Consideration
55As an exercise in statutory interpretation, I do not accept that submission. It seeks to identify land that is "claimable" by reference to the expression being defined rather than by reference to the definition that the subsection provides. In the context of the present case, what must be determined for the purpose of satisfying the provisions of s 36(1) are:
(i)that the land is vested in Her Majesty at the date of claim, and
(ii)the land is able to be lawfully sold or leased or is reserved or dedicated for any purpose under the CLC Act or the Western Lands Act. (Emphasis added.)
56Setting aside the first of those two elements for the present, the definition in s 36(1) of the Land Rights Act is not expressed by reference to the definition of "Crown land" in the CLC Act. Land will qualify by reference to the second element of the definition s 36(1) if it is "reserved" for any purpose under the CLC Act. The claimed land was so reserved as Reservation No. 200012 under s 28 of the CLC Act.
57The Minister did not seek to impugn the lawfulness of that declaration. It follows, as a matter of fact, that the claimed lands were reserved under the provisions of the CLC Act, regardless of whether those lands fell within the definition of "Crown land" contained in that Act. If it otherwise be relevant, the second element of the definition of "claimable Crown lands" was satisfied, without the need to refer to the definition of "Crown land".
58Accepting, as he must, that the registered proprietor of the claimed lands is and was at the date of the Land Claims, the "State of New South Wales", the Minister submits that the land nonetheless remains vested in the Minister for Public Works. He submits that recording the State as the registered proprietor is erroneous and occurred because the legal effect of the s 25A declaration made in respect of the land on 30 October 1987 was wrongfully understood by LPI when implementing the Crown Lands Conversion Project.
59It must be remembered that I rejected evidence from Mr Medaris who sought to attribute the issue of the relevant folios in the Register to a possible misunderstanding by the responsible LPI officer of the effect of the s 25A declaration or of the declaration of the land as a public reserve. As Mr Medaris was not the responsible officer, his speculation could not be accepted. Likewise, speculation that this was the cause does not gain any purchase because it was made in the course of submissions.
60Reliance is placed by the Minister on the decision of the Court of Appeal in Mogo Local Aboriginal Land Council v Eurobodalla Shire Council as to the legal effect of the declaration made under s 25A(1) of the CLC Act. The leading judgment in that case was delivered by Giles JA (Hodgson JA and Rolfe AJA concurring). At [34] his Honour said:
"In my opinion, s 25A of the Crown Lands Consolidation Act as it stood in 1981 was quite clear. It applied to land which had not been acquired under the Closer Settlement Act 1904 and was not Crown land within the meaning of the Crown Lands Consolidation Act ... it provided a mechanism by which land not falling within the definition of Crown land could be dealt with as Crown land. The declaration which it empowered did not purport to alter the ownership of the land or the body in which it was vested. Indeed, the declaration did not purport to deal with the land at all - it only declared that the land could be dealt with and authorised the dealing."
After considering further submissions to the contrary, his Honour repeated the conclusion expressed at [34] by stating (at [47]) that s 25A(1) gave a general power to deal with land which was not Crown land but as if it was Crown land within the meaning of the CLC Act.
61That position must be accepted. The language of s 25A(1), as it was at the time of the declaration presently relevant, namely that made on 30 October 1987, is not materially different to the terms of the subsection considered by the Court in Mogo.
62However, the Court in Mogo was addressing a different factual circumstance from that being considered in the present case. There, the land in question had been resumed by a local council under the provisions of the Local Government Act 1919 (NSW) (now repealed). Upon notice of that resumption being published in the Gazette, the land in question was "vested in the Council for an estate in fee simple in possession freed and discharged from all trusts, obligations, estates, interests, contracts, charges, rates, rights of way or easements whatsoever." That land was subsequently subdivided and upon subdivision the land in question was dedicated as a public reserve. A separate certificate of title under the Real Property Act issued for that land showing the council to be the registered proprietor for an estate in fee simple.
63Sometime later, a declaration under s 25A of the CLC Act was made in respect of the council owned land. Following that declaration, the Registrar-General unilaterally altered the Register by ruling through the name of the council as the registered proprietor, recording the declaration in the Gazette by stating that the land had become Crown land and "cancelling" the certificate of title.
64Following these events, Mogo Local Aboriginal Land Council lodged a land claim under s 36 of the Land Rights Act. The council commenced its own proceedings claiming that the land was not vested in Her Majesty within the meaning of s 36(1) of the Land Rights Act but was vested for an estate in fee simple in the council. The council succeeded both at first instance and in the Court of Appeal. Essentially, it did so because a declaration under s 25A of the CLC Act did not operate to affect the council's title in the land.
