Fyffe v State of Victoria [2000] HCA 31

HIGH COURT OF AUSTRALIA

HAYNE J

BRIAN CHARLES FYFFE APPLICANT

AND

STATE OF VICTORIA RESPONDENT

Fyffe v State of Victoria [2000] HCA 31

16 May 2000

M123/1999

ORDER

Summons dismissed with costs.

Representation:

Applicant represented himself

G L Meehan for the respondent (instructed by Victorian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

1. HAYNE J. The applicant, Mr Brian Charles Fyffe, has applied for special leave to appeal to this Court from the judgment of the Court of Appeal of the Supreme Court of Victoria given on 18 November 1999. The Court of Appeal dismissed Mr Fyffe's appeal from an order of a single judge of the Supreme Court of Victoria, Justice Mandie, dismissing his appeal from an order of a Master that the respondent, the State of Victoria, recover possession of certain land, together with mesne profits, damages to be assessed and costs. In its reasons for judgment the Court of Appeal recorded the facts which give rise to the action instituted by the State of Victoria and it is convenient to adopt the description given in those reasons. 2. The State of Victoria contends that it acquired the subject land in 1989 through the Ministry for Conservation, Forests and Lands. That Ministry is alleged to have bought the land at a mortgagee's sale. The State alleges that in about June or July 1989 it leased the land, including the residence built on it, to Mr Fyffe. This lease, or it may only have been a licence to occupy the land, was oral and required the payment of rent at a rate of $40 per week. By his defence in the action, Mr Fyffe admitted that the State of Victoria was registered as proprietor of the subject land but alleged that the lease that had been granted was a lease to himself and his two sons. The State contended that the tenancy (and any licence to occupy) was terminated for non‑payment of rent. 3. On 8 May 1998, a Master ordered that the State have summary judgment in the action. As I have earlier indicated, Mr Fyffe appealed from that order to a single judge of the Supreme Court but his appeal was dismissed. In its reasons for judgment, the Court of Appeal identified the issues between the parties on the appeal by reference to a summary of issues which had been filed by Mr Fyffe's then solicitor. That summary of issues said that: