Howlin v Clarence City Council
[2013] TASFC 7
•26 July 2013
[2013] TASFC 7
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Howlin v Clarence City Council [2013] TASFC 7
PARTIES: HOWLIN, Darryl Robert
v
CLARENCE CITY COUNCIL
FILE NO/S: FCA 586/2012
JUDGMENT
APPEALED FROM: Clarence City Council v Howlin [2012] TASSC 26
DELIVERED ON: 26 July 2013
DELIVERED AT: Hobart
HEARING DATE: 19 November 2012
JUDGMENT OF: Blow CJ, Tennent and Porter JJ
CATCHWORDS:
Appeal and New Trial – Appeal – Practice and procedure – Tasmania – Powers of Court – Further evidence – Power of Court to permit on hearing.
Supreme Court Civil Procedure Act 1932 (Tas), s48.
Aust Dig Appeal and New Trial [389]
Appeal and New Trial – Appeal – Practice and procedure – Tasmania – Powers of Court – When appeal lies – By leave of Court – Appeal against order for costs.
Supreme Court Civil Procedure Act 1932 (Tas), s44.
Aust Dig Appeal and New Trial [383]
Highways – Creation and extinction of highways – Dedication – What constitutes dedication – In general – Common law principles – Intention to dedicate – Rebuttal of the presumption of dedication that arises from user.
President of the Shire of Narracan v Leviston (1906) 3 CLR 846, followed.
Aust Dig Highways [13]
Highways – Construction, maintenance and repair – Roads – Whether road maintained as shown on municipal map.
Local Government Act 1962 (Tas), s694.
Aust Dig Highways [27]
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: S B McElwaine
Solicitors:
Appellant: In person
Respondent: Shaun McElwaine + Associates
Judgment Number: [2013] TASFC 7
Number of paragraphs: 245
Serial No 7/2013
FCA 586/2012
DARRYL ROBERT HOWLIN v CLARENCE CITY COUNCIL
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
TENNENT J
PORTER J
26 July 2013
Order of the Court
Appeal dismissed.
Serial No 7/2013
File No FCA 586/2012
DARRYL ROBERT HOWLIN v CLARENCE CITY COUNCIL
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
26 July 2013
I have read the judgment of Tennent J in draft form. I agree that this appeal should be dismissed. I agree with her Honour's reasons for that conclusion. In my view the appellant has not identified any error on the part of the learned trial judge, either in relation to the action that he tried or the costs application that followed it.
FCA 586/2012
DARRYL ROBERT HOWLIN v CLARENCE CITY COUNCIL
REASONS FOR JUDGMENT FULL COURT
TENNENT J
26 July 2013
These reasons relate to an appeal against a decision of Evans J handed down 28 May 2012 in proceedings commenced by the Clarence City Council ("the Council") in which it sought a declaration that Marsh Street, Opossum Bay, was not a highway, or alternatively a declaration that Marsh Street was not a highway maintainable by it pursuant to the Local Government (Highways) Act 1982. His Honour concluded that Marsh Street was not a highway and was not maintainable by the Council, and so declared. His Honour subsequently dealt with an application for costs by the Council, and determined that Mr Howlin should pay the Council's costs of the action. Mr Howlin, the appellant, has appealed against both the original decision of Evans J and his Honour's costs order.
It is useful to set out pars[1] - [3] inclusive of his Honour's substantive judgment because they deal with the background to this matter and issues of proof:
"1 At issue in these proceedings is whether Marsh Street, Opossum Bay is a highway and whether it is maintainable by the plaintiff, pursuant to the Local Government (Highways) Act 1982. The plaintiff seeks declarations that it is not, and the first named defendant, Darryl Howlin, seeks declarations to the opposite effect. It is the plaintiff that bears the burden of establishing the negative of the key issues in question, that is, whether Marsh Street has been dedicated as a highway and whether Marsh Street is maintainable by the plaintiff. Throughout, I have been conscious of the need to keep in mind that, regardless of whether an issue that the plaintiff must establish requires a positive or a negative finding, the burden of proof is on the plaintiff. The standard of proof is on the balance of probabilities; the Evidence Act 2001, s140, and more generally see Carney v Newton [2006] TASSC 4, [51].
2 The significance of the status of Marsh Street is that it is the access to land owned by Mr Howlin and his former wife, which he seeks to subdivide. The several subdivision proposals that he has put forward have involved up to 35 blocks. If, as the plaintiff contends, Marsh Street is not a highway and the Howlin land's right of access over Marsh Street is pursuant to a right of carriageway, it cannot be subdivided because it does not have a road frontage as is required for a subdivision. See the Local Government (Building and Miscellaneous Provisions) Act 1993, s109, and R v West Tamar Council; ex parte Phillips [1999] TASSC 107.
3 My decision in these proceedings is one of many that have dealt with disputes linked to Marsh Street and Mr Howlin's endeavours to subdivide the land mentioned. Earlier decisions include: Howlin v Brinkman [2007] TASSC 59, Howlin v Brinkman (No 2) [2007] TASSC 100; (2007) 17 Tas R 99, Howlin v Resource Management and Planning Appeal Tribunal (2009) 18 Tas R 323, Howlin v Brinkman [2009] TASSC 18, Howlin v Resource Management and Planning Appeal Tribunal (No 2)(2009) 18 Tas R 397, Clarence City Council v Howlin [2010] TASFC 2, and Clarence City Council v Howlin (No 2) [2010] TASFC 10."
Interlocutory application
Five days before the appellant's appeal was to be heard, he filed an interlocutory application "for discovery". The application sought orders in the following terms:
"That the Respondent be issued with a subpoena to produce the following documents:
(1) The pre 1998 Marsh Street General File and individual Marsh Street No. Files;
(2) The records of building approval granted for 7 Marsh Street Opossum Bay;
(3) All records of amendments to records on electronic data base 'Latitude' from c1989 pertaining to Marsh Street and Spitfarm Road;
(4) All records of signed and authorized certificates issued under the Local Government Act 1962 s695 and Local Government (Building and Miscellaneous Provisions) Act 1993 s337 pertaining to Marsh Street including copies of the electronic maps downloaded from 'Latitude' for the purpose of certification certificates issued;
(5) All electronic or hard copy records of street widths approved by the Clarence Municipal Council in Town & Rural areas c1940-c1950."
In support of the application, the appellant swore an affidavit on 14 November 2012. The appellant initially suggested that the application could be adjourned sine die, and the appeal could just proceed. However, counsel for the respondent objected to that course of action. The Court determined to hear the application. The appellant's affidavit was taken in provisionally for the purpose of the application only. The application was treated, not as an application for a subpoena, but as an application pursuant to the Supreme Court Civil Procedure Act 1932, s48. That section empowers the Full Court to receive further evidence upon questions of fact. However, s48(3) provides:
"(3) Upon any appeal from a judgment, order, or other determination given or made after the trial of any cause or matter on the merits, such further evidence (except as to matters which have occurred after the date of judgment, order, or determination) shall be admitted only by special leave of the Full Court, which shall only be granted in cases in which –
(a)the evidence was not in the possession of the party seeking to have it admitted, and could not by proper diligence have been obtained by him, before the termination of the trial; or
(b)there is some other special circumstance which, in the opinion of the Full Court, justifies the admission of it."
After hearing submissions, the appellant's interlocutory application was dismissed and the hearing of the appeal proceeded. The application was dismissed on the basis that reasons for that dismissal would be given as part of the ultimate judgment. My reasons for dismissing that application are contained in pars[7] – [16] of these reasons.
In effect, the application was one by which the appellant sought to compel the Council to produce documents. He submitted that he had, over a long time, been pleading for the records that he sought, and that the Council had persistently refused and/or failed to provide them. The same issue was agitated before the trial judge, and has been agitated in other proceedings. The response from the Council is, in general terms, that the documents as described do not exist, or, if they do, they have either already been produced or are irrelevant.
As to the first document sought, the appellant submitted that, notwithstanding the Council's claim that a file described as the "pre 1998 Marsh Street General File" did not exist, it did, and he referred to various occasions in this and earlier proceedings where people had been questioned about the existence of such a file. Counsel for the Council made a number of points in relation to this particular issue.
Firstly, on 29 June 2011, an affidavit of discovery was made on behalf of the Council. That affidavit disclosed no such general file. The appellant did not challenge the sufficiency of that discovery. At trial, before Evans J, the appellant raised the same issue. A letter dated 8 October 2010 sent by the Council to the appellant in response to a right to information request was tendered on the trial and became exhibit D184. Item 4 on page two of that letter set out the Council's response to the request for this file as follows:
"Copy of the full content of Marsh Street file (file reference M011) is provided. It is noted that the first entry in this file is January 1998. Further, it is noted that there is no record of a prior road file in respect of Marsh Street within Council's filing system.
The currently held Spitfarm Road file has also been checked for the period 1985 -1998 for any documents relating to Marsh Street and documents mentioning the existence of the bus turning area at the Marsh Street/Spitfarm Road intersection have been identified and are also provided."
Counsel for the Council submitted that the issue had been dealt with and there was no such file. The appellant simply refuses to accept that.
The appellant did not in his affidavit suggest there was material on any such file which might be relevant to this appeal and make a significant difference to the outcome. Nor did he identify what special circumstances existed which might justify the admission of the file even if it were found to exist.
As to the second document, counsel for the Council submitted that the appellant had asked more than once for that document as well, and counsel's instructions were that no such document existed. Save for submissions as to the Council's failure to provide this document, the appellant did not identify what its significance might be and what relevance it had to his appeal.
As to the third document sought, counsel for the Council identified the document sought as having been an exhibit on the trial and being a document as a consequence already before the Court. The document was exhibit P38 and was annexed to the appellant's affidavit. The appellant's application appeared to relate, not so much to the existence of the document provided, but to an assertion that what was provided had been altered.
As to the fourth document sought, the relevance of this to the appellant's case was, he said, that Council officers acknowledged in Council certificates issued in respect of properties other than his, that the Council was responsible for the maintenance of Spitfarm Road. Counsel for the Council acknowledged that there were inconsistencies in some of the certificates, but submitted that simply because a Council officer said something in a certificate for another property did not necessarily make it so. Counsel's submission relating to this category of documents was simply that they were not relevant to the issue this Court, and indeed Evans J, had to consider.
As to the documents identified in point 5, counsel for the Council was unable to identify if such documents even existed. However, he submitted that street widths were a matter provided for by law. If the Council at any time had approved a street with a lesser width for some reason, that did not make that action determinative of anything in relation to these proceedings.