65Importantly, the decision in that case did not engage a consideration of the provisions of ss 40 and 42 of the Real Property Act in the manner required in the present case. As Giles JA observed at [49], s 40 could not be relied upon in that case because the entry on the folio, immediately before being cancelled, to the effect that the land had become Crown land, was not a recording of a person as the registered proprietor of the land.
66In summary, while the decision in Mogo bears upon the effect of a declaration under s 25A of the CLC Act, it does not address the supervening event in the present case, namely the issue of folios in the Register for the claimed lands. That supervening event occurred in 2007 when those folios were created, long after the s 25A declaration had been notified.
67The Land Council submits that the provisions of ss 40 and 42 of the Real Property Act provide a complete answer to the Minister's submissions. As the State was recorded on each of the relevant folios of the Register as the registered proprietor of the claimed lands at the date upon which the Land Claims were made and no other interest in the land is recorded on those folios, that circumstance establishes that the land is vested in Her Majesty (ss 40(1A) and 42(1)). So to determine gives effect to the Torrens system of title as explained by Barwick CJ in Breskvar v Wall [1971] HCA 70; 126 CLR 376 where his Honour said at 385-386:
"The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration, would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor. Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument is void." (Emphasis added).
68That statement by the Chief Justice was adopted more recently by the High Court in Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 11; 247 CLR 149 where at [20] the plurality described the principle to be of "fundamental importance" to the recognition of the Torrens system of registered title, of which the Real Property Act is a form. In a separate judgment, Gageler J at [53] referred to "indefeasibility of title" as "a conception 'central in the system' of registration, in accordance with which 'registration once effected must attract the consequences which the [RPA] attaches to registration whether that was regular or otherwise'".
69There is ample authority to support the proposition that the Register is conclusive of title even if registration has occurred in error or without authority (Breskvar v Wall at 386; Palais Parking Station Pty Ltd v Shea (1980) 24 SASR 425 at 429 - 430; Black v Garnock [2007] HCA 31; 230 CLR 438 per Gummow and Hayne JJ at [10]).
70In City of Canada Bay Council v F & D Bonaccorso Pty Ltd [2007] NSWCA 351; 71 NSWLR 424 the Court of Appeal was required to consider whether the transferee of land from the appellant council, obtained, upon registration of that transfer, an indefeasible title, notwithstanding that the land transferred was classified as "community land" under the Local Government Act 1993 (NSW). By s 45 of that Act, the Council had "no power to sell, exchange or otherwise dispose of" community land. The Court (Mason P, Tobias JA and Young CJ in Eq) determined, in a joint judgment, that although s 45 had the effect of invalidating the transaction, once the transfer was registered "the indefeasibility provisions of the Real Property Act were engaged and prevented that occurring" (at [82]-[83]). At [83] their Honours restated that the transferee's title "is wholly derived from the act of registration by the Registrar-General and not upon the transfer or the antecedent transaction which gave rise to the transfer."
71The conclusive effect of the Register under the Real Property Act has been held to apply even where registration is the result of error on the part of the Registrar-General. That was the effect of the decision of Young J (as his Honour then was) in Brantag Pty Ltd v Minister for Mines (No 3) (29 March 1995 BC 9504440). His Honour there said:
"Whatever be the situation of the rights of the plaintiff as against the Registrar General, it seems to me that as soon as the entry was made on the title, the title becomes conclusive evidence of the land which it contains. The whole purpose of the Real Property Act is that one need only look at the folio on the Register and see who owns what land for what interest. Whether the Registrar General makes an authorized or unauthorized entry, once the entry has been made the interests are modified accordingly and the right of anyone deprived of land is simply against the Registrar General."
72His Honour repeated the substance of that determination as it relates to a mistaken entry in the Register by the Registrar-General in Bankstown Airport Ltd v Noor al Houda Islamic College Pty Ltd [2002] NSWSC 193; NSW Conv R 56-038 at [17].
73Circumstances bearing a similarity to those in the present case were considered by Bignold J in Birrigan Gargle Aboriginal Land Council v Minister Administering the Crown Lands Act [1999] NSWLEC 12; 102 LGERA 33. In an appeal under s 36(6) of the Land Rights Act, the Minister contended that the claimed land was not claimable Crown land within the meaning of s 36(1). One of the two bases for that contention was that the land was not vested in Her Majesty.
