La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2)

[2016] NSWLEC 137

Land and Environment Court

New South Wales

Medium Neutral Citation:	La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) [2016] NSWLEC 137
Hearing dates:	22, 23, and 24 February 2016; further written submissions 29 February 2016 and 3 March 2016
Date of orders:	27 October 2016
Decision date:	27 October 2016
Jurisdiction:	Class 3
Before:	Sheahan J with Laing AC
Decision:	Appeal upheld. See orders at [186].
Catchwords:	ABORIGINAL LAND RIGHTS – land claims under s 36(2) of the Aboriginal Land Rights Act 1983 (NSW) – whether Crown lands claimable under s 36(1) of the Aboriginal Land Rights Act – whether land "vested in Her Majesty" – claims refused in 2010 on ground that land claimed was “not claimable Crown land within the meaning of the Aboriginal Land Rights Act as it comprises freehold land which is not vested in Her Majesty” – land vested in State of New South Wales at time of claim –land the subject of a declaration under s 25A of the Crown Lands Consolidation Act 1913 (NSW) – Register amended subsequent to claim to replace State of New South Wales as owner with Land Commission of NSW –whether there was an exercise of power under s 12(1)(d) of the Real Property Act 1990 (NSW) – authority of Land and Property Information Officer to exercise the Registrar-General’s power under s 12(1)(d) of the Real Property Act – whether recording on Register of State of New South Wales as registered proprietor erroneous for purposes of s 12(1)(d) of the Real Property Act – application of s 42(1) of the Real Property Act – indefeasibility of title – conclusiveness of Register – application of s 12(3) of the Real Property Act– effect of correction of error in the Register – whether correction would affect a right accrued from a recording made in the Register before the correction – whether correction to Register has retrospective effect by operation of s 12(3)(c) of the Real Property Act
Legislation Cited:	Aboriginal Land Rights Act 1983 Crown Lands Act 1989 Crown Lands and Other Acts (Reserves) Amendment Act 1974 Crown Lands Consolidation Act 1913 Land and Environment Court Rules 2007 Local Government Act 1919 Local Government Act 1993 Pastures Protection Act 1934 Real Property Act 1900 Western Lands Act 1901
Cases Cited:	Bankstown Airport Ltd v Noor al Houda Islamic College Pty Ltd [2002] NSWSC 193; NSW Conv R 56-038 Birrigan Gargle Aboriginal Land Council v Minister Administering the Crown Lands Act (1999) 102 LGERA 33; [1999] NSWLEC 12 Birrigan Gargle Aboriginal Land Council v Minister Administering the Crown Lands Act [1999] NSWLEC 123 Black v Garnock (2007) 230 CLR 438; [2007] HCA 31 Boyd v Mayor of Wellington [1924] NZLR 1174 Brantag Pty Ltd v Minister for Mines (No 3) (29 March 1995 BC 9504440) Breskvar v Wall (1971) 126 CLR 376 Carltona Ltd v Minister for Works [1943] 2 All ER 560 Castle Constructions Pty Limited v Sahab Holdings Pty Ltd (2013) 247 CLR 149; [2013] HCA 11 City of Canada Bay Council v F & D Bonaccorso Pty Ltd (2007) 71 NSWLR 424; [2007] NSWCA 351 Dorrigo Plateau Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2007) 155 LGERA 307; [2007] NSWLEC 653 FNCB – Waltons Finance Ltd v Crest Realty Pty Ltd (1977) 10 NSWLR 621 Frazer v Walker [1967] 1 AC 569 Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act [1996] NSWLEC 223 Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459; 94 LGERA 43 In re Athlumney; Ex parte Wilson [1898] 2 QB 547 La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2014] NSWLEC 128 Marilyn Elizabeth Trethowan v Chief Commissioner of State Revenue [2013] NSWSC 576 Mathieson v Burton (1971) 124 CLR 1; [1971] HCA 4 Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285; [2008] HCA 48 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Mogo Local Aboriginal Land Council v Eurobodalla Shire Council (2002) 54 NSWLR 15; [2002] NSWCA 12 Narromine Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 79 LGERA 430 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685; 66 LGRA 265 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Boggabri) [2014] NSWLEC 58 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Moonbi) [2014] NSWLEC 144 O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 Palais Parking Station Pty Ltd v Shea (1980) 24 SASR 425 Pirie v Registrar-General (1962) 109 CLR 619; [1962] HCA 58 Quach v Marrickville Municipal Council (No 2) (1990) 22 NSWLR 65 Re Reference under Section 11 of Ombudsman Act 1976 (Cth) for an Advisory Opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86 Sahab Holdings Pty Ltd v Registrar-General (2011) 15 BPR 29, 627; [2011] NSWCA 395 State Bank of New South Wales v Berowra Waters Holdings Pty Ltd (1986) 4 NSWLR 398 Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45
Texts Cited:	P. Butt, Land Law (6th ed., 2010, Thomson Reuters)
Category:	Principal judgment
Parties:	La Perouse Local Aboriginal Land Council (Applicant) Minister Administering the Crown Lands Act (Respondent)
Representation:	Counsel: Dr S E Pritchard, SC, with Mr T Prince, barrister (Applicant) Mr A M Stewart, SC, with Mr C L Lenehan, barrister (Respondent)   Solicitors: Chalk & Fitzgerald Lawyers (Applicant) NSW Crown Solicitor (Respondent)
File Number(s):	2016/162036 (formerly 30303 of 2014)2016/165376 (formerly 30304 of 2014)

