[2000] HCA 41
Brodie v Singleton Shire Council (2001) 206 CLR 512
Source
Original judgment source is linked above.
Catchwords
[2000] HCA 41
Brodie v Singleton Shire Council (2001) 206 CLR 512
Judgment (2 paragraphs)
[1]
Judgment
The plaintiff in these proceedings, Mr Gary Young, claims that he has possessory title to three areas of land (referred to as Parcels 1, 2 and 3) that are near the Richmond River at Irvington in northern New South Wales. Irvington is located near the Bruxner Highway between Casino and Richmond. The claimed lands were part of a Crown grant in 1857 in favour of a Mr Clark Irving.
Mr Young has sued the Richmond Valley Council as first defendant and the State of New South Wales as second defendant. The State of New South Wales ("the State") was added as a party by means of an Amended Statement of Claim that was filed on 8 July 2020.
By a Notice of Motion filed on 2 February 2021, the State seeks the dismissal of the proceedings against it pursuant to Uniform Civil Procedure Rules 2005 ("UCPR") r 13.4(1)(b) on the ground that no reasonable cause of action is disclosed against it. In the alternative, the State seeks an order under UCPR r 14.28 that the Amended Statement of Claim be struck out insofar as it concerns it.
The Court has already determined an application for summary dismissal, brought by Richmond Valley Council ("the Council") (see Young v Richmond Valley Council [2020] NSWSC 514). On that occasion, the Court declined to summarily dismiss the proceedings against the Council because the evidence did not go quite so far as to show that it was almost certain that Mr Young's claim would fail (see at [20]). That conclusion rested in part upon some lack of clarity about the historic ownership of the claimed lands, including Lot 246 in Deposited Plan 755742 ("Lot 246") which, so the evidence then showed, was owned by the State (see at [21]). The State was not at that stage a party to the proceedings. The Court did, however, strike out the Statement of Claim, and gave Mr Young leave to file an Amended Statement of Claim. As already mentioned, the Amended Statement of Claim subsequently filed added the State as a party.
It should be noted at the outset that on 1 April 2020, in the course of the earlier application, the registered proprietorship of Lot 246 (which is Parcel 2 claimed by Mr Young) changed from the State to the Council as a result of administrative action within the office of Land Registry Services. Unfortunately, this was not known to the Court nor, it seems, to the Council or Mr Young. In any event, the evidence indicates that Lot 246, which was depicted in a Crown Plan approved on 17 November 1920, is part of a public (or parish) road (1247A-1603) that was created by notice in the Government Gazette on 2 October 1885, and does not appear to have since been closed. On that basis, Lot 246 would have vested in fee simple in the local Council (then Tomki Shire Council) on 1 January 1920 pursuant to s 232 of the Local Government Act 1919 (NSW) and remained so vested. Accordingly, when conversion action was undertaken in 2012 to bring Lot 246 within the Torrens system, the registered proprietor should have been recorded as the Council (as the successor Council and relevant roads authority: see Roads Act 1993 (NSW), ss 7(4) and 145(3)). The recording of the State as the registered proprietor thus appears to have been an error.
The apparent error was brought to the attention of Land Registry Services by an officer of the Crown Lands department in January 2020, prompting the administrative action that culminated in the change of registered proprietorship.
The primary submission of the State on the present application is that Mr Young's claims cannot possibly succeed against it because none of the claimed land is in the ownership of the State. Mr Young contests that position. He alleges that all of the claimed land (i.e. Parcels 1, 2 and 3) is Crown Land owned by the State (see Amended Statement of Claim paragraph 20). Before dealing with these competing contentions, it is necessary to describe the lands in issue.
Parcel 1 is described in the Amended Statement of Claim (at paragraph 5) by reference to a diagram contained in an entry in the Government Gazette on 7 June 1963. It can thus be discerned that Parcel 1 is the area of the public (or parish) road 1247A-1603, apart from that part which became Lot 246. Lot 246 is Parcel 2 (see Amended Statement of Claim, paragraph 6). Parcel 3 is described in the Amended Statement of Claim (at paragraph 23) by reference to the text of an entry in the Government Gazette on 31 May 1963, being "the public road south of lot 18, section 17, 2097(L), extending easterly from confirmed road R. 1247A-1603 R., parish Tomki, county Rous". Parcel 3 extends in an easterly direction away from the Richmond River from the southern end of Parcel 1. It is depicted in some plans as "River Street" (see, for example, Deposited Plans 604093, 706664 and 976660) and it is referred to as a public road in certain entries in the Government Gazette.
Mr Young alleges that these areas were in the ownership of the Crown and were closed as roads pursuant to the provisions of the Roads Act 1902 (NSW) in 1963. In this regard, Mr Young relies upon certain entries in the Government Gazette on 31 May 1963 and 21 June 1963 (in relation to Parcel 3) and 7 June 1963 (in relation to Parcels 1 and 2). These entries are notices of applications for the closing and purchase of the roads described. The notices state that it is intended to close the roads unless valid objections are found to exist. However, despite searches having been undertaken, there is no evidence that any notice of closure of any of the roads was published in the Government Gazette, as would be required in order to effect a closure in accordance with the Roads Act 1902. There is evidence that notices of that character were published in the period October 1962 to March 1966 in relation to other roads in the Shire of Tomki. For the reasons which follow, it is no answer for Mr Young to point to ss 33 and 34 of the Roads Act 1993, which apply only to "non-council" public roads.
