Goodwin v Western Australian Sports Centre Trust
[2014] WASC 138
•16 APRIL 2014
GOODWIN -v- WESTERN AUSTRALIAN SPORTS CENTRE TRUST [2014] WASC 138
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 138 | |
| Case No: | CIV:1896/2013 | 4 MARCH 2014 | |
| Coram: | EM HEENAN J | 16/04/14 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's action not barred by s 76 of the Limitation Act 2005 (WA) | ||
| A | |||
| PDF Version |
| Parties: | GILBERT MAY GOODWIN WESTERN AUSTRALIAN SPORTS CENTRE TRUST DAVINA HOLDINGS PTY LTD METROPOLITAN REDEVELOPMENT AUTHORITY |
Catchwords: | Limitation of actions Adverse possession Possessory title Limitation Act 1935 (WA) Limitation Act 2005 (WA) Applicability to State or State agency Acquisition of land by State agency after limitation period had run Trial of preliminary issue Exceptions to indefeasibility Crown land Land Administration Act 1997 (WA) Alienated land |
Legislation: | Acts Amendment (Land Administration) Act 1997 (WA) Armadale Redevelopment Regulations 2003 (WA) (Repealed) Armadale Redevelopment Act 2001 (WA) (Repealed) Crown Suits Act 1769 (England) Land Administration Act 1997 (WA) Limitation Act 1935 (WA) Limitation Act 2005 (WA) Limitation Legislation Amendment and Repeal Act 2005 (WA) Metropolitan Redevelopment Authority Act 2011 (WA) Planning Legislation Amendment Act (No 2) 1994 (WA) Property Law Act 1969 (WA) Real Property Act 1900 (NSW) State Planning Commission Act 1985 (WA) (Repealed) Transfer of Land Act 1893 (WA) Western Australian Planning Commission Act 1985 (WA) (Repealed) Western Australian Sports Centre Trust Act 1986 (WA) |
Case References: | Allen v Roughley (1955) 94 CLR 98 Asher v Whitlock (1865) LR 1 QB 1 Attorney-General for New South Wales v Love [1898] AC 679 Attorney-General of Southern Nigeria v J Holt & Co (Liverpool) Ltd [1915] AC 599 Attorney-General v Milson (1895) 16 LR (NSW) 145 (PC) Australian Securities and Investments Commission v D B Management Pty Ltd [2000] HCA 7; (2000) 199 CLR 321 Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604 Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd [2007] VSCA 311; (2007) 20 VR 311 Bulli Coal Mining Co v Osborne [1899] AC 351 (PC) Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342; (2011) 82 NSWLR 420 Chelsea Investments Pty Ltd v Commissioner of Taxation (1966) 115 CLR 1 Clissold v Perry (1904) 1 CLR 363 Clunies-Ross v The Commonwealth [1984] HCA 65; (1984) 155 CLR 193 Colonial Sugar Refining Co v Melbourne Harbour Trust Commissioners [1927] AC 343 (PC) Dampier Mining Co Ltd v Commissioner of Taxation [1981] HCA 29; (1981) 147 CLR 408 Doe dem Wilson v Terry (1849) 1 Legge 505; (1849) 2 SCR (NSW) (Appendix 1) Durham Holdings Pty Ltd v State of New South Wales (1999) 47 NSWLR 340 Ferguson v Registrar of Titles (1919) VLR 509 Goldsworthy Mining Ltd v Commissioner of Taxation (1973) 128 CLR 199 Horsford v Bird [2006] 1 EGLR 75 (PC); [2006] UKPC 3 Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liquidation) (1965) 113 CLR 265 Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Co Ltd (1925) 36 CLR 230 Mulcahy v Curramore Pty Ltd (1974) 2 NSWLR 464 Newington v Windeyer (1985) 3 NSWLR 555 R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; (2009) 237 CLR 603 Radaich v Smith (1959) 101 CLR 209 The Commonwealth v Hazeldell Ltd (1918) 25 CLR 552 Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 Water Corporation v Hughes [2009] WASC 152 Wrotham Park Estate Company v Parkside Homes Ltd [1974] 1 WLR 798 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
WESTERN AUSTRALIAN SPORTS CENTRE TRUST
First Defendant
DAVINA HOLDINGS PTY LTD
Second Defendant
METROPOLITAN REDEVELOPMENT AUTHORITY
Third Defendant
Catchwords:
Limitation of actions - Adverse possession - Possessory title - Limitation Act 1935 (WA) - Limitation Act 2005 (WA) - Applicability to State or State agency - Acquisition of land by State agency after limitation period had run - Trial of preliminary issue - Exceptions to indefeasibility - Crown land - Land Administration Act 1997 (WA) - Alienated land
Legislation:
Acts Amendment (Land Administration) Act 1997 (WA)
Armadale Redevelopment Regulations 2003 (WA) (Repealed)
Armadale Redevelopment Act 2001 (WA) (Repealed)
Crown Suits Act 1769 (England)
Land Administration Act 1997 (WA)
Limitation Act 1935 (WA)
Limitation Act 2005 (WA)
Limitation Legislation Amendment and Repeal Act 2005 (WA)
Metropolitan Redevelopment Authority Act 2011 (WA)
Planning Legislation Amendment Act (No 2) 1994 (WA)
Property Law Act 1969 (WA)
Real Property Act 1900 (NSW)
State Planning Commission Act 1985 (WA) (Repealed)
Transfer of Land Act 1893 (WA)
Western Australian Planning Commission Act 1985 (WA) (Repealed)
Western Australian Sports Centre Trust Act 1986 (WA)
Result:
Plaintiff's action not barred by s 76 of the Limitation Act 2005 (WA)
Category: A
Representation:
Counsel:
Plaintiff : Mr R W Bower
First Defendant : Mr J Edwards
Second Defendant : No appearance
Third Defendant : Mr J Edwards
Solicitors:
Plaintiff : Corser & Corser
First Defendant : State Solicitor for Western Australia
Second Defendant : No appearance
Third Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Allen v Roughley (1955) 94 CLR 98
Asher v Whitlock (1865) LR 1 QB 1
Attorney-General for New South Wales v Love [1898] AC 679
Attorney-General of Southern Nigeria v J Holt & Co (Liverpool) Ltd [1915] AC 599
Attorney-General v Milson (1895) 16 LR (NSW) 145 (PC)
Australian Securities and Investments Commission v D B Management Pty Ltd [2000] HCA 7; (2000) 199 CLR 321
Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604
Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd [2007] VSCA 311; (2007) 20 VR 311
Bulli Coal Mining Co v Osborne [1899] AC 351 (PC)
Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342; (2011) 82 NSWLR 420
Chelsea Investments Pty Ltd v Commissioner of Taxation (1966) 115 CLR 1
Clissold v Perry (1904) 1 CLR 363
Clunies-Ross v The Commonwealth [1984] HCA 65; (1984) 155 CLR 193
Colonial Sugar Refining Co v Melbourne Harbour Trust Commissioners [1927] AC 343 (PC)
Dampier Mining Co Ltd v Commissioner of Taxation [1981] HCA 29; (1981) 147 CLR 408
Doe dem Wilson v Terry (1849) 1 Legge 505; (1849) 2 SCR (NSW) (Appendix 1)
Durham Holdings Pty Ltd v State of New South Wales (1999) 47 NSWLR 340
Ferguson v Registrar of Titles (1919) VLR 509
Goldsworthy Mining Ltd v Commissioner of Taxation (1973) 128 CLR 199
Horsford v Bird [2006] 1 EGLR 75 (PC); [2006] UKPC 3
Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liquidation) (1965) 113 CLR 265
Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Co Ltd (1925) 36 CLR 230
Mulcahy v Curramore Pty Ltd (1974) 2 NSWLR 464
Newington v Windeyer (1985) 3 NSWLR 555
R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; (2009) 237 CLR 603
Radaich v Smith (1959) 101 CLR 209
The Commonwealth v Hazeldell Ltd (1918) 25 CLR 552
Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177
Water Corporation v Hughes [2009] WASC 152
Wrotham Park Estate Company v Parkside Homes Ltd [1974] 1 WLR 798
1 EM HEENAN J: By the consent of the parties on 17 October 2013 Master Sanderson made orders for the trial of a preliminary issue in this action. The order was:
1. There be a trial of a preliminary issue in this matter being:
Is the plaintiff's claim barred by operation of s 76 of the Limitation Act 2005 and, if the answer be yes, should judgment be entered for the defendants with costs?
