[1997] HCA 2
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
[2010] HCA 16
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
(2004) 78 ALJR 992
Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398
[2012] HCA 25
R v War Pensions Entitlement Appeal Tribunal
Source
Original judgment source is linked above.
Catchwords
[1997] HCA 2
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611[2010] HCA 16
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32(2004) 78 ALJR 992
Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398[2012] HCA 25
R v War Pensions Entitlement Appeal TribunalEx parte Bott (1933) 50 CLR 228[1933] HCA 30
Re Minister for Immigration and Multicultural AffairsEx parte Applicant S20/2002 [2003] HCA 30
Judgment (7 paragraphs)
[1]
Background
The applicant is the registered proprietor (he previously was one of two joint registered proprietors) of Lots 37 and 38 in DP14244, known as 255 Victoria Road, Rydalmere. The eastern boundary of Lot 38 is the western boundary of Subiaco Creek and, accordingly, is a water boundary. Subiaco Creek, at least up to the point where it passes under Victoria Road in Rydalmere, is a tidal tributary of the Parramatta River, which runs into Sydney Harbour. As such, Subiaco Creek forms part of the bed and shores of Sydney Harbour. Section 3 of the Sydney Harbour Trust Act 1900 (NSW) (now repealed) defined that land as "[s]o much of the port of Sydney, the rivers falling into it with their tributaries, and the land on the margins thereof as is covered at mean high-water". It follows that the relevant boundary between Lot 38 and Subiaco Creek is to be defined by reference to the or a mean high-water mark (MHWM).
The first respondent, Transport for NSW (TfNSW), is the registered proprietor of the bed and shores of Sydney Harbour, being the land in Certificate of Title Volume 5018 Folio 1. Neither that certificate of title nor the certificate of title for Mr Boensch's land is in evidence. TfNSW's predecessors in title to that land include the Maritime Services Board (MSB) (from 1936 to 1995), the Marine Ministerial Holding Corporation (from 1995 to around 2000), the Waterways Authority (from around 2000 to 2011, noting it was renamed as the Maritime Authority of NSW in 2006), and the New South Wales Roads & Maritime Services (from 2011 to 2019).
There has for some time been a dispute between Mr Boensch and TfNSW (and its predecessors) as to the position of the boundary between Lot 38 and Subiaco Creek. In December 1995, Mr Robert Harrison, a surveyor acting on behalf of Mr Boensch, applied for a determination of that boundary under Pt 14A of the RP Act. That determination was made in July 1996 and the outcome was recorded on the reverse side of the application, which became registered Dealing O878893. The determination included:
"The information provided with the application together with the available records … have been extensively perused and the boundary has been determined as being as defined by the MSB Waterways Authority in 1952."
In accordance with orders made by consent in Supreme Court proceedings commenced by TfNSW against Mr Boensch seeking damages for trespass and consequential orders (which are dealt with in more detail below), Mr Boensch caused a further application to be made to the Registrar-General under Pt 14A. That application, AS198355, was made by Mr Harrison by letter dated 2 June 2022. On 29 July 2022, the Registrar-General notified Mr Boensch that:
"1. In accordance with Section 135D(2) of the Real Property Act, 1900 the Registrar General must refuse to make the determination as requested on the following grounds:
The boundary was previously determined by this office in 1996. See attached registered Dealing number O878893 for this determination.
No new information has been provided that would compel the Registrar General to reconsider this determination.
The 1996 determination of the eastern boundary of Lot 38 in DP14244 with Subiaco Creek, as recorded in registered Dealing O878893 (attached), still stands."
Figure 1 below is a copy of a draft survey plan of redefinition prepared by Mr Harrison in early-June 2022. The plan is oriented northwards: Victoria Road travels in an east-west direction to the north of Mr Boensch's property (which in the draft plan is wrongly described as "Lot 378" rather than Lots 37-38), with Subiaco Creek running in a north-south direction to the east of Lot 38. Possible positions of the MHWM on the western side of Subiaco Creek are indicated by three lines. First, there is a jagged line connecting a series of small circles. That line comprises ten shorter lines of varying lengths and bearings. This represents the MHWM as recorded in the 1952 MSB survey, as confirmed by the annotation: "Previous boundary was MHWM by MSB 1952 FB 199/133 & 134". Secondly, and mainly to the east of the MHWM in the 1952 survey, there is a relatively straight line which is annotated: "Boundary is MHWM by MSB 1973 FB 410/25 & 26". This is said to be the MHWM shown in a 1973 MSB survey, which Mr Boensch contends correctly defined at that time the boundary between Lot 38 and Subiaco Creek. Thirdly, further to the east, there is a broken line described as: "Bottom of west bank of creek by survey".