Mr Young's claims proceed on the basis that the claimed lands were roads opened or made pursuant to statute (4 Will IV No 11) when the notice was published on 2 October 1885 (see Amended Statement of Claim, paragraph 30), and that the lands were thus Crown lands (not owned or controlled by the Council) when the road closures were effected in 1963. I am unable to accept those contentions. The public roads that were opened on 2 October 1885 (which at least includes Parcels 1 and 2) and are claimed to have remained in existence until 1963 became vested in fee simple in the local council (the predecessor of the Council) on 1 January 1920 by virtue of the operation of s 232 of the Local Government Act 1919. The Crown is itself bound by that enactment (see s 232(4)). The local Council was, in addition, entitled to be registered as the proprietor of the roads under the provisions of the Real Property Act 1900 (NSW). There is no evidence of any subsequent transfer of ownership of the lands from the local Council to the Crown, whether by way of agreement or otherwise. Moreover, there is no evidence that any of the roads were later closed pursuant to the Roads Act 1902 or indeed any other statutory provision.
In these circumstances it seems clear to me that the roads opened on 2 October 1885 remain vested in fee simple in the Council pursuant to s 145 of the Roads Act 1993 (see Weber v Ankin [2008] NSWSC 106 at [92]-[93]).
I think there is some doubt about Mr Young's contention that Parcel 3 formed part of the roads that were opened in 1885. However, if it was not so included, it seems likely that it was included in a notification given by the Shire of Tomki on 27 November 1959 pursuant to s 224(3)(d) of the Local Government Act 1919 that "the road designated River-street on the plan of section 17 of the Irvington subdivision of the Tomki estate…" is a public road that shall vest in the Council. This scenario, which I note is not accepted by Mr Young, provides no support for any case against the State. Either way, Mr Young is plainly unable to make good his contention that the lands were Crown lands until 1963.
I have considered the submissions made both orally and in writing by Mr Young in this regard. I do not think that there is any substance to the allegation that the lands were at relevant times Crown lands not owned or controlled by the Council. I note, in particular, Mr Young's reliance upon s 46B of the Real Property Act 1900 (NSW). However, Mr Young was unable to refer to any relevant certificate of title issued before the commencement of the Real Property (Amendment) Act 1921 (NSW). The Crown Plan approved on 17 November 1920 is not such a document.
It is true that between 26 September 2012 and 1 April 2020 the State was recorded as the registered proprietor of Lot 246 (Parcel 2). This seems to have been the result of an administrative error which has now been corrected. It does not aid Mr Young's contention that the land was Crown land until 1963. In any event, the Council is now the registered proprietor and thus the proper party against whom to press any claim to possessory title. I would add that even in the period the State was the registered proprietor (during which time Mr Young claimed that the requisite time for title by adverse possession was established), the State would not have been able to assert indefeasibility of title against the Council claiming ownership of the public road (see Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 354 at 362-4; cited with approval in Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 at [119]). In those circumstances Mr Young would still need to establish that his title was better than that of the Council, even if, as suggested by Mr Young, the State itself would be precluded by estoppel from denying that it was the owner of the land.
I have concluded that Mr Young's claims to have possessory title to any of the lands are, as against the State, untenable. In my opinion those claims are hopeless, and bound to fail, at least because the lands are not relevantly in the ownership of the State. It is not necessary to go on to consider the formidable barriers those claims would face in any event, such as s 13.1 of the Crown Land Management Act 2016 (NSW) and its predecessor provisions (s 170 of the Crown Lands Act 1989 (NSW) and s 235B of the Crown Lands Consolidation Act 1913 (NSW)), and, in addition in relation to Lot 246, s 45D of the Real Property Act (see Wonson v State of New South Wales [2018] NSWSC 1144 at [29]-[34]).
I have reached the same conclusion in relation to the so-called second and third causes of action brought by Mr Young. These causes of action seem to be based in part upon Mr Young's allegations that he has rights as a result of adverse possession of the claimed lands. The second cause of action is said to justify a grant of title to Mr Young in the public interest, in circumstances where it is said that the lands cannot be physically used as roads. The third cause of action is said to justify a grant of title to Mr Young in the public interest in circumstances where there is such a danger of extinction of koalas, amounting to a national emergency, that the Court should give special consideration to the claims made.
Quite apart from the central problem that the lands are not relevantly in the ownership of the State, the suggested causes of action are entirely novel, and as far as I am aware not known to the law. Mr Young invited the Court to take the step of changing the law (as the High Court of Australia did in Brodie v Singleton Shire Council (supra)) but it would not be appropriate for a judge at first instance to accept that invitation.
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]). The claims advanced in the Amended Statement of Claim against the State are in my view manifestly groundless, and bound to fail. No reasonable cause of action against the State is disclosed. Moreover, I have a sufficiently high degree of certainty about the ultimate outcome to warrant an order summarily dismissing the proceedings against the State. In my opinion, no good purpose would be served having the claims go forward to trial as against the State.
Mr Young's claims may proceed against the Council only. In that regard, I note that the Council has filed a Defence to the Amended Statement of Claim, and has indicated that once the present application is determined, its preference is that the matter proceed to final hearing. Mr Young should consider whether the matter should so proceed, having regard to the conclusions reached in this judgment, and the earlier judgment of 8 May 2020. The Court again urges Mr Young to seek appropriate legal representation, so that proper consideration is given to that question.
For the above reasons, the Court will order pursuant to UCPR r 13.4(1)(b) that the proceedings be dismissed as against the second defendant. There is no reason why costs should not follow the event as in the normal course. Accordingly, the Court will further order that the plaintiff pay the second defendant's costs of the proceedings, including its costs of the Notice of Motion filed on 2 February 2021.
[2]
Amendments
17 May 2021 - Typographical error in [17].
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Decision last updated: 17 May 2021