City of Fremantle v Imago Holdings Pty Ltd - [2020] WASCA 61

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CITY OF FREMANTLE -v- IMAGO HOLDINGS PTY LTD [2020] WASCA 61
CORAM:   BUSS P
BEECH JA
SMITH J

HEARD:   17 FEBRUARY 2020
DELIVERED          :   24 APRIL 2020
FILE NO/S:   CACV 58 of 2019
BETWEEN:   CITY OF FREMANTLE
First Appellant
MINISTER FOR LANDS
Second Appellant
AND
IMAGO HOLDINGS PTY LTD
First Respondent
COMMISSIONER OF TITLES
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   KENNETH MARTIN J
File Number            :   CIV 1817 of 2018

Catchwords:

Local government - Appeal - Whether primary judge erred in construction of provisions of Local Government Act 1960 (WA) in relation to ownership of land between former and revised building lines - Whether s 286(1) operated automatically and unconditionally to remove land dedicated as a street from the operation of the Transfer of Land Act 1893 (WA)

Statutory construction - Local Government Act 1960 (WA), s 286(1) - Revesting in the Crown and removal from the Transfer of Land Act 1893 (WA) of land dedicated as a road, street or highway - Whether s 286(1) operated automatically and unconditionally to remove land dedicated as a street from the operation of the Transfer of Land Act 1893 (WA) - Harmony in the construction of two Acts enacted by the same legislature

Legislation:

Local Government Act 1960 (WA), s 286, s 364
Transfer of Land Act 1893 (WA), s 68

Result:

Appeal allowed

Category: A

Representation:

Counsel:

First Appellant	:	M J McCusker QC & D W McLeod
Second Appellant	:	F B Seaward
First Respondent	:	P G McGowan & T Houweling
Second Respondent	:	P D Lochore

Solicitors:

First Appellant	:	McLeods
Second Appellant	:	State Solicitor's Office
First Respondent	:	Cornerstone Legal
Second Respondent	:	Percy Kakulas Gleeson

Case(s) referred to in decision(s):

Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96
Greenland v The State of Western Australia [2017] WASCA 83
Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407
Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1
Mohammadi v Bethune [2018] WASCA 98
R v A2 [2019] HCA 35; (2019) 93 ALJR 1106
Saldanha v City of Belmont [2018] WASCA 7
Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1

JUDGMENT OF THE COURT:

Introduction

This appeal concerns the ownership of a small area of land at 142 High Street, Fremantle (the disputed land). The first respondent, Imago Holdings Pty Ltd (Imago), is and has been since 1994 the registered proprietor of the lots containing the disputed land. There is a shopping centre built on the lots. The disputed land is outside the shopping centre and is, and has for many decades been, used by the public as part of the mall in that part of High Street.
The first appellant is the City of Fremantle (the City). It appeals against the dismissal of its action against Imago claiming that the Crown in right of Western Australia is the owner of the disputed land. The City claimed at trial,[1] and claims on appeal, that the disputed land revested in the Crown in 1962 pursuant to the Local Government Act 1960 (WA) (the LGA) and that this remains the case. Imago claims ownership of the disputed land on the basis of its registered title.[2]
[1] Primary reasons [36].
[2] Primary reasons [2], [37], [87].
The primary judge held that Imago is the owner of the disputed land.[3] His Honour found that the disputed land had revested in the Crown in 1962 pursuant to the LGA.[4] However, his Honour further found that when Imago became the registered proprietor of the lots encompassing the disputed land, it obtained indefeasible title to the disputed land and that this extinguished the Crown's unregistered interest.[5] The primary judge rejected all of the City's arguments that were aimed at establishing an exception to the indefeasibility of Imago's title.[6]
[3] Primary reasons [101] ‑ [102].
[4] Primary reasons [58] ‑ [90].
[5] Primary reasons [101].
[6] Primary reasons [91] ‑ [100].
The second appellant, the Minister for Lands (the Minister), was not a party to the proceedings at first instance but was joined to this appeal by order of Mitchell JA on 19 July 2019.
The City and the Minister both challenge the primary decision, contending that, for various reasons, the judge erred in finding that Imago has an indefeasible title to the disputed land.
Regrettably, the primary judge's attention was not drawn to a significant amendment to the LGA. His Honour determined the case by reference to s 286 and s 364 of the LGA in the form in which they were enacted in 1960. After an amendment to the LGA in 1962, the provision by which the disputed land revested in the Crown, s 286, also provided that the land was removed from the operation of the Transfer of Land Act 1893 (WA) (the TLA).
On appeal, the parties' submissions ultimately centred on the effect of s 286 after this amendment. In our view, for the reasons that follow, s 286 (as amended) took effect according to its terms, so that:
(1)the absolute property in the disputed land was revested in the Crown; and
(2)the disputed land was removed from the operation of the TLA.
Consequently, Imago did not obtain an estate or interest in the disputed land, the disputed land remains revested in the Crown, and the appeal must be upheld.

Facts

The following facts were not in dispute.
In 1955, the City passed the City of Fremantle By‑law Relating to Building Lines (the 1955 by‑law) pursuant to the Municipal Corporations Act 1906 (WA) (the MCA) and the Municipality of Fremantle Act 1925 (WA) (the MFA).[7] Its terms are set out later in these reasons. The by-law took effect on 20 July 1955 and prescribed new building lines that pushed back the existing building lines on High Street by 19 feet and 3 inches (5.87 metres).[8]
[7] Primary reasons [40] ‑ [41].
[8] Primary reasons [6].
The disputed land comprises the land between the old and new building lines within three lots on High Street, namely, Lots 9, 10 and 123.
At trial, it was common ground that at some time in 1962 the existing buildings and structures on the three lots were demolished and a new shopping centre that conformed to the new building lines was built.[9] However, the City and Imago disagreed as to when in 1962 the demolition occurred. The City asserted that the demolition occurred at some time between 13 February 1962 and 21 September 1962.[10] Imago admitted that the demolition occurred in 1962,[11] but said that a precise date for the demolition has not been ascertained.[12] The primary judge did not make a finding as to when in 1962 the buildings and structures were demolished. His Honour found that the demolition occurred in 1962[13] and that the new shopping centre was built by November of that year.[14]
[9] Statement of claim [10]; defence [12], [14]; reply [6](c); primary reasons [14] ‑ [16].
[10] Statement of claim [10]; reply [6](c).
[11] Defence [12], [14].
[12] Defence [13].
[13] Primary reasons [55], [66].
[14] Primary reasons [66].
At trial, Imago asserted that the 1962 building works were not for the purpose of rebuilding on the new building lines.[15] However, the primary judge inferred, from the speed with which the existing structures were demolished and the new shopping centre rebuilt, that the building works were done for the purpose of rebuilding on the new building lines.[16] The judge's reference to 'the building works' may encompass the demolition of the existing buildings. If not, it follows from the judge's findings that the demolition was done for the same purpose.
[15] Primary reasons [63]; defence [18].
[16] Primary reasons [63].
Lesmurdie Heights Pty Ltd became the registered proprietor of Lots 9 and 10 on 19 July 1962.[17] Mr William John Hughes became the registered proprietor of Lot 123 on 29 June 1961.[18] On 11 April 1963, Mr William Joseph Hughes became the registered proprietor of all three lots.[19]
[17] Certificates of title for Lots 9 and 10, attachment GRD 8 to affidavit of Glen Raymond Dougall sworn 11 May 2018 (First Dougall affidavit), GAB 44.
[18] Certificate of title for Lot 123, attachment GRD 9 to First Dougall affidavit, GAB 48.
[19] Primary reasons [73]; certificates of title for Lots 9, 10 and 123, attachments GRD 8 and GRD 9 to First Dougall affidavit, GAB 44, 48.
Imago became the registered proprietor of the three lots on 5 January 1994.[20]
[20] Primary reasons [87]; certificates of title for Lots 9, 10 and 123, attachments GRD 10 ‑ 12 to First Dougall affidavit, GAB 52, 59, 66.
There were additional factual matters on which the parties did not agree and which are relevant to some of the City's grounds of appeal. However, as we will explain, it is unnecessary to deal with those grounds of appeal.