2. Such other orders as the court considers fit.
2 This requires identification of the plaintiff's claim and a determination of whether the whole or any part of it is barred by s 76 of the Limitation Act 2005 (WA).
Scope of the preliminary issue
3 The terms of the preliminary issue ordered to be tried require only a decision on whether or not the plaintiff's claim is barred by s 76 of the Limitation Act 2005. However, in the defence of the first and third defendants these parties repeatedly refer to both s 36 of the Limitation Act 1935 (WA) and s 76 of the Limitation Act 2005. Further, in the course of submissions there was frequent reference to the provisions of the 1935 Act. Accordingly, I have found it appropriate and convenient to consider the potential effect of both the Limitation Act1935 and the Limitation Act 2005 in dealing with this issue although, in the end, it is only necessary to deal with s 76 of the later Act. The determination of the preliminary issue can be achieved on that basis.
4 The plaintiff's claim is for relief, in the form of unliquidated damages, for alleged trespass by the defendants to land over which the plaintiff claims a possessory, but not a registered, title. A more detailed examination of the nature of the plaintiff's cause of action and when it accrued will follow later. The third defendant, an agent of the State of Western Australia, is now the registered proprietor of the land over which the plaintiff claims to have, or to have had, a possessory title, and it is therefore necessary to examine how and when the third defendant became registered as the proprietor of that land, what significance lies in the fact that another agent of the State was its immediate predecessor in title, and what effect a possessory title has in circumstances where either the State or one of its agents on the one hand, or some other person or body not enjoying the privileges or benefits of the Crown, on the other hand, becomes registered as a proprietor of land over which a fully matured possessory title has arisen. In this case the State agency dispossessed the plaintiff occupant of his enjoyment of the possessory title.
5 The parties to this action all accept that, by virtue of s 36 of the Limitation Act 1935 (WA) and s 76 of the Limitation Act 2005 (WA), a title by possession may not be obtained by the person or persons who were, are or had been, in possession adverse to the Crown of the subject land even if that adverse possession continued by the claimant or his or her predecessors against the Crown uninterrupted for a period longer than 12 years.
6 They also accept that the provisions of the Limitation Act 1935 and the Limitation Act 2005 have displaced the provisions of the Crown Suits Act 1769 (England) known as the 'Nullum Tempus Act' which set a period of 60 years in which actions for the recovery of Crown lands could be brought. Under that English statute continuous possession of land adverse to the Crown for 60 years or more would bar any claim for recovery by the Crown: Doe dem Wilson v Terry (1849) 1 Legge 505; (1849) 2 SCR (NSW) (Appendix 1); Attorney-General v Milson (1895) 16 LR (NSW) 145 (PC); Attorney-General of Southern Nigeria v J Holt & Co (Liverpool) Ltd [1915] AC 599, 606 per Lord Shaw. It had been decided that the Nullum Tempus Act applied in New South Wales in Attorney-General for New South Wales v Love [1898] AC 679. It was part of the Imperial law which applied on the establishment of the Swan River colony and continued to apply until varied or amended by local legislation. In New South Wales the position changed in 1979 as a result of the Real Property Act 1900 (NSW) s 45D. So far as this State is concerned that 60-year limitation period applied in actions by the Crown for recovery of possession of land until its effect was repealed by the Limitation Act 1935.
7 The question which has arisen in this present litigation and which is now the subject of this preliminary issue is, according to the submissions of counsel, entirely novel. The question, as argued, is whether s 36 of the 1935 Act and/or s 76 of the 2005 Act prevents any claim for adverse possession or associated relief being made out against the Crown or an agent of the State in circumstances where the State becomes the transferee of the subject land from a private person (or a body which is not an agent of the State) which previously held the land as the proprietor of a registered estate in fee simple under the provisions of the Transfer of Land Act 1893 (WA) but against whom an uninterrupted period of 12 years or more of adverse possession by the claimant, or his or her predecessors, had previously accrued.
8 The position of the plaintiff is that once a continuous period of adverse possession of 12 years or more against the title of the registered proprietor had occurred then the occupier, or his or her successors, has acquired a possessory title to the land which will survive any transfer by the registered proprietor to a successor because such adverse possession is an acknowledged exception to the indefeasibility of title otherwise conferred by s 68(1A) of the Transfer of Land Act 1893 (WA). The plaintiff contends that in such circumstances the interest of a person in adverse possession of the land with a fully accrued possessory title will prevail over that of a subsequent registered proprietor, even if that subsequent registered proprietor is the Crown or an agent of the State. The contrary proposition is advanced by the first and third defendants who, by counsel, submit that by virtue of s 36 of the Limitation Act 1935 and/or s 76 of the Limitation Act 2005 the Crown or any agent of the State which has any right, title or interest in the subject land is not affected, and is to be taken as never having been affected, by any adverse possession even adverse possession against a previous private owner uninterrupted for 12 years, or more, before the Crown or an agent of the State acquired its interest in the land.
9 The answer to these competing propositions is acknowledged by counsel on both sides to be found in the proper interpretation of the relevant provisions of the Limitation Acts. The controversy, however, is that the contending parties submit that the only proper interpretation of those provisions must lead to the acceptance of that party's principal submission. Before embarking on the process of considering the proper interpretation of the provisions of the Limitation Act or Acts and which may apply, it is necessary to delineate the background facts.
The Champion Lakes redevelopment
10 For many years past there was an area of land south east of Gosnells surrounding what was then known as Wright Lake. The term 'Lake' is rather euphemistic because Wright Lake was one of a species of wetlands which usually fills each winter but dries out in summer leaving a hard parched clay bed in some areas surrounded by rushes. The lands with which this action is concerned had been alienated by the Crown and were registered in private ownership under the provisions of the Transfer of Land Act. Some of the land was held by private individuals and a particular parcel was owned by the plaintiff's predecessors, Mr and Mrs Dostal. Other land to the south and west was owned by the local municipality, then the Shire of Armadale, which is not then, or now, to be equated with the Crown or the State. The Dostals' land was later acquired by Mr and Mrs Goodwin, who became the registered proprietors. It was on the south eastern side of what was then Wright Lake and is known as:
Lot 200 on Diagram 64764 being the whole of the land described in Certificate of Title Volume 1989 Folio 99 (hereinafter 'Lot 200').
11 Lot 200 is a sizeable parcel of land, the exact area of which has not been established by the evidence. It is the site of the 'Lakeview Terrace Caravan Park'. Lot 200 was transferred to the plaintiff and Mrs Heather Goodwin on 8 February 1974 by its previous registered proprietors, Victor Dostal and his wife Ludmila Dostal, who had been proprietors of part of the present Lot 200 since 12 May 1954 and of the whole of the lot since 12 December 1961. The Dostals amalgamated their holdings of the land in 1994 creating what is now Lot 200 at or about the time the land was transferred to the Goodwins.
