Dobbie & Anor v Davidson

[1991] HCATrans 333

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S83 of 1991

B e t w e e n -

JOHN WILLIAM DOBBIE and

ROSALIND JULIE DOBBIE

Applicants

and

HUBERT PROVAN DAVIDSON and

NOELINE PATRICIA DAVIDSON

First Respondents

REGISTRAR GENERAL OF NEW SOUTH

WALES

Second Respondent

Application for special

leave to appeal

Dobbie 1 15/11/91

DEANE J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 1991, AT 12.58 PM

Copyright in the High Court of Australia

MR P.E. KING: If Your Honours please, I appear for the

applicants. (instructed by Cropper & Parkhill)

MR G.G. MASTERMAN, QC: If the Court pleases, I appear with	my learned friend, MR J.M HARRIS, for the first
respondents. (instructed by M.E. Howard & Co)

MR B.A. COLES: If Your Honours please, I appear for the

second respondent. (instructed by L.P. Hawthorne,

Solicitor to the Registrar-General)

MR KING:  Your Honours, at the outset may I seek leave to

hand up an amended page 5 of my outline which

amends a few lines of point Bl, a copy has been

handed to my friends; secondly, indicate that I

will need to make two qualifications to my

submissions as I go through, one relating to the

current position in the United States, in the

States, and the other one as to one portion of the

plan which is annexure 1.

DEANE J:  Mr King, looking at the submissions which we have

all read, I think I should point out to you the

need in a case such as this to bear in mind that we

are concerned with the question whether leave

should be granted.

MR KING:	I appreciate that, Your Honour.
DEANE J:	Now, can I go a little further and suggest to you

that you should perhaps deal first with the
questions which were litigated in the courts below
because unless you are going to get leave on one of

those, a very real question will arise as to

whether we should contemplate granting leave to

appeal to raise matters which were not raised in

the court below.

MR KING:  Yes, Your Honour, I well appreciate that and some

time was spent, I think in point E of our

submissions, addressing that problem.

DEANE J: Yes, we have read what is said there.

MR KING:  Thank you, Your Honour. Your Honours, just to

briefly outline the factual position which is not

quite so simple as perhaps some cases, although not

unusual in cases of this type:  Your Honours, in

general terms, the application concerns the limit
of indefeasibility of title and the integrity of

the Registrar in New South Wales, and confining

myself to the points to which Your Honour referred.

Your Honours, my clients have been the owners

of some 2700 acres of grazing property near

Goulburn called Lumley Park since 1988 and the

Davidsons, the first respondents, have been the

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registered proprietors of some 5000 acres on an adjoining property called Ellerslie in the same area since 1981.

Your Honours, in 1964 a primary application to

bring the land under the Real Property Act was made
by the then proprietors of Lumley Park, being the
trustees of an estate, the Chapmans.

Your Honours, the relationship between the two

properties, which is of some importance, and in

order to assist the Court to understand quickly the

facts which may be relevant, are set out in an

annexure, first, annexure 1 to the submissions.

There is one amendment I need to make to that,

Your Honours, after examining the court file.
Your Honours will see outlined in red, I hope, in

your document "Lumley Park" - this is from the

Central Mapping Authority map, Your Honours, which

was in evidence - as it was in 1964, the date of

the application, and over on the right is the small

village of Bungonia and just below it I point out

the cemetery to the left of Bungonia but inside

Lumley Park and on the left is, outlined in green,

Ellerslie.

Now, Your Honours, can I just point also, in relation to Ellerslie, to the roads that ring that

area? Firstly, proceeding from Bungonia along the

black and white checked lines is the main road from

Bungonia to Goulburn and then, running through the

middle of Lumley Park, as it then was, is a road

called the Windellama Road, referred to in the

evidence, and then it branches at about two-thirds of the way down the property and that then becomes

what is called the Tarago Road. Those are the

three main public roads.

Then, Your Honours, up in the top left-hand

corner of the plan Your Honours will see firstly a

purple line which runs in from the Goulburn Road

into the property of Ellerslie and that, in fact,

is a reserved Crown road and that reservation runs

all the way down to Bungonia Creek, through the
middle of Ellerslie. Then, on the right-hand side

at the top of the page adjacent to the boundary of

Ellerslie runs another reserved Crown road which

branches and joins the first one but continues down

into the centre of the property.

Your Honours, to the south of the property

there is a purple line from lot 58 veering south

which indicates a track on the Central Mapping

Authority map which then purports to pass some

small holdings down to Tarago Road. Your Honours,

that track terminated at the boundary, which is the

green line, and there is a Crown road from those

Dobbie	15/11/91 small holdings down to Tarago Road but it does not
join up with Ellerslie.