Statutory context

This appeal involves the interaction, and in some cases the proper construction, of provisions of a number of written laws, namely:
(1)City of Fremantle By-law Relating to Building Lines;
(2)Municipality of Fremantle Act 1925 (WA);
(3)Municipal Corporations Act 1906 (WA);
(4)Local Government Act 1960 (WA);
(5)Transfer of Land Act 1893 (WA); and
(6)Land Administration Act 1997 (WA).

City of Fremantle By-law Relating to Building Lines

The 1955 by-law provides:[21]
A BY-LAW of the City of Fremantle made under the provisions of the Municipal Corporations Act, 1906-1953, and the Municipality of Fremantle Act, 1925, and numbered 213 for the provision of new building lines.
In pursuance of the power conferred by the Municipal Corporations Act, 1906-1953, and the Municipality of Fremantle Act, 1925, the mayor and councillors of the Municipality of the City of Fremantle hereby prescribe new building lines within the City of Fremantle as shown in a plan copies whereof are available and may be inspected at the offices of the City of Fremantle, the Town Planning Board and the Department of Local Government and are as set out in the first and second schedules hereto.
[21] Western Australia, Government Gazette, No 62 (20 July 1955) 1727 ‑ 1729.
It is not necessary to detail the schedules to the by-law.

Municipality of Fremantle Act 1925 (WA)

In 1962, s 5 of the MFA provided as follows:
5.Power to prescribe new building lines
(1)The Council may by a by-law under the principal Act at any time prescribe a new building line for any street or part of a street.
(2)Notice in writing of such new building line shall forthwith be served on the owners of all lands affected.
(3)No person shall construct, build, place, reconstruct, rebuild, replace, or repair any building or work or portion of a building or work upon the land between the old alignment and the new, except for the purpose of completing a building already in course of erection at the time of the prescribing of the new building line as aforesaid: Provided that the Building Surveyor (subject to any directions which the Council may give) may approve the execution of minor and not substantial repairs, in order to permit of the reasonable preservation of any existing building or work.
(4)Any land lying between the old and the new alignment shall be deemed to have been taken by, and shall vest in the Council on the date on which it shall be cleared of buildings and obstructions for the purpose of rebuilding on the new alignment or, in the case of land upon which no building or work or portion of a building or work is erected or in course of erection at the time of the prescribing of the new building line, on the date of such prescribing, or on the date of the commencement of the Municipality of Fremantle Act Amendment Act, 1956, whichever shall be the later date. Compensation shall thereupon be payable by the Council to the owner or person or persons interested: Provided that such compensation shall be calculated as at such date, and shall be limited to a sum representing the depreciation in value (if any) of the remaining land, due to the setting back of the building line.
(5)Any question as to the amount of such compensation shall be determined by arbitration under the Arbitration Act, 1895, unless the parties agree upon some other method of determination.
(6)Any amount due for such compensation may be recoverable as a debt in any court of competent jurisdiction.
(7)Notwithstanding that the Council shall have prescribed a new building line in accordance with the provisions of this section, it may at any time decide to purchase or resume any or all of the lands affected, under the provisions of this Act and the principal Act relating to the purchase or resumption of land.

Municipal Corporations Act 1906 (WA)

The primary judge's reasons note that the 1955 by-law was 'expressed to be enacted pursuant to the terms' of (among other Acts) the MCA.[22]
[22] Primary reasons [41].
Section 230 of the MCA provided:
230.Council may order that new streets be public highways
The council may, by order, direct that any land taken, purchased, or acquired by them shall be a street or way from such time as is named in such order.
Every such order shall be published in the Government Gazette, and thereupon such land shall become and be a street or way, and be deemed to be dedicated to the public accordingly.
The MCA was repealed by the LGA on 1 July 1961.[23]

Local Government Act 1960 (WA)

[23] LGA, s 4(1).

