Appellants factum - Woodward & Company

37therefore precluded from making any declaration as to a lesser amount of land, even ifthe findings of fact supported this conclusion. 231127. The Court variously referred to Harman L.J.’s comments in Biss as “obiter” 232“astringent” 233 and “too austere”. 234 The Court cited several cases for the propositionthat “[t]he fact a Declaration is not specifically sought in the prayer for relief does notprevent one from being granted”. 235 The Court proceeded:It cannot be overlooked that, in an adverse possession case, the pleaded factualissues may permit of several possible variations and permutations as to theedges or boundaries of the disputed land at the material time. It would beunnecessarily demanding to require the party to plead in the prayer every precisepossible variation of the underlying factual dispute that could be ultimately foundto be proved. It would be like pleading all the results of the peeling of an onion -in which every single layer generates a slightly different and smaller variation ofthe one before it. The real test is whether there is genuine prejudice caused bythis ambulatory approach. Here there was none. It will always be a matter ofdegree; but the Court should not indulge pedantry as being the same thing asprejudice. 236The Court concluded that this approach represents the law in Hong Kong, Australia,England, New Zealand and Canada, based on a review of leading authorities. 2374. Application to Aboriginal title claims128. These pragmatic considerations are especially forceful in the context ofAboriginal title claims. It is hard to imagine a clearer example of a situation where “onlyafter the court has determined the facts … will [it] be possible to decide in what terms a231 Above at para. 140.232 Above at para. 144.233 Above.234 Above at para. 147.235 Above at para. 145. Authorities cited: Hulton v. Hulton, [1916] 2 K.B. 642, aff’d [1917] 1 K.B. 813 (C.A.), ReLewis’s Declaration of Trust; Lewis v. Lewis; Lewis v. Ryder, [1953] 1 All E.R. 1005, (sub nom. Loudon v. Ryder (No.2)), [1953] 1 All E.R. 1005, [1953] Ch. 423 (Ch. D.) at p.429 and Harrison-Broadley v. Smith, [1964] 1 All E.R. 867(C.A.).236 Above [underscore added].237 Above at paras. 147-48.