Your Honours, the other two points that I

would ask you to note on this plan are, firstly,

from lot 58, which is the small lot noted as being

owned by Nicholas Walsh on that plan, but then

being part of Ellerslie, juts into Lumley Park and

then there is a purple line running across to the

Windellama Road. That is the access way in

dispute. And then running west is another line

which joins up with the reserved Crown road across

Bungonia Creek. Your Honours, not shown on this

plan, but adjacent to Bungonia Creek in lot - the
number is not clear, but in the first lot to the
right where the access crosses the creek are some

yards.

Your Honours, the only other thing I would ask

you to note is the creeks. Firstly, the confluence

of both Lumley Creek and Bungonia Creek is at the

north-west corner of Lumley Park and then runs down

past lot 58 which is the homestead for Ellerslie,

and Bungonia Creek runs west and it intersects the

purple line adjacent to the reserved Crown road in

about the middle of the property after meeting the

streams past the small village of Bungonia.

DEANE J: If that is a convenient time, Mr King, the Court

will now adjourn until 2 o'clock.

AT 1.07 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.05 PM:

DEANE J: Yes, Mr King?

MR KING:  Thank you, Your Honours. Your Honours, just

before the luncheon adjournment, I had referred to

the plan which is annexure 1. Your Honours, can I

now take the Court to the first point which is the otherwise as to the question of omission from the
question of whether or not section 42 of the Real

register?

Your Honour, in the Court of Appeal in New

South Wales there is a conflict between a line of

authority, a lengthy and, I would respectfully

submit, an impressive one, culminating in the

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decisions of Australian Hi-Fi Publications Pty Ltd

v Gehl, (1979) 2 NSWLR 618, and in the later case,

Beck v Auerbach, (1986) 6 NSWLR 454.

Your Honours, in those decisions the word

"omission" in the context of the statute has been

given a meaning which is different to that given to

it by the Court of Appeal below in the present

case. There is a very substantial question arises

as to the proper construction of section 42(l)(b)

and its overall operation in relation to the

questions of indefeasibility and the integrity of

the register.

Can I take Your Honours firstly to what

Mr Justice Mahoney had to say in the line of

authority that had been thought and relied upon by

those dealing in conveyancing matters until the

decision in this case? Your Honours, at page 621

of the report - it is the first case annexed to the

outline - at about point D the section is set out

and I will read it if I may:

"Notwithstanding the existence in any other

person of any estate or interest which but for

this Act might be held to be paramount or to

have priority, the registered proprietor of
land under the provisions of this Act shall,

except in case of fraud, hold the same,

subject to such encumbrances, liens, estates

or interests as may be recorded in the

Register, but absolutely free from all other

encumbrances, liens, estates, or interests

whatsoever except -

and then little (a) refers to:

prior certificate of title -

(b), the relevant provision:

of any right-of-way or other easement created	in the case of the omission or misdescription
in or existing upon any land -

and there is reference to (c) which deals with a

wrong description of parcels and, (d), which is a

later amendment added in 1930, relating to

short-term tenancies.

Your Honours, over the page appears the

gravamen of what His Honour Mr Justice Mahoney had

to say in this case about the matter in issue

before this Court:

The meaning of "omission": According to

what is, I think, its primary meaning,

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"omission" involves two things: that

something is "not there", and that it is so

because something which should have been done

was not done: see, e.g., the discussion of

"omission" in R v Phillips.

Your Honours, just pausing there, R v Phillips

was recently applied by this Court in Baughey v

Reg, 161 CLR 10. That decision of this Court, which followed the meaning in Phillips was applied more recently in New South Wales in the case of

White, 17 NSWLR 195 and leave to appeal was refused

by this Court in relation to White in 169 CLR 696. So, Phillips has an important standing in the eyes

of this Court, if I may say so. And going on:

It is, in a particular context, possible to

see the term as meaning only that the relevant

thing is "not there" -

and that is the construction put on it by the court

below in the Court of Appeal -

this may be the meaning adopted by Ferguson J

in his dissenting judgment in Trieste

Investments Pty Ltd v Watson; see also

Wilkinson v Spooner. But I do not think that

that is the meaning intended ins 42. Section

42, apart from the subsequently added par (d)

and certain amendments made bys lO(k)(iv)-(v)

of the Real Property (Amendment) Act, 1970,

which do not, however, affect the general

sense of the section, is in the form in which it was originally enacted. Each of the three

paragraphs has, from its original enactment,

looked to some defect in the operation of the

system of registration of title:  s 42(a)

envisages that there will have been two

certificates issued in respect of the same

estate or interest -

obviously, a defect -

s 42(c) refers to a "wrong description" of

land in documents under the Act; ands 42(b)

refers to "misdescription" of an easement.

