Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840; In Re Brace [1966] 1 WLR 595, distinguished.

The appellant sought compensation under the Land Acquisition Act 1993 ("the Act") upon the acquisition by the Crown of land in Hobart over a small portion of which, adjacent to land of which it is registered proprietor, the appellant claimed an estate in fee simple in possession by virtue of adverse possession in excess of twelve years. The respondent rejected the appellant's entitlement to compensation and the appellant accordingly sought a determination of its entitlement by the Court by virtue of the Act, s39(6).

A crucial issue of fact was whether the appellant and those under whom it claimed had occupied portion of the land any earlier than July 1983, the acquisition having been effected on 5 July 1995. This in turn depended upon the resolution of conflicting evidence as to when certain timber racks had been erected on the land and used for the storage of timber. The trial of the issues was by affidavit and the appellant lodged several affidavits in which the deponents asserted that the racks had been erected in, and used from, about 1976 when a previous occupant had relocated its building activities from another part of the city. The respondent filed an affidavit sworn by an adjacent owner, Mr Arkless, in which he contended that the timber racks had not been erected until 1984. The appellant's solicitors were given notice to produce its deponents for cross-examination on their affidavits and they were subjected to cross-examination thereon. The respondent was not, however, asked to produce Mr Arkless for cross-examination and he did not appear at the trial, his affidavit being tendered without objection.

The learned trial judge, faced with this conflict, said:

"In an affidavit on which he was not cross-examined, Mr Arkless deposed that the racks were constructed in 1984 after Mr and Mrs Cagialis purchased the adjoining land and that 'from then on' the company used lot A for the storage of building materials. When cross-examined about this, various of the applicant's witnesses stated that Mr Arkless was wrong when he said that it was not until 1984 that the racks were constructed. I should find in accordance with Mr Arkless' version. It is not possible to form any view as to the credibility of the applicant's witnesses on the one hand and that of Mr Arkless on the other, because the latter was not cross-examined on his affidavit. It was open to the applicant to give notice to the respondent requiring it to produce Mr Arkless for cross-examination. I was told that no such notice had been given. In those circumstances, I find that it was not until 1984 that Cunic Constructions Pty Ltd constructed timber racks on lot A and commenced to use that land for the storage of timber."

"1 The learned trial judge erred in fact and in law in that he directed himself that he must or should accept the evidence of the deponent Arkless as to the time of the placement of timber storage racks on the land in preference to the evidence of the Applicant's witnesses because Mr Arkless was not cross-examined on his affidavit;

2 The learned trial judge erred in fact and in law in that he failed to weigh the evidence of the deponent Arkless as to the time of the placement of the timber storage racks on the land against other contradictory evidence before accepting the evidence of the deponent Arkless as to that matter;"

The respondent concedes that his Honour was not obliged as a matter of law to accept Mr Arkless' version of events merely because he was not cross-examined, but contends that there was nothing in the form of words used by the learned trial judge from which it should be inferred that it was his view that he must accept Mr Arkless' account as to when the timber racks were constructed. Despite the absence of any cross-examination of Mr Arkless, the Court was required to decide what relevant weight it should give the conflicting evidence of both sides on the disputed issue. The lack of any oral evidence from Mr Arkless deprived the trial judge of the advantage of being able to observe his demeanour in the witness box and to compare his account with the accounts given by the appellant's witnesses. Given that the appellant bore the onus of proof, it was appropriate that the issue be resolved against the appellant unless there was a proper basis for rejecting Mr Arkless' evidence and preferring that of the appellant's witnesses. The evidence of Mr Arkless was not inherently incredible or unconvincing and he was not interested in the outcome of the proceedings.

The appellant relies on the case of Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840 where Newton J held that a magistrate hearing a civil claim and counterclaim for damage arising out of a motor vehicle collision had not erred in accepting the sworn evidence of the defendant and his supporting witnesses as to the circumstances of the accident in preference to the affidavit evidence of the plaintiff on which there was no cross-examination. The plaintiff had chosen to present his evidence in that form pursuant to the Justices Act Rules 1963 (Vic). The defendant had the right to object to the plaintiff doing so, but did not do so. The plaintiff was not present and his solicitor sought no adjournment to call him. Newton J held that the purpose of the relevant rule was to enable matters which are not in controversy to be proved with a minimum of inconvenience and expense, and that if a party chooses to place evidence before a court on affidavit pursuant to the rule, that evidence is open to contradiction by evidence adduced by the other party in the same way as would be any other evidence adduced by the former party. The plaintiff in that case, knowing not only that his version was disputed but that he was the subject of a counterclaim, could hardly complain if his opponent adduced oral evidence which the court found cogent and preferred to his version presented in the form of an affidavit rather than viva voce as the plaintiff could have yet done had he chosen.

