These proceedings were commenced by Statement of Claim filed on 22 November 2019. The plaintiff, Mr Gary Young, is prosecuting the proceedings without representation by a lawyer. The defendant is the Richmond Valley Council ("the Council").
On 19 December 2019 the Council filed a Notice of Motion seeking summary dismissal of the proceedings pursuant to Uniform Civil Procedure Rules 2005 ("UCPR") r 13.4, or alternatively an order under UCPR r 14.28 striking out the Statement of Claim. The motion was returnable on 20 March 2020.
On that day, a hearing was conducted by telephone by reason of the prevailing pandemic. The affidavits contained in the Court Book were read, and the Court received oral submissions from Mr Young, and from Mr S Fitzpatrick of Counsel for the Council, in addition to the written submissions that had earlier been provided. The quality of the audiolink was not high. However, the hearing proceeded to a point where it was agreed by the parties that the Court should determine the matter on the papers. Mr Fitzpatrick foreshadowed that the Council would want to provide a short supplementary written submission. That submission was provided on 24 March 2020. Mr Young provided a further submission in answer to the supplementary submission on 17 April 2020, and yet another short submission in answer on 26 April 2020.
The Court has read and considered the various submissions made by the parties, as well as the affidavits and documents contained in the Court Book. Although Mr Young provided his further submissions without leave, it is appropriate that leave be granted nunc pro tunc in circumstances where they are essentially submissions in reply to the supplementary submission of the moving party.
The proceedings concern certain lands that lie close to the Richmond River at Irvington in northern New South Wales. Irvington is located near the Bruxner Highway between Casino and Lismore.
Mr Young lives on a property described as 30 McNaughtons Lane, Irvington. It seems that McNaughtons Lane has at times been known as, or referred to on plans as, River Street. In any event, the property upon which Mr Young resides is part of Lot 3 in Deposited Plan 706664. The registered proprietor of that lot is Pancake and Ice Cream Pty Ltd. It became the registered proprietor in February 2018. It seems that the company is associated with Mr Young's son. There is no evidence of any involvement by Mr Young himself in the affairs of the company.
Young v Richmond Valley Council [2020] NSWSC 514 | Case summary | Zoe
Lot 3 in Deposited Plan 706664 consists of two distinct portions. The land that lies between those portions forms much of the land that is the subject of the proceedings.
It is apparent from the Statement of Claim that Mr Young claims an entitlement to the lands by virtue of adverse possession. He seeks a declaration that the lands are his property. It should be noted that the land claimed is not precisely identified or defined. It is described only by means of cross-hatching that appears on an aerial photograph that is annexed to the pleading. The land is not described by reference to any records of titles, although it appears that the lands include Lot 246 in Deposited Plan 755742. The registered proprietor of that lot is the State of New South Wales ("the State"). Mr Young has not named the State as a defendant. That is one of a number of problems that beset the Statement of Claim.
The central allegation made in the Statement of Claim is contained in paragraph 4, which is in the following terms:
4. Plaintiff claims ownership of this land by virtue of his and his predecessors in interest having held the land in adverse possession for a period exceeding 65 years
by
a] Openly and continuously maintaining possession without interruption and occupying the land in plain view to all of the world to see and observe
b] At all times this maintenance of possession and occupation of this land was continuous for the period of 65 years and was done without permission or licence of any kind from RVC [the Council] or its predecessors or anyone else
c] At all times the claimed adverse possessed land was held openly and notoriously by the previous owners of 30 Mc Naughtons Lane Irvington NSW 2470 going right back 65 years
d] The adverse possessor did not share control of the property with anyone else and
e] The land was and is used for grazing cattle and horses and recreational activities of plaintiff and his successors in interest
f] For a period of 65 Years plaintiff and his predecessors in interest have acted as the actual owners of this land in an open and notorious manner without being prevented from doing so and this was obvious to anybody who bothered to look
g] The plaintiff and his predecessors in interest have acted at all times in a manner that clearly and openly placed the RVC on notice that plaintiff and his predecessors in interest had claimed this land exclusively as their own for the previous 65 years
It is clear enough that Mr Young contends that the lands have been in the adverse possession of himself and his "predecessors in interest", but the pleading does not recite material facts to show (in relation to defined areas of land) when, how and by whom possession occurred adversely to the relevant documentary owner, such that title by adverse possession was obtained. Part of this general, but fundamental deficiency, is a failure to specify the acts said to amount to possession during relevant periods of time. There is also a failure to recite material facts to show how title by adverse possession came to be acquired by Mr Young. There is a reference to predecessors in interest, but it is unclear what Mr Young claims to be his interest. As noted earlier, he is not the owner of Lot 3 in Deposited Plan 706664.