In his reply to the submissions of counsel for the Council, the appellant conceded he had raised all these matters before Evans J but he did not pursue them to any sort of finality because he did not want to get into prolonged arguments about them.
If this Court is to permit further evidence to be admitted on the hearing of the appeal, it must be satisfied that the material exists, that it is relevant to the issues to be determined, and, more particularly, that it is likely to make a difference to the outcome of this appeal. The appellant has over some years in different fora pursued the Council in relation to the documents he now seeks. He pursued the issue to a limited degree before the learned trial judge. He has left his application until only a few days before the hearing of his appeal which he first initiated many months before. He has not satisfied the Court that the material he now seeks, if indeed it exists, would affect the outcome of the appeal such as to justify any order requiring production at this stage and its admission as further evidence on this appeal.
The substantive appeal – general comments
The appellant's notice of appeal contained 51 grounds and identified that the appellant sought six orders. It is doubtful whether the Court has power to make the orders the appellant seeks even if he is successful on the appeal. As to the grounds themselves, nearly all start with words to the effect that the Court erred in fact and law. There are other grounds which assert, either alone or with an assertion that there has been an error in fact and law, a denial of natural justice or procedural fairness. There are also allegations of actual bias. The grounds of appeal generally do not identify where in his Honour's judgment the asserted errors are said to have occurred. Many of the grounds do not actually make sense. Other grounds are confusing and overlap. The appellant's arguments, both orally and in writing, were themselves confusing and difficult to follow. In many cases, they did not appear to address a particular ground of appeal but were simply used as an opportunity to rerun arguments mounted in previous years.
As to written submissions generally on the appeal, the appellant filed three. The first was on 13 November 2012, the second was on 12 December 2012 and the third was on 11 January 2013. I have concentrated on the first, and most detailed set, for the purpose of considering this appeal, and where I refer to the appellant's written submissions it is those to which I am referring. Issues were raised in all written submissions which were not related to actual grounds of appeal. References, and what purported to be quotes from documents or legislation, were often inaccurate.
In those grounds in which a denial of natural justice or procedural fairness is asserted, in almost all cases the basis for the appellant's assertion appeared to be that the learned trial judge either made a finding the appellant did not like or failed to make a finding the appellant said should have been made. The appellant did not identify what it was otherwise that the learned trial judge was said to have done or not done which resulted in a denial of natural justice or procedural fairness. The making of a finding which is contrary to that which a litigant seeks at trial does not in itself amount to a denial of natural justice or procedural fairness. The failure to make a finding about a matter which is irrelevant to the issue a trial judge has to determine also does not amount to a denial of natural justice or procedural fairness even where the litigant may have led evidence about the issue. Given the above factors, unless a particular ground identifies an issue which may give rise to a legitimate assertion of there having been a denial of natural justice or procedural fairness, I will not deal with the issue when dealing with the ground.
At the commencement of the hearing, the appellant handed up a red folder entitled "Appellant's Condensed Exhibit List". It was not helpful. It had no index or any means of precisely identifying what the documents were. On examination, some appeared to be exhibits or parts of exhibits on the trial. Others were not, and the precise source of them was unclear. It contained extracts of transcripts from other trials. An example of the difficulty created by the book was the first document in the folder. It was a copy of a page from Certificate of Title Volume 2793 Folio 51 which had areas coloured in and information hand-printed on it. It was initially suggested it had been annexed to a defence the appellant had filed. Had it been such a document, it would not have been one the Court could have regard to unless it had been an actual exhibit on the trial. When he was queried about it, the appellant acknowledged that the document itself in an unmarked form had been before the judge at first instance, but not the coloured version. Efforts were made during the course of the appellant's submissions to identify the various documents in that folder, not always with success.
Nature of appeal
The Supreme Court Civil Procedure Act, s46, provides that every appeal to a Full Court shall be by way of rehearing.
Grounds of appeal generally
I propose to deal with some particular grounds of appeal out of order because, having read the particular grounds, and the appellant's written submissions in relation to them, it is clear that he misunderstands the interrelationship between the various decisions of the Court in relation to this matter since 2007, and at times misrepresents the effect of some of those decisions. The grounds to which I refer are 11, 12 and 13.
Grounds 11, 12 and 13
These grounds provided:
"(11) The Court erred in fact and law by failing to hold that Marsh Street was declared a public highway at Common Law by acceptance of user in the judgment Howlin v Brinkman[2007] TASSC 59 which finding was not overturned by the Full Court on Appeal;
(12) The Court erred in fact and law by failing to hold that the Respondent abandoned a defence to the declaration of dedication and acceptance by user in Howlin v Brinkman[2007] TASSC 59 in the subsequent action Howlin v Brinkman [2009] TASSC 18, then again abandoned a defence to that finding on Appeal in Clarence City Council v Howlin[2010] TASFC 10 and yet again made no pleading or bona fide defence to that finding in Clarence City Council v D R Howlin [2012 TASSC 26;
(13) The Court erred in fact and law by failing to hold that all the frontagers to Marsh Street and the CCC were formally served with notice and invited to join in the substantive action Howlin v Brinkman [2007] TASSC 59 and that the notified parties did not appeal that judgment; …".
As was plain from par[3] of the judgment at first instance, there have been a number of other proceedings involving the appellant, and, to an extent, the Council, related to the issues in this case. It may be considered unfortunate that those proceedings have taken the course they have. However, the course of history cannot now be changed, and the appellant is bound by that history. What the appellant has failed to appreciate throughout the long and sorry saga is that decisions of one single judge of this Court are not automatically binding on other single judges, decisions made by a single judge in proceedings as between two particular parties are not binding on others not parties to those proceedings, and a party to a set of proceedings cannot simply send a notice of those proceedings to a third party and invite them to join in, and then seek to have them bound by the decision when they do not join in.
It is necessary to indicate briefly the nature of each set of proceedings in this Court starting with the decision of Slicer J in Howlin v Brinckman [2007] TASSC 59 ("the first 2007 proceedings"). These were proceedings commenced by the appellant and his former wife. The respondent was a neighbour in Marsh Street, a Mrs Brinckman. Slicer J determined in those proceedings that, as between the appellant and his wife and Mrs Brinckman, Marsh Street was a public highway. In effect, the appellant and his former wife succeeded in those proceedings. Mrs Brinckman did not appeal that decision. That decision did not bind the Council.
Following that decision, Mr and Mrs Howlin sought an order that Mrs Brinckman pay their costs of the proceedings. They failed in that application, and that decision was published as Howlin v Brinckman (No 2) [2007] TASSC 100 ("the 2007 costs application"). Nobody appealed that decision.
Despite the fact that the Council was not a party to the action as between the appellant and his former wife and Mrs Brinckman, Mr and Mrs Howlin then initiated proceedings against the Council in which they sought an order that the Council pay their costs of the proceedings between them and Mrs Brinckman. That application was also heard by Slicer J, and he ordered in Howlin v Brinckman; Howlin v Clarence City Council [2009] TASSC 18 ("the 2009 costs proceedings") that the Council pay the costs as sought. The Council was quite obviously a party to those proceedings. Those proceedings did not involve a merits based review of the decision of Slicer J in the first 2007 proceedings.
The Council appealed that decision, that is, the decision by which it was ordered to pay costs. The Council's appeal was successful, and the decision in relation to that was published as Clarence City Council v Howlin [2010] TASFC 2. That appeal also did not involve any merits based review of the decision of Slicer J insofar as it related to his declaration that Marsh Street was a public highway. It was a challenge to his Honour's decision as to third party costs.
The decision in respect of the Council's appeal was published on 23 April 2010. The Council then applied for an order that the appellant and his former wife pay its costs of the appeal and of the proceedings before Slicer J (relating to the third party costs matter). For reasons which are not relevant, the hearing of that application was delayed, and was eventually set down for hearing on 13 October 2010. Two days before that hearing, the appellant and his former wife filed an application by which they sought to re-open the appeal for the purpose of presenting fresh evidence and further argument. That application to re-open the hearing of the appeal failed, and the appellant and his former wife were ordered to pay the costs sought by the Council. The reasons for that decision, published on 22 December 2010, are those published as Clarence City Council v Howlin [2010] TASFC 10. Those proceedings did not involve any merits based review of the decision of Slicer J in the first 2007 proceedings.
Ground 11 asserts a failure by Evans J to make a finding that Marsh Street was declared a public highway in the first 2007 proceedings, which decision was not overturned on appeal. With respect, his Honour had no need to make such a finding. He was not bound by the decision of Slicer J. Further, it is not correct to say that the decision in the first 2007 proceedings was not overturned on appeal, because there never was an appeal against that decision. That ground of appeal must fail.
Ground 12 must also fail. It implies that there were merits based reviews of the decision of Slicer J in the first 2007 proceedings in which the Council abandoned its position that Marsh Street was not a public highway. That was never the case. What counsel for the Council did say at one point is that, if the Court in proceedings in which the Council was involved made a declaration that Marsh Street was a public highway, it would abide by that decision. That is not an abandonment of any claim.
As to ground 13, it is a matter of fact that the Council was notified of the first 2007 proceedings and declined to take part, and that it took no step as a third party which might have been open to it to seek to review the decision made. Evans J did not have to make a finding to that effect, and it cannot be an error on his part if he did not make such a finding. That ground must fail.
Ground 1
This ground was as follows:
"The Court erred in fact and law by failing to hold that the 9 November 1944 dedication and acceptance of Marsh Street for the purpose of a minimum 50' frontage to a street was a valid and enforceable contract at common law and 'animus dedicandi'; …".
I have presumed that the reference to 9 November 1944 in this ground is a reference to the date of the meeting of Council at which it considered a tracing prepared by surveyor Mr Terry relating to a subdivision of land proposed by Thomas George Charles Brown. That tracing showed a proposed roadway, and the blocks of land fronting onto it as having frontages of 50 feet or slightly over. The Council wrote to Mr Terry after the meeting to the effect that his proposed tracing was approved at its meeting subject to Mr Brown constructing the road to the satisfaction of the Council. Those facts as such are not challenged by the appellant.
The appellant, as I understood this ground, asserted that those facts should have resulted in a finding that there was a dedication of the land identified as "Proposed Roadway" by Mr Brown because there was "a valid and enforceable contract at common law and animus dedicandi", and that, in failing to so find, the learned trial judge made an error.