Separately, there is a thick striped line, described as "Base of ret. wall", which runs along or near part of the second of these three lines. This shows the position of a retaining wall constructed by Mr Boensch in the 1990s. For most of its length that wall is on the Subiaco Creek side of the 1952 MSB survey line.
Figure 1: 2022 draft survey plan of redefinition prepared by Mr Harrison
With respect to the dispute between Mr Boensch and TfNSW, Mr Boensch contends that the MHWM recorded in the 1952 MSB survey did not in fact show the position of the MHWM at that time. His case appears to remain that the correct position of the MHWM was shown in the 1973 survey. It is not clear whether this accommodates material more recently obtained (including further pages from a 1952 MSB field book and a 1960 MSB plan identified as PJ369).
In response, TfNSW contends that the 1996 determination fixed the MHWM surveyed in 1952 as the "former" MHWM because the bank of Subiaco Creek had been affected by artificial disturbances which began in the 1960s. Further, it says that the 1973 MSB survey relevantly only identified the "toe" of the creek's western bank, and not the MHWM.
Returning to the proceedings commenced by TfNSW in the Supreme Court in June 2021, the items which were the subject of the consequential orders for removal include four shipping containers, part of a metal shed, miscellaneous car parts and other industrial waste, as well as the retaining wall. In relation to that wall, by letter dated 14 February 1995, the MSB Waterways Authority indicated that it would grant landowner's consent to the lodgement of a late development application addressed to the Parramatta Council, the purpose of which was to allow the wall to remain in place. That consent was subject to Mr Boensch first providing an engineering report as to the stability of the wall. It would appear that such a report was provided and that the development approval sought was forthcoming.
In September 2021, Mr Boensch filed a first cross-claim in the Supreme Court proceedings seeking relief that included claims for damages against TfNSW in respect of flood damage said to have resulted from its negligence in failing to maintain the tidal section of Subiaco Creek, as well as declarations as to the position of the boundary between Lot 38 and that creek. In relation to the latter, it was alleged that the boundary should be drawn in accordance with the MHWM as defined in the 1973 MSB survey.
In March 2022, Mr Boensch filed a motion in the Supreme Court proceedings for the determination of preliminary questions as to the location of the common boundary. In May 2022, the consent orders referred to at [7] above were made, providing for Mr Boensch to lodge what became his June 2022 application under Pt 14A.
[2]
The underlying proceedings
Following the Registrar-General's refusal to make that determination, Mr Boensch commenced his Class 3 proceedings in the Land and Environment Court. That Court's jurisdiction includes LEC Act, s 19(c) and (c1):
19 Class 3 - land tenure, valuation, rating and compensation matters
The Court has jurisdiction … to hear and dispose of the following -
…
(c) appeals against boundary determinations under Part 14A (Boundary determinations) of the Real Property Act 1900,
(c1) proceedings under the Encroachment of Buildings Act 1922, …
The orders sought by Mr Boensch in his amended application are set out by the primary judge at J[15]. The "three overarching claims" made by Mr Boensch were identified as being:
1. an appeal against the 2022 Refusal;
2. an appeal against the 1996 boundary determination; and
3. a claim under the Encroachment of Buildings Act 1922 (NSW) (Encroachment Act) that the "approved" retaining wall structure "can remain … and forms part of Mr Boensch's property".
In dismissing these claims under UCPR, r 13.4, the primary judge reasoned as follows.
First, in relation to the 2022 Refusal, there was no right of appeal to the Land and Environment Court because the 2022 Refusal was not a "determination under [Pt 14A]" within the meaning of s 135J(1).
Secondly, in relation to the 1996 determination, although this determination was made under Pt 14A, the right, as then conferred by s 135J, to refer such a determination to the Land and Environment Court for determination by it of the position of the boundary had to be exercised by making a request to the Registrar-General to refer that matter to that Court. The Registrar-General was to comply with such a request "only if" it was made within 28 days of the Registrar-General's giving of notice of its determination (s 135J(3)). Neither Pt 14A nor the relevant rules of procedure applied to confer any power on the Land and Environment Court to extend, vary or waive the time fixed by s 135J(3)(a). The relevant rules were Land and Environment Court Rules 2007 (NSW) (LECR), rr 7.1 and 7.3.
Thirdly, the relief sought in the Encroachment Act claim raised issues which substantially overlapped with those in the Supreme Court proceedings, including as a result of Mr Boensch's first cross-claim. For that reason, the maintenance of that claim was an abuse of process.