74The land in question had been resumed by the State Planning Authority. Title to the land was held under the provisions of the Real Property Act. Following publication of the resumption notice, the Authority was recorded as the registered proprietor. Shortly thereafter a declaration was made in respect of the land under s 25A of the CLC Act and that declaration notified in the Gazette. Subsequently, the Registrar-General altered the Register to record the State of New South Wales as the registered proprietor.
75The Minister contended that recording the State as registered proprietor involved an "administrative error" which did not reflect the true legal vesting of the land. After referring to the provisions of s 40 of the Real Property Act and citing the judgment of Barwick CJ in Breskvar v Wall, his Honour rejected the Minister's submissions. In so doing, his Honour said:
"23 In my judgment the 'conclusiveness of the register' provisions of the Real Property Act 1900 are determinative of the issue in dispute and operate so as to require the conclusion in these proceedings that the lands were relevantly 'vested in Her Majesty' as at the date of the land claim.
24 In so concluding the Court has not been invited by the Applicant to determine the legal effect of the notification made pursuant to s 25A of the Crown Lands Consolidation Act. The Respondent has submitted that that effect was not to render the lands 'Crown land'. Since the Applicant's competing submissions do not involve any challenge or rebuttal of this submission, it is not necessary for the court to adjudicate upon it. Rather my conclusion that the issue is determined by the 'conclusiveness of the Register' provisions of the Real Property Act means that the Respondent's submissions on the legal effect of the Notification given pursuant to s 25A of the Crown Lands Consolidation Act may (for present purposes) be assumed to be correct."
His Honour's decision in that case was cited with approval by Young J in Bankstown Airport Ltd v Noor al Houda Islamic College Pty Ltd at [17].
76The Minister seeks to distinguish the decision in Birrigan Gargle on five bases. The first is that the vesting issue was only raised a short time before the commencement of the hearing and the second is that the Minister's reason for refusing the claim was that the lands were needed for an essential public purpose (s 36(1)(c) of the Land Rights Act). I do not accept either of these bases as reasons to distinguish that case. First, as his Honour acknowledged, the vesting issue was raised with adequate notice to the applicant Land Council and second, it was essential to his decision to determine whether the claimed land was vested in Her Majesty. If it was not so vested, consideration of the issue raised by s 36(1)(c) was unnecessary
77The third basis upon which the Minister sought to distinguish Birrigan Gargle is that it was a judgment delivered ex tempore. That fact provided no foundation to distinguish the decision, particularly by reference to the principle upon which that issue was decided.
78The fourth basis upon which it is contended that the case should not be followed is that his Honour decided the issue, relying upon the provisions of s 13H of the Real Property Act which, it is submitted, was misplaced. I do not accept that submission. The reason why his Honour rejected the Minister's argument directed to vesting of the land are those that I have quoted from [23] and [24] of the judgment. He commenced the following paragraph of his reasons by stating that he would "deal with some related submissions advanced by each of the parties" because they had a bearing upon the conclusion that he had expressed. The following reference to s 13H of the Real Property Act is directed to his Honour's consideration of the power of the Registrar-General to have altered the Register, rather than his primary basis for determination, namely the "conclusiveness of the Register", as it existed at the date of claim. It is that aspect of his Honour's decision that provides support for the submission of the Land Council in the present appeals.
79The fifth basis upon which Birrigan Gargle is sought to be distinguished is that in the authorised report of Mogo, Birrigan Gargle is identified as having been cited in argument, but is not referred to in the judgments of the Court of Appeal. That circumstance, so it seems to me, founds no basis upon which Birrigan Gargle should not be followed. It remains a decision that has not been overruled and, despite the Minister's submissions to the contrary, I do not regard it as necessarily being inconsistent with the determination made by the Court of Appeal in Mogo.
80Ultimately, the Minister submitted that Birrigan Gargle was wrongly decided. For the reasons that I have given, I do not accept that submission as correct, particularly so far as it is directed to the operation of ss 40 and 42 of the Real Property Act.
81However, even if the alteration to the Register made by the Registrar-General in Birrigan Gargle is inconsistent with the determination in Mogo, that circumstance has no bearing upon the present case. No alteration of the Register is presently involved. The cases earlier cited, directed to the operation and effect of ss 40 and 42 of the Real Property Act, remain critically relevant to the determination of the present case.