His Honour's conclusion that there was no such dedication and acceptance was, in my view, unimpeachable. Any valid and enforceable contract which could have any relevance to this case could only have been one between Mr Brown and the Council. It is difficult to see how such a contract could have come into existence in November 1944 because Mr Brown did not then own part of the land which made up the proposed roadway, and, as a consequence, would have had no legal or other right to dedicate it for any purpose. The learned trial judge attached to his reasons as annexure B a copy of the survey diagram prepared by surveyor Mr Terry and lodged with the Recorder of Titles. On that, his Honour noted Lots A and B "to identify and distinguish between the two lots that make up the area of the proposed roadway." As the learned trial judge noted at par[8] of his reasons, Mr Brown did not become the owner of Lot B until July 1946.
The learned trial judge, at pars[9] - [12], considered the issue of the creation of a highway by dedication and acceptance. As he pointed out at par[10], both dedication by the owner of land for its use as a highway and use by the public of that land as a highway (that is acceptance) must occur to create a highway. At par[11], his Honour set out extracts from Halsbury's Laws of England, 2nd ed, Vol 16, 1935, current as at 1944, which set out the common law principles relating to the dedication of land as a highway. The extracts set out were as follows:
"11 It is convenient to go to the law as enunciated in Halsbury's Laws of England, 2nd ed, Vol 16, 1935 for relevant common law principles on the dedication of land as a highway. This edition of Halsbury was current in 1944. The following passages, with citations omitted, are taken from it:
'212 A "highway" is a way over which all members of the public are entitled to pass and repass; and, conversely, every piece of land which is subject to such public right of passage is a highway or part of a highway. ...
258 Land dedicated by a person legally competent to do so to the public for the purposes of passage becomes a highway when accepted for such purposes by the public; but whether in any particular case there has been a dedication and acceptance is a question of fact and not of law.
259 Dedication necessarily presupposes an intention to dedicate – there must be animus dedicandi. The intention may be openly expressed in words or writing, but, as a rule, it is a matter of inference; and it is for a Court or jury to say whether such intention is to be inferred from the evidence as to the acts and behaviour of the landowner when viewed in the light of all the surrounding circumstances.
260 Acceptance by the public requires no formal act of adoption by any persons or authority, but is to be inferred from public user of the way in question. Even if an express intention to dedicate is proved, it is necessary to prove also that the way has been in fact thrown open to the public and used by them.
The evidence from which Courts or juries are asked to infer both dedication and acceptance is, as a rule, open and unobstructed user by the public for a substantial time.
261 An intention to dedicate land as a highway can only be inferred against a person who was at the material time in a position to make an effective dedication – that is, as a rule, a person who is absolute owner in fee simple and sui juris. When, however, a primâ facie case is proved of an intention to dedicate, express or implied, it lies upon the defendant to show that the state of the title to the land is or was such as to render any such intention inoperative.
271 [T]here is no fixed minimum period [of user] which must be proved in order to justify an inference of dedication, and no fixed maximum period which compels such an inference'."
His Honour went on to say at par[12]:
"12 For the purposes of the issue before me, it is important to keep in mind that the conflicting declarations sought by the plaintiff and the defendant relate to whether Marsh Street is a highway. The law that governs the creation of highways is not the same law as that which governs private easements such as rights of way."
In his written submissions, the appellant referred to the survey plan (annexure B to the judgment at first instance) which largely reproduces Mr Terry's tracing. That survey plan contained a certificate by Mr Terry dated 23 February 1945 which provided as follows:
"… do hereby certify that this plan has been made from surveys executed by me or under my own personal supervision, inspection, and field check, and that both the plan and survey are correct, and have been made in accordance with the by-laws of the Surveyor's Board, dated 1st May 1913."
The appellant also referred to what he described as "By-Law Section 44 of By-Law No 2" which he quoted as saying:
"The Surveyor must measure whatever the applicant declares himself entitled to, but he must use his best discretion to ascertain whether such claims be just ones, and will be required to indicate on his plan any doubts, discrepancies, or difficulties, that may exist."
The appellant submitted by reference to the certification and the by-law that an inference could be drawn that by certifying the plan as he did, Mr Terry was confirming that Mr Brown had the legal capacity to dedicate all the land shown as the proposed roadway. He further submitted that the plan was registered on 26 September 1945. In fact, that was the date it was lodged with the Recorder of Titles.
With respect, the inference for which the appellant contended could not properly have been drawn in the face of documents which clearly showed that Mr Brown did not become the owner of all of the land until July 1946. There was no other evidence which might have supported a finding he had any sort of equitable interest prior to then. The reason why the learned trial judge did not make the finding for which the appellant contended by this ground of appeal was clear. Mr Brown could not, as at November 1944, have entered into a contract with the Council by which he dedicated the whole of the land which constituted the proposed roadway, because he was not then the owner of all of it. For the same reason, it would be difficult to draw any inference that he intended to dedicate it. As the extracts from Halsbury's make clear, for an inference to be drawn that a person intended to dedicate land as a highway, that person has to be in a position to make an effective dedication. As a rule that would require the person concerned to be the owner of the fee simple. This ground of appeal should fail.
Ground 2
This ground provided:
"The Court erred in fact and law by holding that the Public Health Act 1903 its amendments and the By-laws adopted by the Clarence Municipal Council (CMC) under the said Act, proclaimed only for the 'District of Clarence', were applicable to subdivision in Opossum Bay;..."
His Honour considered the impact of the Public Health Act 1903 and by-laws made pursuant to that Act at pars[25] - [33] of his decision. He said at par[26]:
"…at all relevant times Opossum Bay has been within the Municipality of Clarence and its successor, the Clarence City Council."
As I understood the issue raised by this ground, it was that by-laws made by what was then the Municipal Council of the Municipality of Clarence under the Public Health Act 1903 which were gazetted in May 1913 (referred to by his Honour as the "Public Health By-laws 1913") applied only to the "District of Clarence" which did not cover the area in which Marsh Street was.
The appellant's written submissions in relation to this ground were not logical and contained incorrect references to legislation. For example at point (v) of his submissions the appellant said:
"If the Public Health Act 1903 CMC by-laws were applicable to Opossum Bay in circa 1944 Amendment 26 Geo. V. No.48 dated 1 November 1938 would have applied and building approval could have only been granted if there was '…such access to a public street as in the opinion of the local authority is sufficient in the circumstances of the particular case'."
The amending Act to which the appellant referred was in fact passed in 1938 in the reign of King George VI, and not King George V. It amended the Public Health Act 1935 in a very limited way. The amendment did not provide as asserted by the appellant. What it did was add a proviso to the then existing s122 in the following terms:
"Provided that the Minister, on the request in writing of a local authority, may grant permission for the building of a dwelling house in a sparsely settled bush area if the same has such access to a public street as in the opinion of the local authority is sufficient in the circumstances of the particular case."
At point (vi) of his submissions as to this ground, the appellant referred to an amendment to the Acts Interpretation Act 1931 brought about by the Local Government (Consequential Amendments) Act 1962 which was said to have resulted in an amended definition of the term "local authority". The appellant set out the new definition which came into force, it appeared, early in 1963. This ground of appeal dealt with by-laws made under the Public Health Act 1903. The appellant did not explain how this submission was relevant to the ground of appeal. I am unable to see how it can have any relevance given his Honour's finding was to the effect that the by-laws would have ceased to have any force in any event when the Public Health Act 1935 was repealed by the Public Health Act 1962.
As his Honour said at par[25] of his reasons, the Public Health Act 1903, s164, provided that "every Local Authority" could make by-laws with respect to the level, width and construction of new streets. "Local Authority" was defined to mean:
"the Municipal Council of every City, and every Rural Municipality, and the Board of every Town which has been proclaimed or shall hereafter be proclaimed a Town, under and for the purposes of the 'Town Boards Act, 1896,' and also every Local Board appointed under the provisions of any Act hereby repealed, or any Local Authority hereafter appointed under the provisions of this Act."
The relevant gazette entry commenced at page 7 of what was exhibit D2 on the trial. The entry was headed "BY-LAWS UNDER PUBLIC HEALTH ACT". The preamble to the entry was in the following terms:
"The Local Authority in and for the District of Clarence, in the State of Tasmania, by virtue of the powers contained in 'Public Health Act 1903,' and every other power enabling the said Local Authority in this behalf, and for the purpose of carrying the said Act into execution within the jurisdiction of the said Local Authority, doth hereby make the following by-laws;"
"District" was defined in the by-laws to mean "the town or other district under the jurisdiction of the Local Authority".
The Local Authority at the relevant time was the Municipal Council of the Municipality of Clarence. Nothing has been put to the Court by the appellant which demonstrates that Opossum Bay was not an area for which that Council was responsible. This ground of appeal must fail.
Grounds 3 and 4
These grounds may conveniently be dealt with together and provided as follows:
"(3) The Court erred in fact and law by holding that TG Brown did not proceed in compliance with the CMC 9 November 1944 subdivision approval over Marsh Street;
(4) The Court erred in fact and law by holding that T G Brown proceeded to subdivide his land by rights of carriageway under the Real Property Act 1886 to avoid the statutory requirements of street width and construction standards defined in pars 53-55 of the Public Health Act 1903;..."
Both of these grounds were challenges to factual findings. There was nothing which would indicate they asserted any legal error.
At pars[38] - [57] under the heading "The period from 21 March 1946 to 23 September 1947", the learned trial judge dealt with various events and pieces of legislation, and canvassed evidence of surveyors at the trial as to the meaning of the words "Proposed Roadway" on Mr Terry's plan. He said at par[45]:
"45 The evidence satisfies me that Mr Brown took no steps to construct a new street on the area of land marked 'Proposed Roadway', whether in conformity with the Council's advice that its approval of his subdivision proposal was subject to him 'constructing the road to the satisfaction of the Council' or otherwise. The defendant submits that, as the subdivision proceeded, I should infer that the road had been constructed to the Council's satisfaction. I am unable to do so. The evidence establishes that it had not and has not been developed beyond the state of track created by usage that has from time-to-time been potholed and gravelled. Moreover, to infer that the road had been constructed would fly in the face of the soundly-based contrary inference that in order to avoid constructing the road, Mr Brown proceeded with his subdivision by granting rights of way, rather than constructing the road and dedicating it as a highway. As a matter of practice it was open to Mr Brown to avoid the burden of constructing a new street or roadway by granting those who purchased lots in his subdivision rights of carriageway over the proposed roadway, and this is what he did."
His Honour then summarised the various dealings by Mr Brown with the lots in the subdivision and noted that by the way in which each lot had been dealt with, Mr Brown had confirmed his intention to provide purchasers with rights of way rather than dedicate land as a public highway.
