TOMARK PTY LTD and Ors v BELLEVUE CRESCENT PTY LTD and Ors

TOMARK PTY LTD and Ors v BELLEVUE CRESCENT PTY LTD and Ors - [1999] NSWCA 347 - NSWCA 1999 case summary — Zoe

[23]

10 Section 3 of the Alignment of Streets in the Town of Sydney Act 1834 (Act 5 of William IV number 20) provides as follows: Provided always and be it further enacted That the curbstone or exterior edge of the said footways shall in no case be placed or formed upon land not hitherto forming part of the street or footway unless with the consent of the proprietor of such land or under and by virtue of the provisions of an Act of the said Governor and Council passed in the fourth year of the reign of His said Majesty intituled, 'An Act for making altering and improving the Roads throughout the Colony of New South Wales and for opening and improving the Streets in the Town thereof'. And provided also that all land which shall have been at the time of the publication of the general objects of this Act in the New South Wales Government Gazette or shall hereafter be left open and used as a carriageway or footway within the said town as well as all land which has been or shall hereafter be formed into a street within the said town at the public expense shall be deemed and taken to be dedicated to the public and shall not be fenced in or resumed on any pretence whatsoever but shall be subject to all such and the like regulations orders powers authorities and provisions to which land used as a public thoroughfare now is or hereafter hall be subject by law. [Emphasis added] 11 His Honour observed that if the lane had been impliedly dedicated under the provision, it would follow that the property in the lane would reside in the Council. Young J recorded that it was agreed by the parties that 1879 was the relevant date to look at, since the 1834 statute was repealed in that year by the City of Sydney Corporation Act. 12 His Honour referred to a Deed of Partition made on 12 June 1860 which dealt with the land in question by rights of way. Young J made some observations about the Deed to which I will presently refer. 13 The evidence before Young J was almost entirely documentary, although his Honour had a view. The exception was the evidence of historians. A report from the City Historian, Dr Shirley Fitzgerald, was admitted in part, the objections by the present appellants to portions of her report being upheld. She was not cross-examined. Two affidavits from another historian, Ms Sue Rosen, tendered by the appellants, were rejected by his Honour, although all of the plans and other documents annexed to her affidavit were admitted. His Honour took the view that her report contained in the affidavit did not qualify under s 79 of the Evidence Act 1995. Young J however noted that although the evidence was not admissible, he had read it and, to the extent that he thought it to be relevant, he could add it to his general knowledge and take judicial notice. However, in the end this was not necessary.

[32]

21 This is an exception to s 76 of the Act. His Honour appears to have rejected the evidence of Ms Rosen because it was not appropriately the subject of expert evidence but also because her opinion was not 'wholly or substantially based' on her specialised knowledge but was, as he saw it, 'rather [is] an analysis'. 22 Ms Rosen's curriculum vitae is annexed to her affidavit. From it one may readily infer that she has specialised historical knowledge based on her training, study and experience within the meaning of s 79 of the Act. Subject to relevance, she was entitled to give evidence of her opinion provided that it was wholly or substantially based on her specialised knowledge, Quick v Stoland Pty Ltd (1998) 157 ALR 615 at 618. 23 It seems to me that prima facie, her opinion should have been admitted but subject to the proviso to s 79 to which I will come in a moment. 24 Because Ms Rosen's evidence was rejected, the respondents did not cross-examine her. If the appellants are successful on this point, Mr Downes QC appearing on their behalf, concedes that there must be a new trial. This concession necessarily leads to the court addressing the question of whether the rejection of the evidence occasioned some substantial wrong or miscarriage (SCR Part 51 Rule 23). This question involves a consideration of whether the rejection of the evidence bore on the result of the trial. A new trial should not be ordered where the wrongful rejection of testimony relates to immaterial evidence or the rejected evidence could not support a verdict for the appellant. The evidence must be likely to put such a complexion on the case as to lead to a different outcome (Bugg v Day (1949) 79 CLR 442). 25 Accordingly, it is necessary to examine Ms Rosen's report in order to determine two things. First, whether her opinion contained therein was based on her specialised knowledge and if so, whether its rejection occasioned a substantial wrong or miscarriage so as to justify ordering a new trial. 26 To answer these questions it is necessary to carefully examine Ms Rosen's report. 27 Ms Rosen commences by saying that from an examination of the drawings of the entire street frontages by Joseph Fowles in Sydney in 1848, and using an 1834 plan in evidence, she believes that the buildings on allotment 15 are indicated midway along the street and include a gated driveway at J.R. Robinson's, bath and lamp maker. She adds that no lanes are indicated by Fowles for the western side of George Street between King and Market Streets. If she is to be understood as saying that from Fowles' drawing the laneway did not exist in 1848, that may well be correct, although one need hardly be an expert to draw such an inference from the drawings. On the other hand, if she is saying that the laneway did exist but was gated (which seems inconsistent with her first statement deduced from Fowles) I find that inference very difficult to extract from Fowles' drawing. 28 However, Ms Rosen continues that 'further evidence that the subject laneway did not exist in the 1830's and 1840's is provided by a plan on an 1849 indenture which shows the rear of allotment No 7 had workshops across the entire width'. My examination of the indenture gives me no confidence in this conclusion. In my view, the indenture provides no evidence that the lane did not exist in the 1830's and 1840's although, as I have already said, this may not matter because the issue before the court was whether it was left open and used by the public, as a footway or carriageway, before 1879. 29 Ms Rosen then examined the 1865 Trig Survey by comparing it with the 1834 Plan and the plan of allotment 7, concluding that there was no laneway off York Street which provided access to George Street via allotment 15. I have examined the Trig Plan, which shows the subject lane. However, I am unable to see how Ms Rosen is able to conclude from it that there was no connection to York Street. I would have thought that the Trig plan is more likely to be seen as neutral on any connection through to York Street. 30 Ms Rosen correctly refers to the 1860 Partition Deed as the first reference in the documents to the subject lane. However, she says that (from a Water Board plan of 1881) it was likely built over by then. She continues 'it is argued … that this probably occurred in c 1862 when the lane was actually formed after the partition'. 31 I am unable to understand the basis upon which Ms Rosen expresses this opinion. She refers to no evidence that the lane was formed in 1862. It seems to be mere surmise on her part and based on no evidence.