Similarly, in In Re Brace [1966] 1 WLR 595 the Court of Appeal held that on the hearing of a debtor's application to set aside a receiving order made on a partition which the debtor claimed in an affidavit had not been served upon him, the Registrar hearing the application had been entitled to act upon the sworn testimony in cross-examination of a clerk who had sworn an affidavit of service. The clerk had sworn to service of the petition at a certain time and place and had identified the person served as the debtor by means of a photograph upon his return to his principal's office. He was subjected to "searching" cross-examination by counsel for the debtor who had offered himself for cross-examination on his own affidavit that he had not been served with the petition. Sellers LJ, at 597 - 598, observed that:

"There was no request on behalf of the debtor that he or his witness should give evidence on oath. All that is said is that the witnesses were there and were offered for cross-examination. I can see no occasion for any cross-examination at all. The affidavits on their face were not very convincing; they were equivocal; and the evidence of [the clerk] had been convincing."

"I agree. This is not a case in which the debtor was shut out from leading further or supplementary evidence. The only complaint is that there was no cross-examination of him and his witness, which it is said might have given them an opportunity (so to speak) to show their paces. The point is hopeless."

Winn LJ "emphatically agreed" with the other members of the court.

Bulstrode v Trimble (supra) has been relied on in this jurisdiction to uphold findings of inferior courts where evidence for the defence which is contrary to the complainant's evidence has been rejected, notwithstanding little or no cross-examination of the defence witnesses (Smith v Spencer, unreported Crawford J, B31/1989; Balsley v Bessell, unreported Wright J, B61/1995). These cases do not establish, however, that the trier of facts is obliged to accept the viva voce evidence in preference to the affidavit evidence which, while admittedly challenged, is not tested by cross-examination. The mode of trial in this case was by affidavit. The respondent gave notice that it challenged the appellant's version, gave notice to cross-examine and filed an affidavit asserting a contrary version. It exercised its right to cross-examine and the learned trial judge had the advantage of gauging the reliability of the deponents who were cross-examined. The appellant's decision not to cross-examine Mr Arkless gave the learned trial judge no way of judging the comparative liability of his testimony. In my opinion he was fully justified in declining to reject Mr Arkless' evidence and in finding that the acts of occupancy alleged by the appellant had not occurred prior to 1984.

In my opinion, it has not been shown that the learned trial judge directed himself that he was obliged to accept Mr Arkless' evidence because he had not been cross-examined, nor that he failed to weigh that evidence against the evidence adduced by the appellant and tested by the counsel for the respondent's cross-examination of it before accepting the evidence of Mr Arkless. If in the circumstance that the latter was not cross-examined, the trial judge was unable to make a satisfactory comparison, it was open to him to prefer it to that of the appellant.

The third ground of appeal is that the learned trial judge's finding that the timber storage racks had been placed on the land in 1984 was against the evidence and the weight of the evidence. Mere weight of numbers of witnesses on the appellant's side is not a proper basis for claiming that such a ground has been made out. Mrs Bethlehem's evidence was that from the time she first purchased the adjoining land, the strip of land in question was used for storage of timber. At first she said the land had been purchased in 1973 or 1974 and her husband had started his business there. When reminded that the purchase had not occurred until 1976, she said, "We could have rented it first and then bought it later, but as soon as we went to that property he [her husband] made provision to put his building materials there". Asked whether she remembered when the timber racks at the end has been built, she said, "Not exactly."

Mr Bethlehem's affidavit evidence was that when his company, Cunic Constructions Pty Ltd, first took possession of the land, they had used it for the storage of timber. He said he built the timber racks on the disputed land "soon after Cunic Constructions set up business on the land". In cross-examination he said he had put the rack on the land as soon as his company vacated its previous site in Campbell Street and that the rack was built in 1976. He disputed the Arkless version that it was not built until 1984, saying that "It's definitely untrue - it was an existing timber rack from Campbell Street that we used and it was placed there straight away when we moved and it was never put anywhere else".

Mr William Wedd, a director of Cunic Constructions Pty Ltd who had first started working for that company about 18½ years before 1995, said in cross-examination that he actually transported part of the timber racks from a property in Campbell Street to that particular site and built the additions to them.

On the other hand, Mr Arkless, in his affidavit, deposed to being the owner of land in nearby Tasma Street, to the back of which he and his tenants gained access since 1976 by passing over other land claimed by the appellant and adjacent to the land on which the timber racks had been erected. His evidence as to the racks is as follows:

"In 1984 after Mr and Mrs Cagialis purchased the land contained in Certificates of Title Volume 2710 Folio 45, Volume 3348 Folio 20 and Volume 3024 Folio 63 a timber rack was erected by Cunic Constructions operated by the Bethlehems, which was the lessee of the land in those certificates of title, on the land shaded green on annexure 'A' hereto."

I annex to these reasons a plan the learned trial judge annexed to his reasons for judgment, 68/1997. The land marked green on Mr Arkless' annexure is the same as that marked "A" on the learned trial judge's annexure. That marked "B" on the latter plan is the balance of the land to which the appellant claims title by adverse possession. The combined length of both sections which form an extension of the line of John Street is approximately 17 metres, but the evidence was quite imprecise as to the length of each, Lot A seems to be between one-fifth and one-quarter of the total length of A and B combined, so Lot A's length is in the order of 3½ - 4 metres at most. Given that there was evidence on both sides on the question in issue and that of the respondent was not subject to cross-examination, I find it impossible in the circumstances to say that the appellant's evidence outweighed that of the respondent. Neither version is inherently more cogent than the other and the comparative credibility of the witnesses on each side of the argument was not properly tested.