[3]
The proposed appeal to this Court
The principal issues raised by Mr Boensch's proposed Further Amended Notice of Appeal are:
1. whether the 2022 Refusal under s 135D(2) of the RP Act was a "determination" under Pt 14A engaging the right of appeal under s 135J(1); and
2. whether the right to refer the 1996 determination to the Land and Environment Court was no longer exercisable because the 28 days for requesting the Registrar-General to refer the matter to the Court had expired more than 25 years ago and could not be extended, varied or waived.
The questions of law raised by these two issues are clear, and the first of those questions is of general application. For that reason, leave to appeal should be granted in relation to these issues and on the grounds formulated in [2] above.
The third of the claims identified by the primary judge (see [16] above) was dismissed as an abuse of process. No ground in the Further Amended Notice of Appeal addresses that outcome. Of the 27 proposed grounds, the only ground of any possible relevance is ground 11, that "[t]he Court below erred in law or in fact in holding that the appeal to the Court below [was] vexatious". However, no written submission is addressed to that ground. For that reason, and because the primary judge in his reasons correctly identifies the relevant principles, leave to appeal against the conclusion in respect of the claim under the Encroachment Act should be refused.
[4]
Was the 2022 Refusal a "determination under this Part" within the meaning of s 135J(1) of the RP Act?
Part 14A confers power on the Registrar-General to determine "the position of a boundary between adjoining parcels of land" (s 135C). It was inserted by the Real Property (Boundary Determinations) Amendment Act 1989 (NSW) (Amending Act). Schedule 1 of that Act made amendments to the RP Act, Sch 2 to the Encroachment Act and Sch 3 to the LEC Act.
In the second reading speech introducing the amending bill, the Minister said (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 15 November 1989 at 12516):
"The purpose of this bill is to provide a simple alternative to the court system for determining the position of a lost or confused land title boundary. At present, landowners who cannot agree on the position of a common boundary, and who seek a formal resolution of their dispute, have no alternative but to initiate action in the Supreme Court. Often this results in substantial costs and lengthy delays. In many instances disputes are left unresolved because the parties are deterred by the daunting prospect of court action, particularly where one owner is anxious to sell or wants to proceed with development. By vesting power in the Registrar General to make binding determinations on the correct position of title boundaries, the bill will allow expeditious resolution of these disputes at greatly reduced cost to the parties."
And, as the Explanatory Note to the Real Property (Boundary Determinations) Amendment Bill 1989 (NSW) made clear, the new provisions:
"will enable the Registrar-General to make a binding determination as to the position of a boundary of land where there is doubt as to the position of the boundary." (Emphasis added.)
This requirement is a condition precedent to the Registrar-General's exercise of the power to make a boundary determination under Pt 14A. That condition, expressed in s 135D(2), requires that on investigation the Registrar-General be satisfied that there is doubt as to the position of the boundary concerned. As such, it is a jurisdictional fact or criterion upon which the exercise of that power is conditioned. See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [37]-[38] (per Gummow and Hayne JJ).
In addition to inserting Pt 14A, Sch 1 of the Amending Act inserted after s 121(7):
(8) This section does not apply to the determination of the position of a boundary under Part 14A.
It will be necessary to return to this provision in considering the relief or remedies which may otherwise be available to an applicant for such a determination if the right of appeal under s 135J does not extend to a refusal under s 135D(2).
Sections 135D and 135J, as originally enacted, provided:
135D Requirements for application
(1) An application for a boundary determination under this Part:
(a) is to be made in a form approved by the Registrar-General; and
(b) is to be accompanied by such information and documents in support of the application as the Registrar-General may require (either generally or in the particular case); and
(c) is to be accompanied by the prescribed application fee.
(2) The Registrar-General must refuse to make the determination unless satisfied, on investigation, that there is doubt as to the position of the boundary concerned.
(3) The Registrar-General is to give notice to an applicant if the Registrar-General refuses to make the determination and is to give reasons for that refusal.
135J Referral to Land and Environment Court
(1) A person who is dissatisfied with a determination under this Part of the position of a boundary of land may, by notice given to the Registrar-General, request the Registrar-General to refer the matter to the Land and Environment Court for determination by the Court of the position of the boundary.
(2) Only the following persons can request such a referral:
(a) an owner of land adjoining the boundary;
(b) a person who applied for the determination as purchaser under a contract for sale of land adjoining the boundary.
(3) The Registrar-General is to comply with such a request but only if:
(a) it is made within 28 days after notice of the Registrar-General's determination is given to the person concerned; and
(b) the person pays to the Registrar-General the prescribed referral fee.
