Baiada Pty Ltd v Registrar-General of NSW

[1996] HCATrans 45

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S86 of 1995

B e t w e e n -

BAIADA PTY LIMITED

Applicant

and

THE REGISTRAR-GENERAL OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 4 MARCH 1996, AT 12.02 PM

Copyright in the High Court of Australia

MR J.M. IRELAND, QC:   If the Court pleases, I appear with my learned friend, Mr J.B. MASTON,  on behalf of the applicant.  (instructed by MacLarens)

MR I. M. WALES:   I appear for the respondent, may it please the Court.  (instructed by K.C. Hall, Solicitor for the Registrar-General)

MR IRELAND: Your Honours, this application for special leave seeks to raise by way of appeal a short question of construction under section 327AA of the New South Wales Local Government Act 1919. The relevant section of the Act can conveniently be found reproduced in the judgment of Mr Justice Cole in the Court of Appeal at page 42 of the book.

By way of background, the Local Government Act 1919, commencing as it did on 1 January 1920, gave rise to the now familiar system of council control over subdivision of land. But, lawful subdivisions existed before that date and they were unaffected by the legislation. This case concerns lawful subdivisions of land into 42 separate allotments created prior to 1900. Between 1920 and 1970 a position arose whereby what might be regarded as an old lawful subdivision could be resurrected by application to the Registrar-General for the issue by him of certificates of title and conformity with that earlier plan. In 1970 the legislature introduced the section with which this application is concerned, section 327AA, into the Act. What it did was to introduce a notion of what was called the current plan in respect of any land.

The prohibition in subsection (2) which is not actually reproduced but in short was this that unless one was dealing with the current plan, one had to go through the further requirements of planning commission. So, the question always would be under section 327AA, “What is the current plan?”.

BRENNAN CJ:   Now, that is an interesting question.  What is the special leave point in it?

MR IRELAND:   The special leave point in it, your Honour, is that the - what happened in this case was that in 1972, that is two years after this regime came into force, there was registered in respect of the 42 subdivisions a single plan of redefinition.

BRENNAN CJ:   We know what the facts are.  What is the special leave point?

MR IRELAND:   Your Honour, the special leave point is this, that the application of this section is of general importance in its consideration with regard to what the other side would call a consolidation - using that word mutually for the purpose of the argument - because it has been the habit, particularly in rural areas of the Registrar-General, once lots in what I might call a 19th century subdivision, or the pre‑1920 subdivision, fell into the one ownership upon a conveyance of those lots without being asked to issue singles of certificates for title in respect of that land, and the question will be, apt in those cases as in this case, whether the issue of the single plan covering that ground removes the availability of the issue of certificates of title in respect of the old subdivision.  So that is not a matter peculiar to this case.

TOOHEY J:   That is not really the question, Mr Ireland, is it?  The question is whether there is a plan of subdivision in terms of the section.  That is answered by the section, itself.  It does not vest the Court with any power to take into account a whole range of considerations.  That plan either answers that description or it does not.

MR IRELAND:   I am sorry, your Honour.  I think I was asked what is the special point.  I was trying to indicate that the issue in this case travels beyond the particular case because of the habit of the Registrar-General.  But, as your Honour rightly says, the question that one comes to is whether the plan which is at page 52 of the book, the plan of redefinition of boundaries, counts as a plan of subdivision under subparagraph (b) extracted at page 42 of the book.

TOOHEY J:   It may be that the definition does not have sufficient regard to the sort of factual matters that you have referred to, but that is really beside the point.

MR IRELAND:   Yes, your Honour, but it does introduce a wider importance for this case than the instant facts.  Then one has to look at the underlying question which, as I say, does not involve 1500 pages of appeal book, it involves page 42 and page 52 in this case, whether subparagraph (b) of the definition catches a plan of redefinition of the type that one sees at page 52.  One has to imagine the plan at page 52 cut up into 42 lots, and then that plan is lodged for redefinition purposes.

BRENNAN CJ:   Mr Ireland, the Court of Appeal has given a certain interpretation to it.

MR IRELAND:   We have two from the Court of Appeal at the moment, your Honour, so there is a bifurcated approach to that.  All that is involved here, at page 42 line 38 - because we are only concerned with subparagraph (b) - is whether the plan at page 52 shows land “that is a lot or portion in a lawful division of land”.

BRENNAN CJ:   What answer has the Court of Appeal given to that, that it is?

MR IRELAND:   It is.  For this reason:  first, Mr Justice Cole, because the external boundaries of the land, seen as lot 1 on page 52, shows land which is cut off from the rest of New South Wales, and that was shown by the external boundaries of the 42 lots.  We say that is not a very good answer to the question.  Secondly, Mr Justice Cole says you can apply the Interpretation Act so that “a lot” means “lots” in subparagraph (b).  When you say “lot” means “lots”, you can say that the 42 lots were there in the space which lot 1 now occupies and that this plan shows, somehow, those lots.  The short point is whether one has to see shown - the word of the statute “shown” on the plan a lot or lots which is a portion or lot in the previous subdivision.

BRENNAN CJ:   That is the question?

MR IRELAND:   That is the question.  For reasons that we have sought to advance, that is a question that travels beyond the instant case.

BRENNAN CJ:   Yes.

MR IRELAND:   Your Honour, could I just add one matter if I may?  Both of the members of the court who gave substantive reasons - Mr Justice Sheller agreeing with Mr Justice Cole - said if you look at subparagraphs (a) to (g) you will see that many of those subparagraphs obviously involve plans which may only have a single lot, and that must be right.  For example, you could have under subparagraph (d) a primary application which shows one single lot.  But, subparagraph (b) is self‑contained and that is shown because of the words within it, “not being land that is a lot in a plan of subdivision” as defined in the other paragraphs. 

So, you can have something that counts for the purposes of the other subparagraphs which also counts for (b), but conversely, unless it depicts those features which are “land that is a lot or portion in a lawful division of land” there will be cases where existing subdivisions, which are lawful subdivisions, survive.  In our respectful submission, the showing of the external boundaries of the 42 lots for the purpose of redefinition is an example of that sort of case and one, as I have sought to illustrate, which is not at all unique.  For those reasons, this attractive short appeal ought to be

the subject of special leave; the facts are uncontroversial; the point is short; and the point is of general application.

BRENNAN CJ:   Thank you, Mr Ireland.  We need not trouble you, Mr Wales.

The issue is solely one of statutory interpretation which raises no question of general legal principle. The interpretation of the terms of section 327AA of the Local Government Act 1919 (NSW) is eminently a question for final determination by the Court of Appeal of New South Wales. In any event, the decision is not attended with sufficient doubt to warrant a grant of special leave. Accordingly, special leave will be refused.

MR WALES:   I ask your Honour for costs.

MR IRELAND:   Nothing, if it please the Court.

BRENNAN CJ:   Special leave will be refused with costs.

AT 12.13 PM THE MATTER WAS CONCLUDED.