46 However, apart from fraud and the exceptions set out in s 42(1)(a)-(d) of the RP Act, it is clear that rights in land under the Torrens system might arise outside the RP Act and that in some circumstances those rights effectively supplant the rights under that Act. Thus, before the enactment of legislation such as the Roads Act 1993 (NSW), which vested the fee simple of public roads in a local council as the relevant roads authority (see ss 7(4) and 145(3)), the common law right of the public to use a dedicated highway could not be defeated by the registered proprietor of the land on which the highway was located. Thus in Vickery v Strathfield Municipal Council (1911) 11 SR (NSW) 354 at 362, Rich AJ said:
"It is clear, therefore, that a registered proprietor holds his land absolutely free from all encumbrances, liens, estates, or interests whatsoever other than those notified on the grant or certificate of title, save in the cases expressly mentioned. Is this language sufficiently wide to cover public rights of highway? I am of opinion that it is not. The language of s 42 itself suggests that the interests referred to are such as are capable of existing in an individual; this is inconsistent with its applicability to public rights of user. But, apart from this, public highways appear to lie wholly outside the scope of the Act. …"
47 Again, in Pratten v Warringah Shire Council at 137 Street J held that a council's statutory title under s 398 of the 1919 Act to a drainage reserve prevailed over the title of the registered proprietor of the land over which the reserve was situated. Although the land remained registered in the name of the previous registered proprietors for an estate in fee simple therein, s 398 operated on the land to divest the ownership from the registered proprietor and to vest that ownership in the council in fee simple for drainage purposes. Thus at 142 his Honour said:
"… The absolute indefeasibility ordinarily flowing from registration ( Frazer v Walker ) will not avail where the fee simple has, by an overriding statute, been in effect removed from the registration system. Moreover, not only was the then registered proprietor incapable of calling back his fee simple, but no act of the Registrar-General otherwise than consequent upon the written request of the council pursuant to s 14 of the Real Property (Amendment) Act 1921 could be recognized as effective to trench in any way upon the council's fee simple. …"
48 In South-Eastern Drainage Board, the relevant legislation provided that money owed to a public authority for rates to pay for a drainage scheme was a first statutory charge on the land, the High Court holding that despite the principles of indefeasibility, on the true construction of the statute the statutory charge took priority over a duly registered mortgage under the South Australian Real Property Act. Thus Dixon J said (at 627-628):
"It follows, therefore, that the question upon which our decision must turn is whether in the enactments creating the statutory charges such a clear intention is expressed to include land under the Real Property Act and to give to the charges an absolute and indefeasible priority over all other interests that, notwithstanding s 6 of that Act, no course is open but to allow the intention so expressed in the later enactments to be paramount over the earlier Real Property Act . In my opinion this question ought to be answered that such an intention so plainly appears that no other course is open."
49 In the same case Starke J (at 622) said that the charges were complete and effective by reason of the statutes creating them so that no room was left for the operation of the Real Property Act with the result that the explicit and express provisions of the statutes creating the charges must prevail.
50 In the instant case, the title of the third respondent is questioned because the transfer which was registered so as to purportedly endow it with an indefeasible title was, as now appears, executed in breach of s 45(1) of the LG Act which provided that "a council has no power to sell, exchange or otherwise dispose of community land".
51 As we have already noted (at [43]), Biscoe J held (at [96]) that, in the circumstances of this case, the legislature impliedly intended s 45(1) of the LG Act to override the indefeasibility provisions of the RP Act. In Quach it was noted by Young J (at 61) that notwithstanding the difficulty of operating under the Torrens system if there were extraneous statutory rights, nevertheless in those cases where the legislation clearly so provided, the statutory rights "trumped" indefeasibility. His Honour expressed the problem in the following terms:
"It is very difficult now to contend that the mainstream indefeasibility provisions, such as s 42 of the Act, operate to defeat the statutory right of the Council. It has been well recognised, both by the textwriters and by the authorities that, although it is the weakest point in the Torrens System, statutory and public rights will override an indefeasible title. The point might be worth making that the present right claimed by the Council is, in a strict sense, not a public right. The point can be illustrated by reference to a road. Before the Local Government Act , it was quite possible for X to have a fee simple in the soil of a road, Y to have a private right-of-way over the road and for the public generally to have the right to pass and repass because the road was a public road. Y's interest in holding a private right-of-way and the public's interest in having a right to pass and repass were two different rights and the cessation of the public right may not necessarily interfere with the exercise by Y of his private right. In that sort of situation public rights to roads can easily be said to override private land rights because, in effect, they are supplementary rights of user, completely separate from the congeries of rights which make up a fee simple. However, when one is talking about a council not only having a right to pass drainage pipes through the land, but also owning the fee simple itself, it is very debatable whether the dichotomy between public rights in land which it overrides and private rights is maintainable. However, although that may be the philosophic position, the authorities say otherwise: see, eg, South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia (1939) 62 CLR 603.