(4) The Registrar-General is not to take action under section 135K (Noting of boundary on plans etc.):
(a) until the expiration of the period during which a request can be made for referral of the determination concerned to the Land and Environment Court; and
(b) (if such a request is made during that period) until the matter has been determined by the Land and Environment Court.
(5) The Registrar-General is entitled to appear and be heard either personally or by his or her duly appointed agent at the hearing of a reference under this section to the Land and Environment Court and at the hearing of any appeal under the Land and Environment Court Act 1979 in respect of any such reference.
Section 135D has not been amended. However, in 1999, by the Real Property and Conveyancing Legislation Amendment Act 1999 (NSW), s 135J was amended to read as follows:
135J Appeals to Land and Environment Court
(1) A person who is dissatisfied with a determination under this Part may appeal to the Land and Environment Court for determination by the Court of the position of the boundary.
(2) Only the following persons can appeal:
(a) an owner of land adjoining the boundary,
(b) a person who applied for the determination as purchaser under a contract for the sale of land adjoining the boundary,
(c) a public or local authority or the Head of a Government Department.
(3) An appeal must be made not later than 28 days after notice of the Registrar-General's determination is given to the person concerned.
(4) The Registrar-General is not to take action under section 135K (Noting of boundary on plans etc):
(a) until the expiration of the period during which an appeal can be made against the determination concerned to the Land and Environment Court, and
(b) (if an appeal is made during that period) until the matter has been determined by the Land and Environment Court.
(5) The Registrar-General is entitled to be joined as a party, and to appear and be heard either personally or by his or her duly appointed agent, at the hearing of an appeal under this section and at the hearing of any appeal under the Land and Environment Court Act 1979 in respect of any such appeal.
What was previously described as a "referral" became an "appeal", in each case a rehearing by the Court of the application for a determination. Section 39 of the LEC Act relevantly provided and continues to provide:
39 Powers of Court on appeals
(1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.
…
(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. …
The subject matter of the reference or appeal was a "determination under this Part" as to the position of the boundary. The persons having the right of appeal included an owner of land adjoining the relevant boundary and a person who applied for the determination as purchaser under a contract for the sale of land adjoining the boundary (s 135J(2)). Each of those persons was to be given "notice of a determination of the position of a boundary under [Pt 14A]" (s 135I(a)-(b)), and any appeal or request to refer was to be made "not later than 28 days after notice of the Registrar-General's determination is given to the person concerned" (s 135J(3)).
The notice in s 135J(3) is a different notice from that given under s 135D(3) "to an applicant" if the Registrar-General refuses under s 135D(2) to make a determination. It follows that the 28-day period in which an appeal, or request to refer, had to be made commenced to run on the receipt of notice of an event - the making of a "determination" as to the position of the boundary - that could not occur where there had been a refusal under s 135D(2) to make such a determination.
Section 135D(2) requires the Registrar-General, upon the receipt of an application, to consider whether "on investigation" there is doubt as to the position of the boundary concerned. His or her not being so satisfied does not answer the description of a "determination under this Part". That expression describes a boundary determination that has been undertaken and made in accordance with requirements which include: that notice of the application must be given to interested persons and submissions invited and considered (s 135E); that a registered land surveyor must be consulted and a survey or other investigations carried out where that would assist (s 135F); and that the boundary determination must be made on the basis of all the evidence available (s 135H).
When an application for a determination is made under Pt 14A there are two possible outcomes, putting to one side a refusal to proceed with a determination until a required payment has been made by the applicant (s 135F(2)). They are that the Registrar-General refuses to make the determination which is the subject of the application or that the Registrar-General proceeds to make a determination of the position of the boundary. Section 135K(1) provides that the position of a boundary as determined is to be noted on plans or other documents registered or recorded. Section 135J(4) provides that the Registrar-General is not to take any action under s 135K(1) until the expiration of the 28-day period during which an appeal can be made. There is no similar requirement for the noting of any refusal under s 135D(2) to make a determination.
Whatever might be said as to the breadth of the expression "determination under this Part" when considered in other contexts, that expression as used in s 135J(1) cannot consistently with the language of that section include a refusal to make a determination. First, the Registrar-General does not make a decision to refuse to proceed to make a determination. If he or she is not satisfied in the terms of s 135D(2), there is no power or authority to make a determination and the Registrar-General "must" refuse to proceed to do so. Secondly, persons other than the applicant can request a referral or appeal. They include owners of land adjoining a boundary which has been the subject of a boundary determination with which they are dissatisfied. Thirdly, as is noted above, the period in which such persons must request a referral or appeal runs from the time that they are served with notice of a determination of the position of a boundary (s 135I). If there has been a refusal under s 135D(2) to make a determination, there cannot be a notice which causes the time for appeal to commence to run.