These paragraphs, in my opinion, look to the operation of the Act and, at least primarily, its operation by the Registrar-General, and

they take effect if what ought to have been

done under the Act, or by the

Registrar-General, has not been done. I think

"omission" ins 42(b) should be given a
corresponding meaning. This is the meaning

which has been adopted in relation to the term

ins 127.

Dobbie 6 15/11/91

Just pausing there, Your Honours, section 127

of the Real Property Act, if I can just read it to

you, provides for an action for damages in respect

of omissions by the person who failed to caveat.
Section 127(1):

Any person sustaining loss or damages through any omission, mistake, or misfeasance of the

Registrar-General -

I will repeat those words:

through any omission, mistake, or misfeasance

of the Registrar-General or any of his

officers or clerks in the execution of their

respective duties under the provisions of this

Act, or by the registration otherwise than

under section 45E of any other person as

proprietor of land, or by any error, omission,
or misdescription in the Register, and who by
the provisions of this Act is barred from
bringing proceedings in the Supreme Court or
the District Court for possession of that

land, or other proceedings or action for the

recovery of such land, estate, or interest or

to whose claim every such proceedings or

action would be inapplicable may, in any case

in which the remedy by action for recovery of

damages as hereinbefore provided is

inapplicable, bring an action against the

Registrar-General as nominal defendant for

recovery of damages.

And, likewise, in section 130(1) there is a bar

against a person who fails to caveat upon notice.

Your Honours, His Honour goes on to discuss the argument that was accepted below:

It is arguable thats 42(b) is not

confined to what is "not there" because of the

failure to discharge some form of obligation -

and then he goes on, if I can take Your Honours

down a little bit further to point E:

There was, in this case, no opportunity for the Act, or the Registrar-General, to operate

on the relevant easement.

And that, we also say, are the facts in this case.

The easement was not brought before the

Registrar-General or otherwise brought forward for operation of the Act at any time prior to the plaintiff becoming registered as the

proprietor. As Jordan CJ said in R v Earsman:

Dobbie 15/11/91

"A person cannot, in any ordinary sense, be

said to omit to do something which he had no

opportunity of doing."

This construction of s 42 accords, in my opinion, with the legislative intention to be derived from the terms of that section and

from the Act generally. The intention of the

Torrens legislation is, as has been

authoritatively determined, that title be

conferred by registration and that the

registered proprietor hold, subject to the

register, free from competing interests of the

kind referred to in, eg, s 42: Frazer v

Walker; Breskvar v Wall. This does not mean

that a party may not enforce any unregistered

interest against a registered proprietor. The

right to enforce, eg, equitable rights
existing personally against the registered

proprietor is well established. But the right

here in question is not argued to be within

this category.

Then he refers to the Wheeldon v Burrows easement.

Whether that:

creates a legal or an equitable interest, it

is not an interest which is, in the relevant

sense, personal against the subsequent owner

of the servient tenement.

Apart from matters such as these, the

intention of the Act is that, in general, the registered proprietor shall hold subject only to the register. Section 42 is an essential

part of the statutory machinery by which that
intention is carried into effect. The

section, not unnaturally, provides for

exceptions to what otherwise would be its

operation, ands 42(b) is one of these. If

those exceptions be confined to cases where

the Act has not functioned properly, there is

an understandable qualification of the

section. But if "omission" be given the wider

meaning suggested by the defendant, the

rationale of the paragraph is not so easily

seen.

Your Honours, can I then take you to what the

President of the Court of Appeal said in dealing with Gehl's case at application book page 53, at about point 5 His Honour deals with the question as

to when court should overrule or depart from
previous decisions. His Honour said:

Nevertheless, the power must be "sparingly exercised", lest the Court undermine the

Dobbie 15/11/91

effectiveness of its decisions to settle the

law and even the authority of the law itself.

And one would pause here to say particularly in

relation to property matters.

See discussion by Brennan Jin McKinney v The

Queen and see C Hazard Jr, "The Future of

Legal Ethics". There are particular reasons

why authoritative statements affecting land

law should be followed. These include the

high desirability of certainty in that area of

the law. Also relevant is the fact that a

number of decisions of the Court following

Gehl had referred to that decision without

express criticism or apparent reservation.

See eg Beck v Auerbach -

that is a decision of the Court of Appeal -

Kebewar Pty Limited v Harkin, (1987) 9 NSWLR
738, 743; Christopolous v Kells and Hemmes

Hermitage Pty Limited v Abdurahman.