His Honour then said at par[57]:
"57 The significance of the foregoing is what it says about the intention of those who owned Lots A and B of the proposed roadway. From and including Mr Brown's execution of the first transfer of a lot in his subdivision on 20 September 1945, no owner of either or both of Lot A or Lot B of the proposed roadway has manifested an intention to dedicate it as a highway. The foregoing also negatives the presumption of dedication that arises from long use of land as a road."
His Honour makes no specific reference, in the section of his judgment to which I have referred, to the effect, as asserted by the appellant in ground 4, that Mr Brown acted as he did to avoid the statutory requirements "in pars 53-55 of the Public Health Act 1903."
The appellant submitted that the evidence was that the Council approved Mr Brown's subdivision. The evidence was that the Council approved a tracing by a surveyor of a subdivision subject to Mr Brown constructing a road to the satisfaction of the Council. The evidence canvassed by his Honour was to the effect there was no evidence any road was constructed to the satisfaction of the Council, and that the condition of the road over the years would suggest it was not.
The appellant further submitted that purchasers of lots fronting onto what was known as Marsh Street had been granted permission to build on their blocks under regulations made in 1938 under the Building Act 1937. Regulation 16 of those regulations provided that no person could build on an allotment unless it had a clear frontage "upon a street". The appellant contended that frontage was 50 feet. That width was defined by reference to whether the allotment was in a central area, an inner area or an outer area. There were no definitions of those terms to assist in determining which of the categories applied to Opossum Bay. The appellant chose the outer area. The difference, if it were relevant, is between 30 and 50 feet. The street itself had to be at least 30 feet wide or such lesser width as the Council might approve.
The appellant contended that the effect of these regulations and the 1938 amendments to the Public Health Act 1935, to which I referred in par[45], was that, if a person could not provide a frontage to a public street, building approval would not be granted absent the Council seeking express permission from the Minister.
With respect, the submissions made by the appellant in relation to these grounds do not address the issues raised. The challenges covered by grounds 3 and 4 are to findings of fact made by his Honour about the activities of Mr Brown. The fact that building approvals may have been given to property owners which do not appear, on their face, to comply with applicable requirements for road frontage widths, did not assist the appellant in challenging the particular findings of fact. His Honour, as I have indicated, canvassed the dealings with the lots in the subdivision and it was apparent that Mr Brown had granted purchasers rights of carriageway. The findings of his Honour were open on the evidence before him and these grounds must fail.
Grounds 5 to 8
These grounds may also be conveniently dealt with together because they relate to easements. The grounds provided:
"(5) The Court erred in fact and law by disregarding Common Law Principle and holding that easements over Marsh Street were validly created over contiguous fee simple titles to Marsh Street (Lot A and Lot B) when at the time of registration both titles to Marsh Street were owned by T G Brown in 'unity of seisin';
(6) The Court erred in fact and law by failing to hold that none of the easements held to be benefitting easements for the frontagers to Marsh Street, over the Appellants fee simple, are registered on the title to 'Lot A' excepting a benefitting easement for the fee simple owners of Marsh Street 'Lot B';
(7) The Court erred in fact and law by failing to hold that when the 'Lot A' and 'Lot B' titles to Marsh Street came into 'disunity of seisin' the purported rights of carriageway over 'Lot A' and 'Lot B' were not validly created;
(8) The Court erred in fact and law by failing to hold that under the provisions of s138L(d) of the Land Titles Act 1980 prescriptive easements cannot be vested to frontagers to Marsh Street over the Appellants 'Lot A' fee simple title when at the relevant time there has been 'unity of seisin' of the dominant and servient tenements; …".
Because the appellant did not identify precisely where the findings were in his Honour's judgment which were being challenged by these grounds, it was difficult to understand precisely what it was the appellant alleged were erroneous findings. Dealing with ground 5, firstly I was unable to find anywhere in his Honour's judgment where he held that "easements over Marsh Street were validly created over contiguous fee simple titles Marsh Street (Lot A and Lot B)". At par[38] of his reasons, his Honour said the following:
"38 Arguably Mr Brown had the capacity to dedicate the proposed roadway as a highway by 21 March 1946, the date of the transfer of Lot A to him. He unquestionably had that capacity by 8 July 1946, when the title to that lot was issued to him and in result, he was the registered proprietor of both Lot A and Lot B. The defendant submits that: 'As a consequence of this unity of seisin rights of carriageway over the proposed roadway reservation could not be lawfully created'. I reject this submission. That Mr Brown owned both Lots A and B did not mean that he could not lawfully create rights of carriageway or rights of way over either or both of them in favour of those who purchased lots in his subdivision. I mention that the dominant tenement and the servient tenement need not be contiguous; Todrick v Western National Omnibus Company Ltd [1934] 1 Ch 561. Insofar as the defendant may be contending that such rights as were created have since been extinguished by unity of seisin in consequence of the same person owning both the dominant and servient tenements, I note that this contention finds no support in relation to registered land. See the Real Property Act 1886, s27H(1), which was inserted by number 73 of 1962, the Land Titles Act 1980, s109(1), Re Standard and the Conveyancing Act, 1919(1970) 92 WN (NSW) 953; Australian Hi-fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618 at 627, and Margil Pty Ltd v Stegul Pastoral Pty Ltd [1984] 2 NSWLR 1 at 10 and 11. Moreover, the importance of Mr Brown's actions in taking steps to grant rights of way or rights of carriageway over the proposed roadway is not so much the lawful effect of his actions, but that they show he did not intend to dedicate the proposed roadway as a highway. In the context of the defendant's submissions with regard to unity of seisin he placed some reliance on the Conveyancing and Law of Property Act 1884, s9A. It does not assist him."
There was no finding in those remarks as asserted by the appellant.
Secondly, in relation to ground 5, I was unclear as to precisely what the appellant's complaint was. The appellant referred in his written submissions to a report by the Tasmanian Law Reform Institute entitled "Law of Easements". The appellant summarised from that what he said were the essential characteristics of easements at common law. He then submitted that, because "at the relevant time" the titles to Lot A and Lot B (making up Marsh Street) were both owned by Mr Brown, Mr Brown could not create an easement over Lot A as a servient tenement in favour of Lot B as the dominant tenement.
His Honour dealt at some length in his judgment with the various rights of carriageway which had been granted by Mr Brown over Lots A and B to benefit other lots he sold. The evidence his Honour dealt with also included, at pars[51] - [56], a summary of dealings with Lots A and B themselves. The material was summarised for the purpose of demonstrating that the granting of the various rights of carriageway was inconsistent with Mr Brown having any intention to dedicate the land marked as a proposed roadway as a road. The legal implications of what he did were really not particularly relevant. It was the fact of what he did, and the inference to be drawn from that, which was.
The fact that Lots A and B were at some point owned by the one person was no impediment to that person granting rights of carriageway over either or both of those lots to benefit other nearby lots. The points in the appellant's written submissions appeared to relate to the proposition that when Mr Brown became the owner of both Lots A and B, there could not be a right of carriageway over one of those lots to benefit the other. Even if that were so, with respect, it has no impact on the legal status of Marsh Street and the conclusion the learned trial judge drew, in part based on the fact that Mr Brown granted rights of carriageway to benefit owners of land other than Lots A and B, that Mr Brown had no intention to dedicate the land shown as Lots A and B as a highway. Ground 5 must fail.
As to ground 6, this seemed to be a challenge to the effect that his Honour failed to make a particular finding of fact as set out in the ground of appeal. Firstly, it should be noted that there was no reason why his Honour needed to make the particular finding of fact. This was particularly so in the context of his summary of the evidence which, in itself, was not challenged, and the reason why he was dealing with the facts surrounding the granting of rights of carriageway in the first place. I have already identified that in par[62]. His Honour's summary of the evidence relating to the various rights of carriageway granted by Mr Brown did include reference to whether the easements were granted over Lot A and/or Lot B or something else. For example, at par[50], his Honour referred to the transfers of lots 2, 3, 4, 5 and 9 and recorded that the purchasers of those lots received the benefit of a right of carriageway over all the "Proposed Roadway" as opposed to areas described as Lots A or B. Further, at par[53], his Honour recorded the dealings relating to Lot A.
The exhibits which supported the findings in par[53] were exhibits P3, P28 and P29. Exhibit P3 was a copy of Certificate of Title Volume 497 Folio 33 which was the title to Lot A. It had recorded on it an easement for the benefit of the land in Certificate of Title Volume 700 Folio 60. That was the title to the land transferred by Victor Wheeler to Geoffrey Edward Calvert which included Lot B and other surrounding land, some of which also fronted onto what became Marsh Street. Even therefore if the finding the appellant contended should have been made was a relevant finding, it was not one supported by the evidence. Ground 6 should therefore fail.
As to ground 7, for the same reasons I have already articulated in relation to ground 5, this ground should fail.
As to ground 8, the issue of prescriptive easements was not a matter raised on the pleadings, nor a matter relevant to the issue the learned trial judge had to determine. It was not therefore a matter in respect of which his Honour was required to make any finding. To fail to do so was not an error. Ground 8 should therefore also fail.
Ground 9
This ground provided:
"The Court erred in fact and law, denied natural justice and demonstrated bias by declaring that under the provisions of the Real Property Act 1886 that a right of carriageway created under the said Act be 'distinguished by a green line' on a diagram but failed to declare that the green lines drawn on the roadway reservation were granted by T G Brown but confined to the 'Lot B' part of the roadway which remained in the balance Lot owned by T G Brown; ...".
The first point to be made about this ground is that, as I said earlier, findings to the effect that there had been a denial of natural justice or that bias had been demonstrated do not automatically flow where a judge makes a finding or findings which are adverse to those for which a litigant contends. That seemed to be the sole basis for the contention made in this ground that there was a denial of natural justice and a demonstration of bias. No argument at all was addressed to matters which might support findings as to these matters. Consideration of this ground of appeal will therefore be confined to the assertion that his Honour erred in fact or in law in the manner identified.
The second aspect of the ground was that the appellant, as indeed was the case for almost all of the grounds of appeal, failed to identify the impugned finding or where and in what context a failure to make a particular finding occurred. The first part of the ground suggested his Honour declared that:
"… under the provisions of the Real Property Act 1886 that a right of carriageway created under the said Act be 'distinguished by a green line' on a diagram."
