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Minister of State for the Interior v R T Co Pty Ltd [1962] HCA 29; (1962) 107 CLR 1 (19 June 1962)

CATCHWORDS

HEARING

DECISION

2. The personal defendant was at all material times the governing director of the defendant R.T. Company Proprietary Limited, a director of the defendant Radioprogram Proprietary Limited and the governing director of the defendant Radio City Proprietary Limited and the evidence shows that he controlled and directed the related business policies and activities of these companies. Their activities appear to have been so interrelated that the Commonwealth found it difficult at the time when the suit was commenced to ascertain whether possession of the basement had been retained jointly by all four defendants or by some one or more of them only. But upon the hearing it emerged quite clearly that the defendant Radio City Proprietary Limited was during the whole of the relevant period in receipt of the rents and profits of the basement it having purported to lease those premises to the defendant R.T. Company Proprietary Limited. This latter company, in turn, occupied part of the basement and sublet the remainder to different tenants from time to time. Ultimately these facts were not in dispute though, on behalf of the defendants, some point was made of the fact that a considerable portion of the basement was occupied by substantial printing machinery. It appeared that this machinery was owned by another company, Australian Cricketer Proprietary Limited, and this company, again, was a company under the control and direction of the defendant Drysdale. But it further appeared that this company had leased the machinery to the defendant R.T. Company Proprietary Limited and that it was used by the latter company in the course of its printing activities. (at p4)

3. Since there was no evidence to support the various allegations that the defendants Drysdale and Radioprogram Proprietary Limited were in possession or joint possession of the basement or in receipt of the rents and profits thereof at any relevant time I intimated at the conclusion of the hearing that they would be dismissed from the suit. There was no opposition to the dismissal of Radioprogram Proprietary Limited but the plaintiff applied to amend the statement of claim by alleging a new cause of action against the defendant Drysdale. I was inclined to think that the terms of the proposed amendment, which were reduced to writing, did not disclose any cause of action against him but I refused leave without expressing any final opinion on this point and, therefore, not on this ground but because the matter was stale, the application came at the close of the case, more or less informal evidence on matters directly relevant to the proposed amendment had been given, and it would have been necessary to allow the case to be re-opened in order to receive more precise evidence to prove the issues of fact raised by the proposed amendment. In these circumstances I thought it proper to refuse the amendment and to leave the plaintiff, if so advised, to commence fresh proceedings against the defendant Drysdale. (at p4)

4. As already appears the claim against R.T. Company Proprietary Limited and Radio City Proprietary Limited (which I shall now refer to as the companies) was twofold in character. The first claim was, in effect, for moneys payable for the use and occupation of the subject premises and it depended upon the allegation contained in the statement of claim that the companies remained in possession with the consent of the plaintiff. But the evidence clearly negatived any such consent and at the conclusion of the case no argument was addressed to me in support of this claim. It was not, however, expressly abandoned but counsel was unable to indicate any basis upon which the claim could succeed. It is, I think, quite clear upon the evidence that it must fail and, accordingly, the claim for moneys for use and occupation will be dismissed. (at p5)

5. The main objection to the maintenance of the claim for mesne profits against the companies was based upon the fact that the suit had been instituted before the Commonwealth entered into possession of the basement. As already appears the suit was instituted on 25th July 1956 and the Commonwealth did not obtain possession until 20th June 1957. However, it should be observed that possession of the premises had been obtained nearly five years before the parties brought the suit on for hearing. Further, it may be noticed that on 4th August 1953 a warrant of possession had been granted in this Court by Fullagar J. pursuant to s. 59 of the Lands Acquisition Act 1906-1936. But intervening litigation between the parties prevented its execution until 1957. (at p5)

6. In support of the primary submission of the companies upon this branch of the case it was pointed out that a claim for mesne profits is a particular form of the action for trespass, that as such it is based upon an injury to the plaintiff's possession and that the plaintiff is enabled to recover only upon the doctrine of trespass by relation. That is to say, that upon entering into possession the plaintiff is deemed by a legal fiction to have been in possession ever since his right to possession arose. But, so the argument ran, a plaintiff is not entitled to assert a claim to mesne profits until entry or re-entry has taken place. The principle upon which the submissions are based are clearly established (see Tharpe v. Stallwood (1843) 5 M & G 760, at pp 774, 775 [1843] EngR 604; (134 ER 766, at p 772) ; Barnett v. The Earl of Guildford [1855] EngR 366; (1855) 11 Ex 19 ; Dunlop v. Macedo (1891) 8 TLR 43 ; Ocean Accident and Guarantee Corporation v. Ilford Gas Company (1905) 2 KB 493, at pp 498, 499 ; Wynne v. Green (1901) 1 SR (NSW) 40 ; and Ebbels v. Rewell [1908] VicLawRp 39; (1908) VLR 261 ; Salmond on Torts 13th ed. (1961) p. 179 and Fleming on Torts 2nd ed. (1961) p. 80) and it is too late in the day to deny that at common law a plaintiff suing for mesne profits could not, in general, succeed unless he proved that pursuant to a right to do so he had entered into possession. An exception seems to have been made in the case of a plaintiff whose title had expired before an entry had been made (Fleming on Torts (supra) p. 50) and for many years it has been permissible in a number of jurisdictions for a landlord, after a holding over without consent, to combine a claim for mesne profits with an action of ejectment. Indeed, in Dunlop v. Macedo (1891) 8 TLR 43 it was held that in view of the provisions of r. 2 of 0. 17 of the English Rules of 1875 this course might be followed in an action for possession against a trespasser notwithstanding the fact that such a case did not fall within the provisions of s. 214 of the Common Law Procedure Act, 1852 (cf.Supreme Court Act 1958 (Vict.), s. 119, and Supreme Court Rules, 0. XVIII, r.2). But the proceedings before me are not proceedings in ejectment or for possession and it is unnecessary to consider how far, if at all, a claim for mesne profits might be joined with proceedings of that character in this Court. (at p6)

