Wratislaw 10 27/6/91

bringing the contract to an end is justified on

bases other than perhaps the precise one on which

there was reliance.

TOOHEY J: Well, I was thinking more generally in this

situation where the purchasers are not saying, "We

are not going to complete", they are saying, "We

are ready to complete as soon as we have a lease".

MR JACKSON:  Yes. Your Honour, could I just say, in

relation to that, the question which arises

however, is what was the nature of her obligation?

And if her obligation was to take all reasonable steps to procure the granting of a new lease, and if she had done that, then whilst the purchasers

might say, as often and as loudly as they like,

"We would like to complete", a point had been

reached where she was entitled to say, "Well I will

bring the contract to an end". It is not a right

that you - - -

GAUDRON J:  I must say, for my part, I do not see any

distinction between what you say is this argument

and your first argument. The nature of her

obligation can only be the consequence of

identifying the subject-matter in one way or

another.

MR JACKSON: Yes, Your Honour. I accept that that gives

rise to the nature of the obligation. What I am

saying, however, is that if one proceeds on the

basis that she had to do something, in

circumstances where the.parties knew that there was

an existing, as it were, pastoral lease, but one

that was in the course of conversion and whilst

that was what was being bought, what the primary

judge said was that in consequence of that, what

they were buying was the bundle of rights. The

different situation which obtains is that the minority judge in the Full Court said, in our

submission, correctly, that they were buying, true

to say, the existing lease, and they were buying
the rights to a grazing lease in the future, but

so far as that was concerned, her obligation in

relation to completion of it was to take all reasonable steps to try to get the new lease

produced, or in being, by the time of settlement,
and- if she did not to that, then she was not in

breach, and her right was then to bring the

contract to an end.	So it is different,
Your Honour.

GAUDRON J: But he said it in various ways, but, in essence,

what he said was, it was a conditional contract.

MR JACKSON: Well, Your Honour, one can describe it in that

way, I suppose, yes.

Wratislaw 11 27/6/91

BRENNAN J:	Mr Jackson, what are you two special leave points? Could you identify those?
MR JACKSON:	Your Honour, the first point is the one to

which I have just referred, and that is the

question whether, in circumstances where a change
of holding was being processed and where the
standard form of contract is used, then the

obligation is to produce the new lease or the obligation is to take all reasonable steps to

procure its issue, and if one cannot procure its
issue, then, is one entitled to bring the contract
to an end because of that? That is the first

point, Your Honour.

The second point concerns the obligations of the parties at settlement.	Your Honours, it will
take me just a moment to say what it is.	One of

the views taken by the majority in the Full Court

was that the obligation to complete might have been

satisfied by producing, for example, the first

lease. They said it was on one assumption. If

that were the case, the position which would then

arise would be that we would have been in breach by

not producing the original pastoral lease. We

could not produce it because it was in the relevant

office and held there.

On the other hand, the basis upon which

settlement was denied, as it were, by the
purchasers, was not on the basis that we were not

able to produce the first lease but, rather, on the

basis that we were not able to produce the new

lease. So, they too, the submission would go, were

both in breach, in effect. The question which

would then arise is that which was raised by

Your Honour - - -

BRENNAN J:	Why was the purchaser in breach?
MR JACKSON: Because, Your Honour, the two obligations were

interdependent obligations. The purchaser did not

complete and did not attempt to complete because it

said, "You have not produced the new lease", or

"You cannot produce the new lease." If the true

situation was that the obligation was to produce

the old lease, that was a basis of refusing to

settle which was never taken and they were in

breach by not settling, or not attempting to settle

on the true basis.

Now, Your Honours, that would leave a

situation then where both parties were in breach in

relation to the obligation at settlement, and the

question which would then arise was that mentioned

by Your Honour Justice Gaudron and by Justice Deane

in Foran v Wight, namely whether each party was to

Wratislaw 12 27/6/91

have an entitlement to bring the contract to an end

because of that breach. That is the point,

Your Honour, but I have to say that it is

conditional, in a sense, that if the true view be

that the obligation was to produce the old lease on

settlement.

GAUDRON J: But how can the purchaser be in breach of this

line of argument when the vendor produced nothing?

On any view, the vendor was going to produce

neither the pastoral lease nor the homestead lease.