[33]

32 Ms Rosen says that Dove's Plan 1880 (c 1879) gives an accurate picture of the buildings abutting the laneway. This is probably correct. The Plan, which coincided with the Sydney Corporation Act of 1879 labels the lane as a 'Right of Way'. Dove's second Plan also appears to show an open access to commercial premises at the rear off the T of the lane. These premises front York Street. Dove's second plan is clearly an update of the first and appears to be current to 1879. 33 Ms Rosen then turned to examine the Council records, which she says provide the 'most convincing evidence of the private use' of the lane. She refers, in particular, to the rate assessment books, especially 1861 and 1862. These had also been relied on by Dr Fitzgerald, the Council Historian. Both historians referred to two ratings in 1861 described as 'off' George Street. Ms Rosen said that the 'off' George Street references could be the result of old buildings being utilised prior to their demolition and prior to the actual formation of the lane defined in the 1860 Deed of Partition. Again, I can see no basis in the material for such a conclusion. Indeed, if any inference is available to be drawn from the use of the word 'off', it is more likely to be that of Dr Fitzgerald to the effect that there were rateable buildings off the lane behind George Street. This portion of Ms Rosen's opinion seems to be no more than conjecture. 34 Reference is then made by Ms Rosen to the notation in the 1863 rate book - 'Through to York Street'. This, she says, meant no more than the rate assessment was included in the York Street building at the rear. I am not sure that this inference is open but even if it is, it cannot support her conclusion which follows: It also lends support to the view that the actual formation of the lane occurred in c 1862. 35 I am unable to see any logical connection. The opinion does not appear to flow from the material relied on. 36 Ms Rosen continues that the 'overall evidence strongly supports the redevelopment view'. Her report then proceeds to what she describes as 'the most significant' source of evidence, being an 1896 document of the City Engineer. Ms Rosen says that this document identifies the subject laneway as being gated and part paved with sandstone at private expense. She relies upon the reference to the gate in this 1896 document to demonstrate that the lane was privately owned and maintained at that time and, according to her, it 'implies' that this was established practice. 37 However, an examination of the particular document admitted into evidence provides no justification for her opinion. 38 The document is headed 'Brisbane Ward' 'Private Ways'. It contains columns from left to right starting with reference book numbers, the name of the lane, plan number, 'from' and 'to' and 'remarks'. The relevant entry, according to Ms Rosen, is the fifth from the top. 39 Unlike the other entries, this lane has no reference book number, that column being empty. It describes an unnamed lane situated on 'W side of George Street'. The remarks column states 'Part running North and South. Sandstone Paved at Private Cost. Remainder unimproved 12 feet wide. 1 Gully Gates across this lane'. The word 'Gates' is an interpolation between 'Gully' and 'across'. 40 However, far from providing the 'most significant source of evidence', there was, in my opinion, no evidence before Young J which linked the lane in the 1896 document to the subject lane. George Street was a long street and doubtless had many lanes off its western side. The 1896 document provides no evidence that the subject lane had gates in 1896, as Ms Rosen opines. Nor does it provide any evidence that the subject lane was privately used, as she claims. 41 Leaving aside that the 1896 Engineer's document was compiled 17 years after 1879, the subject lane was described as being 10 4½ in the 1860 Deed and fairly consistently described at or about this width in later plans, and not 12 wide. Indeed, no plan refers to the subject lane as being 12 wide. This discrepancy reinforces the likely conclusion that the lane referred to in the Engineer's report of 1896 is not the subject lane but another lane off George Street. There is just no cogent evidence to link it to the lane in question. 42 In my opinion, a close analysis of Ms Rosen's report and the documents upon which it purports to be based, leads to the conclusion that her opinions are not wholly or substantially based on her specialised knowledge. Young J was entitled to reject her evidence on this basis. 43 Should I be wrong, it would follow that the evidence of her opinion was admissible. However, for the reasons discussed above concerning the plausibility of her conclusion, the report would carry little weight. Its rejection would not occasion a substantial wrong or miscarriage because it would not lead to a different result. Assuming the report was wrongly rejected, a new trial should not be ordered.