GAUDRON J: But did those cases actually - were the

decisions based on it?

MR KING:  Yes, they were, Your Honour.

GAUDRON J: Well, Hemmes Hermitage was not, was it?

MR KING:  Can I just take you, for example, to Beck v

Auerbach which is at the back of the materials we have provided and just read from the headnote?

Point (2):

Whether an easement has been "omitted" from

the certificate of title issued in respect of land brought under the provisions of the Real Property Act 1900 within the meaning of s

42(b) (nows 42(1)(b)) requires determination

of whether the failure to note the easement

can properly be regarded as the result of the

failure of the Registrar-General to fulfil the

obligation which the Act imposed on him at the

relevant time to examine and consider the

title of the applicant to bring land under the
provisions of the Act which obligation was
unaffected by the absence of any notice of any

formal claim or any express grant in a

document of title.

So, those decisions simply did not refer to them in

obiter but expressly applied the decision and

followed it and they have been relied upon right up

until the decision in the court below.

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Your Honours, the learned judges in the Court

of Appeal, at pages 46, line 12 and 47, line 16, in

the case of Mr Justice Kirby, and 103, 42, in the

case of Justice Priestley, reached a different
conclusion as to the meaning of the word "omission"

in this context.	And if I can briefly take the
Court to those passages.	Page 46, line 10,
Justice Kirby:

The general purpose of s 42(b) was clearly to

protect the rights of persons in relation to

unrecorded easements from the loss of those

rights by the operation of the general

principle favouring the conclusiveness of the

register book.

DEANE J:  Mr King, you can assume that the Court is

conscious of what the Court of Appeal said.

MR KING:  Yes, thank you, Your Honour. I have summarized

what they have said. Simply, all they said was

that an "omission" means "not there".

Now, Your Honours, the judgments in the Court

of Appeal then, having made that determination, in

the case of Justice Priestley, in particular,

proceed on the basis that it was unnecessary,

contrary to the decision of the trial judge,

Justice Waddell, unnecessary to determine any

question of fault by the Registrar-General in 1964 in bringing this property under the Real Property Act. His Honour said that because of the

construction of the Act that he had adopted there

was no need for any determination that the

Registrar-General had omitted from the register the

easement through his fault. And that was

notwithstanding, Your Honours, that there had been

an 18 months primary application; extensive

notification to neighbours; extensive recording of
statutory declarations from neighbouring

proprietors of land; notification by gazette, local

newspapers and letter to neighbouring landholders,

including the owners of Ellerslie, of the fact of
the application and, importantly, of this
statement, referring to the plan which was annexed

to the letter which did not disclose the easement

now claimed:  "There does not exist any fact or

circumstance, whatever material to the title which

is not hereby fully or fairly disclosed."

In response to that statement, that

notification to them, in 1964, before the

Real by the owners of Ellerslie in lodging a caveat.

application to place the title under the

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Now, Your Honours, the implications of that,

we respectfully submit, are firstly that it

displaces or throws the burden of a failure to

caveat upon later proprietors of the land who may

be bona fide purchasers for value without notice,

as was the evidence in this case, of the applicants

to place the land under the Real Property Act.

Your Honours, one may ask rhetorically, as

Justice Dodds did in the Irish case of Flynn v

Harte that farmers - that case referring to tenant

farmers - are astute as to the rights of property.

One wonders why the then owners of Ellerslie

decided not to caveat. Your Honours, the answer

to that may be, and we would suspect, logically and

sensibly, is they knew they did not have an

interest in the land.

But now in 1991, or 1988, many, many years

after the application was dealt with, the effect of

the decision below is to permit them to caveat

effectively, notwithstanding they did not do it in

1964.      The effect of the ruling is that if it was

an oversight, it occurred without penalty for the

owners of Ellerslie and it was unnecessary to seek

to have the interest noted.

TOOHEY J: Why do you put it, Mr King, in terms of caveat?

MR KING: Because, Your Honours, under Part IV of the Real

Property Act, which deals with primary applications, the procedure is that the primary
application is notified to all adjoining landowners

and all others who may have any potential interest

in having something recorded on the register to

give them an opportunity to so record it on the

register before it becomes, as it were -

TOOHEY J: Yes, I understand that. Perhaps I did not

appreciate what you were saying but I rather

thought you were inferring to caveating the

property not only at the time of primary

application but subsequently.