Judgment

Introduction

1. On 18 September 2009, the applicant land council, La Perouse Local Aboriginal Land Council (“LALC”) made “land rights claims” in respect of two blocks of land which comprise part of a former fire station site on Bunnerong Road, Matraville, near its corner with Beauchamp Road. The respondent Minister refused the claims on 20 May 2010.

2. Appeals against both refusals were lodged by the LALC on 9 May 2014, and we heard them together in February 2016.

3. The evidentiary material before us comprised:

1. an Evidence Book (“EB”), which included (tab 1) a “Statement of Agreed Facts” (“SAF”);

2. a Court Book (“CB”), which included (tab 5) a statement of “Agreed Real Issues for Determination”;

3. some additional (late) affidavits (by Karen Symington and Richard Trent); and

4. some additional documentary exhibits (see [8] below).

4. Deponents Desmond Mooney, Stephen Medaris, Christine Tilley, Karen Symington, and Richard Trent also gave oral evidence.

5. Mooney is the current Registrar-General of NSW, and, therefore, is ultimately responsible for the NSW government agency known as “Land and Property Information” (“LPI”), and the others are his employees. Relevantly, at all material times, Tilley reported to Medaris, who reported to Mooney (see Tpp69, 70 and 79, also SAF 13 and 18, and [48] below).

6. The applicant also read before us an affidavit of 16 May 2014 from its Chief Executive Officer, Christopher Ingrey (plus annexures), read earlier before Craig J, in support of the applicant’s application for leave to lodge this appeal out of time (Tp111), but Mr Ingrey was not required for cross-examination.

7. The respondent’s solicitor, Benjamin Coles, also provided an affidavit, upon which he was not cross-examined, in support of the acceptance by the Court of the late affidavits from Symington and Trent.

8. The following exhibits were also tendered during the hearing:

1. Exhibit A1, comprising documents upon which Mooney was questioned. They included an organisation chart for the Land and Property Management Authority (“LPMA”), as at 2010, and several “Registrar-General’s Directions”;

2. Exhibit A2, comprising a subpoena served by the applicant on the respondent to produce a range of documents, together with the respondent’s letter to the Court in response;

3. Exhibit A3, comprising documents upon which Medaris was questioned;

4. Exhibit A4, comprising correspondence between the parties regarding possible implications of the proceedings for the NSW Land Commission or Land and Housing Corporation;

5. Exhibit R1, comprising recent searches in respect of the claimed lands; and

6. Exhibit R2, being a copy of an affidavit Medaris swore in other proceedings (31055 of 2012) on 1 March 2013. (The decision of Craig J in that case was delivered on 11 September 2014, and is reported as New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Moonbi) (“Moonbi”) [2014] NSWLEC 144. Apparently, unlike the present matter, Medaris gave no oral evidence in those proceedings (Tp110, LL41 – 42.))

9. We have concluded that the appeals should succeed, and our reasons follow.

The Land Claim System

10. The objects and intention of the New South Wales Aboriginal Land Rights Act 1983 (“ALRA”) are unambiguously stated, and have frequently been held, to be “beneficial and remedial”.

11. The material parts of s 36 provide (some emphasis added):

Claims to Crown lands

(1)   In this section, except in so far as the context or subject-matter otherwise indicates or requires:

claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division:

(a)   are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 [(“CLCA”)] or the Western Lands Act 1901,

(b)   are not lawfully used or occupied,

(b1)   do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands,

(c)   are not needed, nor likely to be needed, for an essential public purpose, and

...

Crown Lands Minister means the Minister for the time being administering any provisions of the [CLCA] or the Western Lands Act 1901 under which lands are able to be sold or leased.

