Dudgeon v Chie [1955] HCA 42; (1955) 92 CLR 342 (9 August 1955)

HIGH COURT OF AUSTRALIA

DUDGEON v. CHIE [1955] HCA 42; (1955) 92 CLR 342

Agriculture - High Court

High Court of Australia
Dixon C.J.(1), McTiernan(1), Williams(1), Webb(1) and Taylor(1) JJ.

CATCHWORDS

Agriculture - Dairy-farm - Share-farming agreement - Written or oral - Notice to quit - Ejectment action by owner - Defence - Equitable - Agricultural Holdings Act 1941 (N.S.W.).

High Court - Interlocutory judgments - Appeal - Competency.

HEARING

Sydney, 1955, August 9. 9:8:1955
APPEAL from the Supreme Court of New South Wales.

DECISION

The judgment of the Court was delivered by: -
DIXON C.J. In this case an appeal was brought as of right from a judgment of Full Court affirmed an order made by Brereton J. The order made by Brereton J. authorized the entry of judgment for the claimant in an action of ejectment. The operative parts of the order were: "It is ordered that the appearance and particulars of defence filed on behalf of the above-named defendant be struck out and it is further ordered that the claimant be at liberty to enter judgment in ejectment for the recovery of the premises claimed in these proceedings." (at p351)

2. That order of Brereton J. is an interlocutory order, as is shown by Cox Bros. (Australia) Ltd. v. Cox [1934] HCA 16; (1934) 50 CLR 314 . The judgment of the Full Court affirming the judgment was no less interlocutory. An appeal therefore does not lie as of right. Upon this being pointed out the intending appellant, the defendant, applied for leave to appeal. It appears from the facts of the case that the defendant is using agricultural land as a share-farmer holding under an agreement not in writing with the owner, who is the claimant in the action for ejectment. Notice to quit has been given by the claimant and it gives a ground which, if established in fact, would make the notice to quit one which conforms with the Agricultural Holdings Act 1941. (at p351)

3. The defendant, in seeking leave to appeal, put forward the contention that he is entitled to succeed in the action on the ground that the share-farming agreement affords a defence unless it has been duly terminated by the notice to quit, which means proof of the facts on which the notice is based. (at p352)

4. The reasons given in the Full Court included grounds depending on the fact that the agreement was not in writing. But the majority of the Full Court, consisting of the Chief Justice and Herron J., added in their joint judgment that if the agreement had been in writing the result must have been the same. That part of their judgment begins (1954) 55 SR (NSW), at p 470; 72 WN, at p 403 and ends (1954) 55 SR (NSW), at p 472; 72 WN, at p 405 . The correctness in substance of that part of the judgment has been discussed before us. Mr. Wallace has attacked it on the ground that under the Agricultural Holdings Act 1941 the existence of a share-farming agreement must be a defence and, if that is not so, at least it should afford a right to an unconditional absolute and perpetual injunction in equity which would therefore provide a plea to the action on equitable grounds. It is sufficient to say as to the first of these propositions that we agree with the opinion expressed in that part of the judgment given in the Full Court to which we have referred. (at p352)

5. As to the second proposition, it is sufficient to say that, having read the judgment of Dwyer J. in Moxey v. Lawrence (1952) 69 WN (NSW) 378 , we agree with so much of it as begins on p. 379, first column, and deals with the contention that an equitable defence is disclosed. The passage ends on p. 380 at the top of the first column. We say nothing as to the rest of the judgment. (at p352)

6. Those two judgments cover the ground and make it impossible for the defendant to succeed in the defence of the action of ejectment. (at p352)

7. We therefore think the application for leave should be refused. (at p352)

ORDER

Appeal struck out as incompetent. Leave to appeal refused. The appellant to pay the respondent's costs of the proceedings taxed on the footing of the costs of opposing an application for leave.