82Indeed, the insertion of subsection (3) into s 42 by the Real Property and Conveyancing Legislation Amendment Act 2009 (NSW) reinforces the concept of indefeasibility intended by subsection (1), save where there is express provision made in other legislation that overrides the operation of the section. While Sch 2 to that amending Act did make consequential amendments to a number of statutes, inserting a provision that overrode the operation of s 42, no legislation that is presently relevant had been so amended at the date the Land Claims were made.
83The Minister seeks to respond to the Land Council's reliance upon the indefeasibility provisions of the Real Property Act on two bases. First, he points to the provisions of the Real Property Act that allow amendments to be made to the Register. Those provisions, so it is submitted, speak against the "conclusiveness" of the Register.
84Second, it is submitted that the cases to which reference has been made in support of the indefeasibility principle can be distinguished. They can be so distinguished, so it is submitted, on the basis that each of them involved a transaction that had been registered and led to a dispute between parties asserting title.
85It can be accepted that there are some rights in land that may arise outside the Real Property Act and that those rights may supplant rights otherwise arising under that Act. So much was recognised by the Court of Appeal in City of Canada Bay Council v F & D Bonaccorso Pty Ltd at [46]-[52]. However, as was there observed (at [52]), cases supporting the exception to indefeasibility "are few". Indeed, with the insertion of subsection (3) into s 42 by the amending Act of 2009, coupled with the corresponding amendment to other legislation effected by that same Act, it may be accepted that there are only a limited and finite number of circumstances in which the indefeasibility provision of the Real Property Act will be trumped and then expressly so. The facts and legislation considered in the present case do not identify any such circumstance.
86Reliance is placed by the Minister upon the provisions of s 12(1)(d) of the Real Property Act as a demonstration of the contention that the Register is not "conclusive". That provision enables the Registrar-General, "subject to this section and upon such evidence as appears ... sufficient", to correct errors and omissions in the Register. However, subsection (3) should be noticed as it is directed, in terms, to the exercise of the Registrar-General's power under subsection (1)(d). In particular, paragraph (b) of subsection (3) is of present importance as it provides:
"(b) to the extent that, but for this paragraph, the correction would prejudice or affect a right accrued from a recording made in the Register before the correction, the correction shall be deemed to have no force or effect, ... ".
87Contrary to the submission of the Minister, I would have thought that where a correction is made under s 12(1)(d), the provisions of subsection (3)(b) are intended to maintain consistency with the indefeasibility provisions of the Act. The latter provision ensures that until such time as the correction is made and recorded on the Register, rights accrued by reason of the information contained in the Register immediately prior to correction are preserved.
88Reference is also made by the Minister to s 136 of the Real Property Act. That section enables the Registrar-General, by notice, to call in for cancellation or correction any certificate of title or duplicate certificate of title that has been issued, where the Registrar-General is satisfied, among other matters, that a recording in the Register has been made in error or that a certificate of title or recording in the Register has been "fraudulently or wrongfully obtained". Further the section enables the Registrar-General to approach the Court for an order requiring the person holding a certificate of title to produce it to the Registrar-General for correction or cancellation action. To my mind, nothing in that section detracts from the conclusive effect of the Register prior to the taking of action to correct the error identified by the Registrar-General or to cancel the certificate of title.
89Section 138 enables a court, in proceedings for the recovery of "any land, estate or interest" from the registered proprietor to make a number of specified "ancillary" orders against the Registrar-General, including an order that a folio of the Register be amended (s 138(3)(a)). As I understood the Minister's submission by reference to this section, the Register should not be taken to be conclusive as to the owner of the land at the date of the Land Claims because the Register was capable of correction pursuant to a court order so as to reflect the true legal position, namely that the Minister for Public Works should be recorded as the registered proprietor. That, so it is submitted, is the consequence of the 1897 declaration made under the Public Works Act 1888, as the later declaration under s25A of the CLC Act did not affect the title of the Minister for Public Works to the claimed lands (Mogo). However, neither the decision in Mogo nor any other decision identified by the Minister determined that an order made for alteration of the Register under s 138 had retrospective effect so that it impinged upon or denied the title of the registered proprietor as recorded in the Register prior to the order being made.
90The power to make an order under s 138 is discussed in City of Canada Bay Council v F & D Bonaccorso Pty Ltd at [93]-[97]. The context in which the section is there discussed offers no support for a submission that the availability of an ancillary order under that section would operate to override the provisions of s 42 as they relate to the title of the registered proprietor prior to the making of any such order.