(2)   The New South Wales Aboriginal Land Council may make a claim for land on its own behalf or on behalf of one or more Local Aboriginal Land Councils.

(3)   One or more Local Aboriginal Land Councils may make a claim for land within its or their area or, with the approval of the Registrar, outside its or their area.

...

(5)   A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) has been referred under subsection (4) shall:

(a)   if the Crown Lands Minister is satisfied that:

(i)   the whole of the lands claimed is claimable Crown lands, or

(ii)   part only of the lands claimed is claimable Crown lands,

grant the claim by transferring to the claimant Aboriginal Land Council (or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council) the whole or that part of the lands claimed, as the case may be, or

(b)   if the Crown Lands Minister is satisfied that:

(i) the whole of the lands claimed is not claimable Crown lands, or

(ii) part of the lands claimed is not claimable Crown lands,

refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require.

...

(6)   An Aboriginal Land Council may appeal to the Court against a refusal under subsection (5) (b) of a claim made by it.

(7)   The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council.

...

12. The Courts have frequently noted, discussed, and acted upon what they have described as the “beneficial or remedial purpose” of the ALRA: see discussion in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (“the Wagga claim”) [2008] HCA 48; 237 CLR 285, per Kirby J, at [3] – [5], [17] – [21], and per the plurality at [44] – [47].

13. Generally, the contest on a refusal appeal concerns the term “not lawfully used or occupied” in the definition in s 36(1)(b), quoted above, but, in the present matter, the central dispute concerned the term “vested in Her Majesty”, in the chapeau to s 36(1).

14. The Minister bears the onus of satisfying the Court that the claimed lands were not “claimable Crown Land” at the date of claim.

Other Relevant Statutory Provisions

15. Having already set out much of s 36 of the ALRA, we now set out some relevant provisions of the Crown Lands Consolidation Act 1913 (“CLCA”), and the Real Property Act 1990 (“RPA”), adding some emphasis.

16. Section 25A was inserted into the CLCA on 12 November 1917, and, as at February 1986, it provided as follows:

Certain lands may be disposed of as Crown lands.

25A. (1) Notwithstanding the provisions of any other Act it shall be lawful for the Minister in respect of any land that before or after the commencement of the Crown Lands and Other Acts (Reserves) Amendment Act, 1974, was or is –

(a)   appropriated or resumed for any public purpose and vested in a Minister of the Crown on behalf of Her Majesty by or under the authority of any Statute or acquired by or on behalf of the Crown by gift or otherwise; or

(b)   appropriated or resumed and vested in a public authority, or otherwise acquired by or vested in a public authority, by or under the authority of any Statute,

by notification published in the Gazette to declare that the land may be dealt with as if it had been acquired under the Closer Settlement Acts or as Crown land within the meaning of this Act, and upon the publication of the notification in the Gazette the land may be so dealt with.

...

(3)   A declaration shall not be made under subsection (1) in respect of land vested in or acquired by or on behalf of a public authority without the consent of that public authority.

(4)   In this section, “public authority” means—

...

or

(d) any other public body declared by the Minister, by order published in the Gazette after the commencement of the Crown Lands and Other Acts (Reserves) Amendment Act, 1974, to be a public authority of the purposes of this section.

17. Section 12 of the RPA relevantly provided (as at the relevant time):

12 Powers of Registrar-General

(1)   The Registrar-General may exercise the following powers, that is to say:

...

(d)   The Registrar-General may, subject to this section and upon such evidence as appears to the Registrar-General sufficient, correct errors and omissions in the Register.

...

(3)   Where the Registrar-General, in the exercise of the powers conferred upon the Registrar-General by subsection (1) (d), makes a correction in the Register:

(a)   the Registrar-General shall, by an appropriate recording in the Register, authenticate the correction and record the date thereof,

(b)   to the extent that, but for this paragraph, the correction would prejudice or affect a right accrued from a recording made in the Register before the correction, the correction shall be deemed to have no force or effect,

(c)   subject to paragraph (b), the Register shall, as so corrected, have the same validity and effect as it would have had if the error or omission had not occurred, and

(d)   the Registrar-General shall, while any right preserved by paragraph (b) is subsisting, maintain available for search a record of the date, nature and effect of the correction.

18. Section 12, as it now is, also includes the following additional provisions:

(6)   The powers of the Registrar-General under this section may be exercised with respect to electronic lodgments in conjunction with powers granted under the Electronic Conveyancing National Law(NSW).

(7)   A power to correct errors and omissions conferred by subsection (1) includes a power to correct errors and omissions resulting from a malfunction of an Electronic Lodgment Network or of any electronic system in which information is communicated between the Electronic Lodgment Network and the Registrar-General.