MR KING: Yes. The way I was putting it, Your Honour, was

this, that even though, through one's own fault -

let us assume, in this case, that the owners of

Ellerslie knew that they had a right or thought

they had a right to caveat and have their right of

way registered, if this is correct, their fault is

irrelevant. Now, many, many years later, they can

do what they could have done then.

TOOHEY J:  I suppose that is right but that is true of any

exception to indefeasibility. In a sense, it begs

the question, really.

Dobbie 11 15/11/91

MR KING:  Yes. Well, it does but it points up the morality,

if I might put it that way, and the strength of the

argument in Gehl's case from Mr Justice Mahoney and

the line of authority that had been followed. It

illustrates that the question of the integrity of

the register, which cases such as Breskvar v Wall

and Frazer v Walker show ought to be maintained, is

being widened in this fashion.

Your Honours, with respect, we submit that the

Court of Appeal grappled with the critical question of fault in Gehl's case and the operation of the

register overall, whereas, we would respectfully

submit, in a fashion which was not conducive to the
fair and effective operation of the Real Property

Act, the learned court below did not in the Court

of Appeal. Of course, Chief Justice Waddell in

equity followed Gehl's case.

Now, Your Honours, I have referred to

section 127 and the question of fault and the word
"omission" in that section to illustrate that in

section 127, where there is a case provided for

damages by someone who is damaged by the omission

of the Registrar-General - to illustrate that the

word "omission" implies "fault" in that context and

we say, likewise, in section 42(b).

Your Honours, in K & S Lake City Freighters v Gordon & Gotch, Justice Mason, as His Honour then

was, referred to the importance of context in

statutory construction in a wider sense and

although His Honour was dissenting in that case,

His Honour's decision about construction of

statutes and the need to look at context in

bringing in considerations of policy in the

operation of statutes has been followed in a number

of cases since and I have referred to them at point

F.

I would respectfully submit it is those very important contextual considerations that

Justice Priestley, in his decision in this case

which was the leading decision, failed to take into

account. In a very long and learned judgment,

Mr Justice Priestley examined historical matters.

He examined statutes in other States. He examined

the first Royal Commission into the matter but,

with respect, what he did not do was to examine the

contextual considerations referred to by

Justice Mason in Gordon & Gotch. Now, had he done

so and seen the way in which, by permitting the

Registrar-General to, as it were, not have to concern himself with fault in the way he brings land under the Real Property Act, it effectively places the burden of that fault on a party who is

Debbie 12 15/11/91

completely innocent, in this case, subsequent

purchasers of that party.

Your Honours, I will not repeat what is at

point (g) at page 5 as to the importance of this
matter, the public importance. It clearly goes to
the whole question of indefeasibility, the gaps,
the desirability of keeping those gaps narrow in a
system of registered land. It goes too, to the
confusing requirements of the laws of lost modern
grant and it raises the question in the wider sense
of the public benefit of a system which would

permit gaps to be opened up in this fashion.

Your Honours, at point B(l), which is an issue

raised by the learned presiding judge, I do not

propose to take the Court to it at the moment. Can I just, in passing over it, mention one matter? In

the application book at page 30, Justice Waddell

was considering why it was that it was important

for the Registrar-General in 1964 to have done more

than what he usually did in notifying applications

of this type. Just going back, Your Honours, to

page 28, line 15, His Honour there said:

However, it seems to me that the map of the

parish did indicate a possibility that there

might be a right-of-way in favour of the

portions mentioned across "Ellerslie". Each

of the portions is a very long way from the

Bungonia to Goulburn road compared to their

distance from the Windellama road.

So, what His Honour is saying, looking at those

maps which Your Honours have, because it is a long

way from the Goulburn Road to the homestead and not

such a long way from the Windellama Road to the

homestead, therefore the Registrar-General should

have been alerted there might be another track,

another access, across land not owned by Ellerslie.

Well, let us assume that is a reasonable

proposition which Justice Kirby in the Court of

Appeal did not and therefore the question of fault

or no fault became an issue.

At page 30 point 18 the question arose as to

what the registered proprietors of Ellerslie would

have done had they been notified by the

Registrar-General, and His Honour said:

In my opinion it should be assumed

of course, the witnesses were dead -

that he would have acted reasonably in his own

interests, that is, that he would have taken

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legal advice and would have sought to

establish a right-of-way by prescription.

Well, Your Honours, if what we have put at B(l) is

correct, that just does not follow because there

was no right-of-way by prescription, for this

simple reason, that the land was owned by a life

tenant up to 1946 and under the clear law

applicable at 1964 no easement by prescription

could arise because there was no 20-year period

which could give rise to it.