The LGA was assented to on 20 December 1960 and commenced on 1 July 1961.[24] For the purposes of this appeal, the critical sections of the LGA are s 286 and s 364.
[24] LGA, s 2; Western Australia, Government Gazette, No 14 (10 February 1961) 385.
When the LGA commenced on 1 July 1961, s 286 and s 364 provided as follows:
286.Property in streets
(1)The absolute property in land reserved, declared, or otherwise dedicated, under this or another Act as a road, street, or highway, is by, but subject to the provisions of, this section revested in the Crown.
(2)The provisions of subsection (1) of this section apply to land so reserved, declared, or dedicated, whether so reserved, declared, or dedicated, before or after the coming into operation of this Act, but do not affect the purpose or use for which the land is so reserved, declared, or dedicated.
(3)Where the title to land revested in the Crown by subsection (1) of this section is not in the Crown, the municipality or other person, who has the title -
(a)shall, if required to do so by the Minister for Lands, deliver up the documents of title to the appropriate registration authority who shall record the title in the Crown; but
(b)is not entitled to compensation because of the operation of that subsection.
(4)The operation of subsection (1) of this section does not affect -
(a)rights, if any, to mines of coal or other minerals excepted from acquisition of land so reserved, declared or dedicated;
(b)the powers and obligations of a council in respect of a street of which it has the care, control or management.
…
364Power to prescribe new building lines
(1)A council may by by-law prescribe a new building line for a street or part of a street.
(2)Where the council so prescribes a new building line, it shall, immediately the by-law is no longer liable to be disallowed by Parliament, cause written notice of the new building line to be served on the owners of land affected by the new building line, and cause notice of the by-law to be served on the Registrar of Titles and the Registrar of Deeds.
(3)(a)In this subsection 'building operation' means constructing, building, placing, reconstructing, rebuilding, replacing, extending, enlarging, adding to, or otherwise altering or repairing, a building or work or portion of a building or work.
(b)An owner of land or of a building or work affected by the new building line shall not, except with approval mentioned in paragraph (c) of this subsection, commence or carry out a building operation upon the land between the old alignment and the new, except for the purpose of completing a building operation already commenced at the time of the prescribing of the new building line.
(c)The building surveyor, subject to directions which the council may give, may approve the execution of minor but not substantial repairs in order to permit of the reasonable preservation of an existing building or work.
(4)(a)On the day on which land between the old and the new building lines is cleared of buildings and other obstructions, the land subject to rights, if any, reserved under subsection (4) of section three hundred and sixty‑three is by virtue of this subsection -
(i)dedicated to use as part of the existing street; and
(ii)revested in the Crown under section two hundred and eighty-six.
(b)The revesting mentioned in subparagraph (ii) of paragraph (a) of this subsection takes effect notwithstanding that the new building line has been prescribed under subsection (1) of section five of the City of Perth Act, 1925, or of the City of Fremantle Act, 1925, and notwithstanding subsection (4) of section five of either of those Acts.
(5)The council shall pay to persons who, because the land is so dedicated, lose or suffer depreciation to estates or interests in the land, compensation for the loss or depreciation, but the compensation payable to the owner of the remainder of the land is limited to the amount by which the remainder of the land is depreciated in value at that time by the setting back of the building line.
(6)If a question arises as to the amount of the compensation or the day on which the buildings, works, and other obstructions, have been cleared from the land, the question is determinable only on a reference to arbitration.
(7)Immediately land has been revested under subsection (4) of this section, the council shall cause written notice of the revesting to be served
on the Registrar of Titles, if the land is subject to the provisions of the Transfer of Land Act, 1893; or
on the Registrar of Deeds if the land is not subject to the provisions of that Act;
and the Registrar of Titles or the Registrar of Deeds, as the case may be, shall record the revesting in appropriate manner.
Between 1 July 1961 and the end of 1962, s 364 and s 286 were each amended by different amending Acts. First, the Local Government Act Amendment Act 1961 (WA), which commenced on 28 November 1961, amended s 364 of the LGA.[25] Secondly, the Local Government Act Amendment Act 1962 (WA), which commenced on 29 October 1962, amended s 286(1) of the LGA.[26]
[25] Local Government Act Amendment Act 1961 (WA), s 18.
[26] Local Government Act Amendment Act 1962 (WA), s 9.
After the 1961 amendments (which are shown in bold), s 364 provided as follows:
364Power to prescribe new building lines
(1)A council may by by-law prescribe a new building line for a street or part of a street.
(2)Where the council so prescribes a new building line, it shall, immediately the by-law is no longer liable to be disallowed by Parliament, cause written notice of the new building line to be served on the owners of land affected by the new building line, and cause notice of the by-law to be served on the Registrar of Titles and the Registrar of Deeds.
(3)(a)In this subsection 'building operation' means constructing, building, placing, reconstructing, rebuilding, replacing, extending, enlarging, adding to, or otherwise altering or repairing, a building or work or portion of a building or work.
(b)An owner of land or of a building or work affected by the new building line shall not, except with approval mentioned in paragraph (c) of this subsection, commence or carry out a building operation upon the land between the old alignment and the new, except for the purpose of completing a building operation already commenced at the time of the prescribing of the new building line.
(c)The building surveyor, subject to directions which the council may give, may approve the execution of minor but not substantial repairs in order to permit of the reasonable preservation of an existing building or work.
(3a)A council may, at any time after it has prescribed a new building line under the provisions of subsection (1) of this section, give written notice to an owner of land affected by the building line, requiring him to clear the land between that building line and the frontage of the allotment, of buildings and other obstructions, and the council shall in the notice specify the date by which the land is to be so cleared.
(3b)An owner to whom a notice is given pursuant to subsection (3a) of this section shall comply with the notice and, if he fails to do so within the time specified in the notice, the council may -
(a)without affecting any penalty to which the owner may be liable by reason of his failure to comply with the notice, clear the land of buildings and other obstructions; and
(b)recover the cost of so doing from the owner of the land in any court of competent jurisdiction as a debt due by the owner to the council.
(4)(a)On the day on which land between the ~~old and the new building lines~~ frontage of the allotment and the new building line is cleared of buildings and other obstructions for the purpose of re-erecting or erecting an existing or a new building behind the new building line, or, if the land is within an area specified in an Order, the land is so cleared in pursuance of a notice given by a council under subsection (3a) of this section, the land subject to rights, if any, reserved under subsection (4) of section three hundred and sixty-three is by virtue of this subsection -
(i)dedicated to use as part of the existing street; and
(ii)revested in the Crown under section two hundred and eighty-six.
(b)The revesting mentioned in subparagraph (ii) of paragraph (a) of this subsection takes effect notwithstanding that the new building line has been prescribed under subsection (1) of section five of the City of Perth Act, 1925, or of the City of Fremantle Act, 1925, and notwithstanding subsection (4) of section five of either of those Acts.
(5)The council shall pay to persons who, because the land is so dedicated, lose or suffer depreciation to estates or interests in the land, compensation for the loss or depreciation, but the compensation payable to the owner of the remainder of the land is limited to the amount by which the remainder of the land is depreciated in value at that time by the setting back of the building line.
(6)If a question arises as to the amount of the compensation or the day on which the buildings, works, and other obstructions, have been cleared from the land, the question is determinable only on a reference to arbitration.
(7)Immediately land has been revested under subsection (4) of this section, the council shall cause written notice of the revesting to be served
on the Registrar of Titles, if the land is subject to the provisions of the Transfer of Land Act, 1893; or
on the Registrar of Deeds if the land is not subject to the provisions of that Act;
and the Registrar of Titles or the Registrar of Deeds, as the case may be, shall record the revesting in appropriate manner.
(8)in this section the term 'building' does not include a fence.

After the 1962 amendments (which are shown in bold), s 286 provided as follows:
286.Property in streets
(1)The absolute property in land reserved, declared, or otherwise dedicated, under this or another Act as a road, street, or highway, is by, but subject to the provisions of, this section revested in the Crown and is removed from the operation of the Transfer of Land Act, 1893.
(2)The provisions of subsection (1) of this section apply to land so reserved, declared, or dedicated, whether so reserved, declared, or dedicated, before or after the coming into operation of this Act, but do not affect the purpose or use for which the land is so reserved, declared, or dedicated.
(3)Where the title to land revested in the Crown by subsection (1) of this section is not in the Crown, the municipality or other person, who has the title -
(a)shall, if required to do so by the Minister for Lands, deliver up the documents of title to the appropriate registration authority who shall record the title in the Crown; but
(b)is not entitled to compensation because of the operation of that subsection.
(4)The operation of subsection (1) of this section does not affect -
(a)rights, if any, to mines of coal or other minerals excepted from acquisition of land so reserved, declared or dedicated;
(b)the powers and obligations of a council in respect of a street of which it has the care, control or management.

Transfer of Land Act 1893 (WA)

In 1962, when the disputed land was cleared of buildings and other obstructions, s 68 of the TLA read as follows:[27]
68.Estate of registered proprietor paramount
Notwithstanding the existence in any other person of any estate or interest whether derived by grant from the Crown or otherwise which but for this Act might be held to be paramount or to have priority the proprietor of land or of any estate or interest in land under the operation of this Act shall except in case of fraud hold the same subject to such encumbrances as may be notified on the folium of the register book constituted by the certificate of title; but absolutely free from all other encumbrances whatsoever except the estate or interest of a proprietor claiming the same land under a prior registered certificate of title and except as regards any portion of land that may by wrong description of parcels or boundaries be included in the certificate of title or instrument evidencing the title of such proprietor not being a purchaser for valuable consideration or deriving from or through such a purchaser. Provided always that the land which shall be included in any certificate of title or registered instrument shall be deemed to be subject to the reservations exceptions conditions and powers (if any) contained in the grant thereof and to any rights subsisting under any adverse possession of such land and to any public rights of way and to any easements acquired by enjoyment or user or subsisting over or upon or affecting such land and to any unpaid rates and to any mining lease or license issued under the provisions of any statute and to any prior unregistered lease or agreement for lease or for letting for a term not exceeding five years to a tenant in actual possession notwithstanding the same respectively may not be specially notified as encumbrances on such certificate or instrument but no option of purchase or renewal in any such lease or agreement shall be valid as against a subsequent registered interest unless such lease or agreement is registered or protected by caveat. (emphasis added)

Land Administration Act 1997 (WA)

[27] In 1994, when Imago became the registered proprietor of the three lots, s 68 was in the same terms.

