[1964] HCA 69
Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Source
Original judgment source is linked above.
Catchwords
[1964] HCA 69
Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Judgment (2 paragraphs)
[1]
The application for leave to appeal
Leave to appeal will not, ordinarily, be granted unless the decision involves an issue of principle, a question of general public importance, or a reasonably clear injustice: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164; The Age Company Ltd v Liv [2013] NSWCA 26.
I would accept that, if there were any substance in Mr Young's contentions, the issues would be sufficient to warrant a grant of leave. Mr Young falls, however, at the first hurdle: there is no substance in any of his contentions.
Mr Young has not filed, as he is required by UCPR 51.12(2)(d) to do, a draft notice of appeal. He has, in his summons seeking leave to appeal, included 32 paragraphs said to be questions presented on the appeal. The questions are not presented or identified with any clarity. In any event, the oral argument presented by Mr Young departed significantly from the written argument, so far as it can be discerned from the questions.
Mr Young's first complaint is that the primary judge did not hold an evidentiary hearing in which the affidavit evidence could have been explored in cross-examination. The short answer to that contention is that it is not usual, in applications for summary disposal or strike out, to conduct oral hearings with cross-examination of witnesses. In this case the relevant evidence was all in documentary form, some of it dating back to 1857. The issue was the ownership of the three parcels of land as recorded in the relevant historical documents. Nothing could have been gained by an evidentiary hearing with cross-examination of witnesses. Mr Young had every opportunity to present his case in writing and orally, and did so.
A further complaint appears to relate to the use of the procedure by which, in 2020, the register was corrected with respect to the proprietorship of Lot 246. Mr Young presented a complex argument on this issue. He asserted that s 27 of the Limitation Act 1969 (NSW) precluded the amendment of the register. Section 27(1) of the Limitation Act provides:
"An action on a cause of action to recover land is not maintainable by the Crown if brought after the expiration of a limitation period of 30 years running from the date on which the cause of action first accrues to the Crown or to a person through whom the Crown claims."
There appear to have been two separate strands to Mr Young's argument. First, he contended that the "action" taken in the Crown Lands Department to correct the register was an "action" within the meaning of s 27(1), and therefore barred by s 27(1) because the State's entitlement to possession arose more than 30 years prior to the date of that "action" (2020).
As Mr Young emphasised "action" is defined in s 11 of the Limitation Act to include "any proceeding in a court". Because the definition is inclusive, Mr Young contended, the "action" taken by the Crown Lands Department in correcting the register was an "action" for the purposes of s 27(1). I would reject that construction. "Action" for the purposes of s 27(1) must be construed by reference to the scope and purpose of the statute in which it appears: Interpretation Act 1987 (NSW), s 33; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, at [69]-[70]. The Limitation Act is entirely concerned with limitation periods in relation to legal proceedings. It is not, even on the widest possible construction, concerned with administrative action of the kind taken in the Crown Lands Department. In its context "action" within the meaning of s 27(1) cannot be taken to extend to administrative action of that kind.
A second strand of the argument appeared to proceed on the basis that the corrective action taken amounted to an "action on a cause of action" taken by the State "for the recovery of land". On Mr Young's hypothesis, the State's title to the land had been extinguished more than 30 years before 2020 and any action by it for recovery of the land was barred by s 27(1).
If it were correct that the correction of the register had been "an action on a cause of action to recover land" there may have been force in the argument. But the argument proceeds on the false premise that the administrative action was "an action on a cause of action to recover land". It was not. Section 27(1) is irrelevant.
So far as Lot 246 is concerned, s 45D(3)(a) of the Real Property Act precludes any possessory application for Crown Land. Thus, if Mr Young were correct, and the State is the rightful owner of Lot 246, s 45D(3)(a) would be a complete answer to his application.
In oral submissions Mr Young advanced a further argument, that ss 152D and 152I of the Roads Act 1993 (NSW) prescribed notices to be given before the sale or disposal or transfer of Crown roads and that these notices had not been given. The fundamental flaw in this argument is that it was based on the false premise that by the correction of the register with respect to Lot 246 the State effected a sale, disposal or transfer of Crown land. Lot 246 had not been Crown land since at least 1920, and probably 1857. The erroneous recording in the register did not make it so.
A further argument advanced by Mr Young depended on the 1920 plan by which Wharf Road and Lot 246 were identified as roads, ownership of which was transferred to or vested in the Council pursuant to s 232 of the Local Government Act. As indicated above, the documentation refers to the locations and has a notation "Resumed Area No". Mr Young appears to contend that this language signifies that the State had resumed ownership of the land from Mr Irving (or his successors in title). There is nothing in the documentation to support this interpretation. Indeed, the document bears a heading "Casino Municipality, County of Rous, Parish of Tomki".
Mr Young also contended that Wharf Road and River Road had been closed and had lost their status as roads. He relied upon notices published in the Government Gazette recording proposals to that effect. The consequences, if Mr Young were correct, need not be explored. Each notice on which Mr Young relied called for objections to the proposed closure; there was no evidence that either proposal had been followed up or implemented. There was no evidence that either road had been closed.
None of Mr Young's arguments casts any doubt on the conclusion of the primary judge that the title of each parcel of land to which he lays claim lies in the Council and not in the State. There is no viable claim against the State. The proposition that the Council holds its title in trust for the State is untenable.
Leave to appeal should be refused.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 26 October 2021
Solicitors:
Swaab Attorneys (First Respondent)
Crown Solicitors Office (Second Respondent)
File Number(s): 2021/163589
Decision under appeal Court or tribunal: Supreme Court of NSW
Jurisdiction: Equity Division
Citation: [2021] NSWSC 525
Date of Decision: 12 May 2021
Before: Darke J
File Number(s): 2019/368414
Some relevant history
Mr Young's original statement of claim was filed in the Supreme Court on 22 November 2019. It named only the Council as defendant. Mr Young was then, as he has been throughout, not legally represented. His documentation makes the lack of legal expertise apparent.
Mr Young then claimed, as he does now, that he has an entitlement to possession of each parcel of land by reason of continuous possession by others adverse to the rights of the rightful owner (which he then contended to be the Council). The statement of claim was met by a notice filed by the Council seeking orders under UCPR 13.4 for dismissal of the proceedings, or, alternatively, under r 14.28, that the statement of claim be struck out. The Council adduced evidence that the registered proprietor of Lot 246 was the State. That, as later emerged, and as will be seen below, was incorrect.
The primary judge declined to order summary dismissal of the proceedings. He was not satisfied to the requisite standard that Mr Young's claim against the Council was bound to fail: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69. He was, however, satisfied that inadequacies in the pleading warranted an order that the statement of claim be struck out. He made an order to that effect and gave Mr Young leave to replead: Young v Richmond Valley Council [2020] NSWSC 514 ("the first judgment"). One - but only one - of the deficiencies identified by his Honour was Mr Young's failure to name the State (as the registered proprietor of Lot 246) as a defendant. That was because evidence put before his Honour identified the registered proprietor of Lot 246 as the State. As will be seen below, that was correct from 2012 until 1 April 2020, but it was not the case at the time of the first judgment.