109 This amendment was effected in light of and presumably responsive to this Court's decision in Dobbie. In Dobbie, the Court overturned so much of James as interpreted "omitted" as requiring some fault or neglect by the Registrar-General. The Court held that it was enough to show that the easement was "left out", in the colourless sense of being "not there" (see per Kirby P at 647, per Priestley JA at 656-660, per Handley JA at 670).
110 Since the enactment of s42(1)(a1) in 1995, it has been clear from the wording of the paragraph that the exceptions to indefeasibility extend to easements "validly created" (emphasis added) after the land was brought under the Torrens system. But there is still a reference to an "omission or misdescription" and a requirement that the omitted or misdescribed easement has been "validly created under this or any other Act".
111 Text writers have expressed the view that prescriptive easements based upon the doctrine of lost modern grant do not trump the registered proprietor's indefeasible title by means of the statutory exception in s42(1)(a1) (see Bradbrook and Neave, Easements and Restrictive Covenants in Australia 2nd ed at [11.16], Butt, Land Law 4th ed at [2071]). I agree.
112 In my opinion, this conclusion is supported by the reasoning in Jobson about scope of the old s42(b), being reasoning that has not been later doubted or discredited. In Dewhirst, Powell J referred to ss42(1)(b) and 46 and continued (at 48):
These provisions, so it seems to me - and I so held in Kostis v Devitt (1979) 1 BPR 9231 - make it clear that, with the exception of a prescriptive easement existing before the servient tenement was brought under the Act but omitted from the register on registration, the Act does not recognize the existence of easements alleged to have been acquired merely by the effluxion of time. It is true that the other authorities: see, for example, Jobson v Nankervis (1943) 44 SR(NSW) 277; 61 WN 76; Tarrant v Zandstra (1973) 1 BPR 9381; Australian Hi-Fi Productions Pty Ltd v Gehl (supra); Parish v Kelly (1980) 1 BPR 9394, since they appear only to decide that, in respect of Real Property Act land, easements cannot arise, otherwise than by instruments executed under the Act, so as to be enforceable against a subsequent registered proprietor, do not, in terms, support so absolute a position as I have suggested above; but unless the position be as I have suggested, the result would seem to contravene the underlying philosophy of the Act, namely, the conclusiveness of the register. I recognize that that philosophy is not impaired by the enforcement of personal rights against a registered proprietor, but it seems to me, first, that the mere use of an alleged easement for twenty years or more would not, without more, give rise to any personal rights against the registered proprietor even if he remained unchanged throughout the whole period; and, secondly, that, in those cases in which such rights are enforced, it is only as a consequence of the enforcement of rights in personam, by requiring the execution, delivery and registration of appropriate instruments, that estates or interests in, or over, the land are brought into being or transferred.
113 Further support for the reasoning in Dewhirst is drawn from the decision of Walsh J in Anthony v The Commonwealth (1973) 47 ALJR 83. Anthony involved the law of the Northern Territory incorporating the statute law of South Australia at a particular date. Walsh J held (at 90-91) that the Real Property Act 1886 (SA) was incompatible with recognition of easements arising from long user. He based his decision mainly on s88 of that Act, which authorised the Registrar-General to enter upon the title memorials of easements "granted or created". Section 84 of that Act also assumed that easements were "created by express grant or transfer". In 1985, s88 was amended by deleting its reference to the Registrar-General entering "the memorial of the instrument granting or creating such right-of-way or easement" and substituting "shall make such entry as the original and duplicate certificates for the dominant and servient lands as he thinks fit" (Real Property Act Amendment Act (No 2), 1985 (SA)).
114 Anthony did not involve 20 years user without change in registered proprietor, but I do not read Walsh J's reasons as turning upon that consideration.
115 The AJC accepts that s42(1)(a1) provides no basis for undermining the title of a registered proprietor through application of the doctrine of lost modern grant. But it submits that a right in personam can arise where there has been no change in registered proprietor in the 20 year period of use of the easement. This was the conclusion of the primary judge and bases itself largely on the reasoning in Golding v Tanner.
116 In Golding, the parties were the registered proprietors of adjoining parcels of land. Each had held the interest for over 20 years. The plaintiffs asserted that over this period they had used a road which traversed the defendant's land in order to gain access from their property to a public road.
117 The case threw up the issue whether the doctrine of lost modern grant applied to Torrens-title land, but (as will be seen) in a context where the South Australian statute is different to the Real Property Act 1900 (NSW). The Full Court of the Supreme Court of South Australia held that the doctrine applied in the limited sense that it could ground a personal right against someone who was registered proprietor throughout the period of prescriptive user. It was held that the doctrine of lost modern grant was not inconsistent with the terms of the Real Property Act 1886 (SA) unless there has been a change in the registered proprietor of the servient land during the period of adverse user, in which case s84 of the Act [the provision roughly corresponding with the old s42 of the New South Wales Act] will protect the title of the registered proprietor.
118 King CJ held that the fictitious grant that is part of the doctrine of lost modern grant can supposedly be a registrable instrument granting an easement (at 484), but that the non-registration of an easement which had never been submitted for registration could not be described as an "omission". In this his Honour followed the reasons of this Court in Australian Hi-Fi Publications. This was the reason why the doctrine could not be invoked to defeat the registered title of a later owner.
119 Nevertheless, it was held that an easement arising from lost modern grant could give rise to rights enforceable against a registered proprietor in personam. King CJ distinguished Anthony because s88 of the South Australian Act had been amended in 1985 to remove the reference to an instrument, thereby leaving the word "created" (in s84) freed of its association with the word "instrument". Section 88 was therefore apt to include an easement based upon lost modern grant arising in personam against the registered proprietor throughout the period of 20 years adverse user.
120 Cox J agreed with the reasons of the other members of the Full Court.
121 Debelle J emphasised that he was addressing a claim to enforce a right personally as against the defendant in consequence of the acts or omissions of the defendant himself (at 488-9). In this context, general principles as to indefeasibility and the objectives of Torrens title legislation did not stand in the way of the claim at issue. His Honour observed that easements by prescription had been upheld in Victoria, Tasmania and Western Australia, although not in New South Wales or the Northern Territory. As to the latter two jurisdictions he cited Jobson, Kostis, Australian Hi-Fi Publications and Anthony.
122 Debelle J then set out the relevant provisions of the South Australian Act and their legislative history. He observed (at 491) that the question whether easements by prescription can arise under that Act turned upon s88. In its current form (post-1985) it provided that:
Whenever any right-of-way or other easement appurtenant to land under the provisions of this Act over land also under its provisions shall hereafter be granted or created, the Registrar-General shall make such entry on the original and duplicate certificates for the dominant and servient lands as he thinks fit.