The Land Administration Act 1997 (WA) (the LAA) as passed is relevant to ground 3 of the Minister's appeal.
The LAA (other than s 1 and s 2) commenced on 30 March 1998[28] and s 3, s 54, and s 55 then read as follows:
[28] LAA, s 2; Western Australia, Government Gazette, No 68 (27 March 1998) 1765.
3.Interpretation
(1)In this Act, unless the contrary intention appears -
…
'road' means, subject to section 54, land reserved, declared or otherwise dedicated under this Act as an alley, bridge, court, lane, road, street, thoroughfare or yard for the passage of pedestrians or vehicles or both;
…
54.Configuration and situation of roads
A road may have -
(a)a 2 dimensional configuration consisting of -
(i)length; and
(ii)width;
or
(b)a 3 dimensional configuration consisting of -
(i)length;
(ii)width; and
(iii)height or depth or both,
as specified in the relevant plan of survey or sketch plan lodged with the Registrar and may be situated in airspace or waters or on the surface of or below the ground (including the bed of waters) or in any combination of 2 or more of these situations.
55.Property in roads, etc.
(1)Subject to this section and to section 57, the absolute property in land comprising a road is by this subsection -
(a)revested in the Crown; and
(b)in the case of land under the operation of the TLA or the Registration of Deeds Act 1856, removed from that operation and so revested.
(2)Subject to the Main Roads Act 1930, the local government within the district of which a road is situated has the care, control and management of the road.
(3)The operation of subsection (1) -
(a)suspends, until the relevant road is closed under section 58, any rights to mine for minerals within the meaning of the Mining Act 1978 excepted from the acquisition of the land reserved, declared or dedicated as that road; but
(b)does not affect the functions of a local government in respect of a road of which it has the care, control and management.
(4)If land comprising a private road is revested in the Crown under this section, the holder of the freehold in that land is not entitled to compensation because of that revesting.

The parties' positions at trial

As already noted, the City did not contend that it was the owner of the disputed land. Rather, it contended that the disputed land had revested in the Crown in 1962 pursuant to the LGA and that this has remained the position ever since.[29] The City sought, among other things, a declaration that the disputed land is vested in the Crown and an order that Imago execute a transfer of the disputed land to the Crown so that the revesting of the land in the Crown can be reflected in the register of titles.[30]
[29] Primary reasons [14] - [16], [36].
[30] Primary reasons [10]; prayer for relief (1) ‑ (7), BAB 35 - 36.
The primary judge aptly described Imago's position as 'straightforward'.[31] At trial, Imago submitted that it is the owner of the disputed land on the basis that it is, and has been since 1994, the registered proprietor of the three lots.[32]
[31] Primary reasons [97].
[32] Primary reasons [37] - [38], [97].
As we have mentioned, the Minister was not a party to the proceedings at first instance.

The decision of the primary judge

Overview

The primary judge held that Imago is the fee simple owner of the disputed land and that the City’s action for declaratory relief must fail.[33]
[33] Primary reasons [101] ‑ [102].
His Honour's reasons can be summarised in three steps. First, but for the LGA (which commenced on 1 July 1961), the disputed land would have vested in the City in 1962 pursuant to the 1955 by-law and s 5 of the MFA. Second, the effect of the LGA was that in 1962, instead of the disputed land vesting in the City, the disputed land revested in the Crown. Third, the Crown’s title, having never been registered, was extinguished in 1994 when Imago became the registered proprietor of the three lots, no exception to the indefeasibility of Imago's title being applicable. The appellants challenge this third step; all parties accept the correctness of the first two steps. The judge's reasons for the first two steps, therefore, need only be briefly summarised.

First step: but for the LGA, the disputed land would have vested in the City

The judge referred to s 5(4) of the MFA,[34] set out above, and found that the existing buildings on the three lots were cleared in 1962.[35] Consequently, the disputed land would have vested in the City in 1962 had s 5(4) of the MFA been operative then.[36] However, as his Honour went on to explain, the LGA commenced in July 1961 and effectively overtook the operation of s 5(4) of the MFA.

Second step: the disputed land revested in the Crown in 1962

[34] Primary reasons [48].

[35] Primary reasons [54] - [56].

[36] Primary reasons [57].

The judge held that the disputed land revested in the Crown pursuant to s 364(4)(a)(ii) and s 364(4)(b) of the LGA.[37] His Honour explained that s 364(4) of the LGA overtook the previous position under s 5(4) of the MFA, namely, that land cleared between an old and new building line would vest in the council.[38] The LGA commenced in 1961 and therefore overtook s 5(4) of the MFA before the existing buildings on the three lots were cleared,[39] the event which would have triggered s 5(4) of the MFA and which instead triggered s 364(4) of the LGA. Section 364(4)(b) of the LGA expressly provided for the new position.[40] Thus in 1962, instead of the disputed land vesting in the City pursuant to s 5(4) of the MFA, the disputed land revested in the Crown.
[37] Primary reasons [65].
[38] Primary reasons [66].
[39] Primary reasons [67].
[40] Primary reasons [66].
The judge noted that the City had not complied with s 364(7) of the LGA, which required that the council cause written notice of the revesting to be served on the Registrar of Titles.[41]
[41] Primary reasons [79].
In identifying the applicable legislation in relation to events in 1962, the judge set out s 286 and s 364 in their form as enacted in 1960.[42] Regrettably, neither party drew the 1962 amendments to his Honour's attention and, with respect, he evidently overlooked those amendments and the 1961 amendments.

Third step: the Crown's title was extinguished when Imago became registered proprietor

[42] See primary reasons [61], [64], [76].

The judge held that the Crown's title to the disputed land was an unregistered interest and was extinguished in January 1994 when Imago became the registered proprietor of the three lots.[43]
[43] Primary reasons [101], citing TLA, s 68(1); Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407, 418 ‑ 419.
The City unsuccessfully advanced several arguments against Imago's indefeasible title.
First, the City contended that it or, alternatively the Crown, obtained title to the disputed land by adverse possession on the basis the City had factually adversely possessed the disputed land since 1962.[44] The primary judge assessed this argument in two time periods: (i) 1962 ‑ 1994; and (ii) 1994 ‑ present. As regards both periods, his Honour held that he 'would not assess it as open' to the City to rely on its activities in relation to the disputed land to obtain possessory title for the Crown (or for anyone else, for that matter).[45] As regards the period 1962 ‑ 1994, the judge held that it was not necessary to assess the City's adverse possession argument for this period because his Honour had held that the disputed land revested in the Crown in 1962.[46] As regards the period 1994 ‑ present, he held that even if the City could rely on its activities to obtain possessory title for the Crown, the City would not be able to establish a 12‑year period of possession post‑1994.[47] The judge accepted Imago's evidence that Imago has continuously asserted its ownership over the disputed land since becoming registered proprietor of the three lots in 1994.[48]
[44] Primary reasons [91].
[45] Primary reasons [92].
[46] Primary reasons [93].
[47] Primary reasons [94] ‑ [95].
[48] Primary reasons [94].
Grounds 5 and 6 of the City's appeal challenge the judge's rejection of this contention.
Secondly, the City argued that the disputed land had been dedicated at common law as a road.[49] The primary judge rejected this argument in the following terms:[50]
But once the disputed [land] was 'revested' in the Crown during 1962, as I have found, then there was no scope for it from then to be 'dedicated' (i.e., by the Crown) as a 'road' or 'street' - by statute (the Local Government Act 1960 applicable from 1 July 1961), or at common law (assuming that was still possible);
[49] Primary reasons [99](a).
[50] Primary reasons [99](a).
Ground 4 of the City's appeal and ground 2 of the Minister's appeal challenge the rejection of this argument.
Thirdly, the City raised the public right of way exception to indefeasibility in s 68 of the TLA.[51] However, the judge rejected this argument:[52]
The problem as regards identifying a 'public right of way' for a 'road' or a 'street' is that the disputed [land] would need to be 'reserved, declared or otherwise dedicated' under some relevant legislation to meet s 286 of the Local Government Act 1960 as it then applied. That did not happen here;
[51] Primary reasons [99](b).
[52] Primary reasons [99](b).
Grounds 2, 3 and 4 of the City's appeal and grounds 1 and 2 of the Minister's appeal challenge this reasoning.
Finally, the City mounted an argument based on s 28 of the Town Planning and Development Act 1928 (WA) (the TPDA). The primary judge's reasons do not set out this argument in much detail. However, the crux of this argument is that, pursuant to s 28(3)(a) of the TPDA, the disputed land was declared to form part of a public street or road and was dedicated for public use when the Town Planning Board approved Diagram 41703.[53] The judge rejected this argument, finding that the City's and Imago's surveyor experts[54]
both agreed in the joint expert report that although Diagram 41703 contains a stamp reading 'Dedicated Town Planning and Development Act 28(3)', that the stamp is not indicative of the disputed [land] being dedicated. That would have required an individual 'dedication stamp' on each relevant individual portion of land placed on the Diagram as the land was dedicated. There is no dedicated stamp on the disputed [land] on Diagram 41703.
[53] Plaintiff's supplementary outline of submissions in reply to first defendant's submissions on indefeasibility of title, 1 February 2019, [14].
[54] Primary reasons [99](c).
Ground 3 of the City's appeal challenges this reasoning and conclusion.