19. Section 12A of the RPA provided:

Power of Registrar-General to serve notice of proposed action

(1)   The Registrar-General may, before taking any action that alters the Register, give notice of the proposed action to any person that the Registrar-General considers should be notified of it.

(2)   Where the Registrar-General has given notice pursuant to the powers conferred upon the Registrar-General by subsection (1), the Registrar-General may refuse to take the action until after the expiration of a period specified in the notice and the Registrar-General may proceed to take the action at or after the expiration of the period so specified unless the Registrar-General is first served with, or with written notice of, an order of the Supreme Court restraining the Registrar-General from so doing.

(3)   Where a person given notice under subsection (1) does not within the time limited by the notice serve upon the Registrar-General or give the Registrar-General written notice of an order made by the Supreme Court restraining the Registrar-General from taking the action, no action by that person or by any person claiming through or under that person shall lie against the Registrar-General in respect of the taking of the action specified in the notice.

(4)   No action shall lie against the Registrar-General for failure to give a notice under subsection (1).

20. Section 12D of the RPA provides:

Registrar-General’s Directions

(1)   For the purposes of this Act, the Registrar-General may provide information and guidance with respect to the following (to be known as the Registrar-General’s Directions):

(a)   the completion of approved forms,

(b)   the preparation and lodgment of documents and plans for registration or recording,

(b1)   the preparation and lodgment of registry instruments under the Electronic Conveyancing National Law (NSW),

(c) any other matters that the Registrar-General considers appropriate.

(2)   The Registrar-General’s Directions are to be published on the internet or made available through any other means determined by the Registrar-General.

21. Section 13H of the RPA (inserted in 1981, in lieu of the former s 49) provides:

Land that becomes Crown land

(1)   Where the Registrar-General becomes aware that land (whether it is land to which this Part applies or not) comprised in a folio of the Register has become Crown land within the meaning of the Crown Lands Consolidation Act, 1913, he shall make such recordings in the Register as he considers appropriate and may cancel, or make such recordings as he considers appropriate upon, any relevant certificate of title or duplicate registered dealing when it becomes available to him.

(2)   Without limiting the generality of subsection (1), the Registrar-General may record “The State of New South Wales” as the registered proprietor of land referred to in that subsection if it is not already so recorded.

(3)   The Registrar-General may by notice in writing, require a person who is in possession of a certificate of title or duplicate registered dealing evidencing title to an estate or interest in land referred to in subsection (1) to deliver up the certificate or dealing for cancellation or notation, as the case may require, within a period specified in the notice.

(4)   Where a certificate of title or duplicate registered dealing is not delivered up to the Registrar-General for cancellation or notation as required by a notice given under subsection (3)—

(a)   the certificate of title or duplicate registered dealing, as the case may be, shall be deemed to be wrongfully retained within the meaning of section 136; and

(b)   the notice shall be deemed to be a notice referred to in section 136 (1).

22. Section 13J of the RPA provides:

Estate in land where the State is recorded as proprietor

Where “The State of New South Wales” is recorded as the registered proprietor of land in accordance with this Act, the estate to which that recording relates is an estate in fee simple.

23. Section 40 of the RPA provides:

Manual folio to be considered evidence of title, and that the land has been duly brought under the Act

(1)   A manual folio shall be received by all Courts or persons having by law or consent of parties authority to hear, receive and examine evidence as evidence of the particulars therein recorded and shall be conclusive evidence that any person recorded in the folio as the registered proprietor of an estate or interest in the land comprised in the folio is the registered proprietor of that estate or interest and that the land comprised in that folio has been duly brought under the provisions of this Act.

(1A)   Where a computer folio certificate is issued in respect of a folio of the Register:

(a)   the certificate is evidence of the particulars recorded in that folio, and

(b)   it shall be conclusively presumed that:

(i)   the certificate contains all the information that was recorded in that folio at the time specified in the certificate,

(ii)   the land to which the certificate relates was, at that time, under the provisions of this Act, and

(iii)   a person recorded in the certificate as the registered proprietor of an estate or interest in the land to which the certificate relates was, at that time, the registered proprietor of that estate or interest.

...

(2)   No folio of the Register shall be impeached or defeasible on the ground of want of notice or of insufficient notice of the application to bring the land therein described under the provisions of this Act, or on account of any error, omission, or informality in such application, or in the proceedings pursuant thereto, by the Registrar-General.

(2A)   No folio of the Register shall be impeached or defeasible on the ground of want of notice or of insufficient notice of a possessory application relating to the land therein described, or on account of any error, omission or informality in the application, or in the proceedings pursuant thereto, by the Registrar-General.