7. None of the cases relating to mesne profits to which I have referred deals with a situation precisely the same as that which presents itself in this case. It is true, of course, that the cases consistently predicate that the plaintiff must establish that he has entered into possession of the subject premises. And they do so in language which suggests that the accrual to the plaintiff of a cause of action for mesne profits is dependant upon the occurrence of such an event. But none of the cases, as far as I can see, contemplated a situation such as the present where the writ was issued before entry and an entry, in turn, preceded the trial. This case is, perhaps, made even more unusual by the fact that the plaintiff had obtained a warrant of possession some years before the date when the suit was instituted. The immediate question, however, is whether a claim for mesne profits made independently of proceedings for possession must fail if it is made before the plaintiff obtains possession of the subject premises. The answer to this question must, I think, be in the affirmative unless the fiction upon which trespass by relation is erected can be made to do double duty. Upon entry the plaintiff's possession is said to relate back by virtue of the legal fiction to the time when his right to possession arose. Can the plaintiff, then, in these proceedings, having entered after the issue of the writ, assert by force of the fiction that he was in possession at the date of the writ and, therefore, that his cause of action had then accrued? Or, perhaps, to put it in another way, is a plaintiff, upon entering into possession, entitled to assert that, thereupon, he became entitled to mesne profits "at the time when they arose"? (Ocean Accident and Guarantee Corporation v. Ilford Gas Company (1905) 2 KB, at p 499 ). It is, however, the contention of the companies that they are entitled to judgment if it appears that if the matter had been investigated at the date of the commencement of the suit it would have been found that the plaintiff's cause of action had not then accrued. To my mind principle and authority admit of only one answer to the problem; it is incumbent upon the plaintiff to establish the existence of his cause of action as at the date of his writ and the failure or success of his action will not depend upon whether the trial takes place promptly or happens to be delayed until after he has entered into possession. It seems to me that the problem is analogous to that which has arisen in cases where a plaintiff has, before actual grant of administration, commenced proceedings as an administrator. Notwithstanding that upon grant the administrator's title relates back to the death of the deceased whom he represents it has been consistently held that this element of retroactivity is incapable of sustaining a writ issued before grant (Chetty v. Chetty (1916) 1 AC 603, at p 608 ; Ingall v. Moran (1944) 1 KB 160 ; Hilton v. Sutton Steam Laundry (1946) 1 KB 65 ; and Finnegan v. Cementation Co. Ltd. (1953) 1 QB 688 ). (at p7)

8. It is, however, quite anomalous that a defendant having, for a period of years, thwarted a plaintiff in his attempts to exercise his undoubted right to possession of land should then defeat the plaintiff's subsequent claim for mesne profits merely upon the ground that the claim was made before re-entry. Particularly is this so where, as here, the plaintiff has taken proceedings to obtain possession and, prior to the making of his claim, has obtained a warrant of possession but has been prevented from executing it. For a time I was disposed to think that much might be said for the proposition that if a claim for mesne profits might be joined with a claim for possession, a claim of the former character ought to be regarded as maintainable, even without re-entry, at any time after judgment for the plaintiff in the proceedings in ejectment or for possession (cf. Cole on Ejectment p. 635). But consideration of cases such as Aslin v. Parkin [1758] EngR 226; (1758) 2 Burr 665 (97 ER 501) ; Doe v. Wright [1839] EngR 850; (1839) 10 Ad & E 763 (113 ER 289) ; Wilkinson v. Kirby [1854] EngR 71; (1854) 15 CB 430 (139 ER 492) ; Pearse v. Coaker (1869) LR 4 Ex 92 : and Harris v. Mulkern (1875) LR 1 Ex Div 31 has convinced me to the contrary. (at p8)

9. In the result, therefore, I am of the opinion that at the time when the suit was commenced the plaintiff's cause of action had not accrued and, that being so, the suit is not maintainable and must be dismissed. There will, however, be no order as to the costs of the suit. The point upon which the companies have succeeded was open on the pleadings but no attempt was made to raise the question for argument nor did the defence afford any indication that the point would be raised at a later stage. Instead the matter was allowed to proceed, issues of fact were raised which were not really in dispute so far as the companies were concerned and their objection was raised only at the conclusion of the hearing. The bulk of the costs were, I should think, attributable to the issues of fact which were raised and upon these the plaintiff succeeded. That being so, and since the costs of the suit were not materially increased by the joinder of the individual defendants and Radioprogram Proprietary Limited, it is I think, proper to make no order as to the costs. (at p8)

ORDER