12 Since February 1994 Mr Goodwin operated the Lakeview Terrace Caravan Park on Lot 200 until November 2004 when he leased part of the property to Dagostino Enterprises Pty Ltd. He has leased the remaining part of Lot 200 to Huddart Pty Ltd since October 2012. The caravan park continues to be operated on Lot 200 and was throughout the whole of the period since the Goodwins first became the proprietors of that land.
13 On its north western side Lot 200 abuts the edge of what was then Wright Lake including its foreshore which advanced or receded according to the water level in the wetland from time to time. The lake and its advancing or receding foreshore was part of Lot 500 which is:
Lot 500 on Deposited Plan 300636, being the whole of the land described in certificate of title volume 54 Folio 24A ('hereinafter Lot 500').
14 Lot 500 included not only Wright Lake and the foreshore adjacent to Lot 200 but other nearby land as well. It is unnecessary to describe the details or particulars of all the land comprised in Lot 500, but in 1980 the total area of Lot 500 was in excess of 24 ha. On 22 September 1980 the local government municipality, then known as the Town of Armadale, became the registered proprietor of Lot 500. The town later achieved city status and was described as the City of Armadale from 16 November 1985.
15 By the statement of claim the plaintiff alleges, (these allegations are to be assumed as facts for the purposes of this preliminary issue) that there was no physical division between Lot 200 and Lot 500 along the north western boundary of the former where it abutted the edge of Wright Lake. The plaintiff alleges, that over the whole of the period that he was, or his lessees have been, operating the Lakeside Caravan Park, they and their licensees or tenants regularly and continually occupied that part of the area of Lot 500 between the shoreline and Lot 200 and used that area for a variety of recreational activities. He also pleads that he deposited fill on that area and graded the land surface.
16 The plaintiff also alleges that in addition he and his lessees of the caravan park and their licensees utilised Wright Lake for other various recreational activities according to the seasons. These uses included a variety of water sports and, during the period when the wetlands were dry, walking and playing on the dry bed of the lake. It is part of the plaintiff's case that he and his predecessors regularly drove over these areas of Lot 500, cleared away rubbish or waste on or around the edges of the lake, kept the area clear, clean and accessible to the occupants of the caravan park and excluded intruders. In other words the plaintiff alleges that from 1994 onwards he, by himself, his tenants or licensees (being the occupants of the caravan park from time to time) and now his lessees have been in continuous possession of those areas of Lot 500 comprising the foreshore and surrounds of the lake including the lake and its bed when dry. The plaintiff maintains, that this continuous use of these parts of Lot 500 amounted to exclusive possession of that land by him, or on his behalf, and, that there were no interruptions to that possession by the Town of Armadale, or the City of Armadale as it became, or its officers or agents or by any person or persons claiming through the municipality.
17 As a consequence the plaintiff contends that he has been in continuous occupation of the designated areas of lot 500 since 1994. He claims that there was no attempt by any party to retake possession of that land until in or about June 2007, certainly no such attempt before 2004. The reason for this imprecision is that there may be scope for controversy as to whether any conduct on or behalf of the City of Armadale from 2004 until 2007 involving officers or agents carrying out an environmental survey of the area and making occasional visits to it amounted to the exercise of rights of possession which interrupted or ended the plaintiff's possession of the designated areas of Lot 500. This possible issue was not investigated in the course of the trial of this preliminary issue and, therefore, remains unresolved: see, however, s 12 of the 1935 Act and s 84 of the 2005 Act.
18 What I have been referring to as the 'designated area of Lot 500', which is the subject of the plaintiff's claim for relief because of his alleged possessory title, is precisely delineated on maps which are exhibits A1, A2 and A3. The designated area of Lot 500 to which I have been referring is the area outlined in heavy black lines on exhibit A1 and is the same area as shown in the enlarged map outlined in heavy pink coloured lines on exhibit A3. Those maps show the designated area of that part of Lot 500 as comprising 57,065.74 sq m or approximately 5.71 ha.
Lot 500 including the designated area
19 The present registered proprietor of the whole of Lot 500 now described as:
Being Lot 500 on Deposited Plan 300636 and being the whole of the land described in Certificate of Title Volume 54 Folio 24A
- is the Metropolitan Redevelopment Authority, the third defendant. It is the events before the third defendant became registered as proprietor of Lot 500 which are crucial to the determination of the present issue.
20 There are other lands to the south west of Lot 500, then known as part of Lot 4 and part of Lot 9001. They are plotted on exhibits A2 and A3. Neither of those two lots is now subject to the plaintiff's claim for relief arising from adverse possession although previously they were. However, their history is relevant because of the role which these lots were later destined to have in the redevelopment of the area. On 1 March 1985 the Metropolitan Region Planning Authority (MRPA) became the registered proprietor of both Lots 4 and 5 on Plan 3214. Section 63(b) of the State Planning Commission Act 1985 (WA) (later known as the Western Australian Planning Commission Act 1985 (WA), now repealed) came into operation on 6 December 1985, and by operation of s 63 of that Act it was provided:
On the commencement of this Act -
…
(b) all real and personal property of whatever kind vested in or belonging to a former authority immediately before such a commencement is vested in the Commission …
- By this means the State Planning Commission became the owner of Lots 4 and 5 on Plan 3214. The State Planning Commission Act 1985 (now repealed), from its enactment in 1985, by s 4(3) provided that the new State Planning Commission had the status of an agent of the Crown in the right of the State.
21 Other nearby lots, namely Lot 3, Lot 6 and Lot 7 all on Plan 3214 were registered in the name of the State Planning Commission in early 1993 – Lots 6 and 7 on 29 January 1993 and Lot 3 on 24 February 1993.
22 The State Planning Commission Act 1985 was amended in 1994 by the Planning Legislation Amendment Act (No 2) 1994 (Act No 84 of 1994). The name of the Act and the name of the State Planning Commission were changed by this amendment and became, respectively, the Western Australian Planning Commission Act 1985 and the Western Australian Planning Commission (WAPC). The four lots, Lots 3 - 7 on Plan 3214, were amalgamated in 1998 and were again the subject of Plan 21414. The WAPC then obtained registered titles for its amalgamated land holdings creating, inter alia, a new Lot 702 which is depicted on exhibit A1. A copy of Plan 21414 is attached to the agreed statement of facts by the parties which is in evidence on this application (attachment 7) as is a copy of Certificate of Title Volume 2140 Folio 83 for the newly created Lot 702 (attachment 8).
23 The Armadale Redevelopment Authority (ARA) was established by the Armadale Redevelopment Act 2001 (WA) (now repealed). By s 6(6) of that Act the ARA was designated as having the status of an agent of the Crown in the right of the State with the rights, immunities and privileges of the Crown.
24 On 5 December 2003, upon publication in the Government Gazette, the Armadale Redevelopment Regulations 2003 (WA) (now repealed) had the effect of incorporating the Champion Lakes locality, including the recently created Lot 702 and the whole of Lot 500 into the Armadale Redevelopment Scheme.
25 On 30 December 2003 the WAPC conveyed the whole of the recently created Lot 702 to the Armadale Redevelopment Authority (ARA).
26 The ARA became the registered proprietor of other amalgamated or subdivided land holdings in September 2009 in order to assemble what was, by then, known as the Champion Lakes Regatta Centre site. These amalgamations and subdivisions leading to lands being registered in the name of the ARA included the new Lot 702, which then included part of what was formerly Lot 4 and part of Lot 9001. These areas are also shown on exhibit A3 and are all to the south of Lot 500. On 13 April 2012 they were transferred from the ARA to the MRA following the coming into operation of the Metropolitan Redevelopment Authority Act 2011 (WA) (see attachment 9 to the agreed statement of facts).