Costs

At the hearing as to costs, counsel for the City contended that there should be a reduction in the usual order for costs because, although Imago was ultimately successful at trial, Imago had raised and failed on a number of issues along the way.[55] Counsel for the City submitted that the issue of costs should be deferred to allow the parties to provide submissions on this point.[56]
[55] ts 161.
[56] ts 161, 162.
The judge said that he was 'cognisant' of the fact that Imago raised and failed on several issues, primarily in relation to the period 1955 ‑ 1962.[57] But, ultimately, Imago was the successful party.[58] Further, his Honour acknowledged the complexity of the dispute and the merit in not dragging out the matter by way of costs issues given the case concerned a small piece of land.[59] Therefore, his Honour ordered the City to pay Imago's costs, to be taxed if not agreed and to be taxed as one action.[60] Further, the judge ordered that in the taxing of Imago's costs, the scale limit items for discovery and for getting up be removed for the purpose of taxation.[61]
[57] ts 163.
[58] ts 163.
[59] ts 163.
[60] Orders made on 18 April 2019 (Orders), par 2.
[61] Orders, par 3.

Grounds of appeal

At the hearing of the appeal, both appellants were granted leave to amend their submissions and, in the case of the Minister, grounds of appeal, so as to rely upon the 1962 amendments to s 286 of the LGA.[62]

The City's grounds of appeal

[62] Appeal ts 31.

The City appeals on the following seven grounds:
(1)The learned trial judge erred in law in holding (primary reasons [100] ‑ [101]) that the Crown's title to the disputed land which (as his Honour held at [65] ‑ [68] and [83]) had revested by statute in the Crown in 1962, had been extinguished when Imago became the registered proprietor of the disputed land in 1994.
(2)The learned trial judge having found at [65], [68] and [83] (and confirmed at [99](a)) that the disputed land had by late‑1962 revested in the Crown by virtue of s 364(4)(a)(ii) of the LGA, erred in law in failing to hold that it then became, by virtue of s 364(4)(a)(i) of the LGA, dedicated to use as part of the existing High Street and therefore part of a public right of way, an exception to the indefeasibility provision of s 68 of the TLA.
(3)In the alternative to ground 2, the learned trial judge erred in fact and in law in failing to hold that
(a)Diagram 41703, which shows the disputed land as part of the land marked 'Road Widening' of High Street, was approved by the Chairman of the Town Planning Board on 25 March 1971, was registered on 12 April 1971 and was approved by the Inspector of Plans and Survey on 20 May 1971; and
(b)by virtue of s 28(3)(a) and s 28(3)(b)(i)(B) of the TPDA, the disputed land became and remained 'dedicated to public use' and, as part of the existing High Street, was therefore a 'public right of way', and an exception to the indefeasibility provisions of s 68 of the TLA.
(4) Alternatively, the learned trial judge erred in fact and in law in holding at [99](a) that the disputed land could not have been dedicated at common law as it had revested in the Crown in 1962. His Honour should have held that
(a)common law dedication by the Crown of the disputed land was possible at law;
(b)the actions by the appellant as agent for the Crown in opening the disputed land to public use as part of High Street constituted an act of dedication; and
(c)if there was not a statutory dedication by reason of the matters stated in grounds 2 and 3, then there was, in any event, a common law dedication completed by uninterrupted use for over 30 years by the public as part of High Street, and therefore the disputed land as at January 1994 was a public right of way, and an exception to the indefeasibility provisions of s 68 of the TLA.
(5)The learned trial judge erred in fact and in law in failing to hold that if the disputed land was not a public right of way (and therefore an exception to the indefeasibility provisions of s 68 of the TLA) the Crown acquired possessory title to the disputed land (which is another exception to indefeasibility) before 1994 and Imago therefore did not obtain indefeasible title to the disputed land nor did its registered interest have priority over the Crown's possessory title of the disputed land.
(6)The learned trial judge erred in fact in finding at [94] that Imago had 'since 1994 continuously asserted its ownership position over the disputed land', and erred in law in holding at [95] that its 'sustained resistance' against the appellant concerning the disputed land … undermine(s) any adverse possession claim … in any 12-year period post-January 1994.
(7)The learned trial judge erred in law in failing, in the proper exercise of his discretion, to apportion the costs of the trial. He should have held that as the appellant had succeeded on the majority of the issues raised or disputed by Imago in the action, which issues had occupied almost all of the pre‑trial preparation and interlocutory matters, including discovery and inspection of documents and the affidavit evidence, this was not a case where costs should 'follow the event' [102], but should have been apportioned.

The Minister's grounds of appeal

After amendment, the Minister appeals on the following three grounds:
(1)The learned trial judge having held (correctly at [68]) that the disputed land revested in the Crown in 1962 pursuant to s 364 of the LGA, erred in law in holding that the disputed land did not constitute a 'public right of way' for the purposes of s 68(1A) of the TLA ([99](a) ‑ (b)). The learned trial judge should have held that the disputed land was dedicated as a road by operation of statute in 1962
(a)pursuant to s 364(4) (together with s 286) of the LGA; or alternatively
(b)pursuant to s 5 of the MFA.
(2)In the alternative, the learned trial judge having held
(a)(correctly at [68]) that the disputed land revested in the Crown in 1962 pursuant to s 364 of the LGA; and
(b)(correctly at [80]) that the public had utilised the disputed land as a street since 1962,
erred in law and fact in holding that the disputed land could not have been dedicated as a road at common law once it had revested in the Crown, and therefore did not constitute a 'public right of way' for the purposes of s 68(1A) of the TLA ([99](a) ‑ (b)). The learned trial judge should have held that the disputed land was dedicated as a road at common law prior to 1994.
(3)(a)The learned trial judge having held (correctly at [68], [83] and [85]) that the disputed land revested in the Crown by the end of 1962 by operation of s 364 of the LGA, erred in law in failing to hold that the disputed land was at the same time removed from the operation of the TLA by operation of s 364 together with s 286 of the LGA ([100] ‑ [101]).
(b)Further or in the alternative, the learned trial judge erred in law in failing to hold that the disputed land constituted a road for the purposes of s 55 of the LAA and was therefore taken outside of the operation of the TLA as at 27 March 1998 ([99] ‑ [101]).