At par[41] of his judgment, his Honour set out material from the Real Property Act 1986. In s27 and Form II, as reproduced, there was reference to roads being distinguished by a green line. At par[43] his Honour repeated in summary form the references to a green line and then said:
"With regard to the link between these provisions, and the practice of those involved with the creation of rights of carriageway and rights of way, it is noteworthy that green lines were used to distinguish the proposed roadway in at least six of the transactions by which Mr Brown sold lots in his subdivision. As to this see [50] to [51] below."
The use of green lines in certain transfers was also referred to in the summary of dealings which appeared at pars[50] – [52] of his Honour's reasons. Apart from those references, I have been unable to find anywhere in his Honour's judgment a declaration to the effect asserted by the appellant.
The second part of the ground appeared to be an assertion that his Honour, having made the declaration that I have been unable to find:
"…failed to declare that the green lines drawn on the roadway reservation were granted by T G Brown but confined to the 'Lot B' part of the roadway which remained in the balance Lot owned by T G Brown."
This part of the ground made little sense. It appeared to be predicated upon an assumption that, as a matter of fact, Mr Brown granted rights of carriageway only over what was described as Lot B. That was not correct as can be seen from the summary of evidence in par[50] of his Honour's judgment. An example was the summary relating to lot 5. There was no challenge to the correctness of that summary and it accorded with the evidence disclosed in the relevant exhibits.
This ground should fail.
Ground 10
This ground provided:
"The Court erred in fact and law and denied natural justice by failing to hold that the practices and procedures of conveyancing clerks and the advice of CMC in the era under Common Law principle was to retain ownership of fee simple roadway in the balance land and to create rights of carriageway over the roadway to ensure access to the balance Lot and adjoining land for further or future subdivision purposes; …"
My earlier comments about an assertion that natural justice has been denied are apposite to this ground. As to the assertion that there was an error of fact and law in failing to make a certain finding as sought, there was evidence before his Honour as to the practice of surveyors and conveyancing clerks which his Honour clearly accepted to make the findings he did about practice. The only basis put forward otherwise by the appellant to support the asserted failure was a reference to a letter written by a Council officer which was exhibit D95. That letter was written in respect of a subdivision proposal put to the Council in 1965 which was entirely unrelated to the area with which this case dealt. There was no evidence that somehow the advice in that letter represented "Common law principle" or even that it was a policy which was applied across the board by the Council and had been so applied at the time the Brown subdivision was dealt with. It was irrelevant. The ground is not made out and should fail.
Ground 14
This ground provided:
"The Court erred in fact and law by following Narracan v Leviston (1906) and failing to take into account or make mention that the Local Government Act 1874 in the State of Victoria, unlike Tasmania, required the addition of a divesting intention to comply with the requisites of an effective animus dedicandi; …"
When his Honour referred to the case of President of the Shire of Narracan v Leviston (1906) 3 CLR 846, he did so to provide an illustration of the rebuttal of the presumption of a dedication that might arise from long use. He said at pars[58] – [59]:
"58 An illustration of the rebuttal of the presumption of a dedication that arises from long use is the decision in President of the Shire of Narracan v Leviston [1906] HCA 34; (1906) 3 CLR 846. In that case the owner of land allowed a track to be raised over it, the cost of which was paid by neighbours. The municipality arranged for the track to be surveyed and from time-to-time, it cleared, made and repaired the road at its own cost. The road appeared in maps of the municipality. For upwards of 20 years the road was used by the public as a highway. The High Court held that the road had not been dedicated as a highway because, from its inception, the owner had acquiesced to its use by the public on the basis of an implied agreement with the municipality that he would permit the public to use it pending the municipality's proclamation of the road as a public road, whereupon he would be compensated. In the course of his judgment Griffith CJ, at 857 – 859, referred to the decision in Barraclough v Johnson 8 A & E 99. At 858 he quoted a passage from the judgment of Lord Denman CJ in that case which included the following:
'A dedication must be made with intention to dedicate. The mere acting so as to lead persons into the supposition that the way is dedicated does not amount to a dedication, if there be an agreement which explains the transaction ...'.
At 859 Griffith CJ concluded:
'The doctrine, therefore, that dedication may be presumed from continuous user must be qualified by adding the words "if unexplained," and it is always permissible, as pointed out [in Barraclough v Johnson] ... , to inquire under what circumstances the piece of land came to be used as a road. Was it under such circumstances as showed an intention to dedicate? Or was it under such circumstances as to negative such an intention? Or was it under such circumstances as not to point in one direction rather than the other?'
59 A more recent authority that touches on this issue is Newington v Windeyer (1985) 3 NSWLR 555. In that case at 558 – 559, McHugh JA, agreed with by Kirby P and Hope JA said the following, from which the citations have been omitted:
'At common law the making of a public road required the fulfilment of two conditions: an intention to dedicate the land as a public road and an acceptance by the public of the proffered dedication. The dedication could be made expressly or be inferred from the conduct of the owner. The lodging of a plan of subdivision in a Land Titles Office, showing a road as an open street and giving access to subdivided lots, is evidence from which an inference of dedication as a public road can be drawn. When a road is left in a subdivision and runs into a public road system, the inference usually to be drawn is that it was dedicated as a public road unless access to the road is prevented by fencing or other action. In an appropriate case, the contents of leases, plans of subdivision, and maps, although not public documents, may, nevertheless, allow an inference of dedication to be drawn. Dedication to the public may also be presumed from uninterrupted user of the road by the public. But care must be taken to distinguish evidence of user, from which dedication can properly be inferred, from mere evidence of continual use even for a very long period. At common law, continual trespassing could not create a public road. The evidence must raise the inference that, at some point of time, the owner dedicated the road to the public.'"
Narracan was an appeal from a decision of the Supreme Court of Victoria and considered a factual scenario against a backdrop of some provisions in Victorian legislation which were not the same as in Tasmania. The appellant's written submissions as to this ground were:
"(i) unlike the Local Government Act 1906 and its amendments in force at the relevant time in Tasmania the Local Government Act 1874 which was in force in Vitoria at the time of the HCA decision in Narracan v Leviston 1906 had a statutory vesting provision incorporated in the Act which required the addition of that divesting intention to the requisites of an effective animus dedicandi;
(ii) The merit of the decision in Narracan v Leviston 1906 is comprehensively dealt with by the NZ Privy Council (see Man O' War Station Ltd v Auckland City Council (2003) Part 7 Case 12 at 47 & 56)."
This ground of appeal must fail. The comments of Griffiths CJ in Narracan were an analysis of common law principles and were unaffected by the particular statutory provision in Victoria. There was no reason not to use the analysis in the manner in which the learned trial judge did. The decision in Man O' War Station Ltd v Auckland City Council (Judgment No 2) [2002] 3 NZLR 584 did not, in any way, detract from the analysis in Narracan. It referred to and commented upon the analysis and the position taken by the High Court. However, it did not make any binding finding to the effect that the Narracan decision was wrong.
Ground 15
This ground provided:
"The Court erred in fact and law by failing to hold that at Common Law the dedication of land as a public highway creates a public right of passage but does not divest the landowner of the private ownership of the title to the underlying soil or prevent animus dedicandi;…"
I have been unable to establish the relevance of the finding it was asserted his Honour failed to make to the case presented to him. The written submissions of the appellant did not clarify the issue at all. In the absence of any clear and concise argument which might persuade the Court a relevant error has occurred, this ground must fail.
Ground 16
This ground provided:
"The Court erred in fact and law by failing to hold the common law principle on the evidence that where an easement increases markedly beyond that for which it was intended easements may be extinguished; …"
A reading of this ground in isolation did not, with respect, make clear just what the asserted error was. I inferred from the appellant's written submissions however that what he was asserting was that there was "markedly" increased usage over Marsh Street and therefore a principle, he asserted was established by common law, meant any easement which may have been granted might have been extinguished.
With respect, even had his Honour accepted that such a common law principle existed as identified, he would then need to have made factual findings and applied the principle to them. Such findings were not necessary to determine the issues on this case, and it can therefore not be said to be an error that his Honour failed to "hold" as asserted by the appellant. This ground must fail.
Ground 17
This ground provided:
"The Court erred in fact and law by holding that the purported creation of rights of carriageway easements over Marsh Street is an impediment to the Common Law doctrine of implied dedication; …"
The issue of whether the creation by a landowner of rights of carriageway could be relied on as an indication that that landowner had no intention to dedicate the land over which the rights of carriageway were granted has already been dealt with. The appellant's written submissions in relation to this ground referred to subdivisions unconnected with that being considered in this case, and referred the Court to certain exhibits and a transcript of the evidence of surveyor Mr Medbury. I have looked at the exhibits and read the transcript. They appeared to be relied on to show that in other situations on other dates, different things have happened to certain titles. With respect, the written submissions and the material referred to did not assist the appellant with this ground, and it should fail.
Ground 18
This ground provided:
"The Court erred in fact and law and denied natural justice by failing to hold or make mention of an electronic map (exhibit D610) produced by the Appellant from records of the Clarence City Council (CCC) and dated 14 November 2001 denotes Marsh Street as a road maintainable by CCC and that maps produced subsequent to this map on the same CCC electronic data base have since been changed; …"
I repeat and rely upon my earlier comments about assertions of a denial of natural justice. They are apposite here. The appellant's written submissions in relation to this ground were as follows:
"(i) The evidence is that an electronic copy of a map dated 14 November 2001 downloaded from the CCC electronic data base for the purpose of preparing and certifying a 337 certificate for 37 Spitfram Road denotes both Spitfarm Road and Marsh Street as highways maintainable by Council. The evidence is that the markings on the map are different to that on maps subsequently produced by Council (see AEL V2 D610).
(ii) The evidence is that within 3 days of the CCC being advised of the pending issue of a subpoena to produce in the matter of Howlin v Brinkman [2007] TASSC 59 (see AEL V2 D164) the electronic records held by CCC pertaining to Marsh Street and Spitfarm Road were amended (see SAB V1 pages 34 &37);
(iii) The evidence is that between 19 August 2010 and 28 May 2012 the CCC deleted Marsh Street from its electronic 'CCC Roads Maintained Map – Legend' (sss AB V1 pages 202 & 203); …".
The document which was exhibit D610 was a copy of an undated document. It was admitted into evidence during the examination-in-chief of Mr Rumbold, a client services manager for the Council. He had been subpoenaed by the appellant to give evidence. He identified the document as a Council document produced from the Council's GIS database dated 14 November 2001. It showed Spitfarm Road and Marsh Street, both with lines down the centre of them. Lot 37 on the plan which was on Spitfarm Road had lines across it. There was nothing on the document to the effect that Spitfarm Road and Marsh Street were highways maintainable by Council, and Mr Rumbold did not give evidence to that effect.