27 Before the inclusion of the Champion Lakes locality site within the area of the Armadale Redevelopment Scheme in December 2003, the WAPC and the City of Armadale had commenced preparation of the Champion Lakes Master Plan. The purpose of the master plan was to create, inter alia, a water-based regional recreational facility on the joint land holdings of the WAPC and the City of Armadale. Of this recreational facility Lot 500 (Wright Lake) was a significant element. In preparation for that proposal, the WAPC and the City of Armadale carried out an environmental impact assessment at the level of a Public Environmental Review which was released for public comment in February 2003.
28 On 30 July 2004, following discussions with the Council of the City of Armadale regarding the manner of implementation of the Champion Lakes Project by the ARA, the City leased the whole of Lot 500 to the ARA. The term of the lease was from 15 December 2003 to 5 October 2011 as set out in the lease dated 30 July 2004 as extended by an extension of lease dated June 2009 (see attachments 10 and 11 to the agreed statement of facts). It is to be noted that part of the term antedated the lease which itself was dated 30 July 2004.
29 At the expiration of that lease the Armadale Redevelopment Authority (ARA) became the sole registered proprietor of Lot 500 on 5 October 2011. Later, on 13 April 2012, following the coming into operation of the MRA Act, Lot 500 was transferred from the ARA to the MRA together with those parts of Lot 4 and Lot 9001, which are now Lot 702.
30 Accordingly, for present purposes, it is significant that the registered proprietor of the whole of Lot 500 from 22 September 1980 until 5 October 2011 remained the City of Armadale. The City of Armadale leased Lot 500 to the ARA from 15 December 2003 until that land was transferred to the MRA on 13 April 2012. Accordingly, the first occasion upon which an agent of the Crown in the right of the State became the registered proprietor of Lot 500 was the 5 October 2011 when the lot was transferred to the ARA. However, from 15 December 2003 until 5 October 2011 the City of Armadale had leased the land to the ARA.
31 There is nothing in the agreed facts nor otherwise in the evidence presented for the determination of this issue, to suggest that the lease of Lot 500 from the City of Armadale to the ARA was ever registered or that possession of Lot 500 was actually taken by the ARA either from the commencement of the lease or from the time when Lot 500 was registered in the name of the ARA in October 2011. No reference was made to s 74(1) of the Property Law Act 1969 (WA) as possibly bearing on such a question: see Robinson S, The Property Law Act Victoria (1992) at 325.
32 Nor is there any allegation or evidence to establish that the possession of the designated areas of Lot 500 by the plaintiff adverse to the title of the registered proprietor was in any way ended or interrupted by any of these events before about 2003 or 2004 at the earliest when, at first, the environmental survey was being undertaken jointly by the City of Armadale and the ARA, then later by the second defendant who was the contractor engaged to perform the civil engineering works associated with the Champion Lakes Redevelopment Scheme.
33 The work done in constructing the Champion Lakes Regatta Centre took place between 2004 and 2009 and was commissioned by the ARA. The ARA engaged Davina Holdings Pty Ltd, the second defendant, to perform the project management for the construction of the regatta centre. The first defendant, The Western Australian Sports Centre Trust, manages the Champion Lakes Regatta Centre on behalf of the MRA. It is common ground that the first defendant, Western Australian Sport Centre Trust is an agent of the Crown in the right of the State and a statutory body created by the Western Australian Sports Centre Trust Act 1986 (WA) carrying on business under the name and title of 'Venues West'.
Claims for adverse possession
34 Extensive particulars of the facts said to constitute adverse possession by the plaintiff and his predecessors, Mr and Mrs Dostal, are set out in the statement of claim (see pars 16 - 25). It is not necessary to describe all the various acts, occupations, activities or claims made by the plaintiff or his predecessors in support of the claim for adverse possession of the designated area of Lot 500 because, as previously said, these must be assumed to have occurred for the purposes of this preliminary issue. That is, of course, without prejudice to the right of any, or all, of the defendants to contest those assertions later in any trial on the facts.
35 However, on the basis of the facts so pleaded the plaintiff contends that by virtue of the adverse possession alleged, the Dostals were entitled to be registered as the proprietors of the designated area of Lot 500 by adverse possession in, and after, 1981 or, alternatively, by not later than 1994. The plaintiff also contends that he was entitled to be registered as proprietor by adverse possession of the designated area of Lot 500 from the time of his acquisition of Lot 200 from the Dostals, in February 1994, or at any time thereafter.
36 The plaintiff also pleads that on or about 7 June 2007 the second defendant wrongly and without lawful authority entered and remained on the designated area of Lot 500 and forced the plaintiff out of his occupation and possession of that land. Particulars of this plea are set out under par 27 of the statement of claim. These include assertions that on or about 7 June 2007 the second defendant entered and remained on the subject land, forced the plaintiff out of his occupation and possession of that land and performed ground disturbing works including:
(i) the erection of a fence between the plaintiff's caravan park and Wright Lake preventing all access from the caravan park onto the designated area of Lot 500;
(ii) the performance of clearing and excavation of works which tore up the lake shore and the lawns and gardens established by the plaintiff on the designated area between the caravan park and the lake;
(iii) replacing the lake shore and the lawns and the gardens already mentioned with part of the rowing facilities known as the Champion Lakes Regatta Centre; and
(iv) altering the topography of the designated area by excavation and other works in a manner which permanently prevented the plaintiff from gaining access to or making any use of the designated area of Lot 500.
37 The plaintiff then contends that on or about 9 January 2012 the first defendant, The Western Australian Sports Centre Trust, wrongfully entered and remained on the premises and has since then continued to occupy, manage and control the premises. Further, the plaintiff asserts that from 12 April 2012 the MRA became the registered proprietor of the whole of Lot 500, including the designated area, and thereafter directed the first defendant to occupy, manage and control the designated area to the exclusion of the plaintiff.
38 These actions by the second, third and first defendants, from the time each asserted possession or ownership of the designated area of Lot 500 are characterised by the plaintiff as being unlawful and as infringing the plaintiff's use and enjoyment of the land and to constitute wrongful entries onto the designated area of Lot 500.
39 For these alleged wrongs, submitted by the plaintiff to constitute a series of trespasses to his possessory interest in the designated area of Lot 500, the plaintiff claims damages.
40 Little attention was given as to how those damages for trespass should be quantified if the claim succeeded except for a broad submission that the quantum of damages would be the current value of the plaintiff's right to continued possession of the designated area of Lot 500 from the date when he was wrongfully put out of possession by any one or more of the defendants. Although the implications of such a measure of damages were not in the least explored it seems that putting the test for damages in that way is very close to, if not the same as, claiming value for the uninterrupted possession of the land by the plaintiff indefinitely in the future together with the right to convey or transfer that benefit to any third person. This has all the appearances of being another way of describing, or at least approximating, the market value of an estate and fee simple of the land at the date when the alleged wrongful dispossession occurred.
41 Pointedly, however, the plaintiff is not seeking any relief by way of injunction, declaration or otherwise, that possession of the subject area of Lot 500 should be returned to him or that the land should be rehabilitated to have it restored to him in the condition in which it was when dispossession occurred. On all appearances that would be utterly impracticable if not impossible and is certainly not desired by the plaintiff.