That construction is confirmed by the changes made to the Encroachment Act by Sch 2 of the Amending Act, which are drafted on the basis that an applicant for a determination under Pt 14A whose application is refused does not have a right of appeal under s 135J(1).
As amended, s 9(1) of the Encroachment Act provided:
(1) If any question arises as to whether an existing building encroaches or a proposed building will encroach beyond the boundary, either of the owners of the contiguous parcels of land may apply for a determination of the position of the boundary:
(a) to the Registrar-General under Part 14A (Boundary determinations) of the Real Property Act 1900 (but only if the application could be made under that Part apart from this section); or
(b) if the application cannot be made under that Part or the Registrar-General refuses to make that determination - to the Court.
Had s 135J(1) conferred a right of appeal on a person whose application was refused under s 135D(2), it would have been unnecessary to provide in s 9(1)(b) that such a person could apply for a determination of the position of the boundary to the Land and Environment Court. In that scenario, the right of appeal would have been provided for by s 9(1)(a).
To this point, there has been no consideration as to whether the fact that a "refused" applicant such as Mr Boensch does not have a right of appeal would constitute a wholly unreasonable outcome to be avoided if an alternative construction of that section is reasonably open (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (per Brennan CJ, Dawson, Toohey and Gummow JJ); [1997] HCA 2). It is not necessary to undertake that consideration in circumstances where a construction of s 135J as including a right of appeal from a refusal under s 135D(2) is not reasonably open. Nevertheless, that consideration is undertaken immediately below and shows that there is no unreasonable outcome because the "refused" applicant was, and is, not left without common law and statutory remedies.
From the outset, the "refused" applicant has had a right under the common law to apply to the Supreme Court in its supervisory jurisdiction for an order compelling the Registrar-General to perform his or her duty to consider properly and reasonably whether he or she was satisfied on investigation that there was doubt as to the position of the boundary concerned: Supreme Court Act 1970 (NSW), s 69. Where the Registrar-General has refused to be satisfied or otherwise as to that jurisdictional fact, or where there has been a "constructive" failure to be so, as would be the case where in purported performance of the duty there has been a failure to comply with some requirement essential to its valid or effective performance (including here the requirement to undertake some form of preliminary investigation), the party to whom the duty is owed may be entitled to relief in the nature of mandamus (see R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-243 (per Rich, Dixon and McTiernan JJ); [1933] HCA 30; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [54] (per McHugh and Gummow JJ); Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398; [2012] HCA 25 at [54]-[57] (per Gummow, Hayne, Crennan, Kiefel and Bell JJ); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [23]-[24], [40] (per Gummow ACJ and Kiefel J)).
The "refused" applicant's statutory remedies are provided by ss 121 and 122 of the RP Act. As enacted in 1989, s 121 entitled a proprietor of land, on the application of that proprietor, to bring proceedings in the Supreme Court to compel performance by the Registrar-General of any act or duty which the RP Act prescribed to be done or performed by the Registrar-General. The existence of that statutory remedy did not affect the Supreme Court's jurisdiction to grant relief under s 69 of the Supreme Court Act, if appropriate. In 1989, s 122 was in a substantially different form which need not be considered. Construing s 121(8) (see [28] above) consistently with s 135J and the scheme of Pt 14A, s 121 did not apply to the determination of the position of a boundary under Pt 14A, but did apply to a refusal under s 135D(2) to make such a determination.
Sections 121 and 122 were amended in September 2000, and again in May 2017.
As amended in September 2000, s 121 required the Registrar-General to supply reasons for certain decisions, including a decision "to have exercised or performed in relation to land any function or duty which, by this Act, is required to be exercised or performed by the Registrar-General". Section 122 provided for a merits review of such a decision by the Supreme Court. As part of the 2000 amendments, the former s 121(8) became s 122(5). In its terms, it provided that s 122 did not apply to "the determination of the position of a boundary under Part 14A", leaving that section as applying to a refusal under s 135D(2) to make a determination.