There is some overlap between the parties' grounds. Ground 1 of the Minister's appeal mirrors ground 2 of the City's appeal. Ground 2 of the Minister's appeal mirrors ground 4 of the City's appeal. After amendment, ground 3(a) of the Minister's appeal overlaps with ground 1 of the City's appeal.
It is convenient to turn immediately to ground 1 of the City's appeal and ground 3 of the Minister's appeal. As will be seen, those grounds, which rely upon the effect of s 286(1) after the 1962 amendment, are determinative of the appeal.

The parties' submissions

It is only necessary to summarise the parties' submissions concerning the critical issue, namely the combined operation of s 286(1) and s 364(4) of the LGA.
In essence, the appellants submit that:[63]
(1)On the day the land was cleared, the effect of s 364(4)(a)(i) was that the disputed land was dedicated to use as part of the existing High Street.
(2)The effect of s 286(1) of the LGA was that, upon that dedication:
(a)the absolute property in the disputed land revested in the Crown; and
(b)the disputed land was removed from the operation of the TLA.
(3)As s 68 applies only to land under the operation of the TLA, the land having been removed from the operation of the TLA, the judge erred in finding that s 68 of the TLA gave Imago an indefeasible title to the disputed land. Rather, the disputed land remains revested in the Crown.
[63] Appeal ts 36 ‑ 37, 40 ‑ 41, 45, 72 ‑ 73.
The appellants submit that, on its proper construction, s 286(1) operates unconditionally and immediately.[64]
[64] Appeal ts 47, 49, 77.
The respondents accept that:
(1)s 364(4) operated, upon the clearing of the disputed land in 1962, to dedicate the disputed land to use as part of the existing High Street;[65]
(2)s 364(4) and s 286 had the effect that absolute property in the disputed land was revested in the Crown;[66] and
(3)the 1962 amendments to s 286(1) apply to this case.[67]
[65] Appeal ts 92, 101, 107.
[66] Appeal ts 92 ‑ 93, 101, 107 ‑ 108.
[67] Appeal ts 101.
However, they submit that, on a proper construction of the LGA, s 286(1) does not have the effect that land is removed from the operation of the TLA unless and until the council gives the notice required by s 364(7) and the Registrar of Titles records the revesting in an appropriate manner.[68] That not having occurred in this case, the land remained under the operation of the TLA. Consequently, the judge was correct in finding that Imago's registered title was indefeasible by virtue of s 68 of the TLA.
[68] Appeal ts 91, 96, 102, 104, 107.
In support of this construction, Imago submits that:
(1)s 286 does not specify the means by which the land is removed from the operation of the TLA;[69]
(2)the starting point is the primacy of the Register - unless by some means the Register is altered, the intended removal of the land from the operation of the TLA is ineffective;[70]
(3)s 364(7) supplies the means by which the land is removed;[71]
(4)in effect, s 286(1) is to be read as if it concluded with the additional words 'upon notice being given in accordance with the provisions of s 364(7)'.[72]
[69] Appeal ts 102.
[70] Appeal ts 104 ‑ 105.
[71] Appeal ts 102.
[72] Appeal ts 107.
Thus, the critical issue is the proper construction of s 286(1): when land is dedicated as a road by force of s 364(4) and absolute property in it is revested in the Crown, is the removal, by s 286(1), of the land from the operation of the TLA automatic and immediate (as the appellants contend), or does it occur only after compliance by the council and by the Registrar of Titles with the requirements of s 364(7) (as the respondents contend)? For the reasons below, we prefer the appellants' construction.
At the conclusion of the hearing of the appeal, the court gave directions for the filing of supplementary written submissions on two specific topics. Regrettably, the respondents appear to have taken the directions as inviting further submissions on the whole question the subject of these grounds. That was not so. In any event, we have considered the respondents' written supplementary submissions.
In responding to the court's directions, the City applied for leave to adduce additional evidence in the form of an affidavit of Mr Henty Farrar. By order of 24 March 2020, the court refused that application. Our reasons were as follows. The directions did not give liberty to file further affidavits. In any event, the affidavit does not assist in the resolution of the appeal.

Disposition

General principles

The principles of statutory construction are well known and do not require detailed exposition. It is sufficient to repeat the outline in Mohammadi v Bethune:[73]
[73] Mohammadi v Bethune [2018] WASCA 98 [31] ‑ [36].
Statutory construction requires attention to the text, context and purpose of the Act.While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context.Statutory construction, like any process of construction of an instrument, has regard to context. As Kiefel CJ, Nettle and Gordon JJ recently explained in SZTAL:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
The objective discernment of the statutory purpose is integral to contextual construction.The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials.The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions.
Discernment of statutory purpose is particularly significant in cases, commonly encountered, where the constructional choice presented is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural'.In such a case, the choice 'turns less on linguistic fit than on evaluation of the relevant coherence of the alternatives with identified statutory objects or policies'. …
Thus, the material provisions of the Act must be understood, if possible, as parts of a coherent whole.
Statutory texts enacted by the same legislature are to be construed, so far as possible, to operate in harmony and not in conflict.Where two or more statutory enactments comprise the overlapping legislative scheme, the enactments should be construed accordingly, and the court should endeavour to produce a rational, sensible, efficient and just operation in preference to an inefficient, conflicting or unjust operation. (footnotes omitted)

Introductory observations

As explained below, in our opinion, considerations of text, context, purpose and coherence all favour the appellants' construction. Most significantly, the respondents' construction has no foothold in the statutory text.
At all times in 1962, s 364(4)(a) of the LGA provided, so far as is material, that '[o]n the day on which land between the frontage of the allotment and the new building line is cleared of buildings and other obstructions for the purpose of re‑erecting or erecting an existing or a new building behind the new building line, … the land … is by virtue of this subsection -
(i)dedicated to use as part of the existing street; and
(ii)revested in the Crown under section [286]'.
The language of s 364(4)(a) reveals that its operation is immediate, automatic and unconditional. On the day of the clearing, the land is dedicated to use and revested. Those things occur by virtue of s 364(4). Nothing in the text of s 364(4) conditions that operation upon any other event or circumstance. The respondents did not suggest otherwise.
It is not in dispute that the 1962 amendments to s 286(1) apply to the present case. That is clear from s 286(2) which makes s 286(1) applicable to land reserved, declared or dedicated before or after the coming into operation of the LGA.

Textual features of s 286

Following the 1962 amendments, s 286(1) provided, so far as material, that '[t]he absolute property in land … dedicated, under [the LGA] … as a road, street, or highway, is by … this section revested in the Crown and is removed from the operation of the [TLA]'.
A number of features of the text of s 286(1) should be noticed.

General observations as to both limbs

First, s 286(1) has two effects: the revesting of absolute property in the land in the Crown; and the removal of the land from the operation of the TLA.
Secondly, the language of s 286(1), in its ordinary meaning, suggests an immediate, automatic and unconditional effect. It provides that the absolute property in land is revested and that the land is removed from the operation of the TLA. Both effects are expressed in the same immediate and unconditional terms. The section also provides that those effects are brought about 'by … this section', namely s 286. The ordinary meaning of the text of s 286(1) thus supports the appellants' construction.