[36]

46 Having examined the Dove plans and other documents his Honour said: It is fairly clear that at least before 1879 the great majority of the buildings in the relevant block were being used for commercial purposes though it may be that there were some residences or offices on the upper floors of the buildings. Across the other side of George Street there were similar developments save that the evidence suggests that there were eleven hotels in the block. With these commercial buildings and hotels and a couple of banks one can infer that, at least for the times, quite a considerable amount of traffic passed along George Street in this block. 47 These were findings which were well open to his Honour on the material before him. Dove's plans in particular reveal a closely settled built-up city with a high level of commercial activity. Many of the buildings were substantial. On either side of the lane there were 3 and 4 storey brick or stone buildings. The second Dove plan also fairly clearly delineated access from 50 York Street through to the lane at the rear of 389 George Street. This would mean that access could then be had from George Street through to York Street via the reserved lane. 48 The absence of any evidence of gates at the George Street entry to the lane also tends to support the likely use by members of the public. That is, that the road was left open for use by the public. The absence of fencing off of a road has been seen as important to the issue of dedication. See Harvey J in Attorney General v City Bank of Sydney (1920) 20 SR (NSW) 216 at 221; Sugerman J in Owen v O'Connor (1963) 63 SR (NSW) 1051 at 1053 and Newington v Windeyer at 559. Young J believed that there was a presumption in relation to roads connecting to a public street being open to all, so that if they were not fenced off, they were to be properly regarded as open to the public. He cited Menzies J in Permanent Trustee Co of NSW Ltd v Campbelltown Corporation (1960) 105 CLR 401 at 415. 49 I am unsure whether what Menzies J said about roads left in subdivision rises to a legal presumption. However, his approach is a realistic one. I agree that it is an artificial and unreal approach to treat such roads as private unless access to the public is prevented. 50 The Permanent Trustee case also assists the Council in so far as it may indicate that not much evidence of use of the lane by members of the public is required to satisfy the deemed dedication in the statutory provision. See in particular Windeyer J at 423. Moreover, it must clearly be kept in mind in this case that use as a footway by members of the public is sufficient. Consistent with Newington v Windeyer, use by mere invitees or licensees will not suffice. 51 I think that Young J was well entitled to conclude that the subject lane was used by the public between 1860 and 1879. He found that it had been so used as a carriageway although, as I have mentioned, use as a footway only would have been sufficient. The plans before the court, particularly Dove's plans, leave ample room for inferences of public use, taking account of the obviously extensive commercial activity, including many nearby hotels. 52 The lack of any cogent evidence of gating-off the lane also assists in drawing the inference of public use. The conclusion is aided by Menzies J reference in Permanent Trustee to use by the adjoining landowners being regarded as use by the public (see 415). The finding by Young J is also assisted, to some small extent, by the relevant rate records. They provide some support for the Council's contention of public use. 53 In my opinion, there is little or no evidence to displace the available inference. I have already dismissed the reliance on the 1896 Engineer's list of private laneways and the other documents relied on by Ms Rosen. 54 In my opinion, there was sufficient evidence to conclude that the subject lane was used by members of the public prior to 1879.

[38]

The Sydney Corporation Act 1850 58 The appellants seek to rely on an argument based on provisions of the Sydney Corporation Act 1850, in particular ss 90 and 92. The written submissions of the appellants maintain that his Honour overlooked the statute which, it is claimed, prohibited the formation of alleys less than 20 wide. His Honour did not overlook the statute. Not only was he not referred to it, the issue posed for determination was expressly directed to s 3 of the 1834 Act in the light of its repeal in 1879 by the City of Sydney Corporation Act. That is the way the case was run. 59 If the 1850 Act had been raised, it is conceivable that the evidence may have been different. Moreover, there is no reason why the 1850 statute should not have been raised below. The reason is plain, it was overlooked by the appellants, not by the trial judge. 60 In my opinion, the appellants should not now be permitted to raise the point. There is an abundance of case law which dictates this result. It is sufficient to cite only Water Board v Moustakas (1988) 180 CLR 491, University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, Coulton v Holcombe (1986) 162 CLR 1 and more recently Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11 (per Giles JA). 61 In any event, the point does not obviously have much merit. First, it depends on the facts as to when the lane may have been formed and the 1850 Act itself may support that having occurred prior to the enactment. Second, it is unclear what relationship there was between the 1834 and 1850 statutes. The latter enactment may have no relevance to the issue. Clearly, the statutes deal with different subjects. 62 The provisions of the Sydney Corporation Act 1850 deal with the physical formation of streets and alleys, whereas s 3 of the Alignment of Sydney Streets Act 1834 relevantly deals with dedication to the public of land left open and used as a carriageway or footway. It is not obvious to me how the requirements as to opening of lanes of a certain width under the 1850 Act effects the deemed dedication of roads to the public under the 1834 Act. 63 I would dismiss the appeal with costs.

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