The Statement of Claim is plainly inadequate for the purpose of identifying Mr Young's claims to ownership of the lands by virtue of adverse possession. In terms of UCPR r 14.28, the pleading does not disclose a reasonable cause of action, and has a tendency to cause prejudice, embarrassment and delay in the proceedings.
Mr Young has not conceded the inadequacy of his pleading, but he has foreshadowed a desire to amend the Statement of Claim in at least two respects, namely, to reduce the alleged period of adverse possession (from a period exceeding 65 years to the period since August 1988), and to seek a declaration that the Council has never owned the claimed land. It seems to be Mr Young's position that the claimed land has at all relevant times been owned by the Crown or owned privately. Of course, if that is the case, it is difficult to see why the Council should be named as a defendant at all. I note that an officer of Land Registry Services advised Mr Young that the land he is claiming is "a combination of Old System and Crown Land".
The Council asserts that it is the owner of at least some of the claimed land. It contends that the lands were at various times dedicated as public roads and have not since lost that status. It is contended that the ownership of these public roads became vested in the Council (or its predecessor) pursuant to s 232 of the Local Government Act 1919 (NSW), and remains so vested pursuant to s 145(3) of the Roads Act 1993 (NSW). It is then contended that such title cannot as a matter of law be extinguished by adverse possession. In that regard, reference is made to the decision of White J, as his Honour then was, in Weber v Ankin [2008] NSWSC 106 at [92]-[93], which was followed by Biscoe J in Casson v Leichhardt Council (2011) 186 LGERA 34; [2011] NSWLEC 243 at [59]. The Council submits that, accordingly, Mr Young's claims are hopeless and bound to fail.
There is evidence that in the late 19th Century part of the claimed land, located in the vicinity of a wharf that serviced the Richmond River, was proposed to be opened as a parish road under the Roads (Public) Act 1833 (NSW) (4 William IV No 11). A notice published in the Gazette on 2 October 1885 stated that the lines of a parish road had been formally marked and opened and the road was now open for public use. This road included "a branch road to the Government Wharf on the Richmond River". This "branch road" seems to have been designated as road 1,247A-1,603. It is so designated on a plan that forms part of a notice published in the Gazette on 7 June 1963.
Mr Young seems to accept that the land he claims became roads "under the old common law" prior to 1900 (see paragraph 65 of his affidavit of 11 February 2020). He maintains, however, that these roads never vested in the Council (or any predecessor body), and in any event ceased to be roads in 1963. In that regard, Mr Young referred to notices published in the Gazette in May and June 1963, including a notice published on 7 June 1963 in relation to an application under the Public Roads Act 1902 (NSW) to close and purchase part of road 1,247A-1,603. The notice stated that it was intended to close that part of the road "unless valid objections are found to exist". The notice further stated that, if closed, the road would vest automatically in the owners of adjoining lands.
An officer of the Council, Mr Andrew Leach, made an affidavit in which he referred to a notation on a parish map that suggests that an objection may have been made in respect of a notice published on 21 June 1963. A notice published on that day in the Gazette concerned the possible closure of a laneway (which does not seem to be part of Mr Young's claim) and a portion of River Street (which does seem to be part of Mr Young's claim). I interpose that this portion of River Street may be the subject of a notification, made pursuant to s 224(3)(d) of the Local Government Act 1919 in 1959, that it is a public road. In any case, Mr Leach went on to depose that he is not aware of any of the foreshadowed road closures (including in respect of 1,247A-1,603) having proceeded, or of any "Gazettal action" having taken place in relation to them. Mr Leach further deposed that he was not aware of any new proprietor having taken steps to include any of the roads on their titles. Mr Leach does not specify the extent of his enquiries or searches in relation to these matters.