42 It appears that the nature of the relief claimed is very close to seeking compensation for the value of land wrongly taken but now incapable of restoration. This is not to suggest that the claim as so formulated is novel or unsupportable. Examples of trespass depriving the owner's land of all significant value, are afforded by cases where the owner's mining rights were irrevocably destroyed by the trespasser mining wrongly all reserves of coal or other valuable minerals (but not the 'royal minerals' of gold and silver) to which the owner was entitled: see Bulli Coal Mining Co v Osborne [1899] AC 351 (PC) and Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177, 186; see also Fleming J, The Law of Torts (10th ed, 2011) [3.80] and McGregor H, McGregor on Damages (18th ed, 2009) [34-042] citing Horsford v Bird [2006] 1 EGLR 75 (PC); [2006] UKPC 3 [13]. In that case, the Privy Council approved Wrotham Park Estate Company v Parkside Homes Ltd [1974] 1 WLR 798 where the approach of the court was to determine the quantum of damages which should be awarded in lieu of an injunction to cease a trespass. This general approach to damages has been followed on many occasions in Australia. Wrotham Park Estate Co Ltd v Parkside Homes Ltd was applied in Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342; (2011) 82 NSWLR 420 by Allsop P at [178] and by Giles JA at [197]. It was also applied by the Court of Appeal in Victoria in Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd [2007] VSCA 311; (2007) 20 VR 311 by Dodds-Streeton JA at [70] – [71] with whom Ashley JA and Cavanough AJA agreed.
43 It is unnecessary to do anything more than to mention this aspect of the case because, at this point, no question of the nature or extent of the right to relief arises. Nevertheless, it is necessary to identify an entitlement to a recognised species of relief should the plaintiff's claim succeed on the facts.
The nature of the adverse possessor's rights
44 Possessory title has been described as an extinctive process: Butt P, Land Law (5th ed, 2006) [2202]. This is a reference to the effect which adverse possession of the documentary title holder's land will have if it continues uninterrupted for the particular limitation period which applies in that jurisdiction. Indeed, the uninterrupted elapse of the limitation period with the occupier remaining in adverse possession will extinguish the title of the registered proprietor. That is the language used in both statutes – Limitation Act 1935 s 30 and Limitation Act 2005 s 75. In that event, the documentary title owner's rights will be extinguished by ceasing to be enforceable.
45 The possessory title then so acquired will exclude the right of the documentary title holder to maintain an action for recovery of possession of the land, whether in ejectment or otherwise, and the 'possessory right', of the occupant or the last of a series of occupants who have maintained the unbroken period of adverse possession will have matured. As said by Dixon CJ in Allen v Roughley (1955) 94 CLR 98, 108 - 109:
A possession of 20 years tolled, that is took away or barred, the entry of any person who had been dispossessed or whose possession had been discontinued. It would seem to follow that the person who, or the last of the persons who together, had had possession for 20 years had become seised of the land, and it is in virtue of seisin that a recovery in ejectment may be had.
- See also Asher v Whitlock (1865) LR 1 QB 1. A title by adverse possession will be a good title and sufficient for a vendor to pass to a purchaser: Ferguson v Registrar of Titles (1919) VLR 509, 514.
46 Unlike in some other jurisdictions at various times, the Transfer of Land Act 1893 (WA) has recognised the rights of an occupier to land acquired by adverse possession expressly in a number of ways. First, rights acquired by possession adverse to the registered owner over a sufficient period are exceptions to the indefeasibility of title otherwise conferred by registration - see s 68(1A). There are also detailed provisions under which an application can be made to the Registrar of Titles for the vesting of the land in the adverse possessor as registered proprietor: s 222 - s 225. These provisions expressly acknowledge the rights of adverse possession which has continued beyond the requisite limitation period even in cases where the person in occupation has not yet brought or completed an application to have his possessory title converted into a registered title by application under the Act. Such a possessor has a legal right to the land based on possession which is an interest in the land not excluded by the indefeasible title of the registered proprietor or his transferees - compare Newington v Windeyer (1985) 3 NSWLR 555, 563 - 564. In that case McHugh JA said at 563 - 564:
The modern law of real property continues to invoke the medieval doctrine that possession is prima facie evidence of seisin in fee and that an estate gained by wrong is nevertheless an estate in fee simple: Wheeler v Baldwin (1934) 52 CLR 609 at 632; Allen v Roughley (1955) 94 CLR 98 at 108. Seisin gives ownership good against everyone except a person who has a better, because older, title: Wheeler v Baldwin (at 632-633); Perry v Clissold [1907] AC 73 at 79. A person who is in possession of land adverse to the true owner has a legal interest in the land even though the twelve year limitation period has not expired: Perry v Clissold. As long as a person does not abandon his possession, possession for less than twelve years enables him to exclude from the land any person who does not have a better title: Allen v Roughley (at 109-110, 115, 131, 135, 143). The above cases and principles relate to Old System title. But in Spark v Whale Three Minute Car Wash (Cremorne Junction) Pty Ltd (1970) 92 WN (NSW) 1087, Slattery J held that those principles are equally applicable to land held under the provisions of the Real Property Act 1900. Counsel for the parties accepted that the common law principles concerning adverse possession apply to land under the Torrens System. In my opinion the agreement of counsel was correct. Spark v Whale Three Minute Car Wash was correctly decided. Indeed, since 1979 it has become possible for adverse possession of land for twelve years to bring about the extinguishment of the title of the registered proprietor: Real Property Act 1900, s 45D.
47 One of the consequences of this is that the interest of the adverse possessor will prevail against a purchaser from a registered proprietor - see Stein RTJ and Stone MA, Torrens Title (1991) at 114.
48 On the assumption that the facts pleaded in this case are established and amount to acts of possession adverse to the registered proprietor of the designated area of Lot 500 from time to time, several consequences flow. First, that adverse possession, if it was adverse in the requisite sense, by the plaintiff and his predecessors in title, the Dostals, can constitute a period of continuous adverse possession; and that the rights of possession of the designated area of Lot 500 adjoining Lot 200 can be enjoyed by the transferees notwithstanding that the possessory interest may not have been formally conveyed by the Dostals to the Goodwins by appropriate documentation as, for example, where a transfer of the land from the Dostals to the Goodwins recorded no more than the transfer of Lot 200 – Mulcahy v Curramore Pty Ltd (1974) 2 NSWLR 464, 471, where on this point Moffitt P observed (and Hope JA and Bowen CJ in Eq agreed):
His Honour [meaning the Judge at first instance] held, after a consideration of those authorities and particularly the decision of the Court of Appeal (Kay LJ and Lindley LJ) in Willis v Earl Howe [1893] 2 Ch 545 and the subsequent decision of the Supreme Court in Salter v Clarke(1904) 4 SR (NSW) 280 that the law did not require any formal or informal conveyance or assignment of the inchoate possessory rights, and that, if during the period in question there was continuous occupation to the exclusion of the owner of the documentary title, that sufficed for the purpose of bringing into existence a possessory title. In my view his Honour, on this branch of the law, was clearly right. It is true that around about 1890 or thereabouts there was a view expressed that it was necessary for the inchoate rights to be conveyed or in some way transmitted, that mere succession to adverse possession was not sufficient. In my opinion this view is not sound and I agree with the law as stated in the Court below.
49 On this basis the periods of adverse possession by the Dostals and Goodwins may be aggregated thus leading to a continuous period of adverse possession (if proved) of up to 43 years that is from December 1961 until the entry onto the land by the second defendant for the purpose of carrying out the Champion Lakes redevelopment works in or about 2007. Even if the period of possession by the Dostals adverse to the registered proprietor of Lot 500 did not begin until sometime after 1961, or even if their period of possession is disregarded entirely, the facts alleged in the statement of claim, assumed to be correct for present purposes, are that the plaintiff and his wife have been in possession of the designated area of Lot 500 since Lot 200 was first conveyed to them in February 1994. This results in possession by them from 1994 until 2007 on the plaintiff's case so that the 12 year limitation period for the registered proprietor would have expired in 2006.