So, whilst I do not rely on that passage

without Your Honours' leave at this stage as a

ground of appeal, I ask Your Honours to note it
because it clearly illustrates that the

Registrar-General was absolutely correct in 1964 because if the owners of Ellerslie had taken legal

advice which His Honour assumed they did, then, of

course, they would not have had their interest

registered. No right by prescription could arise.

Then, Your Honours, turning to the second

aspect of the case, the question of whether an

easement by a prescription could arise in the
circumstances of this case and its importance to

the law of real property in Australia and, in

particular, in New South Wales, can I just ask

Your Honours to note firstly that it was common

ground below that the access across Lumley Park

arose by permission. His Honour's judgment at

page 17, line 12, that is, Justice Waddell;

Justice Kirby at page 43, line 17 and

Justice Priestley was prepared to accept the same

thing at page 70, line 25.

Importantly - and I would ask Your Honours to

look at this passage - at page 69, line 30,

Justice Priestley went further. He said the burden

of proof lay upon the servient tenement owner, that

is my client, across whose land the adverse way was

burdened - "burden of proof lay" - and at line 30:

In these circumstances he inferred against the

persons upon whom the burden of proof lay that

at some time earlier than the date first

spoken of in the evidence, permission must

have been given by the then owners of Lumley

Park.

Those words against the persons on whom the burden

of proof lay.

His Honour Justice Waddell never said there

was a burden of proof upon my clients or their

predecessors in title. Justice Priestley did.

Your Honours, the law is absolutely clear, I would

Debbie 14 15/11/91

respectfully submit, that once a permission has

been shown, the right of way continues - the access
continues as a permission unless it is shown that

there is a hostile user or an adverse user to turn

it into a use as of right or claimed to be as of

right so as to set the time running. And there was

no burden of proof upon the servient tenement owner

where the access commences by way of permission.

Now, Your Honours, turning then to

point (2)(a) at page 6 of our submissions, I do not

wish to take Your Honours to points (a) and (b)
because they really are designed to contend to the

Court that there is no issue of unfairness or sympathy to one party or the other in this case,

the fact of the matter is that Ellerslie was not

landlocked in 1964. It had two Crown reserved road

accesses. It had every legal and physical basis to

develop those into proper accesses and the evidence

is canvassed as to the way in which that submission

is developed; for example, there is reference to
the evidence of some truck drivers who, in recent
years, had been unable to use the back road. But
the relevant time is 1964, not the time of the

hearing, 1988.

Your Honours, the learned trial judge

emphasized the fact that the land was practically -

not legally or physically, but practically

landlocked because no one had bothered to put a

culvert across a creek and it might be expensive to do so. Well, Your Honours, the truth of the matter

is as a matter of human experience: many rural

properties have lengthy access ways; many cross

creeks that are prone to flooding, and the

suggestion that if access through Lumley Park was

denied, the first respondents would not be able to

continue their grazing business, with respect, is

just not credible, considering also, as Your

Honours conceive from the plan that at least 50 per

cent of Ellerslie is across the other side of

Bungonia Creek. Indeed, just pausing there, only

the other day I crossed the Murrumbidgee River over

a culvert but I just refer to that in passing to

illustrate the general point.

Also, the fact that the many management

difficulties that it places upon a person like my

client of finding that their stock is at risk of

boxing, is at risk of being lost because of rights

of way of this type in respect of which he was a

bona fide purchaser for value, without notice, can

arise.

Now, Your Honours, can I then take you to the

legal question as distinct from what might be

described as the general considerations about

Dobbie 15 15/11/91

giving rise to the right of way: there is little

doubt that once a permission arises in relation to use of somebody else's land, then it cannot create

an easement of the type claimed in this case by a

prescription. That is at point (c). Can I just

ask Your Honours to refer briefly to the evidence

on this matter. At page 13 point 5, there was

evidence that Lionel Hansell, who was the owner in

1964, at the time of this application of Ellerslie,

said to a Mr Harnblion who was working with him - he was working for Lumley Park - referring to the rear

access road, through to the Goulburn Road:

"That's the road that comes about above Rix's

on the Goulburn-Bungonia Road and that is our

actual access, but because it costs too much

money to put a bridge across the creek

'Lumley' let us use the access off the

Windellarna Road."

That deferment, that recognition of a higher right in the adjacent owners, I would respectfully

submit, illustrates why it remained a permission

even at that stage.

And then down the bottom of the page,

Your Honours - this was letter annexed to the

contract for sale between the prior vendors to the

first respondents in 1981:

"In reply to your letter of 21st July 1980,
concerning access to Ellerslie over Lumley

Park land, the present system appears to be

working quite well, and we see no reason to

alter it.