As further amended in May 2017, s 121 provided (and still provides) that a person aggrieved by a decision of the Registrar-General made in the exercise of a "titling and registry function" may apply to the Registrar-General for the decision to be internally reviewed. That expression as defined in the Land and Property Information NSW (Authorised Transaction) Act 2016 (NSW) describes the "functions of the Registrar-General that are exercised in the course of or in connection with the administration or execution of the Real Property Act 1900, the Conveyancing Act 1919 or any other Act". They include the functions conferred by Pt 14A. Section 121(9) provides that the existence of that right to an internal administrative review does not affect "any right that a person may have to take proceedings against the Registrar-General", which would include proceedings taken under s 69 of the Supreme Court Act. Section 122(1) provides for a further merits review by the Supreme Court on the application of a person who is "dissatisfied" with the result of the s 121 internal review. Section 122(5) continues to provide that s 122 does not apply to "the determination of the position of a boundary under Part 14A". That provision leaves an unsuccessful applicant whose application is the subject of a refusal under s 135D(2) able to pursue an internal review under s 121 and a merits review by the Supreme Court if dissatisfied with the result of that internal review, whilst also retaining the right to seek relief under s 69 of the Supreme Court Act.
This analysis suggests that, in relation to the 2022 Refusal, Mr Boensch has or had a right to an internal review of that refusal under s 121(1), as well as a right to a merits review by the Supreme Court of that internal review. There does not appear to be a time fixed for the seeking of an internal review. Mr Boensch also had a right to seek relief in the nature of mandamus from the Supreme Court. Those proceedings were required to be brought within three months of the relevant refusal, and that time could be extended subject to consideration of the factors in UCPR, r 59.10(3).
It is not necessary in these reasons to consider Mr Boensch's arguments concerning the operation of the Coastal Management Act 2016 (NSW) (CM Act). That Act replaced the Coastal Protection Act 1979 (NSW) (CP Act), which was repealed in 2018 and, accordingly, had no relevance to the 1996 determination or the 2022 Refusal.
In essence, the common law doctrine of erosion and accretion asserts (F Hallmann, Legal Aspects of Boundary Surveying as apply in New South Wales (1973, The Institution of Surveyors, Australia) at 189-190):
"… that where there is an acquisition of land from the sea or its inlets or from a stream by gradual and imperceptible means, the accretion is held to become part of the adjoining land so as to be included in the title. Conversely, where land is eroded away or is encroached upon gradually and imperceptibly by the sea or by a stream, the owner of the adjoining land loses title to that extent. The test to be applied in either case as to title, is to establish that the change was gradual and imperceptible. If the gain or loss was sudden, e.g., by a storm from the sea or by a flash flood cutting a new river channel, title is not affected, even though the change may persist for years thereafter. Imperceptible in this context means not noticeable from day to day; it does not mean imperceptible after a lapse of some considerable time."
This doctrine can trace its origin to, and is largely consistent with, the position under Roman law (Justinian, Institutes, 2.1.20-2.1.21; Gaius, Institutes, 2.70-2.71, as recognised by Walters J in Southern Centre of Theosophy Inc v South Australia (1978) 19 SASR 389 at 393).
Section 55N of the CP Act was inserted in 2002. It modified the common law doctrine by including provisions whereby an accretion claim could not be granted if: (1) a perceived trend by way of accretion was not likely to be indefinitely sustained by natural means; or (2) as a consequence of making such a grant, public access to a beach, headland or waterway would, or would be likely to be, restricted or denied. These legislative changes were primarily directed to preventing the undue loss or further alienation of public foreshore lands (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 20 March 2002 at 812-813).
Those modifications were reenacted as s 28 of the CM Act, which relevantly provides:
28 Modification of doctrine of erosion and accretion
(1) This section applies to land -
(a) which is within the coastal zone, or which adjoins the tidal waters of Sydney Harbour or Botany Bay, or their tributaries, and
(b) a boundary (the water boundary) of which is defined or otherwise determined by reference to a mean high-water mark.
(2) A court has no jurisdiction to make a declaration concerning a water boundary that would increase the area of land to the landward side of the water boundary if -
(a) a perceived trend by way of accretion is not likely to be indefinitely sustained by natural means, or
(b) as a consequence of making such a declaration, public access to a beach, headland or waterway will be, or is likely to be, restricted or denied.
(3) The Registrar-General has no power under Part 14A of the Real Property Act 1900 to make a determination concerning a water boundary that would increase the area of land to the landward side of the water boundary.