It seems to me that, despite the very legitimate criticism that has been made by the textwriters, (see, eg, Sackville (1973) 47 ALJ 526 at 536 and Butt, Land Law , 2nd ed (1988) at 532) that provisions such as s 398 pose the greatest single threat to the operation of the Torrens System and make such substantial inroads into indefeasibility that it is impossible to rely on the register, I feel I must follow such a strong line of authority as holds that these statutory inroads do prevail over the "ordinary" indefeasibility provisions of the Real Property Act ."
52 However, it must be noted that the cases in this category are few and the reported ones at least deal with situations where there was an ongoing effect of the statute found to trump indefeasibility. Thus in Vickery there was the ongoing use of a public road; in South-Eastern Drainage Board an ongoing statutory charge; in Pratten and Quach the continuous use of drainage reserves. These were not cases where there was a once and for all breach of a statute prohibiting a dealing with RP Act land.
53 As we have noted in [42] above, Biscoe J at [91] held that the authorities concerning what might be termed the statutory exceptions to indefeasibility which he had considered were all distinguishable from the present case including decisions such as South-Eastern Drainage Board. At least so far as that line of cases was concerned, his Honour was clearly correct.
54 More problematic is the view of Gibbs J in Travinto (at 34) to which we have referred in [34] above. In that case the statutory provision which purportedly conflicted with the indefeasibility principle was not a void instrument but rather s 88B of the then Industrial Arbitration Act which rendered void any contract under which a person leased or agreed to lease premises in which hairdressing was to be carried out unless it had been approved by the Industrial Commission or some other industrial body.
55 In brief, the facts were that there was a lease of a hairdressing shop at Marrickville which contained an option. The plaintiff sought specific performance of its exercise of the option to renew. It succeeded at first instance but lost in this Court. On appeal to the High Court, four justices dismissed the appeal on the basis that the transaction was illegal and so could not be enforced by way of specific performance. However, Gibbs J distinguished Breskvar v Wall on the basis that in that case the Queensland Stamp Act and Real Property Act could stand together because whilst the transfer itself was rendered void under the former statute, the latter resulted in the registration of the void transfer being effective to pass title. However, he continued (at 34-35) in these terms:
"In the present case the Industrial Arbitration Act renders void the lease itself and not merely some document or transaction from which the title of the lessee was derived. If the Real Property Act were held to have the effect of validating the lease, its provisions would be irreconcilable with those of s 88B which declares the lease to be void.
… Although the Real Property Act is of the greatest importance in relation to land titles it is not a fundamental or organic law to which other statutes are subordinate. The question is simply whether the provisions of the later enactment, s 88B of the Industrial Arbitration Act, override the inconsistent provisions of the Real Property Act, and for the reasons I have given I consider that they do."
56 At least at first blush there is a difficulty in reconciling this reasoning of Gibbs J in Travinto with what the High Court, of which Gibbs J was a member, said in Breskvar v Wall. In Travinto Gibbs J was clearly conscious of the decision in Breskvar v Wall on which he had sat, there being a clear distinction in his mind between the effect of the relevant statutory provisions in terms of their impact upon the indefeasibility provision of the Torrens legislation in Travinto compared with that in Breskvar v Wall. It would seem that he thought that the critical distinction was that the lease itself was void in Travinto, not merely some document or transaction from which the title of the purchaser was derived, as was the case in Breskvar v Wall.
57 If this was his Honour's line of reasoning, then in view of our analysis of the authorities, it would seem to be inconsistent with the approach taken by the majority of the judges of the New Zealand Court of Appeal in Boyd v The Mayor of Wellington and by the Full Court of South Australia in Palais Parking Station which have been accepted by high authority. If we had to, we would join with Ormiston JA's observations in Horvath v Commonwealth Bank of Australia [1998] VSCA 51; [1999] 1 VR 643 at 659 with respect to the judgment of Gibbs J's in Travinto, see [70] below.