This is Thersa Chapman, Your Honours. She was the

last surviving daughter of Thomas Chapman and the

resident at Lumley Park. She refers to the

"present system appearing to work quite well."

That is annexed to the very contract for sale which

the first respondents signed in this case and

purchased the land. Not a registered easement, not

even an application to register it, notice of the

vulnerability of the right of way.

But more importantly, at page 14, line 15 -

this is a letter in 1988 before the proceedings

began from the first respondents' solicitors, in
the first paragraph:

We are instructed that our clients obtained the permission of the former occupier of

Lumley Park, Miss Chapman, now deceased, for

access to their property from the main road.

Dobbie 16 15/11/91

True, it is, in the next paragraph there is

reference to having this right of carriageway

formalized but the deferment to Miss Chapman and

the interests of Lumley Park illustrates a
relationship, a recognition of a higher right in

the owners of Lumley Park in relation to the use of

their land.

Of course, there were the other matters regarding opening and closing of gates but I do not

wish to take that any further.

And, of course, there is the material in the

1964 primary application of all the neighbours who

expressly stated in their statutory declarations to

the Registrar-General there were no easements

affecting the land. His Honour said, "There should

have been a reference to prescription easements."

Well, Your Honours, we think that that is placing far too great an onus upon the Registrar-General, displacing it from the then owners of Ellerslie.

They should have been the ones to carefully

preserve their own rights.

Now, Your Honours, this matter has been given

recent consideration in the Court of Appeal in

England in the case of Mills v Silver which was not

referred to below but to which I refer simply as a

matter of information.

Those, Your Honours, I think, are the main

points that I would wish to raise in relation to

the primary grounds of appeal. Your Honours, I

would wish to say this about the other

matters - - -

TOOHEY J: Before you go to the other matters, Mr King,

could I just ask you this: you rely, in part, upon

section 127 as supporting your argument?

MR KING:  Yes, Your Honour, as referred to by

Mr Justice - - -

TOOHEY J: As I read Justice Priesley's judgment, he regards

that section as confirming the opposite view. If

you look at his judgment at the foot of page 84 and

to the top of page 85, he draws attention to the

fact that in section 127 there is first a reference

to an omission or any omission of the

Registrar-General, and then later in the subsection
a reference to any omission without reference to

the Registrar-General.

MR KING:  Yes, that is so, Your Honour, yes.

TOOHEY J: So, he regards the section as telling against

your argument.

Dobbie	17	15/11/91
MR KING:	I think, with respect, no, Your Honour.	What

His Honour is saying, as I understood it, was that

in the first reference it seems to support what

Justice Mahoney was saying and the second

reference, it supported what he was saying.

TOOHEY J:	No, I do not think that is right, is it?
MR KING:	Can I just take Your Honour to the provision and

just read it if I may?

TOOHEY J: Well, yes, you could do that if you wish but what

I am drawing your attention to is the use made by

Justice Priestley. What I understand His Honour to

be saying is that - - -

MR KING:	Did Your Honour see the words - - -?
TOOHEY J:	Can I just finish?

MR KING: Sorry.

TOOHEY J: If you find, as you do, in section 127 a

reference to an omission of the Registrar-General

and later a reference to an omission not qualified

by reference to the Registrar-General, then, and

this is what His Honour says, it is apparent that

the second reference is an unqualified reference.

MR KING: Yes, I think that is right.

TOOHEY J: Well then, whether that be right or wrong, it is

an argument that section 127 tells against your

proposition.

MR KING: With respect, no, because it is the first

reference to the word "omission" which is the

important one. Can I explain to Your Honour why?

TOOHEY J: Well, I would be interested, yes.

MR KING:  And Your Honours will note that the learned judge

does not refer to the first reference.

TOOHEY J: First reference where?

MR KING: In section 127. What the section says is:

Any person sustaining loss or damages through any omission - - -

TOOHEY J: Well, you do not need to read it but just can you

tell us the point that you are making?

MR KING: Well, the word "omission" - a:

Dobbie 18 15/11/91

person sustaining loss or damages through any

omission, mistake, or misfeasance of the

Registrar-General -

so, what - - -

TOOHEY J: Well, there would not be any argument about that,

would there?

MR KING:  In other words, what Justice Mahoney was saying

was that when you look at the other provisions in

the statute, and he particularly referred to

section 127 - and His Honour could also have

referred to section 130 which prevented a person in

the position of Mr Hansell in 1964 claiming damages

for failing to caveat - - -

TOOHEY J: Just a moment, I think we are at cross purposes,

Mr King. All I am drawing attention to is that in
Mr Justice Priestley's judgment at pages 84 to 85

the presence in section 127 first of a provision

referring to an omission of the Registrar-General

and, secondly, of such a provision not qualified by

unqualified reference in section 42 is not confined

reference to the Registrar-General is seen by

to mistakes by the Registrar-General.