…
Leaving aside Mr Boensch's arguments concerning the operation of s 28 of the CM Act, one matter should be noted. Subsections (2) and (3) apply to Lot 38 because it has a "water boundary" with Subiaco Creek. However, neither of these provisions would apply where an amendment is sought to a water boundary, the need for which is due to a previous inaccurate survey of the MHWM. This is so notwithstanding that the result of the amendment might be said to increase the area of land to the landward side of the water boundary, that "increase" measured by reference to the earlier inaccurate survey. In such a case the "increase" would not be due to accretion, and accordingly would not be subject to the limitations imposed by s 28(2) and (3) (see Surveyor General of NSW, Surveyor General's Directions No. 6: Water as a Boundary Procedures (30 June 2016) at pp 6-10, 6-24).
From Mr Boensch's perspective the determination which currently defines the position of the boundary between Lot 38 and Subiaco Creek is the 1996 determination, which it would seem is the subject of a notation or entry registered or recorded under the RP Act (s 135K(1)). If that is in fact the position, the effect of s 135L is that "the boundary is for all purposes to be taken to be in the position so shown despite any discrepancy with any plan of survey or other plan or any other record". An application under Pt 14A remains the obvious means by which Mr Boensch could seek to have that boundary redefined to take account of what he contends is a boundary determination based on an earlier erroneous or inaccurate survey, namely, the 1952 MSB survey.
Returning to the 2022 Refusal and whether it was subject to a right of appeal under s 135J(1), the primary judge's conclusion that it was not is plainly correct. Accordingly, the appeal against the order dismissing Mr Boensch's proceedings made on this ground should be rejected.
[5]
Was the right to appeal from the 1996 determination to the Land and Environment Court no longer available or exercisable?
The primary judge answered this question in the affirmative, and was correct to do so.
Under s 135J(3) as it applied in 1996, the Registrar-General was only required to comply with a request that a matter be referred to the Land and Environment Court if the request was made to the Registrar-General "within 28 days" after the applicant had received notice of the relevant boundary determination. Mr Boensch therefore needed to establish that the primary judge could, and should, have granted an extension of time in which to seek that referral and erred in not doing so. The extension of time required was in excess of 25 years.
The relevant rules of the Land and Environment Court are LECR, rr 7.1 and 7.3. Where those "local rules" are inconsistent with the UCPR, by UCPR, r 1.7 and Sch 2, the "local rules" prevail to the extent of the inconsistency. The effect of LECR, r 7.1(2) is that the time within which a reference or appeal had to be made was the 28 days provided for in s 135J(3)(a) of the RP Act. Neither the RP Act nor the LECR provides for the extension, variation or waiving of that time limit. By LECR, r 7.3, the power conferred on the Land and Environment Court to extend or abridge time is conferred only with respect to any time fixed by the LECR or by any judgment or order of that Court. For essentially the same reasons, the primary judge held that the Court did not have power to extend the time period provided for by s 135J(3)(a).
Mr Boensch does not challenge this reasoning as incorrect. Rather, his contention is that s 55 of the Limitation Act 1969 (NSW) effectively suspended the operation of the 28-day "limitation period" under s 135J(3). Section 55 did not have that effect. First, it applies to a cause of action based on fraud or deceit. The appeal from the 1996 determination does not answer that description. Secondly, s 55 only operates to alter the reckoning of time in respect of a "limitation period fixed by or under" the Limitation Act. It does not in terms apply to the 28-day period for bringing an appeal under s 135J(3).
Accordingly, the primary judge was correct to hold that the appeal from the 1996 determination was out of time. For that reason it was incompetent. The appeal from that holding also should be rejected.
[6]
Conclusion
In the result, the following orders should be made:
1. Extend the time for the filing of Mr Boensch's Summons Seeking Leave to Appeal to 26 April 2024.
2. Grant leave to Mr Boensch to appeal from Order (1) made by the Land and Environment Court on 28 July 2023, but only on the following grounds:
1. that Mr Boensch had no right of appeal under s 135J of the Real Property Act 1900 (NSW) against the Registrar-General's refusal under s 135D(2) to make a boundary determination; and
2. that the time for commencing an appeal against the Registrar-General's earlier 1996 boundary determination had expired, the Court having no power to extend, vary or waive that time period.
1. Otherwise dismiss the Summons Seeking Leave to Appeal filed on 26 April 2024.
2. Dismiss Mr Boensch's appeal with respect to the grounds in Order (2)(a) and (b) above.
3. Otherwise dismiss the Further Amended Notice of Appeal dated 23 April 2024 and filed on 26 April 2024.
4. Order Mr Boensch pay the costs of the respondents of the application for leave to appeal and of the appeal.
PAYNE JA: I agree with Meagher JA.
BASTEN AJA: I agree with Meagher JA.