The purpose of the first limb

Thirdly, by the first limb, the 'absolute property' in the land is 'revested' in the Crown. These terms, especially when read together, shed light on the meaning and purpose of the first limb. Both as a matter of ordinary language, and as a matter of accepted legal meaning, the 'absolute property' in land is to be distinguished from title to land, the latter of which is referred to in s 286(3). The reference to revesting connotes a return to an earlier position. That language must be read with the reference to 'absolute property'. When so read, the purpose and effect of the first limb is apparent. By revesting the absolute property in the land, the provision effectively returns the land to its position before the Crown had granted any estate or interest in it, albeit that the land is now dedicated to use as a street. In other words, upon the revesting, the Crown has, once again, full legal and beneficial ownership, which it had before, or when, it first exercised its sovereign power to appropriate, or grant freehold or other title to, the land.[74] Thereupon, no other party has any estate or interest in the land.
[74] As to which, see Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, 48, 50, 53, 68, 86 ‑ 87; Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1, 186. Any native title interests that may once have existed may be put to one side, since the earlier grant of a freehold estate in the land extinguished any such interests: Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96.
As will be seen, this view of the purpose and effect of the first limb of s 286(1) - to return the land to the status of unalienated Crown land - fits comfortably and coherently with its second limb, which removes the land from the operation of the TLA.

Second limb: harmony with the TLA, particularly s 68

Fourthly, the second limb of s 286(1) provides that the land is 'removed from the operation of the [TLA]'. In attributing meaning to that phrase, attention should be directed to the provisions of the TLA. Statutory texts enacted by the same legislature are to be construed, so far as possible, to operate in harmony.[75]
[75] See the last paragraph in the passage set out at [66] above.
The following outline relates to the TLA in the form it took in 1962.
Part II of the TLA provided various means by which land could be 'brought under the operation of' the Act. See, for example, s 20 and s 33. Land that was unalienated Crown land, as at the coming into operation of the TLA in 1893, was registered under the TLA, and thus came under its operation, at the time of any subsequent Crown grant.[76] Also, land under the operation of the Transfer of Land Act 1874 (WA) was, by s 4(2) of the TLA, deemed to be 'under the operation of' the TLA. The only provision in the TLA for removal of land from the operation of the TLA was s 243, which applied only to land of which the Crown is the registered proprietor. Section 243 provided as follows:
All or any lands whereof Her Majesty the Queen now is, or Her Majesty, or her heirs or successors, may hereafter become the registered proprietor or proprietors may, by proclamation by the Governor, to be published in the Government Gazette, be revested in Her Majesty, or her heirs or successors, as of her, or their former estate, and the Registrar shall, upon the filing of such proclamation in his office by the Commissioner of Crown Lands, cancel the Certificate of Title of the lands mentioned in such proclamation, and call in and cancel the duplicate of such Certificate, and the lands the subject of such Certificate shall thereby be removed from the operation of the said Act, and may be regranted by Her Majesty, her heirs or successors.
[76] TLA, s 18.
Many of the provisions in part III are expressed to apply to land 'under the operation of this Act'. Significantly, the scope of operation of s 68 is delineated in this manner. The indefeasible title conferred by s 68 is conferred in relation to, and only to, 'land under the operation of this Act'. The same is true of many other provisions of the TLA.[77]
[77] See, for example, s 58, s 59, s 65, s 67, s 84, s 88, s 91, s 105, s 137 and s 202, some of which are referred to below.
Viewed in this framework, s 286(1) operates harmoniously with the TLA. The TLA applies only to land that is 'under the operation of' that Act. In removing the land from the operation of that Act, s 286(1) ensures that the TLA ceases to apply to the land. In pointing to the 'paramountcy' of s 68,[78] Imago impliedly asserts that s 286 of the LGA and s 68 of the TLA are somehow in conflict. That is not so. Section 286 operates to remove the land from the operation of the TLA, with the result that s 68 does not apply to the land. Contrary to the submissions of the second respondent, the Commissioner of Titles, this construction of s 286 neither does 'violence to the [TLA] and the principle of indefeasibility'[79] nor 'effectively amends the [TLA]'.[80] The respondents did not point to any other specific provision of the TLA with which the appellants' construction of s 286(1) was said to collide.

Second limb: harmony with the first limb

[78] Appeal ts 106.

[79] Appeal ts 93.

[80] Appeal ts 95.

As explained in [79] above, under the TLA, in the form it took in 1962, unalienated Crown land was not registered under, or under the operation of, the TLA; by s 18, registration occurred when the Crown granted an estate or interest in the land. Viewed in this context, in removing the land from the operation of the TLA, the second limb of s 286(1) can be seen as a means of giving better and fuller effect to the evident purpose of the first limb and of s 286(1) as a whole - to return the land to its status as unalienated Crown land. This tends to be confirmed by the explanation for the insertion of the second limb given in the second reading speech for the 1962 amendments:[81]
The next amendment is to clarify the position in regard to a road which has been declared under the Act to be revested in the Crown. The amendment proposes to then state that the land comprising the road is removed from the operation of the Transfer of Land Act. This amendment is necessary, because certain roads are held under certificate of title and when revested in the Crown the title still operates. It is felt, therefore, that it would be far better to cancel the title and have the land removed from the operation of the Transfer of Land Act so that it would simply be Crown land set apart for roads.

Reasons for preferring the appellants' construction to the respondents'

[81] Western Australia, Parliamentary Debates, Legislative Council, 28 August 1962, 689 (The Hon LA Logan, Minister for Local Government).

It can be seen from [71] ‑ [75] above that nothing in the text of s 286(1) supports the respondents' construction. To the contrary, as already observed, the language of s 286(1) suggests an immediate, automatic and unconditional effect in both its limbs. Also, nothing in the text of s 364(7) suggests that compliance by the council with its obligation under s 364(7) is a precondition of the coming into effect of the apparently unconditional operation of any other provision of the LGA and, in particular, s 286(1). In this context, it should also be noticed that the obligation under s 364(7) is cast upon the council, whereas the property is revested in the Crown.
Moreover, the text of s 364(7) plainly reveals that the council's obligation to give written notice to the Registrar of Titles is an obligation to give notice of a matter that has already occurred. The obligation is to give notice 'of the revesting'. It arises '[i]mmediately land has been revested'. The respondents accept that this is so.[82] The revesting under s 364(4) is a revesting under s 286.[83] As already observed, the language of s 286(1) indicates that its two limbs operate concurrently and contemporaneously. That tends to indicate that, like the revesting, the removal of the land from the TLA has already been effected by s 286(1) by the time the obligation under s 364(7) arises. It also indicates that the purpose of s 364(7) is to record in the Register something which has already happened, thereby ensuring good order in the keeping of records. When the purpose of s 364(7) is so understood, the fact that, as the respondents emphasise, when s 286 was amended in 1962 s 364(7) remained in force (without amendment) does not sustain their construction. That purpose provides no support for reading a condition into the unqualified words of s 286(1).
[82] Appeal ts 107 - 108.
[83] LGA, s 364(4)(a)(ii).
The preceding discussion demonstrates that the respondents' construction has no foothold in the text of the relevant provisions. That in itself is sufficient reason to reject it. By contrast, the appellants' construction reflects the ordinary meaning of the statutory text. Further, as explained in [75] ‑ [82] above, the appellants' construction of the second limb of s 286(1) produces coherence with the evident purpose of the first limb and of s 286(1) as a whole, and is harmonious with the TLA.