"4 The learned trial judge erred in fact and in law in that having found that the timber storage racks were placed on the land in 1984, he failed to consider whether the applicant, nevertheless, had a compensable interest in the land pursuant to the provisions of the Land Acquisition Act 1993;"

It is true that possessory interest, even though defeasible against the owner of the documentary title or "true owner", is a sufficient estate in land to found an entitlement (Perry v Clissold and Others [1907] AC 73; Heppingstone v Commissioner of Railways (1901) 3 WAR 63; Re Marriot, deceased [1968] VicRp 31; [1968] VR 260). Where the possessory rights are still insufficient to procure the issue of a documentary title, the value of the estate must be determined by a reference to what a prudent purchaser would pay for such an interest given the length of time the land had been held in adverse possession and the likelihood of the true owner claiming the land (Fricke, Compulsory Acquisition of Land in Australia, 2 ed, at 92). Nevertheless, this was not an issue which was agitated at the trial and I think it inappropriate for this Court to intervene. The land in question is that occupied by the timber racks since 1984. This represents a very small area of land at the western end of the total area of land claimed, the dimensions of which can only be guessed at. In respect of the balance of the land, the learned trial judge held that the evidence was not such as to warrant a finding that the appellant had that degree of exclusive possession necessary to establish a possessory interest in the land.

The last matters of complaint are that the learned trial judge wrongly concluded that there was an absence of exclusive possession of the kind required. Apart from the area upon which the timber racks were erected and timber was stored, there was scant evidence of the use made of the balance of the land by the appellant or its tenants. His Honour held that the only evidence of any other use of the land was that Cunic Constructions Pty Ltd used the land for the parking of motor cars. He concluded:

"Physically, the area of land in question appears as an extension of the land marked as John Street on the plan, which street runs off Elizabeth Street and provides access to the premises occupied by Cunic Constructions Pty Ltd. The evidence in this case falls far short of what is required to show that there was an appropriate degree of exclusive physical control of that land. It does not permit any specific findings as to what exclusive physical control was exercised over the land by the acts of parking. In particular, there is no evidence as to the number or nature of the motor vehicles which were parked on the land, precisely where on the land they were parked and the frequency with which vehicles were parked there."

Counsel for the appellant pointed to some other material concerning the use of the land. Mrs Bethlehem said:

"Well, because of the previous owner using the land, the whole land, and that part included, we were thinking that we could do the same thing and could use the whole - the whole area. And it was mainly used for putting away the building materials and lots of leftovers from jobs.

"The land was occupied not only by the timber rack at the back, if I might just clarify this, there were - we always never had the time when there wasn't stacks of left over blocks, sharp and fat sand separated and barriers that we used for erecting temporary hurdles and that sort of material was always occupying the whole of that piece.

Mr Arkless never tried to get in to that brown strip of land through the land that we occupied. He did interfere with the fences but he didn't - he would have had to remove all our building material to get in to it and to drive in to it or to make use of it in any other way.

I must tell you also that sometimes materials were taken away and were not always were they replaced straight away but as I recall it was always a busy area with lots of material there."

"Q And what has Cunic Constructions used that area marked blue and the area marked green for since you've been there?

A Well we've always stored materials there. It's always had the timber racks, it's had bricks, sand, drums. It was fenced at one stage to keep materials in.

Q Would there be times when there was - the blue area was not obstructed with materials - building material?

A To my knowledge there's always been materials stored there. That has been the sort of designated storage area for bricks and timber and roofing iron."

On the other hand, it was conceded by Mrs Bethlehem that pedestrians could pass over the land marked "B" (or blue) and by both Mr Bethlehem and Mr Wedd that a fence erected by Cunic Constructions blocking access from John Street to the land (and hence to Mr Arkless' land) had been pulled down by Mr Arkless within a few years of its erection. Furthermore, Mr Arkless' affidavit claims frequent use by him and his tenants of the land marked "B" to gain access to his land fronting onto Tasma Street at the back of which, in 1983, he bought a further strip of land (marked brown) from the Crown connecting that property to the lot marked "B" and that he had placed an old car body protruding one metre onto the land and had erected a steel cable across the extension of John Street to prevent the Bethlehems barring his access to the rear of his Tasma Street property. If his Honour did overlook the evidence relied upon by the appellant to which I have adverted, there was ample evidence from Mr Arkless and his tenant, Mr Hinley, who likewise was not sought to be cross-examined, of a significant use by them of the balance of the land in dispute. In my opinion, the learned trial judge was right to conclude that the appellant had failed to establish exclusive possession of the land. I would dismiss the appeal.

I have read the reasons for judgment of the Chief Justice and agree with them.

I have had the opportunity of reading in draft form the judgment of the Chief Justice and agree with both its reasoning and conclusion.