[7]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 22 May 2024
Parties
Applicant/Plaintiff:
Boensch
Respondent/Defendant:
Transport for NSW
Legislation Cited (13)
Coastal Protection Act 1979(NSW)
(Authorised Transaction) Act 2016(NSW)
Real Property and Conveyancing Legislation Amendment Act 1999(NSW)
Real Property (Boundary Determinations) Amendment Act 1989(NSW)
nister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992
Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398; [2012] HCA 25
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; [1933] HCA 30
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
Southern Centre of Theosophy Inc v South Australia (1978) 19 SASR 389
Texts Cited: Explanatory Note, Real Property (Boundary Determinations) Amendment Bill 1989 (NSW)
F Hallmann, Legal Aspects of Boundary Surveying as apply in New South Wales (1973, The Institution of Surveyors, Australia)
Gaius, Institutes
Justinian, Institutes
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 15 November 1989
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 20 March 2002
Surveyor General of NSW, Surveyor General's Directions No. 6: Water as a Boundary Procedures (30 June 2016)
Category: Principal judgment
Parties: Franz Boensch (Applicant)
Transport for NSW (First Respondent)
Registrar General of New South Wales (Second Respondent)
Representation: Counsel:
Self-represented (Applicant)
A Shearer SC / S Murray (First Respondent)
L A Walsh (Second Respondent)
Solicitors:
Holding Redlich (First Respondent)
Office of the Registrar General, Department of Customer Service (Second Respondent)
File Number(s): 2023/276701
Publication restriction: Nil
Decision under appeal Court or tribunal: Land and Environment Court
Jurisdiction: Class 3
Citation: [2023] NSWLEC 82
Date of Decision: 28 July 2023
Before: Robson J
File Number(s): 2022/252749
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant, Mr Boensch, is the registered proprietor of land. The eastern boundary of his land and the western boundary of Subiaco Creek are defined by the current or a former mean high-water mark. The registered proprietor of that creek is the first respondent, Transport for NSW (TfNSW). For some time those parties have been in a dispute as to the position of that water boundary. In 1996 the second respondent, the Registrar-General, determined the position of that boundary under Pt 14A of the Real Property Act 1900 (NSW) (RP Act) to be as defined in a 1952 MSB survey.
In June 2021 TfNSW commenced proceedings in the Supreme Court against Mr Boensch seeking damages for trespass and other consequential orders for the removal, inter alia, of a retaining wall said to have been erected on its land. In accordance with consent orders made in those proceedings, Mr Boensch applied for a further determination of the water boundary. Relying on the application of s 135D(2), the Registrar-General refused to exercise the power to make such a determination (2022 Refusal).
Subsequently, Mr Boensch brought proceedings in the Land and Environment Court's Class 3 jurisdiction challenging, inter alia, that decision. The primary judge dismissed his various claims pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
Under s 57(1) and (4) of the Land and Environment Court Act 1979 (NSW), Mr Boensch's appeal was limited to a decision on a question of law and, because the decision was interlocutory, leave to appeal was required. That leave was granted on two grounds, each of which raised a question of statutory construction:
(i) whether the 2022 Refusal was a "determination" under Pt 14A engaging the right of appeal under s 135J(1); and
(ii) whether the "appeal" of the 1996 determination to the Land and Environment Court was out of time and incompetent because the 28 days for requesting the Registrar-General to refer the matter to that Court had expired more than 25 years earlier and could not be extended, varied or waived.
The Court (Meagher JA, Payne JA and Basten AJA agreeing) dismissed the appeal, holding:
As to issue (i):
(1) On its proper construction, having regard to its text, context and purpose, the right of appeal under s 135J of Pt 14A is from a determination of the position of a boundary by the Registrar-General and does not extend to a refusal to make such a determination. No alternative construction of s 135J is reasonably open.
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, referred to.
(2) The fact that in those circumstances an applicant for a boundary determination has no right of appeal under s 135J does not produce or result in a wholly unreasonable outcome because that "refused" applicant has other common law and statutory remedies.
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; [1933] HCA 30; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398; [2012] HCA 25; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, referred to.
(3) Obiter: Although s 28(3) of the Coastal Management Act 2016 (NSW) will limit the Registrar-General's power to make a determination under Pt 14A in certain circumstances, that provision has no application where the amendment to the boundary is sought due to a previous inaccurate survey of the mean high-water mark.
As to issue (ii):
(4) Neither the RP Act nor the Land and Environment Court Rules 2007 (NSW) conferred power on the primary judge to extend the 28-day period for appealing a boundary determination under s 135J(3). Those "local rules" prevailed over the UCPR to the extent of any inconsistency (UCPR, r 1.7 and Sch 2).