Step v Hinton [2012] NTCA 3

REAL PROPERTY - Crown lands - Northern Territory - generally adverse possession of unalienated Crown land - whether the appellant obtained a possessory interest in the land through adverse possession - Crown Lands Act, s 4(1),(2).

REAL PROPERTY - Torrens title - adverse possession of others and possessory title - whether the appellant had common law possessory right enforceable against all the world except a person with better title.

REAL PROPERTY - Crown lands- Northern Territory - generally.

Limitation Act, s 6(4); Crown Lands Act, s 4(1),(2); Trespass Act s 4, s 7(1), s 8, s 9 and s 12; Land Title Act, s 198.

Newington v Windeyer (1985) 3 NSWLR 555; Spark v Whale Three Minute Car Wash (1970) 92 WN (NSW) 1087; Wheeler v Baldwin [1934] HCA 58; (1934) 52 CLR 609, referred to.

Step v Hinton [2012] NTCA 3

[1] The appellant has at all times been self represented. On 3 November 2010 he was convicted in the Court of Summary Jurisdiction of the offence of trespass after direction to leave, contrary to s 7(1) of the Trespass Act. No further penalty was imposed although the appellant was provided with a warning by the learned Magistrate pursuant to s 8 of the Trespass Act that he should leave the property. He appealed against his conviction to the Supreme Court and, on 15 July 2011, the appeal was dismissed. He now appeals to this Court.

[2] The offence of trespass, relevant for present purposes, is created by s 7 of the Trespass Act which provides:

(1) A person who trespasses on any place and, after being directed to leave that place by an occupier or member of the Police Force acting at the request of the occupier, fails or refuses to do so forthwith or returns within 24 hours to that place, commits an offence.

(2) A direction under subsection (1) may, where the trespass is on Crown land or land occupied by the Territory or the Commonwealth or a statutory corporation, be given by a member of the Police Force whether a request to act has been made by the occupier or not.

[3] A "place" is defined to include "prohibited land" and Crown land.[1] There was no dispute that the land upon which the appellant entered was Crown land and, it follows, was a place for the purposes of s 7of the Trespass Act.

[4] The "occupier" in relation to Crown land is "a person in charge of the land" and includes an employee or other person acting under the authority of a person in charge.[2] A direction to leave may be given to the person concerned either orally or by notice in writing delivered to that person or sent to that person by post.[3]

[5] The prosecution arose out of the occupation by the appellant of parts of two unalienated vacant parcels of Crown land being sections 1659 and 1660 Hundred of Ayers. The appellant moved onto the land in 2001 and lived there on a continuous basis after that time without holding a lease or licence or any other permission to be on the land. He erected on the land a rough dwelling, a shed and a water tank along with some other structures. He constructed a gate across the entrance to the land and posted a sign stating "no trespassers". At all times since 2001 he conducted himself as if he were the occupier of the land.

[6] During 2009 the Northern Territory government became aware of the appellant occupying the land. He was notified in writing that he must vacate the land within 24 hours of the date of the notice. The notice was personally served upon him by a police officer. The appellant failed to vacate the land. He was informed that if he did not vacate the land by a certain date the matter would be referred to legal advisers for further action. There was further communication between the appellant and representatives of the Northern Territory. On 12 May 2010,when the appellant continued to refuse to vacate the land, he was served with a notice pursuant to s 7 (1) of the Trespass Act requiring him to cease trespassing on the land and advising that should he fail to do so prosecution proceedings would be instituted under the Trespass Act. The appellant failed to vacate the land and a complaint was issued and served upon him.

[7] In defending the proceedings the appellant argued that he was not a trespasser for the purposes of s 7(1) of the Act because he had dispossessed the Crown and acquired a right to occupy the land under a bare inchoate possessory interest which he obtained by adverse possession. On 3 November 2010 he was found guilty as charged and convicted.

[8] On appeal to the Supreme Court the learned Judge determined that the trial Magistrate had erred in law in relying upon s 198 of the Land Title Act for the proposition that there was no adverse possession against the Crown in the Northern Territory. It was conceded before his Honour that the section did not have application to the unalienated Crown land the subject of the appeal as the land was not land under the Land Title Act. Notwithstanding the identified error his Honour concluded that the appeal should be dismissed as the Magistrate had nonetheless come to the correct conclusion because s 6(4) of the Limitation Act, which was the relevant provision, prevented the appellant from acquiring any estate or interest in the land adverse to or in derogation of the estate or interest of the Crown. Any possessory interest that the appellant may have had in the land would only be effective against a person other than the Crown but could not defeat or even suspend the interest of the Crown and the appellant remained a trespasser.