The appellant did not identify where else in the evidence before the learned trial judge there was any evidence as he asserted existed in point (i) of his written submissions. In his submissions, counsel for the Council identified evidence given by Mr Van Der Hek, the appellant and Mr Wicks about the database referred to by Mr Rumbold. I have reviewed the evidence referred to. It did not support the appellant's contentions.
In support of his contention numbered (ii) in respect of this ground, the appellant referred to pages 34 and 37 of his supplementary appeal book. His submission was that those documents showed that electronic records held by the Council relating to Marsh Street and Spitfarm Road were "amended" (I infer to his disadvantage and that is the basis upon which I have dealt with the ground). Both documents appeared to be documents which were numbered SW5 and SW8 referred to in the witness statement of Mr Wicks dated 4 July 2011 which was exhibit P102/1. At par2.13 of his witness statement, Mr Wicks dealt with those documents. He described a system called "Maximo" operated by the Council. He said:
"Maximo is an asset management database which was introduced in 1998. Maximo can deliver a wide range of information about any item of equipment including a road or a length of road (Geo Segment). Attachments SW5 and SW6 are extracts relating to Marsh Street which simply show its length and that it is privately owned. By way of comparison, attachments SW7 and SW8 are the same extracts relating to the segment of Spitfarm Road where it joins with Marsh Street."
On SW5, there was an entry which recorded that the system was modified by A Brown at 11.52 on 5 March 2007. There was nothing at all to indicate what on that record was modified. It did not support the appellant's contention, and he has not identified any portion of the evidence before the learned trial judge which might have done so. I comment in passing that computer records will generally show they were "modified" if anyone accesses the records for any reason and not necessarily to change them.
As to SW8, there was nothing on the face of that document to indicate it had been amended at all, let alone on an unspecified date in 2007. The appellant has not identified any portion of the evidence before the learned trial judge which might suggest this record has been altered, and, if so, in what way.
As to the documents which appeared at pages 202 and 203 of Appeal Book Volume 1, they did not support the appellant's contention that, between dates in 2010 and 2012, the Council deleted Marsh Street from its electronic "CCC Roads Maintenance Map – Legend".
His Honour dealt with the issue of the Councils' electronic systems. He said at pars[118] – [122]:
"118 From about 1989, the Council developed two electronic databases known as Latitude and Maximo which record various information in relation to roads and streets in the municipality. Layer 64 of Latitude has replaced the hard copies of the municipal maps of roads maintained by the Council to which I have referred. Within layer 64, the roads maintained by Council are shown marked with a heavy pink line. The information recorded on this layer in relation to Marsh Street is the same as that which appears on map 39 in the 1980 edition and the 1991 edition. Whilst the roads in the immediate vicinity of Marsh Street are marked with a heavy line, in this case a heavy pink line, Marsh Street is not so marked, although, as in the former maps, it appears. The information recorded on Maximo referrable to roads and streets includes whether a street is privately owned or not. Maximo records that Marsh Street is privately owned.
119 I find that Marsh Street is not and never has been recorded on a municipal map as a highway repairable by the Council (the 1962 Act, s694(1)(a)), or as a highway maintainable by the Council (the 1993 Act, s208(1)(a)). Accordingly, I find that Marsh Street is not and never has been a local highway maintainable by the Council as shown on its municipal map for the purposes of the Local Government (Highways) Act 1982, s21.
120 As is to be expected, Marsh Street appears on other maps kept by the Council. An example is a map referred to in the card index as 'Rural Roads' numbered 910/4. There is no suggestion in the index or the map itself that it is or was a municipal map, let alone a map depicting any of the matters detailed in pars(a), (b), (c), or (d) in the 1962 Act, s694(1), or the 1993 Act, s208(1). I make similar comments in relation to maps reproduced in the defendant's court book, Volume 3, at 777, 779, 786, 796 and 797. Moreover, whilst it is clear that some of these maps, for example, 796 and 797, were maps of the Council, it is not clear that others were in fact kept by the Council. My understanding is that the other maps were obtained from the Public Works Department or the Department of Main Roads.
121 The defendant sought to derive assistance from Council maps on layer 19 of Latitude. These maps identify roads to which the public has access and distinguish between State roads, Council roads and private roads. Marsh Street appears on these maps as a Council road. Layer 19 maps do not assist the defendant as they patently are not municipal maps maintained for the purposes of the Local Government Act 1993, s208(1)(a)(b)(c) or (d).
122 In his written and oral submissions, and in the course of questioning witnesses, the defendant has, in substance, asserted that officers of the Council have deliberately failed to disclose maps and other documents that record that Marsh Street is a road maintainable by the Council and have altered records that were to that effect. I reject these assertions. I am in no doubt that the reason why no municipal map has been produced that records Marsh Street as a road maintainable by the Council is that no such map is or has existed."
The appellant's submissions have misrepresented the evidence which was led before the learned trial judge as to the maps maintained by the Council generally, and as to the particular document to which this ground of appeal related. The evidence did not support his contentions and no error has been made out. The ground of appeal must fail.
Ground 19
This ground provided:
"The Court erred in fact and law and denied natural justice by refusing to take into evidence an electronic CCC colour coded map denoted 'Roads Maintained Map- Legend' dated 19/8/2010 depicting Marsh Street as a road maintained by Council; …"
This ground overlapped with ground 18. The appellant in his written submissions relied on a number of documents which it appeared were marked for identification and did not become evidence on the trial. He did not otherwise identify in the evidence where it was that there was evidence to support his contention.
Counsel for the Council provided an explanation which assisted with an understanding of the ground. The explanation was supported by the material in the supplementary appeal book prepared on behalf of the Council ("SAB") for the purpose of the appeal hearing. On Wednesday 23 May 2012, some time after the hearing of this action was completed, but prior to the decision being published, the appellant sent an email to Mr Wicks at the Council. He copied that email to the associate for the learned trial judge. The proceedings were listed before the learned trial judge for the purpose of his publishing his reasons in this action at 10am on Monday 28 May (I infer this is the reason for the use of this date in submission (iii) in respect of ground 18). Before publishing his reasons, the learned trial judge dealt with the email. The appellant informed the Court that he had received a document anonymously the previous Tuesday. He said the document was a complete map of the whole of the municipality showing roads maintained by Clarence Council and roads maintained by the State. He did not however have the document with him at Court. Mr Wicks was present at Court. He was unable to explain, from the appellant's description of the document he said he had received, what it might be. The matter was stood down until later in the afternoon to allow the appellant to get the document he received and take it to Mr Wicks to enable him to examine it.
When the matter resumed before his Honour, counsel for the Council provided an explanation. It was in the following terms. On 19 August 2010, at 11.23am, Mr Wicks sent an email to the appellant. In that email he said:
"Coincidentally I understand that Mrs Howlin may have visited Council offices yesterday and asked for a copy of Council's statutory register showing roads maintainable by Council. If that was the case I also understand from speaking with the Council officer who dealt with the enquiry that Mrs Howlin was not provided with the correct information from our records. I understand Mrs Howlin may have been given an extract from Council's GIS database of a part ('layer') known as Geo Segments. This layer shows, marked with a blue line every road in Clarence node to node and, I understand, is generally used for calculating lengths of road segments.
The municipal map which Council is required to keep pursuant to section21(1) of the Local Government (Highways) Act is also kept within the same GIS database but in a 'different' layer. Attached are extracts from that map which show the map legend and specific detail on Opossum Bay. Roads maintained by Council are shown marked with a dark line on the attachment. On the electronic map that line is coloured pink. I shall send colour copies to you by mail."
Counsel said that, attached to that email, were three pages of extracts. The first was entitled "CCC Roads Maintained Map – Legend". The second was entitled "Opossum Bay Roads Maintained – 1" and the third, "Opossum Bay Roads Maintained - 2". Counsel for the Council produced copies of the email and maps. The maps showed the time at which they had been printed which was 10.30am, 19 August 2010. Mr Wicks said he then posted colour copies of the same material to the appellant.
The document which the appellant claimed he had just received anonymously was the first of those extracts Mr Wicks said he sent by email. The appellant submitted that it showed that Marsh Street was marked as a road. The appellant was asked a number of questions about the document he said he had just received anonymously, and the email and letter which Mr Wicks sent in 2010. There could be no doubt that the appellant received the email and the letter and part of the attachments. His explanation for his suggestion that he did not receive this particular document was confusing and not wholly believable. However, his Honour did not see the need to make any finding as to that. He said by way of a ruling late on the afternoon of 28 May:
"… I have treated Mr Howlin's reference to the map in contention to the Court as an application to re-open the evidence. Mr Howlin has explained that the map in contention was received by him from an anonymous source on Tuesday last week, which I believe to be the 22nd May. On the submission put before me the map in contention, which is MFI-2, is a copy of the first of three maps in MFI-1. An expanded copy of it, or enlarged is a better term, an enlarged copy of it is MFI-4. Nothing in the map in contention, particularly when coupled with the two further maps in MFI-1, to which it relates, satisfy me that this map assists the defendant. Accepting that it is part of layer 64 the map in contention does not itself show Marsh Street to be a road maintained by council and the accompanying two maps plainly show that Marsh Street is not a road maintained by council. I will accordingly not reopen the evidence to go further in this matter."
His Honour subsequently published his reasons for decision which are now the subject of appeal. The material referred to by the appellant in his submissions, and upon which he relied in respect of this ground, were all the items marked for identification only during the hearing of the matter on 28 May 2012 and included the transcript with the ruling set out above.
I am not satisfied that the appellant has demonstrated the learned trial judge made any error. From the documents identified, and the transcript of the argument heard on 28 May, it was apparent his Honour dealt appropriately with the issue of electronic maps in his judgment. This ground should fail.