50 I have already recorded that the Armadale Redevelopment Authority did not become the registered proprietor of Lot 500 until 5 October 2011 and hence ownership of the land by the Crown or an agent of the State did not begin until then. Entry onto the land by the second defendant for the purpose of carrying out works associated with the Champion Lakes redevelopment in 2007 may have interrupted and terminated possession of the land which is presently the subject of this claim, if it had been done by or on behalf of the then registered proprietor which was the City of Armadale although at that time the property had been leased to the ARA. By that lease the ARA had a right to exclusive possession of the land leased - Radaich v Smith (1959) 101 CLR 209; Chelsea Investments Pty Ltd v Commissioner of Taxation (1966) 115 CLR 1; Goldsworthy Mining Ltd v Commissioner of Taxation (1973) 128 CLR 199, 212; Dampier Mining Co Ltd v Commissioner of Taxation [1981] HCA 29; (1981) 147 CLR 408, 428 – and so an 'interest' in the land.
51 Hence, in order to consider whether or not the Goodwins' possession of the designated area of Lot 500 continued for 12 years it may be necessary to investigate what, if any, acts of possession of Lot 500 or the designated part of it were exercised by the ARA before 8 February 2006, because if none were the possession by the Goodwins would have continued for 12 years. If, however, the ARA or its authorised agent, the second defendant, had retaken possession of the designated area of Lot 500 from the Goodwins before 8 February 2006, it would be necessary for the plaintiff to rely on some or all of the period of adverse possession by his predecessors, the Dostals, stretching back to 1961.
52 These matters were not the subject of evidence at the trial of this issue and cannot now be resolved. It is enough to conclude now that on the facts alleged there is more than enough to satisfy a finding that either in combination with the possession alleged by the Dostals or by his own possession of the subject area of Lot 500 since 1994 there is a basis for concluding that a period of 12 years adverse possession or more had accrued before any attempts to retake possession or exercise possession over the subject land hand been made by the ARA as lessee from the City of Armadale.
53 Another conclusion of significance from these assumed facts is that the possessory title of the occupants of the designated area of Lot 500 had fully matured after the expiration of that 12 years. It was no longer an inchoate title. It was a possessory title recognised at law conferring seisin and an exception to the indefeasible title of the registered proprietor of Lot 500 or its successors.
54 It was also an exception, and was prior in time, to the leasehold interest granted by the City of Armadale to the ARA in 2004 which, by the lease document, was said to have created a term beginning on 15 December 2003. Had 12 years possession by the plaintiff and his predecessors in fact occurred before 30 July 2004, then the rights of the lessee under that lease (notwithstanding that its term was by that instrument antedated) would also be subject to the possessory title of the occupant. The grant of the lease to the ARA did not destroy or diminish any possessory title which, by then, had accrued. However, as a grant of the right of exclusive possession of the whole of Lot 500 to the ARA, by then an agent of the State, it meant that any inchoate possessory rights which, by then were still running, could not mature because the agent of the State had then become entitled to exclusive possession. By doing so this meant that any time remaining for the possession to run the full 12 years was halted by the grant of the rights of possession to the agent of the State by the lease.
55 However, the question which does arise in this case is what is the consequence where more than 12 years of adverse possession had occurred before the grant of the leasehold interest to the ARA in July 2004. This returns one to the essential question of what are the effects of the provisions of the 1935 and 2005 Limitation Acts in relation to adverse possession against the Crown or an agency of the State.
Which Limitation Act?
56 The Limitation Act 2005 came into operation on 15 November 2005 but, by s 4(1) it provides that the limitation periods provided for under the 2005 Act apply only to causes of action that accrue on or after the commencement day. There are some exceptions to that application but these do not apply in the present case – see s 7 and s 8. However, by s 5(1) the 2005 Act provides that an action cannot be commenced on or after the commencement day if the action could not have been commenced immediately before the commencement day because of an enactment that has been repealed or amended by the Limitation Legislation Amendment and Repeal Act 2005 (WA) which repealed the Limitation Act 1935 (WA) subject to these provisions. Under the Amendment and Repeal Act the Limitation Act 1935 continues to apply in respect of causes of action accruing before 15 November 2005.
57 This case is somewhat unusual because, although the first and third defendants rely on the Limitation Acts of 1935 and 2005 in their joint defence, that reliance does not plead that the plaintiff's cause of action is time barred. Rather, the position of the first and third defendants is that by virtue of s 36 and the Limitation Act 1935 and/or s 76 of the Limitation Act 2005 no possessory title to the designated area of Lot 500 was acquired by the plaintiff or, if such possessory title had accrued before the land was registered in the name of the ARA as an agent of the State, neither the ARA or, subsequently the MRA, was affected by that title and took an estate in fee simple in the whole of the land to the exclusion of any such possessory title.
58 In the action, as already described, the plaintiff seeks relief on the grounds that he had a good possessory title to the subject land and was wrongly put out of possession by the actions of the second defendant acting on behalf of the ARA and that that exclusion has been continued by the first and third defendants. At present the plaintiff characterises his action as a claim for damages in trespass although it may be possible that another or other cause of action may arise from the facts pleaded - for example, ejectment or a species of action on the case or for declarations that the registered proprietor still holds the land subject to the possessory interest: compare Colonial Sugar Refining Co v Melbourne Harbour Trust Commissioners [1927] AC 343 (PC). There is no suggestion that the powers of the State to acquire land compulsorily were exercised or followed: see s 161, 165 and 170 of the Land Administration Act 1997. These possibilities need not detain one at this stage because the accrual of such a cause of action by the plaintiff would occur, in any of these eventualities, when his possessory title was impugned or terminated by acts of entry by the defendants. There has been no submission that the plaintiff's cause of action is time barred.
59 Nor is there any issue in this case over whether or not the third defendant, as the present registered proprietor of the whole of Lot 500, has some cause of action for the recovery of that land from the adverse possessor which has been brought within any requisite limitation period. No such claim is made or has ever been made by the third defendant. The MRA relies upon its registered title for an estate in fee simple of the whole of Lot 500 and the possession of the land which was taken by the agents of its predecessor the ARA dating from its exclusion of the plaintiff from the designated area of Lot 500 in 2007.
60 As earlier explained the position of the first and third defendants is that no interest in any part of Lot 500 could accrue by adverse possession against an agent of the State or that if such an interest had accrued before an agent of the State became the proprietor of that land then the Crown is not now affected and is to be taken as never having been affected by that interest. The first and third defendants' positions, therefore, depend, not upon any cause of action by the plaintiff being time barred, but upon an asserted immunity of the Crown from the effects of adverse possession or possessory title. In this respect the first and third defendants rely on both Limitation Acts. The material provisions are:
Limitation Act 1935
36. Notwithstanding any law or statute law now or heretofore in force, the right, title, or interest of the Crown to or in any land shall not be, and shall be deemed not to have been, in any way affected by reason of any possession of such land adverse to the Crown.
61 The 12-year limitation period for seeking recovery of land by making an entry or distress or bringing an action to recover the land was imposed by s 4 of the 1935 Act. There is a further provision in the 1935 Act affecting the position of the Crown:
48. Except as therein expressly provided, the preceding provisions of this Act do not bind or affect the Crown.
62 These provisions generally have been regarded as establishing the proposition that in Western Australia, under the Limitation Act 1935 no right title or interest could be acquired by adverse possession against the Crown. The terms of s 36 show that the adverse possession there declared to be ineffective against the Crown must be possession 'adverse to the Crown' so leading to the conclusion that adverse occupation of Crown lands confers no rights or interests upon the occupier.
