38 The references to "the near future" and rent "on the same basis as that payable under the ... present lease" find no echo in the Order in Council. Those references perhaps however reflect the then current expectation that a new lease was not far off. One can confidently assume that no-one had a 13 year wait in mind. It will be remembered that, consistently with this, the letter dated 13 March 1969 from the Secretary for Lands to the General Manager, Palais de Danse Pty Ltd, spoke of the "issue of a new lease for a term of 60 years from now."[12] If that expectation existed, however, it never came close to realisation. Even the plaintiffs now look to August 1982 as the time when the lease for which they contend could be said to commence. By then all parties had, in my opinion, long put aside the Order in Council of 15 April 1969 - 13 years before - as an event of no significance.
39 By November 1969, a mere seven months after the Order in Council, Palais de Danse Pty Ltd was "formally" applying for a lease "for 70 years over the areas currently occupied by the Palais de Danse, Mr Hall-Kenny's 'Miniature Railway' and 'Scoota Boats', Messrs Green & Thomas' 'Swirl' and 'Speedway' areas and the cottage currently occupied by the Foreshore Committee." In this letter, dated 11 November, to the Secretary of the Department, the company does not treat the Order in Council, or anything that might flow from it, as relevant, but with something better to be negotiated around it. The Order in Council is not treated as relevant at all. It is not mentioned.
40 Hereafter, the documentation of both the company and the Department reflect the same attitude. Thus, a Departmental memorandum dated 6 February 1970 discusses the company's "alternative proposal for the re-adjustment of the leasehold boundaries" without any mention of the events of April 1969 or anything that might result from them. And, by a letter dated 10 March 1970 to the Minister for Lands, the company seeks approval of its "proposed redevelopment plans", although this time the proposed new lease is of not 60 or 70 years, but of 75 years. Again, the Order in Council is left outside the parameters of the negotiations.
41 By letter dated 11 January 1971 to the Minister, Palais de Danse Pty Ltd asks "whether the Government would consider paying to us the total insurance moneys ($414,000) plus interest to date and accepting a surrender of our lease." A little more than a year later, in a letter dated 17 April 1972 to the Secretary for Lands, the company informed the Department that it was "quite agreeable to renounce all attendant rights on the Palais de Danse building if the present lease is cancelled and a new one issued for a term of 50 years."
42 The first progress certificate for the re-building of the Ballroom was issued on 10 April 1972. By 27 August 1974, a total of $570,943 had been certified as properly expended. Given the date, and the probability that the widening of Marine Parade would not be a problem, it was to be expected that the company would at that time - if it claimed rights under an agreement to lease - call for the new 60-year lease that the agreement supposedly encompassed. No such call was made. Nor was it made even when, in August 1982, the plans for Marine Parade were settled. By this time, nothing should have inhibited an approach based upon the Order in Council if, as the plaintiffs claim, it had indeed perfected a contract between the State and Palais de Danse to the grant of a new 60-year lease.
43 It seems to me that any doubt about whether leave to appeal should be granted from the decision of the Deputy President is at this point dispelled. If confirmation of this position were needed, it comes from answers to requisitions given in December 1983 by Palais de Danse Pty Ltd to Alamar Nominees Pty Ltd, the purchaser of its leasehold interest. In answer to the question: "Are there any written or oral leases or terms of the agreements affecting the said property?", the company said: "Apart from the terms of the Crown lease, not that the vendor is aware."
44 The plaintiffs place much reliance on the correspondence and other documentation that followed the 1968 fire. It demonstrates that Palais de Danse Pty Ltd was then most anxious to secure an extension of its period of occupancy of the leasehold premises. This was associated with the necessity of recouping the cost of rebuilding. Any ability to access the insurance moneys does not seem to have been taken into account as an offset to the cost, but I put that aside. I accept that the company was, for perfectly legitimate commercial reasons, concerned to press with Government its case for an extension of its time as lessee. There is nevertheless no suggestion that it was prepared to accept an extension whatever its terms. It wanted an enlargement of the boundaries of the leasehold, yet the likelihood was that the re-alignment of Marine Parade would have the opposite effect. The company would be (and was) in those circumstances looking for over-compensation elsewhere. Moreover, it gave no indication of its acceptance of the proposition that the lessor would unilaterally determine the new rent. And the indications are that it expected to surrender its then current 50-year lease, in favour of the proposed new 60-year version, in the relatively near future. The Order in Council did not protect the company's interests on any of these points. There is no basis in the evidence or elsewhere for the conclusion that the company accepted the Order in Council as supplying everything that the company was seeking, with the need for further negotiation therefore removed.