Grounds 20, 21, 22 and 23
All of these grounds related to provisions of the Building Act 1937 and it is appropriate in the circumstances that they be dealt with together. They provided:
"(20) The Court erred in fact and law by failing to hold the statutory interpretation of 'Roadway' and 'Way' in the Building Act 1937, the interpretation of 'Right of Way' in the Local Government Act 1906 and denied natural justice by failing to adopt or refer to the true and natural meaning of 'Roadway';
(21) The Court erred in fact and law by failing to hold that the whole of the Municipality of Clarence was declared a 'Building Area' under the Building Act 1937 and that by resolution dated 9 April 1941 CMC adopted By-laws made under the Act on 22 December 1938 which contained regulatory powers for subdivision plans and streets under s7, s10, & s16 of the said Act;
(22) The Court erred in fact and law by failing to hold the miscellaneous statutory powers of CMC under the Building Act 1937 Part VIII s50 (1) & (2);
(23) The Court erred in fact and law by failing to hold that under the Building Act 1937 the powers adopted by CMC under The Building Regulations 1938 required that building approval in Marsh Street could only be obtained under s16 ll (c) by providing a clear frontage upon a 'street' of not less than 50 feet; …"
It should first be said that the grounds were not easy to understand. All asserted that the learned trial judge failed to hold certain things, but none identified why that should be said to be an error. Further, the arguments which appeared to be being made did not appear from the transcript to have been mounted before the learned trial judge. Notwithstanding that, in considering these grounds, it is relevant to consider the matters with which the learned trial judge was dealing. He had to determine whether Marsh Street had ever been dedicated as a highway. To that end, he considered the various submissions the appellant made about what was asserted to be relevant legislation, and, in particular, whether he could be satisfied Mr Brown had an intention to dedicate the land designated "Proposed Roadway" or not. One of the matters he looked at was what the surveyor, Mr Terry, might have intended by his use of that term. It appeared to be his Honour's findings in relation to that last issue which underpinned these grounds. The appellant appeared to be asserting that his Honour's conclusion about what was meant by that term was wrong having regard to the various pieces of legislation referred to by the appellant.
There was nothing in this section which required the Council to forward a subdivision plan approved in November 1944 to a town and country planning commissioner appointed under the Act at some later date. In any event, there was no planning scheme for the municipality at the time of the approval of the T G Brown subdivision. Therefore, there could be no question arising as to whether that subdivision did or did not comply with a planning scheme.
This ground of appeal must therefore fail.
Ground 44
This ground provided:
"(44) The Court denied natural justice by instructing the Appellant to confine written submissions to less than 20 pages and then advantaged the Respondent by accepting and relying on 50 pages of written submissions; …"
Even if it were to appear that the learned trial judge did what was asserted by the appellant, the appellant did not identify the basis upon which it was said he suffered any disadvantage. He did not suggest he was prevented from addressing any particular relevant issue, either in writing or indeed orally. The appellant's written submissions in relation to this ground were as follows:
"The comments of HH Justice Evans during the course of the trial led me to believe that the documentary evidence and its relationship to the law 'speaks for itself' and rightly or wrongly a sense of certainty was instilled in me that, given the evidence and the relevant law, justice would be done and be seen to be done. Had the circumstances to which I am now aware been apparent to me at the relevant time my written closing submissions would have been authoritative."
With respect, that written submission was not directed to the ground as drawn, and appeared to refer to some unspecified disadvantage the appellant suffered. A review of the transcript revealed that, first thing on the morning of 17 February 2012, the learned trial judge raised with the appellant the issue of closing submissions. His Honour made clear he did not want huge amounts of documents and said his "thinking" was in the region of 30 pages for written submissions. The appellant asked to consider that, and was given time to do so. No direction or order was then made about the matter. On 22 February when the appellant ended his case, the learned trial judge had a discussion with the appellant and counsel for the Council about a timetable for the preparation of written submissions. His Honour, after some discussion, said that he was noting that the parties would endeavour to do the following, namely that counsel for the Council would file and serve his written submissions by 29 February, the appellant would do his by 7 March, and the Council would respond by 14 March. There was no direction made restricting the length of the written submissions in any way.
The hearing resumed for the purpose of oral submissions on 4 April 2012, by which time the written submissions of both parties had been provided. The appellant began his oral submissions. At that point, he made no complaint about any limit on the length of his written submissions. He spoke for some considerable time that day. There was no indication from the transcript that the learned trial judge prevented the appellant from advancing any relevant submission he wished to make. There followed counsel for the Council's oral submissions. Once they were finished, the appellant was given an opportunity to reply even though he was told he was not entitled to it.
This ground of appeal was simply not supported by what actually occurred and must fail.
Ground 45
This ground provided:
"(45) The Court denied procedural fairness and natural justice by:
(i) breaching accepted Court practice and procedure without notice and ordering the Appellant to give evidence and argument before the Respondent had first put its case;
(ii) addressing the Appellant in a confrontational manner when seeking agreement to records of the registration of rights of carriageway over Marsh Street discovered by the Respondent which were subsequently found to not be true copies of the creating documents;"
The appellant's written submissions about propositions to be argued were:
"(i) The Court procedure applied y HH Justice Evans whereby I was required to argue my case 'off the cuff without notice', rather than being able to reply to the submissions of the Plaintiff in the normal turn, defocused and disadvantaged my defence and raised issues that significantly diverted the course of the Trial from the confinement of the pleadings.
(ii) The confrontational manner referred to suggested to me early in proceedings that the Learned Trail Judge came to the trial with an unsettling degree of prejudgment. In my view this concern is reinforced by a bizarre or perverse reliance on the Public Health Act 1903 By-Laws adopted by the CMC for the 'District of Clarence' some 30+ years beforehand.
(iii) Notably in the course of the trial the Learned Judge declared that HH was not concerned with what the Full Court had found. In another instance express a concern, in reference to the coloured transfer documents, that the Chief Justice had made a mistake however there was no reference to that observation in the judgment. It is however appreciated that His Honour in being charged with hearing the Trial, was in an most unusual and difficult position."
As to the first aspect of this ground, I firstly observe that the appellant is well experienced in court proceedings and has appeared in them often enough to have gained a knowledge of procedure. Against that background, the facts of this matter simply do not bear out this aspect of the ground of appeal. The appellant was the last witness on the trial. All the Council's witnesses had already been dealt with. The appellant was not ordered to give evidence at that point, or indeed at any other point in the trial I have been able to identify. As to submissions once the evidence was finished, counsel for the Council was asked to file and serve his written submissions first, with the appellant's to follow. When it came to the issue of oral submissions, the appellant was called on first which is accepted practice. The first part of this ground must fail.
As to the second aspect of this ground, the written submissions did not directly address the ground of appeal as drawn. The ground of appeal in point (ii) asserted a denial of natural justice and procedural fairness arising from what was said to be a confrontational manner adopted by the learned trial judge in relation to a particular matter. It did not however identify how it was said that, if the learned trial judge did indeed act in a confrontational manner, that, in some way, disadvantaged the appellant to the extent he was not fairly able to present evidence to the Court and argue his case. The propositions to be argued in points (ii) and (iii) suggested rather that the learned trial judge demonstrated bias against the appellant. Again, however, the appellant did not identify specifically how any confrontational behaviour may have evidenced any sort of bias against him. He also did not identify in what way the manner in which the learned trial judge dealt with the 1913 by-laws made under the Public Health Act 1903 in his judgment showed "a bizarre or perverse reliance" on those by-laws. He did not identify how it was said the matters referred to in point (iii) impacted adversely upon him in any way.
Dealing with the second part of this ground of appeal, the appellant did not identify where in the course of the trial, by reference to the transcript, the asserted "confrontational manner" was said to have been demonstrated by the learned trial judge. The exhibits tendered by the Council relating to the creation of rights of carriageway, as far as I can tell from an examination of the exhibit list, were contained in a book tendered at the beginning of the trial by counsel for the Council. They were exhibits P1 to P59 which were contained in a court book prepared by the Council. The learned trial judge had a discussion with the appellant and counsel about whether those documents could go in as exhibits. The book of proposed exhibits contained black and white copies of documents.
The appellant initially refused to agree to the material going in because he said that some of the documents were not accurate because there were coloured copy versions which were different. Counsel for the Council gave an undertaking to the Court to make the coloured versions available to allow the appellant to check them, and told the Court that if a coloured version was different to any of the documents to which the appellant objected, the coloured copy would prevail and would be interleaved into the book. The learned trial judge admitted the exhibits but on the basis that an original document, if available, would in effect override what was in the book. I have examined the original exhibit and it does not contain any interleaved pages of documents with colours.
If the exchange which the appellant had with the learned trial judge and counsel for the Council which I have identified is that in which the appellant claims the learned trial judge acted in a confrontational manner, the transcript does not, in my view, support the characterization put on what occurred by the appellant. His Honour was simply trying to ensure exhibits were recorded in a sensible manner and allowed for the appellant's concerns.
The exchange could not in any way have suggested to the appellant that the learned trial judge had prejudged the case. The exchange occurred at the end of the first day and evidence commenced the next. During the course of lengthy exchanges between the learned trial judge and the parties prior to the exchange which seemed to be the subject of the complaint, his Honour attempted to identify with the appellant just what the issues were and what his case was. On occasion when the appellant made a statement, his Honour told him it was not relevant. With respect, the exchange in the transcript did not in my view constitute any evidence of pre-judgment or bias, but simply an attempt to establish the proper parameters of the trial.
As to the other assertions of the appellant contained in points (ii) and (iii) of his written submissions, they do not disclose appealable error. This ground of appeal must fail.
Ground 46
This ground provided:
"(46) The Court denied natural justice by holding that 'Maximo', records (from about c2010) that Marsh Street is privately owned and failing to give any weight to the evidence that Marsh Street is not denoted 'Private' on any plan or other historical document before the Court; …"
The appellant's written submission in relation to this ground was as follows:
"Weighting evidence of a notation on a CCC electronic record against historical documentary evidence to the contrary is, from a fair minded observers view, a denial of natural justice."
The appellant did not by this ground identify where in his judgment the learned trial judge made the finding complained of. A review of the judgment disclosed that the Maximo system was mentioned at par[118]. His Honour said:
"118 From about 1989, the Council developed two electronic databases known as Latitude and Maximo which record various information in relation to roads and streets in the municipality. Layer 64 of Latitude has replaced the hard copies of the municipal maps of roads maintained by the Council to which I have referred. Within layer 64, the roads maintained by Council are shown marked with a heavy pink line. The information recorded on this layer in relation to Marsh Street is the same as that which appears on map 39 in the 1980 edition and the 1991 edition. Whilst the roads in the immediate vicinity of Marsh Street are marked with a heavy line, in this case a heavy pink line, Marsh Street is not so marked, although, as in the former maps, it appears. The information recorded on Maximo referrable to roads and streets includes whether a street is privately owned or not. Maximo records that Marsh Street is privately owned."
This paragraph appeared at the end of a number of paragraphs during which the learned trial judge dealt with the various records maintained by the Council over many years and what they showed. His Honour did not "hold" that "Maximo, records (from about c2010) that Marsh Street is privately owned". What he did was record a matter of fact. His Honour's overall conclusion about Marsh Street was guided by a number of factors and not simply that arising from the evidence about Maximo records.