63 This does not mean that possessory title acquired by an occupant or his predecessors by the exclusion of the documentary title owner for 12 years or more would not confer a legal possessory title upon the occupant to the exclusion of the documentary title holder who was not the Crown or an agent of the State. By that point the possessory title would have fully matured into a legal interest capable of being transmitted by transfer or otherwise by the possessory owner. That is an interest which could be transferred to the Crown or an agent of the State for value and would also be an interest in the land which could be acquired compulsorily by the State or a public authority under the provisions of the legislation relating to the compulsory acquisition of interests in the land from time to time – the Land Administration Act1997, s 161, s 165 and s 170. In the latter instance, of course, there would be an obligation for the acquiring public authority to pay compensation for the value of the interest in the land so acquired.
64 The evidence and the statement of facts are not entirely clear in this regard but the statement of facts (pars 33 and 34) states that Lot 500, previously registered in the name of the City of Armadale was transferred first to the ARA in 2011 and then to the MRA in 2012 under the provisions of the Transfer of Land Act. As already noted s 68(1A) of that Act contains, as one of the exceptions to the indefeasibility of registered title resulting from a registered transfer or disposition of the land, any interest acquired by adverse possession.
65 This position needs to be scrutinised in the light of amendments to s 68 of the Transfer of Land Act effected by Act No 31 of 1997 s 99. By the Acts Amendment (Land Administration) Act 1997 (WA) s 99, s 68 of the Transfer of Land Act was amended in a respect which requires attention in the present litigation. That amendment introduced ss 68(2), (3) and (4) which, for the first time, identified separate indefeasibility provisions relating to 'Crown land'. Those provisions now appearing in the present Act are:
68. Estate of registered proprietor paramount
(1) …
(1A) …
(2) Notwithstanding the existence in any other person of any interest in Crown land which but for this Act might be held to be paramount or to have priority, the holder of an interest in Crown land shall, except in case of fraud, hold that interest -
(a) subject to such encumbrances as may be notified on the registered certificate of Crown land title for the Crown land; but
(b) absolutely free from all other encumbrances whatsoever, except -
(i) the interest of a proprietor claiming the same Crown land under a prior registered certificate of Crown land title; and
(ii) as regards any portion of Crown land that may by wrong description of parcels or boundaries be included in the certificate of Crown land title or other instrument evidencing the Crown title of that proprietor, not being a purchaser for valuable consideration or deriving from or through such a purchaser.
(a) any reservation, exception, condition, covenant or power to which the relevant interest in Crown land is subject; and
(b) any public right of way; and
(c) any easement subsisting over or upon or affecting that Crown land; and
(d) any unpaid rates; and
(e) any mining tenement within the meaning of the Mining Act 1978; and
(f) any prior unregistered lease or agreement for lease or for letting for a term not exceeding 5 years to a tenant in actual possession,
even if it is, or they are, not specially notified as an encumbrance on that certificate of Crown land title or instrument, but no option of purchase or renewal of any lease or agreement referred to in paragraph (f) shall be valid as against a subsequent registered interest unless that lease or agreement is registered or protected by a caveat.
(4) In subsections (2) and (3), a reference to a certificate of Crown land title or registered instrument does not include a reference to a qualified certificate of Crown land title.
[Section 68 amended by No. 81 of 1996 s. 40; No. 31 of 1997 s. 99; No. 19 of 2010 s. 51.]
66 Since the commencement of the amending Act in 1997 there is a further distinction between Crown land and other land, in that, adverse possession is not an exception to indefeasibility in respect of 'Crown land' but that it is for other land. In this context 'Crown land' has the same meaning as it had in the Land Administration Act 1997 (s 4 of the TLA).
Definition of 'Crown land' in the Transfer of Land Act 1893
67 By s 3 of the Land Administration Act 1997 the term 'Crown land' is defined, subject to s 3(2), (3), (4) and (5) as meaning 'all land except for alienated land'. Exceptions in s 3(2), (3), (4) and (5) relate to land below high water mark on the seashore or on tidal waters and do not apply to this present case. The term 'land' within the meaning of the Land Administration Act is defined to include all land within the limits of the State and, by further references, to marine and other waters, sea-bed and islands. 'Alienated land' is defined by s 3(1) as meaning land held in freehold. Consequently, the provisions of s 68(2), (3) and (4) of the Transfer of Land Act as introduced in 1997 apply to all unalienated Crown land but not to land alienated by the Crown and held in freehold. Lot 500 having been held in freehold by the Town of Armadale, then the City of Armadale, is therefore not Crown land within the meaning of s 68(2), (3) or (4) of the Transfer of Land Act.
68 Nevertheless, the provisions of s 76 of the Limitation Act 2005 are not restricted to Crown land within the meaning of that term in the Land Administration Act, although it is clear that s 76 does apply to such land. By its terms, s 76 applies to any right, title or interest to the Crown of any land. 'Land' in the Limitation Act is defined by s 3, non-exclusively, as:
Land includes
(a) corporeal hereditaments and rent charges and any estate or interest in those things whether freehold or leasehold and whether at law or in equity; and
(b) the interest, pending sale of land (including incorporeal hereditaments) held on trust for sale, of a person having an interest in the proceeds of sale,
but otherwise does not include incorporeal hereditaments.
69 The principal issue contested by the parties at the hearing was whether or not s 76 of the Limitation Act 2005 had the effect of excluding, as against the Crown or any agent of the State, any possessory interest in land.
Limitation Act 2005
76. Despite any law that is, or has been, in effect the right, title or interest of the Crown to, or in, any land is not affected in any way by any possession of such land adverse to the Crown, and is to be taken as never having been so affected.
70 Unlike the 1935 Act the Limitation Act 2005 does, with exceptions not here relevant, bind the Crown – s 10. However, this is made expressly subject to s 76. Other than in relation to the Crown the Limitation Act 2005 does recognise the existence of possessory title to land accruing by adverse possession for the requisite period in the case of privately owned land: s 65 - s 70. Furthermore, by operation of s 75 of the 2005 Act a person's right and title to land is extinguished if a person does not commence an action to recover the land before the expiry of the limitation period provided for under that Act or within any extended period granted by the court.
71 There are obvious similarities between s 76 of the 2005 Act and s 36 of the 1935 Act insofar as each provides that the right title or interest of the Crown to any land is not affected by any possession of such land adverse to the Crown. As previously noted, the facts alleged in the present case disclose a situation where the prior adverse possession had matured into a full possessory title after the expiration of 12 years and was not possession 'adverse to the Crown' but possession adverse to a previous proprietor.
72 Nevertheless, counsel for the first and third defendants submits that the new and additional provisions contained in the present s 76 which say '… and is to be taken as never having been so affected' mean that fully matured possessory rights or interests in land which had accrued before any interest in the land in question becomes the property of the Crown are to be ignored if and when the land passes to the Crown and from the time the land becomes land of the Crown it is taken never to have been so affected.
73 Counsel for the plaintiff submits that no such interpretation of s 76 should be adopted because if it were, the result would be that fully matured legal rights of possessory title would be extinguished whenever such land is transferred into the ownership of the Crown or a State agent. The submission is that such an interpretation should be rejected in conformity with the principles that, in the absence of the clearest expression of intention from the legislature, legislation should be interpreted as not destroying or diminishing existing legal rights.