[9] In this Court the appellant argued that his Honour fell into error in determining that the appellant was a trespasser. He submitted that he had been in "peaceful and non-secret possession" of the land "without permission since August 2001". He claimed a possessory title to the land and contended that the Crown was not the beneficial owner of the land and that no title to the land had issued. He submitted that the common law doctrine of possessory title applied to Torrens system lands and to Crown lands in the Northern Territory. In those circumstances he claimed a possessory right enforceable against all the world except a person with a better title. He relied upon numerous cases including Wheeler v Baldwin,[4] Spark v Whale Three Minute Car Wash,[5] and Newington v Windeyer.[6] He argued that the Crown acquired a radical title to the land which gave the Crown sovereign powers to grant land to whom it chose and to appropriate to itself the beneficial ownership of parcels of land for the purposes of the Crown but that it did not of itself carry beneficial ownership of land. The Crown did not have a proprietary title or freehold possession or right to possession of the land.

[10] The appellant contended that, as a result, his possession of the land was not adverse to the Crown and did not affect in any way any right, title or interest of the Crown to the land. This contention cannot succeed. Regardless of whether the entitlement of the Crown is to a radical title only or to full beneficial ownership of the land, the possessory interest claimed by the applicant would, if successful, be adverse to the interest of the Crown.

[11] The issue for consideration is whether or not the Crown established that the appellant was a trespasser. The remaining elements of the statutory offence were clearly established and not disputed. Section 12 of the Trespass Act permits evidence to be given by averment that a particular person was at the relevant time an occupier for the purposes of the Act and also that a direction to leave was given in accordance with the requirements of the Act. This procedure was adopted in this case. There was no dispute that the notice served upon the appellant on 12 May 2010 pursuant to s 7(1) of the Trespass Act complied with the requirements of the Act. There was also no dispute that having been directed to leave the land the appellant failed and refused to do so.

[12] In our opinion the appellant did not obtain any inchoate possessory interest in the land through adverse possession. The Crown Lands Act describes how Crown lands may be alienated. Section 4 of the Act is in the following terms:

(1) Subject to subsection (2), Crown lands shall not be alienated from the Crown otherwise than in pursuance of this Act.

(a) the granting of a lease in pursuance of an agreement or right in existence at the commencement of this Act;

(b) the granting of an estate in fee simple in pursuance of an Act;

(c) the granting of a lease in pursuance of an Act; or

(d) the granting of an estate in fee simple under the Aboriginal Land Rights (Northern Territory) Act 1976 of the Commonwealth.

[13] The appellant did not obtain an interest in the land pursuant to any of those provisions.

[14] Further, s 6(4) of the Limitation Act has application to the land in question as unalienated Crown land and provides:

Notwithstanding any law or enactment now or formerly in force in the Territory, the right, title or interest of the Crown to or in land shall not be and shall be deemed not to have been in any way affected by reason of the possession of such land adverse to the Crown for any period.

[15] At the time of his entry upon the land, the appellant was a trespasser. There was no suggestion that, at that time, he had any right of any kind to enter upon the land. The appellant argued that over time he obtained some form of inchoate estate in the land which, in effect, would restrict the full enjoyment by the Crown of its estate or interest in the same land. The argument ignores the provisions of the Crown Lands Act and of s 6(4) of the Limitation Act.

[16] At all relevant times the appellant was a trespasser on the land and he continued to be a trespasser for so long as he remained on the land. He was a trespasser at the time of the proceedings in the Court of Summary Jurisdiction. Each of the elements of the offence created by s 7 of the Trespass Act was established.

[17] The appellant made the bald assertion that the Trespass Act is invalid. No grounds for so concluding were identified. The submission must be rejected.

[18] He further submitted that the provisions of that Act do not extinguish his "existing common law possessory title" or make him a trespasser upon the land because "the Crown has no beneficial ownership" in the land. The Trespass Act does not rely upon ownership for the creation of the offence of trespass. There is no dispute that the relevant land was Crown land and therefore a "place" for the purposes of s 7 of the Act.

[19] In his notice of appeal the appellant complained that the trial Judge treated him unfairly by limiting the time for his submissions. The appellant had provided his Honour with detailed written submissions occupying some 14 pages and then made oral submissions. The matter proceeded over 1 1/2 days and the appellant occupied the great majority of the time with the respondent making submissions for a little over one hour on the second day. The ground is without merit.

[20] The appeal must be dismissed.

[1] Section 4 Trespass Act.

[2] Section 4 Trespass Act.

[3] Section 9 Trespass Act.

[4] [1934] HCA 58; (1934) 52 CLR 609 per Dixon J at 631-632.

[5] (1970) 92 WN (NSW) 1087 per Slattery J.

[6] (1985) 3 NSWLR 555 per McHugh J at 563-564.