Again this ground appeared to be an assertion that the appellant was denied natural justice because the learned trial judge did not ultimately make a finding the appellant considered to be favourable to him. That assertion does not raise an appealable error. This ground must fail.
Ground 47
This ground provided:
"(47) The Court denied natural justice by failing to hold the witness evidence of the Respondents Planning Manager Mr R Lovell in respect of the confirmation of co-development being a commonplace and lawful practice; …"
The appellant called as a witness Mr Ross Lovell who said he was the manager of integrated assessment with the Council. He had been employed with the Council for 12 years. I have reviewed the transcript relating to the evidence of Mr Lovell. He did not give evidence as asserted by the appellant. The appellant tried to question Mr Lovell about "co-development" and another development he had been involved in. There were objections as to relevance which were upheld. The appellant was repeatedly told to ask relevant questions of Mr Lovell. Virtually none were forthcoming. There were however a number of exchanges between the appellant and the learned trial judge about co-development and the fact that it had been and could be done. Further, in any event, my examination of the transcript of the evidence of Mr Lovell did not reveal any denial of procedural fairness by the learned trial judge, nor any basis for a conclusion that he dealt inappropriately with that evidence. This ground must fail.
Ground 48
This ground provided:
"(48) The Court denied natural justice by declaring that 'No relevant by-laws were made by the Council under the Local Government Act 1906.' but failed to make reasonable enquiry of Council as to whether CCC had any historical records of 'Existing By-Laws' as defined in s203 of the Local Government Act 1906 under which the statutory provisions in the amendments to the Local Government Act 1935 could be enforced under s205 ll (c) of the said Act; …"
What must first be said in relation to this ground is that the role of a judge in a civil trial is to determine issues raised by the parties on the basis of the evidence presented by the parties. It is not the role of a judge to make independent enquiries. Another point which should be made is that there was no evidence the Council had any obligation to keep historical records of "Existing By-Laws". By-laws either existed or did not as a matter of law. The appellant was as capable as anyone else of researching past legislation and gazettes to establish whether any by-laws of the type he referred to had been made.
This ground disclosed no appealable error on the part of the learned trial judge, and must fail.
Ground 49
This ground provided:
"(49) The Court erred in fact and law and denied natural justice by failing to hold that in respect of the approval of the c1972 'Burbury' subdivision over Marsh Street the Respondent was required under statute to provide maps, plans and other particulars to the Local Government Office and the Minister for Lands and Works, who was empowered to assess compliance with the statutory regulations before granting or refusing approval for subdivision within the CMC; …"
With respect, whether or not the Council was required to provide certain documents in relation to a subdivision by somebody in 1972, had no relevance to the legal status of Marsh Street. Further, the appellant's written submissions in respect of this ground appeared to be predicated on an assumption that map 910/4, to which reference has already been made, was a municipal map, which it was not.
This ground disclosed no appealable error on the part of the learned trial judge.
Ground 50
This ground provided:
"(50) The Court denied natural justice by failing to instruct the Respondent to produce hard copies of the pre 1998 Marsh Street files and other records that had been produced to the Court in microfiche form only, and therefore could not be reviewed by the Court or the Appellant at trial, noting that the evidence of the Respondents Corporate Secretary under oath was that the records did not exist and that the same position was formally corroborated by Counsel for the Respondent;"
This ground appeared to be a two-fold complaint. Firstly, it was that the Council was not told to produce what the appellant referred to as the pre-1998 Marsh Street files, and secondly, that the Council produced certain records on microfiche as opposed to hard copies, and should have been instructed to provide hard copies. The appellant's written submissions appeared to relate entirely to the first part of the complaint. They were as follows:
"(i) The XM evidence of former CMC Town Planner and then General Manager of the CCC Mr Roger Howlett contradicts the evidence of CCC Corporate Secretary Me Alex Van Der Hek. Mr Howlett's evidence, considering his former role as a Town Planner in the relevant era, should have been preferred over that of Mr Van Der Hek.
(see 21/2/12 XM Mr Howlett Transcript pages 968-973
(ii) By claiming that there are no records of any pre c1998 Marsh Street General File or individual Marsh Street property files Mr Van Der Hek's evidence is fatuous to the degree that it represents that CCC has retained no records of Marsh Street up until about 5 years prior to the commencement of the controversy over the status of Marsh Street.
(iii) The evidence is that the CCC does keep records under its corporate and public obligations.
(iv) Since this ground was drawn an inspection of microfiches records produced to the Court has been undertaken and it is confirmed that no pre c1998 to c1985 Marsh Street records have been produced to the Court."
The transcript reference provided in relation to Mr Howlett's evidence in fact covers the entirety of his evidence both in-chief and in cross-examination. I have reviewed the transcript of his evidence and have also reviewed that relating to the evidence of Mr Van Der Hek which follows that relating to Mr Howlett. Mr Howlett was employed by the Council from 1979 to 2003. He was a town planner until 1993 although he did not indicate when he took up that role. He said he was not involved in any of the details relating to the status of Marsh Street and had no knowledge about specific facts relating to that street. He thought that from about the mid 1980's there were separate property and street files. Their size depended on what correspondence may have been received. He was shown exhibit P75 (which was the Council's Marsh Street file commencing in January 1998) and agreed that was what he would have described as the Marsh Street file.
As to Mr Van Der Hek, at page 989 of the transcript of evidence at trial, the following exchange occurred between him and the appellant in relation to this issue:
"Okay. In respect of information request number 4, where I asked under rights of information, the Marsh Street general file, and advised it had been previously ordered under subpoena, and the records hadn’t been produced. Your response was:
That the copy of the – the full copy of the Marsh Street file is provided. It is noted that in this file is January 1998. It is noted that there is no record of a prior road filed in respect to Marsh Street within council’s filing system.
Do you still stand by that?……Absolutely. Your Honour, may I explain? The council did not have a property base, and therefore a street based central general file system prior to the date mentioned here in January '98, or some time before that, a little short time before that. Prior to that, matters were dealt with based on subject and subject only. What I'm trying to explain here in the correspondence to Mr Howlin, is that the Marsh Street file, as it stood, only started, as far as the entries were concerned, in 1998. "
The evidence of Mr Howlett did not contradict that of Mr Van Der Hek. This ground is a repeat of a longstanding complaint by the appellant about what he alleges is a refusal and/or failure of the Council to produce records. It has already been discussed in the context of the appellant's interlocutory application at pars[7] – [16] of these reasons. The learned trial judge accepted that, insofar as any file which might be called the Marsh Street general file relating to the period prior to 1998 was concerned, it did not exist. It cannot therefore be said to be an error on his part to not require the Council to produce it.
As to the second part of this ground, that was that part relating to a failure to produce hard copies, the appellant did not identify how it could be said there was an error. He was afforded the opportunity to inspect the microfiche material before the hearing of the appeal, but has not identified anything in that material which, in my view, might have made a difference to the outcome of the proceedings. With respect, this ground must fail.
Ground 51
This ground related to the order made by the learned trial judge to the effect that the appellant pay the respondent's costs at trial. It provides as follows:
"(51) The cost order of 20 July 2012 was unreasonably or clearly unjust, based on errors of fact and law, a failure to take into account material considerations, gave undue weight to the evidence, acted on wrong principle, allowed extraneous irrelevant matters and misrepresentation by the Respondent to guide or affect the Learned Trial Judge."
The order sought to be appealed was made by the learned trial judge almost two months after his substantive reasons were published. The order was made following the delivery of written submissions and oral argument. Regard must first be had to the relevant provision of the Supreme Court Civil Procedure Act, s44. It provides:
"44 Appeals as to costs only, and appeals by a person admitted to sue or defend as a poor person
(1) No appeal shall lie to a Full Court from any judgment or order given or made by a judge, whether sitting in court or in chambers, as to costs only, which are by any statute or any Order or Rule of Court left to the discretion of the judge, except –
(a) by leave of the judge giving such judgment or making such order;
(b) in cases in which the judge has declined or failed to exercise the discretion; or
(c) in cases in which the judge has proceeded on a wrong principle or otherwise contrary to law, or on irrelevant or insufficient materials, or has failed to consider any material fact."
The effect of s44 is that no appeal lies from the learned trial judge's order as to costs unless the appellant is able to bring himself within one of the exceptions set out. There was no evidence that the appellant sought leave from the learned trial judge to appeal. As to any suggestion that the learned trial judge declined or failed to exercise his discretion as to costs, that is not supported by his written reasons. The learned trial judge identified in those reasons the legal principles to which he had to have regard, and then applied those principles to the facts of the case. The appellant must therefore bring himself within par(c). While the appellant's ground of appeal appeared in part to mirror the terms of this subsection, it did not identify in any way what wrong principle the learned trial judge had regard to, what were the irrelevant materials the learned trial judge had regard to, what the insufficient materials were that the learned trial should have considered, or what material facts the learned trial judge failed to consider. In his written submissions the appellant simply identified as the proposition he proposed to argue:
"This Ground is effectively pleaded in the foregoing Grounds"
With respect, that was of little assistance to the Court because it did not address factors relevant to the costs issue.
The written submissions of the Council as to costs were dated 27 June 2012. They appear in Appeal Book 1 commencing at page 110. At 119, counsel for the Council set out a chronological summary of matters he contended were relevant to the exercise of the learned trial judge's discretion. The appellant had an opportunity to address those submissions in writing. His submissions are contained in the same appeal book. The appellant also had an opportunity to address the Court orally about the issue of costs.
The appellant's ground of appeal and the proposition he sought to argue were completely lacking in any detail indicating precisely what the appellant said were his Honour's errors in respect of his decision as to costs, as opposed to being simply a repeat of his complaints about the substantive judgment. Very generally, the appellant was unsuccessful in the proceedings before the learned trial judge. The usual rule is that costs follow the event. The learned trial judge identified in his decision as to costs the matters which might justify a departure from that general rule. He then considered the various features of the case before him and determined that it was appropriate to make the order that he did.
The learned trial judge's reasons, on their face, reveal no error which might bring this appeal within s44(1)(c) and this ground must fail.
Outcome
The appellant has not successfully argued any ground of appeal. I would in those circumstances dismiss the appeal.
File No FCA 586/2012
DARRYL ROBERT HOWLIN v CLARENCE CITY COUNCIL
REASONS FOR JUDGMENT FULL COURT
PORTER J
26 July 2013
I have read the draft reasons for judgment of Tennent J. I agree with those reasons and would also dismiss the appeal.
8
5
1