Other considerations counting against the respondents' construction

There are additional considerations that further count against acceptance of the respondents' construction.
First, as already noted, both limbs of s 286(1) use the same language 'is', suggesting an immediate, automatic and unconditional effect. Yet, on the respondents' construction, the first limb has immediate, automatic and unconditional effect, while the second limb is conditional. The respondents could not point to any basis in the text for this differential operation and construction of the two limbs.[84]
[84] Appeal ts 96.
Secondly, Imago's submissions are framed entirely by reference to the need for notice under s 364(7). However, the ambit of s 286(1) is not confined to land that was dedicated under s 364(4). For example, it also applies to land dedicated under s 288 or under s 295(5) of the LGA. By its terms, it also applies to land dedicated under the provisions of another Act. As Imago accepted, in cases of dedication under s 288 or s 295(5), the second limb of s 286(1) operates unconditionally.[85] The removal of the land from the operation of the TLA is not conditional upon any notice being given to the Registrar of Titles, or upon the Registrar of Titles taking any step. So much is clear from the terms of s 286(3) by which the Minister may, but need not, require another person with title to the land to deliver up the documents of title to the appropriate registration authority. The respondents did not advance any plausible justification for construing the second limb of s 286(1) as operating in a different manner, depending upon whether the land had been dedicated under s 288 or s 295(5), on the one hand, or under s 364(4), on the other. To the contrary, the generality of the terms in which s 286 is expressed reveals an intention that it operate in a uniform manner in the case of dedication under any provision of the LGA or, indeed, under another Act.
[85] Appeal ts 109.

Thirdly, by the first limb of s 286(1), upon dedication, the absolute property in the land is revested in the Crown. As already noted, the respondents accept that revesting is immediate, automatic and unconditional. Yet, on the respondents' construction, until notice is given and appropriately recorded under s 364(7), the registered proprietor retains an indefeasible title to a fee simple estate.[86] There is, at the least, substantial tension between the revesting of absolute property in the Crown and the retention by a registered proprietor of an indefeasible estate in fee simple.

The respondents' 'primacy of the Register' argument

[86] Appeal ts 110 ‑ 111.

In support of their construction, the respondents emphasise the need to protect the integrity and primacy of the Register.[87] Apart from s 68, the respondents did not point to any specific provisions of the TLA to support this submission. Many, if not most, of the provisions which might support this abstract principle or purpose apply to, and only to, land under the operation of the TLA. As already noted, that is true of s 68. It is also true of the following:
(1)s 58, by which, until registered, no instrument is effectual to pass any estate or interest in any 'land under the operation of this Act';
(2)s 67, by which the certificate of title is conclusive evidence of the title of a proprietor of land 'under the operation of this Act' in an action brought by the proprietor to enforce a contract of sale of the land;
(3)s 202, which protects a bona fide purchaser of land 'under the operation of this Act' from claims for damages or an action of ejectment on the ground that the previous proprietor was registered through fraud or error.
Some other potentially relevant sections, such as s 63, s 134 and s 199, are not expressly so limited, but fall well short of sustaining the abstract principle or purpose asserted by the respondents. Further, the respondents' submission seems to us to characterise the (relevant) principle or purpose of the TLA at too high a level of generality.[88] In any event, even if established, this abstract principle or purpose, derived from various provisions of the TLA, would bear upon the proper construction of an ambiguous provision of that Act.[89] However, assuming it to be established, it falls well short of sustaining a construction of a provision of the LGA that finds no support in the text of the relevant provision of the LGA or the LGA as a whole.

Proper construction of s 286: conclusion

[87] Appeal ts 104.

[88] As to which, see R v A2 [2019] HCA 35; (2019) 93 ALJR 1106 [34] ‑ [36]; Greenland v The State of Western Australia [2017] WASCA 83 [169] and the authorities there referred to.

[89] See Saldanha v City of Belmont [2018] WASCA 7 [115] and the cases there referred to.

For these reasons, we accept the appellants' construction. In our opinion, s 286(1) operates immediately, automatically and unconditionally so that, when land is dedicated to use as a road, street or highway, the land is removed from the operation of the TLA. Whether the notice required by s 364(7) has been given does not affect the operation of s 286(1).
When that construction is applied to the present case, the result is that the disputed land was removed from the operation of the TLA in 1962. Consequently, the City's ground 1, the Minister's ground 3(a) and the appeal must be upheld.
It is therefore unnecessary to deal with the Minister's ground 3(b), although it may be observed that s 55 of the LAA, upon which ground 3(b) relies, appears to operate in a manner consonant with our construction of s 286(1) of the LGA.

Other grounds of appeal

In our view, the Minister's other grounds, and many of the City's other grounds, would not sustain the claim made and relief sought by the appellants. Demonstrating that dedication as a street engaged the public right of way exception to indefeasibility would preserve the public's right to use the street, to which Imago's registered title would be subject, and might well have supported a declaration to this effect (had such a declaration been sought at trial). However, it would not confer title on the Crown.
After this had been pointed out by the bench, the City sought to amend to claim a declaration to this effect. In circumstances where the appellants have established their primary case, it is not necessary to decide whether such an amendment should be permitted, or whether the other grounds are made out.

Conclusion and Orders

For these reasons, orders should be made to the following effect:
(1)The appeal is allowed.
(2)The orders of the primary judge made on 18 April 2019 are set aside.
(3)In substitution for those orders, there is
(a)a declaration that the disputed land is part of the road reserve for High Street, Fremantle and was dedicated to use as part of the existing street, revested in the Crown and removed from the operation of the Transfer of Land Act 1893 (WA) by the end of 1962, by operation of section 364 together with section 286 of the Local Government Act 1960; and
(b)an order that without production of the duplicate title or titles (if any exist) to Certificates of Title Volume 1762 Folios 607, 608 and 609 the first respondent execute all such documents and do all such things as may be necessary, if any, in order to record the removal of the disputed land area from the operation of the Transfer of Land Act 1893 (WA) within 28 days from the date of these orders.
We would hear from the parties as to the precise terms of the substituted declaration and order and as to the costs of the primary proceedings and of the appeal.

Note

The terms of [96](3)(b) were amended from the original published decision in accordance with [3] of City of Fremantle v Imago Holdings Pty Ltd [2020] WASCA 61 (S).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

SL
Associate to the Honourable Justice Beech

28 APRIL 2020

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION: CITY OF FREMANTLE -v- IMAGO HOLDINGS PTY LTD [2020] WASCA 61 (S)
CORAM:   BUSS P
BEECH JA
SMITH J

HEARD:   17 FEBRUARY 2020
DELIVERED          :   24 APRIL 2020
PUBLISHED           :   24 APRIL 2020
FILE NO/S:   CACV 58 of 2019
BETWEEN:   CITY OF FREMANTLE
First Appellant
MINISTER FOR LANDS
Second Appellant
AND
IMAGO HOLDINGS PTY LTD
First Respondent
COMMISSIONER OF TITLES
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   KENNETH MARTIN J
File Number            :   CIV 1817 of 2018

Catchwords:

Practice and procedure - Costs - Costs on appeal - Where, at trial, all parties and the judge overlooked a significant amendment to the applicable legislation - Where appeal determined on the basis of that amendment - Appropriate order as to costs of trial and costs of appeal

Legislation:

Nil

Result:

Costs orders made

Category: B