91The second broad basis upon which the Minister seeks to challenge the Land Council's reliance upon the paramount effect of the Register is directed to the absence of any "transaction" or dealing in respect of the claimed land. He submits that subsequent to the "erroneous" entry of the State as the registered proprietor, there has been no dealing with a bona fide purchaser without notice of the defect. This, so it is submitted, is not a case of the State "claiming title in any way". Further, it is submitted that at the time of making the present land claims, the Land Council was aware that the Minister for Public Works was asserted by the Lands Minister to be the owner of the land. That was the basis upon which the earlier land claims had been refused by the Lands Minister.
92In support of the submission directed to the need for a "transaction" to trigger the operation of the indefeasibility provisions of the Real Property Act, the Minister relies upon the decision of the Privy Council in Gibbs v Messer [1891] AC 248. The judgment of the Board in that case was delivered by Lord Watson who at 254 said:
"The object [of the Act] is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author's title, and to satisfy themselves of its validity. That end is accomplished by providing that every one who purchases, in bona fide and for value, from a registered proprietor, and enters his deed of transfer or mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author's title."
The legislation there being addressed was the Transfer of Land Statute applicable to the then Colony of Victoria.
93The observations made in the quoted passage would appear to be directed to a legislative provision that now finds expression in s 43 of the Real Property Act. In terms, it provides protection to a person dealing with or taking a transfer from the registered proprietor of land.
94However, the provisions of s 42 are not expressed to operate by reference to any transaction by or dealing with the registered proprietor of land. Rather, the section expresses, in unequivocal terms, the paramount title of the registered proprietor as recorded in a folio of the Register, "absolutely free from all other estates and interests that are not so recorded", subject to exceptions that are not presently relevant. The statement of Lord Watson in Gibbs v Messer has no bearing upon the operation of s 42.
95This conclusion renders irrelevant the submission of the Minister directed to the notice that the Land Council had of the asserted ownership on the part of the Minister for Public Works. It also renders irrelevant the evidence to which I have earlier referred (at [22]), being the evidence upon which that submission was founded. Moreover, none of the amendments to the Real Property Act that were introduced by the Real Property (Crown Land Titles) Amendment Act 1980 have the effect of qualifying the application of ss 40 or 42 of the Real Property Act where Crown land has been brought under the provisions of the Act.
96There is a further matter that should be noticed in relation to the Minister's submissions. The Land Rights Act has been identified in many cases as intended for beneficial and remedial purposes (see for example Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Wagga) [2008] HCA 48; 237 CLR 285 at [44]). As such, it should be interpreted in a manner that gives effect to those purposes. To construe the term "lands vested in Her Majesty" as used in s 36(1) of the Land Rights Act in a manner that denied its operation where the Register records the State as the registered proprietor at the date of claim would not be consistent with an interpretation informed by that principle. So to conclude is not inconsistent with the observations of Giles JA in Mogo where his Honour said at [57]:
"The requirement that land is vested in Her Majesty is to ensure that, in granting a claim, the Minister does not deprive persons other than the Crown of their interests in the land." (Emphasis added.)
As I have earlier observed, his Honour was not there addressing a circumstance where a folio in the Register had been created recording the State as the registered proprietor.
97In summary, I am persuaded that the claimed lands were, at the date of each claim, vested in Her Majesty within the meaning of s 36(1) of the Land Rights Act. Each folio in the Register for those lands recorded the State as the registered proprietor. By operation of s 42 of the Real Property Act, the fact that the State was so recorded had the effect that each lot was free of any other interest or estate claimed to exist in that lot that was not recorded in the Register.
98For those reasons, reliance upon the 1897 declaration that the land was vested in the Minister for Public Works was misplaced. The creation in 2007 of folios in the Register for the claimed lands was tantamount to "a new title certified as if the land had been a new Crown grant" (City of Canada Bay Council v F & D Bonaccorso Pty Ltd at [45]). At the date of the Land Claims, the asserted interest of the Minister for Public Works in the claimed lands is not recorded in the folio of the Register.
99This conclusion renders it unnecessary to address the Land Council's submission directed to the operation of the declaration made under s 25A of the CLC Act as authorising the Registrar-General to record the State as proprietor pursuant to s 13H of the Real Property Act or its earlier manifestation to the same effect in s 49. Reliance upon those provisions may require reconsideration of the decision in Mogo, a decision by which I am bound.