MR JACKSON:  Your Honour, the refusal to settle on the part

of the purchaser was not on the basis that the

vendor had not produced, or was not able to

produce, the pastoral lease.

GAUDRON J: But the purchaser's breach is not in assigning

the wrong reason. The purchaser's breach, if it

occurred, was in failing to tender what was
necessary from, we will say, his part, for

settlement. But that obligation only arose at a

time when the vendor tendered - and it does not

matter which - one or other of the documents.

MR JACKSON: With respect, Your Honour, we would submit that

is not correct. This is a contract where time was

of the essence and this was the agreed day for

settlement. Each party had an obligation. The

obligations were interdependent: ours to hand

over, as much as their's to produce

contemporaneously the money. Now, by, on this

assumption, not producing the pastoral lease,

certainly we are in breach, but by not producing

the money, equally they are in breach.

GAUDRON J: But is it a question of not producing the money?

It is not that question at all.

MR JACKSON:	Your Honour, that was what happened.
GAUDRON J: They were relieved of that obligation, were they

not, to the extent that you did not tender the

documents, either of them?

MR JACKSON: Equally, Your Honour, one might say we were

relieved from tendering the documents because they

did not produce the money, they did not turn up to

produce the money, and we were insisting on them

attending for settlement - they did not, and the
reason they gave, on this assumption, was not that

we were not able to produce the pastoral holding

lease, but that we were not able to the grazing,

et cetera, lease then issµe.

GAUDRON J:  Does that deny a breach by the vendor?

Wratislaw	13	27/6/91
MR JACKSON:	No it does not.	It accepts a breach by both,

and the question then arises, Your Honour, assuming

breach by - contemporaneous, as it were - both,

what were the obligations of the parties? We would

submit that the result is that the parties were

able to, in effect, walk away, and that,

Your Honour, the question of the rights and

obligation of the parties in those circumstances,

is one of importance. Does the contract, to use

Justice Deane's words, hang "albatross-like" around

the neck of the parties?

GAUDRON J:  You do not put it on the basis of entitlement to specific performance, as such?

MR JACKSON:  No, your Honour. What we say is that in

circumstances where both parties are in breach at

the same time - - -

GAUDRON J: Yes. I could understand it if you said, neither

party was in breach, and indeed, there is some difficulty in saying that both parties were in

breach in circumstances where, there being no

tender, there is no precise and immediate

obligation.

MR JACKSON: Well, Your Honour, could I just say, in

relation to that, it may be that as a matter of

ultimate legal classification, in circumstances

such as those which one is assuming, that it is not

right to describe it as both parties being in

breach. It may be that because the obligations are interdependent that the true analysis is that

neither party is in _breach, but whatever be - - -

GAUDRON J:  Now that, of course, takes you straight back to

your subject-matter.

MR JACKSON:  Your Honour, could I say one thing before I go

straight back there and that is this: whether the

right classification of it be both in breach or

neither in breach, the ultimate question is "What

are the entitlements of the parties in consequence

to that?", and that, Your Honours, in our

submission, is a question of importance.

GAUDRON J: This is an issue that obviously loomed so

largely in the courts below that it was not

mentioned in the judgments.

MR JACKSON: Well, that may well be because of the approach

taken by the court. But it is a question which

does arise, Your Honour.

GAUDRON J:  Was it really argued below?

Wratislaw	14	27/6/91
MR JACKSON:	Yes, it was.	Your Honour, those are the

submissions I wish to make in relation to the

matter.

BRENNAN J:  We need not trouble you, Mr Greenwood.

MR GREENWOOD: If the Court pleases.

BRENNAN J:  The argument founded on the construction of

clause 2 in a case where a pastoral lease is in the course of conversion, raises no question of general

importance justifying the grant of special leave.

The argument as to the right of the parties each to

terminate the contract turns on the question of
construction and cannot by itself justify the grant
of special leave. We see no substance in the

argument that there has been a miscarriage of

justice, a ground justifying the grant of special

leave, and accordingly special leave is refused.

MR GREENWOOD:  I ask for costs, if the Court pleases.

MR JACKSON: There is nothing I can say to in relation to

it, Your Honour.

BRENNAN J: It is refused with costs.

AT 10.47 AM THE MATTER WAS ADJOURNED SINE DIE

Wratislaw 15 27/6/91