74 It is well established, that, as a principle of statutory interpretation, legislation is presumed not to interfere with vested proprietary interests nor to alienate vested proprietary interests without adequate compensation – see Pearce DC and Geddes RS, Statutory Interpretation in Australia (7th ed, 2011) [5.21] - [5.22]. The authorities dealing with the application of these principles include cases which recognise the entitlement of a holder of possessory title to compensation on acquisition by a public authority: Clissold v Perry (1904) 1 CLR 363; The Commonwealth v Hazeldell Ltd (1918) 25 CLR 552, affirmed by the Privy Council [1921] 2 AC 323; Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners. The last of these is a case where the Privy Council upheld an appeal from a decision of the High Court, Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Co Ltd (1925) 36 CLR 230, which had interpreted a statute as taking away private rights of property obtained by adverse possession without compensation resulting in the legislation being read as preserving the rule that, in the absence of the clearest reasons to the contrary, legislation should be construed on the basis that it did not intend to take away an interest in land without an associated right to compensation.
75 For examples of where legislation acquiring property without any associated right to compensation but clearly expressing that intention was given effect: see Durham Holdings Pty Ltd v State of New South Wales (1999) 47 NSWLR 340; Australian Securities and Investments Commission v D B Management Pty Ltd [2000] HCA 7; (2000) 199 CLR 321, 340 but the situations examined in those cases are far different to those at present under consideration and clearly distinguishable. There are many more examples of approaches to statutory construction which apply the presumption that legislation should not be regarded as interfering with vested proprietary interests in the absence of the clearest expression to the contrary also contained in Pearce and Geddes at [5.22], including, significantly, R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; (2009) 237 CLR 603, 619 - 620; Clunies-Ross v The Commonwealth [1984] HCA 65; (1984) 155 CLR 193.
76 It is possible to interpret s 76 of the Limitation Act 2005 in a way which respects the traditional principle and which does not destroy a fully matured possessory interest in land such as the plaintiff now asserts. For example, there may be a parcel of alienated land owned by the Crown over which a trespasser in occupation has been exercising adverse possession for a period less than 12 years and, before that time has expired, the Crown conveys or transfers the land to a private owner who does nothing to dispossess or dispute the claim of the trespasser until that occupant has continued in possession for a total of 12 years or more. Section 76 is capable of being construed as meaning that during the time when the Crown owned the land it was taken as never having been affected by that adverse possession with the result that, once it was transferred into private ownership, the occupant could not acquire a possessory title after the expiration of 12 years from the commencement of his adverse possession but only if his adverse possession continued for a full 12 years from the time the land passed out of the ownership of the Crown. That appears, with respect, to be a construction of s 76 which is fairly open on the language of the section itself and one which does not do any violence to the meaning of the section. It also would have the effect that it would not destroy or extinguish a fully matured possessory title which had accrued before the Crown or a State agent became the owner of the subject land and, in that way, would conform to the established principle. I see no reason not to adopt such an interpretation and I therefore do so.
77 However, that does not entirely resolve the present matter for it leaves the situation as one in which an agent of the State, with all the benefits and immunities of the Crown, has become registered as the proprietor of certain alienated land in respect of which a fully-fledged possessory title entitled to legal recognition had arisen before the first acquisition of the land by the State. Put in this way, which is how I think this controversy should be approached, the question becomes one of determining whether or not an unregistered interest in land should prevail over a registered interest or whether any or if so what priority should be granted to the unregistered interest.
78 If it were not for the statutory indefeasibility conferred on registered title by the Torrens System of land registration this is a question which would have to be answered by resort to well-established principles dealing with priorities. Priorities as between competing equitable interests were discussed in Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liquidation) (1965) 113 CLR 265 and Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604. But in the present case, this is not a contest for priority between competing equitable interests, but between competing legal interests. As to this see Butt P, Land Law (5th ed, 2006) [1947] which explains how, with some exceptions, not presently relevant, ownership of a legal title earlier in point of time excludes the creation of an inconsistent subsequent legal right.
Expiration of limitation period before acquisition of land by the Crown or a State agency
79 As already observed, the distinguishing feature of this case is that, on the facts pleaded, the plaintiff had a fully accrued and, hence, vested possessory estate in the land before his possession was terminated by the actions of one or more of the defendants. That title would in law, although not registered, prevail over the title of the registered proprietor or any transferee from the registered proprietor by virtue of s 68(1A) of the Transfer of Land Act. This distinguishes the present case from the facts considered by Martin CJ in Water Corporation v Hughes [2009] WASC 152 where the alleged adverse occupation of the land by the Hughes family had not continued for the whole of the limitation period before an agent of the State, the Water Corporation, became the registered proprietor of an interest in the land and went into possession. Under the Limitation Act 1935 continued adverse possession of the subject land by the Hughes family thereafter was entirely ineffective because of s 36. Put another way, the Hughes had not acquired any possessory title before the agent of the State obtained interest in the land and once that had occurred it was impossible for them to do so.
80 In the course of his reasons for decision in Water Corporation v Hughes Martin CJ addressed submissions which had been raised by the claimants to the effect that the distinction between unalienated Crown land and land which had been alienated by the Crown and become freehold, which is to be found in s 68 of the Transfer of Land Act (s 68(1A) excepting rights acquired by adverse possession as an exception to indefeasibility in respect of freehold land, but ss 68(2), (3) and (4) excluding any exception to indefeasibility acquired by registered title in respect of unalienated Crown land) was relevant to the case then before the court. It seems to be implicit in the reasons in that case that the Chief Justice was faced with a submission that a limitation period could run against the Crown resulting in a title by adverse possession to Crown land in respect of alienated Crown land which had become freehold. Martin CJ rejected this submission and, with respect, I agree with that conclusion. The basis for rejection was that the provisions of s 68 of the Transfer of Land Act do not address or deal with limitation periods or any question of whether a title by adverse possession can be obtained against the Crown or a State agent by adverse possession. Provisions dealing with those issues are to be found in the Limitation Act 1935 (which applied in the circumstances of Water Corporation v Hughes) and now in s 76 of the Limitation Act 2006. As those provisions expressly state, and as the Chief Justice found, no occupation of land adverse to the Crown can give rise to any possessory title and that is the case whether the land is unalienated Crown land or alienated land which has become freehold.
81 No challenge to the authority of Water Corporation v Hughes was advanced in the present case and I see no reason to doubt that decision. However, that case does not govern the position where a fully matured legal estate in fee has been acquired by adverse possession continuing for more than the limitation period before any interest in the land has been acquired by the Crown or an agent of the State. Clearly, such a possessory title is not acquired by possession adverse to the Crown and it is therefore not covered by s 36 of the Limitation Act 1935. The question in this case is whether it is covered by the additional wording in s 76 of the 2005 Act but, for reasons already given, I have concluded that it is not.
82 Even if this conclusion were wrong, and s 76 terminated any possessory title of the plaintiff from the time when the Crown or a State agent first obtained an interest in Lot 500, that would not protect others from the plaintiff's claim in trespass. Nor would it protect the State agent for trespasses committed by its servants or agents before the State agent obtained a proprietary interest in the land. So, for example, a trespass on the land by the City of Armadale, by itself or by its agent the second defendant (who has not been heard on this application) or by the ARA or the MRA before either became registered proprietor of the land or the former obtained a leasehold interest would not be protected, an action would lie in trespass against such persons for interference with the plaintiff's possessory title at times before a proprietary interest was acquired by the State agent.
83 I would answer the question posed by the issue ordered to be tried: 'No. The plaintiff's action is not barred by s 76 of the Limitation Act 2005.'
27
16