45 The Ballroom was rebuilt. That is a circumstance upon which the plaintiffs rely. They called, as a witness before the Tribunal, the former director, Mr Hyams. He had previously sworn an affidavit in which he deposed that he "would never have permitted Palais de Danse to expend the monies which it did to rebuild and redevelop the site save upon the basis that the State would grant the promised 60-year lease." When cross-examined, it was not put to him that, to the contrary, the rebuilding was undertaken because the alternative was to have the insurance moneys revert to the Crown. Yet that was the Crown's case. Mr Hyams was not through the medium of cross-examination given an opportunity to meet that case. This was a breach of the rule in Browne v Dunn.[13] His evidence, it was submitted on behalf of the plaintiffs, should in those circumstances be seen as uncontradicted.
46 Mr Hyams was an elderly witness. He exhibited, in the witness box, many of the frailties of his age. They affected the extent of his cross-examination and, at least in part, its form. Submissions about the course taken during the cross-examination, the reasons for it, and the consequences that should follow, were put to me by both sides. I do not need to analyse these in detail. I am satisfied that nothing improper was intended. Nevertheless, the purposes of the rule in Browne v Dunn were not realised.
47 The rule is designed to promote the fair trial of the proceeding. When considering the sanctions, if any, to be applied after a breach of the rule, the court must therefore seek to remedy any injustice to which the breach has given, or might give, rise. In this case, Mr Hyams was not given in cross-examination the opportunity to respond to the allegation, now relied upon by the defendant, that one governing motive behind the decision to rebuild the Ballroom was that otherwise the insurance moneys would be lost to the company.
48 I do not know what Mr Hyams' response would have been had the relevant question been asked. Since he had already told the Tribunal that the Ballroom was re-instated on the promise of a new 60-year lease, it is possible that he would simply have denied that insurance had anything to do with the decision. But he might have used his answer to strengthen that denial by giving reasons why considerations relating to the use of the insurance moneys were discounted. I accept that possibility.
49 I should also, I think, take into account other indicators of the degree to which the breach of the rule in Browne v Dunn was unfair to the plaintiffs or which might otherwise produce injustice. It was the plaintiffs' case before the Tribunal that the Ballroom was rebuilt on the faith of an agreement for a 60-year lease. Accordingly, the burden of proof on that issue lay with the plaintiffs. Palais de Danse Pty Ltd, wrote the letter dated 12 March 1971 to Arthur Robinson & Co.[14] The company then referred to the possibility that "if all the insurance money was not used in rebuilding, the remainder would be put into consolidated revenue" and expressed the view that it therefore had "no option but to spend all moneys held by the Treasury". In these circumstances, the plaintiffs can be taken to have been aware that a rationale for rebuilding, contrary to that expounded by Mr Hyams, would likely be before the Tribunal. It did not need adherence to the rule in Browne v Dunn to bring that point to light. And, the burden of proof being on the plaintiffs, it was incumbent on them, if they wished to rely on evidence which neutralised concerns about insurance proceeds as a factor in the decision to rebuild, to call that evidence. The failure to cross-examine Mr Hyams on the point cannot be seen as depriving the plaintiffs of their only opportunity to do so.
50 Even if the considerations outlined in the previous paragraph did not apply, it would not follow that Mr Hyams' evidence must be taken as uncontradicted. It is true that, if a witness is not cross-examined on a point, the cross-examining party may, depending upon the circumstances, be deemed to have accepted it. That party may, in like circumstances, be prevented from asserting that the court should not accept that point as true. On the other hand, the court cannot shut out reality, or deny the undeniable.[15] It is the fact that Palais de Danse Pty Ltd did not, after the Ballroom was rebuilt, seek to have the Crown make good any agreement for a 60-year lease. Even more to the point, it is the fact that the company did not, after the re-alignment of Marine Parade was settled, seek the same result. These facts, and the others to which I have referred above, plainly speak to a different conclusion than that about which Mr Hyams gave evidence. And the Tribunal and this Court must work with the evidence, and only the evidence, that is available and admissible.
51 It follows that Mr Hyams' evidence cannot with accuracy be said to be uncontradicted. Despite that which he put before the Tribunal, there was much evidence to support the conclusion that the Ballroom was rebuilt without the company holding any belief that it thereby secured for itself a new lease for a term of 60 years.
52 It therefore seems to me that the Deputy President was right to conclude that the Order in Council did not perfect a contract between the State and Palais de Danse to the grant of a new 60-year lease. If there was no agreement, there is not now any basis for Bradto's continued possession of the land. In my opinion, leave to appeal should therefore be refused.