Mr Young has not pointed to any notice published in the Gazette to the effect that the roads were closed, or any evidence that the roads became privately owned. Moreover, there is evidence of plans, made after 1963, which label the claimed portion of River Street as "River St", and the claimed land near the river as "Wharf St".
There is thus a body of evidence that supports the contentions of the Council that the claimed lands are vested in it. It remains puzzling, however, that Lot 246 in Deposited Plan 755742, which appears to form part of road 1,247A-1,603, is vested in the Crown (in right of the State of New South Wales). The provenance of that vesting is not explained in the evidence. It is not shown, for example, that at some point that land was vested in the Council and then in some fashion transferred to the Crown.
It is well-established that the power to summarily dismiss proceedings is to be exercised sparingly and with exceptional caution. The power should only be exercised in the clearest of cases where the Court is satisfied that the plaintiff's claim is manifestly groundless and bound to fail (see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130). The power should only be exercised where there is a high degree of certainty about the ultimate outcome if the matter were allowed to go to trial (see Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57]; Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [24] and [53]-[55]).
Having considered the evidence before the Court on this application, I have come to the conclusion that it is not appropriate to summarily dismiss the proceedings, at least at this stage. I do not think that the evidence goes quite so far as to show that it is almost certain that Mr Young's claim will fail. Put another way, I am not satisfied that his claim is one that cannot possibly succeed in whole or in part.
My conclusion rests in part upon what I perceive to be some lack of clarity about the historic ownership of the land comprised in road 1,247A-1,603. The Council did not adduce evidence to explain the provenance of the State's ownership of Lot 246 in Deposited Plan 755742. In addition, the evidence that was adduced from Mr Leach was less comprehensive than the evidence that would be expected to be given by a specialist title searcher. That is no criticism of Mr Leach. However, in a case such as this, where questions of historic ownership of land appear to be of central significance, expert evidence of that character is likely to be required.
Another factor which tends against an order for summary dismissal is that the precise nature of Mr Young's claim has not been adequately identified. I referred earlier to the deficient nature of the Statement of Claim, and Mr Young's failure to name the State as a defendant whilst making a claim to land that at least includes a parcel plainly owned by the State. This lack of clarity about how the case might be put makes it even more difficult to reach a conclusion that the claim is almost certain to fail.
On the other hand, this factor supports the making of an order striking out the whole of the Statement of Claim. It reinforces the importance of requiring Mr Young to prosecute any claim he might have by way of a pleading that properly discloses his cause or causes of action and otherwise complies with the rules concerning pleadings.
I appreciate, of course, that the type of claim Mr Young wishes to bring is far from straightforward, and he is not at the moment represented by a lawyer. The Court urges Mr Young to promptly seek appropriate legal representation. It is highly desirable that he receive advice about what, if any, claims may be reasonably arguable and, if there are such claims, receive assistance in preparing a pleading. I apprehend that Mr Young would find it very difficult, if not impossible, to produce any acceptable pleading on his own. If he nonetheless seeks to proceed in that fashion, there is every chance that another application of the type currently before the Court will be brought.
For the above reasons, the Court will order pursuant to UCPR r 14.28 that the Statement of Claim be struck out. The Court will further order that Mr Young pay the Council's costs of the Notice of Motion filed on 19 December 2019.
Leave will be granted to Mr Young to file and serve an Amended Statement of Claim. Given the difficult circumstances that generally prevail during the current pandemic, the desirability of Mr Young obtaining legal advice and assistance, and the far from straightforward nature of the claim he seeks to press, a longer than usual time will be given for an Amended Statement of Claim to be filed and served. The Court will order that any Amended Statement of Claim be filed and served by 8 July 2020. The proceedings will stand over for directions on 7 August 2020.
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Decision last updated: 08 May 2020