Now, that may be right or may be wrong, I am

simply asking you to comment in view of your

earlier proposition that section 127 somehow

supported your case.

MR KING:  Yes. Your Honour, I would put it this way: the

purpose and effect of section 127 as decided -
perhaps it is better to go to the cases and, in

particular, Gehl's case where His Honour refers to

section 127, was to confer upon a person who, by

omission of the Registrar-General, had been

defeated in a claim to or an assertion of an

interest in land, confer upon that person an action

for damages. That is why Justice Mahoney was

saying, Your Honour, if I may say so, that that

illustrates the word "omission" is used in a sense

that His Honour had used it because an action for damages against the Registrar-General, looking at

the coin on its other side, does not arise simply

because there was something not there - indeed, one

suspects that would be a difficult proposition for

the Registrar-General to defend in almost any

case - but because not there by reason of the

Registrar-General's fault. That was the basis of

an action for damages against him.

Likewise, in section 42(b), it contemplated a

narrow extension of the exception to

Debbie 19 15/11/91

indefeasibility of title, that is, omission through

fault.

Your Honours, the only other point that I

would wish to raise before I conclude my

submissions is this, that the questions of the

status of the fiction of lost modern grant and

whether or not there should be some alternative

approach to that fiction, if it is now outdated in

the conditions of our country, really are very

important matters of public interest and I would

respectfully submit - I would be submitting, if I

were given the opportunity to expound it, that

there are alternative ways which are much more

flexible, which would operate much more fairly and,

in particular, the doctrine of estoppel by conduct

which was referred to Lord Justice Thesiger in

Dalton v Angus which is the fons et origo of the

modern doctrine and I was going to refer to what

Justice Deane had said in Verwayen's case to

illustrate how the doctrine of lost modern grant

would be much better applied in this country on

that basis. But, Your Honours, I do not propose to

do so at this stage.

DEANE J: Mr King, you can assume that we have read and, in

my case, I must say with great interest what you

have written in your submissions about these

matters.

MR KING: Yes, and I do not have anything else to add,

Your Honour.

DEANE J: So, you are not really going to be prejudiced by

the approach we are taking to those.

MR KING:	Yes, if the Court pleases.
DEANE J:	The Court need not trouble you, Mr Masterman, or

Mr Coles.

The question of construction of the word

"omission" in section 42 of the Real Property Act

which would be involved in an appeal in this matter

is a question of general importance. In our view,

however, the decision of the New South Wales Court

of Appeal on that question is not attended by

sufficient doubt to warrant a grant of special

leave to appeal.

The other questions which would be involved in

an appeal are inappropriate to attract a grant of special leave. One of them was dealt with by the

Court of Appeal.	It is to no small extent a
question of fact.	The other questions which the

applicants seek to raise in an appeal were neither

raised nor considered in the courts below. We do

Debbie 20 15/11/91

not think that leave to appeal should be granted so

they can be raised for the first time in this

Court.

Accordingly, special leave to appeal is

refused.

AT 2.51 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 3.14 PM:

DEANE J:  Mr King and Mr Masterman, I notice that you are

back here. Is there - - -

MR KING:	Not for a second go, Your Honour, I assure you.
MR MASTERMAN:	I forgot to ask for costs, Your Honours. At

an appropriate time for the Court, I shall

endeavour to do so. My friend has kindly come up

although he had not communicated with his

solicitor.

DEANE J:  I thought I gave you an extended opportunity,

Mr Masterman.

MR MASTERMAN: Perhaps I was stunned at not being called

upon.

DEANE J:  Mr King, I do not think there is anything you can

say about costs?

MR KING:  Nothing I can say, Your Honour. I do wish to

point out, though, that I have not got instructions

and I am here as a matter of courtesy to my friend.

DEANE J: Yes, I appreciate that. Very well, the

application will be dismissed.

MR MASTERMAN:  My Coles told me that he was not intending to

seek an application.

DEANE J: Well, I do not think he would have got them

either. Your client was the first - - -

MR MASTERMAN: First respondents.

DEANE J:  The application is refused with costs in favour of

the first respondent.

MR MASTERMAN:  I appreciate the Court's indulgence.

Debbie 21 15/11/91

DEANE J:  Thank you, Mr King and Mr Masterman.

AT 3.15 PM THE MATTER WAS ADJOURNED SINE DIE

Dobbie 22 15/11/91