...

24. Section 42 of the RPA provides:

Estate of registered proprietor paramount

(1)   Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except:

...

(3)   This section prevails over any inconsistent provision of any other Act or law unless the inconsistent provision expressly provides that it is to have effect despite anything contained in this section.

25. Section 138 of the RPA provides:

Court may direct cancellation of folios and other actions related to folios

(1)   A court may, in proceedings for the recovery of any land, estate or interest from the person registered as proprietor of the land, make ancillary orders of the kind set out in subsection (3), if the court is of the opinion that the circumstances of the case require any such order to be made.

...

(3)   A court may order the Registrar-General to do one or more of the following:

(a)   cancel or amend a folio of the Register,

(b)   cancel, amend or make a recording in a folio of the Register,

(c)   create a new folio of the Register,

(c1)   create a new edition of a computer folio,

(d)   issue a new certificate of title.

...

(4)   The Registrar-General must give effect to any such order.

(5)   A court that makes an order under this section may order that a person deliver a certificate of title or other instrument to the Registrar-General for the purpose of giving effect to any such order.

(6)   An action does not lie against the Registrar-General for recovery of damages sustained through deprivation of land, or any estate or interest in land, because of compliance by the Registrar-General with an order under this section.

(7) In this section:

court does not include the Local Court or a tribunal.

The Claimed lands

26. The “claimed lands” in this case are Lots 2 and 3 in DP39760. The relevant claims (20633 and 20637) were lodged on 18 September 2009 (SAF 16), together with a claim for the adjacent Lot 1 in the same DP.

27. The land title register (“the Register”) maintained by the Registrar-General of NSW showed, as at that date of claim, that the subject lands were owned by the “State of New South Wales” (SAF 17).

28. The Minister refused the claims for Lots 2 and 3 on 20 May 2010, on the grounds that the land claimed in each case was “not claimable Crown land within the meaning of the [ALRA] as it comprises freehold land which is not vested in Her Majesty” (EB fol 19). Ingrey deposed that the applicant took that ground of refusal “at face value”, until it made further investigations and representations, and then decided to appeal (see his par 35).

29. The claim for Lot 1 was refused on 15 February 2011 on a similar ground, but the letter of refusal noted that Lot 1 was “freehold, held by the Land Commission of NSW which is not vested in Her Majesty”.

30. On 1 February 2011, the Register had been amended, in respect of Lots 2 and 3, to replace “State of New South Wales”, as “owner”, with “Land Commission of NSW” (see searches in Exhibit R1).

31. The refusal of the Lot 1 claim was appealed in June 2011, and that appeal was resolved by consent orders in favour of the LALC in June and July 2012.

32. The LALC’s appeals against the refusals concerning Lots 2 and 3 were filed, out of time, on 9 May 2014, but the time to appeal was extended to that date by Craig J, on 13 August 2014, pursuant to Rule 7.3 of the Court’s Rules: La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2014] NSWLEC 128.

33. His Honour noted (at [42]) that there was “very limited land still available to be claimed at La Perouse, an area of historic importance for all Australians”, a “relevant consideration” to take into account when deciding whether to deprive the LALC of “the entitlement to pursue its present appeals”.

34. His Honour also noted (at [43]):

... if it is successful in its claims the land is capable of being transferred to the Land Council, conformably with the provisions of the Land Rights Act. This is the case even if the registered proprietor is presently the Land Commission. I do not understand any submission of the Minister to the contrary.

The Evidence

35. By way of some brief history, we note that the claimed lands were Crown lands dedicated for Fire Station purposes on 27 October 1915; that they were subdivided in 1979; and that they were then vested in the Land Commission on 12 December 1980 (Government Gazette no 189, p6437; see EB at fols 171 – 174, and 245, and SAF 6 – 7).

36. On 16 December 1980, the Land Commission took action (1) to bring the claimed lands under the RPA (see s 31A, which provides for “Creation of a folio for resumed land”), and (2) to be recorded as their registered proprietor. Certificates of Title to that effect were issued on 27 January 1981 (EB fols 175 – 176, and SAF 8 – 9).

37. In December 1985, the Land Commission agreed to the lands “being declared to be Crown Land”, in order to facilitate a then possible transfer to the then Department of Youth and Community Services (EB fols 177 – 185), a transfer which was abandoned in November 1987 (EB fol 195).

38. The Land Commission was abolished on 1 January 1986, and replaced by the Land and Housing Corporation. (The trading name “Landcom” remained in use). It should be noted here that the Department of Housing restated an interest in the lands in 1988 (EB fols 198 and 205), and, in 1996, Landcom briefly did too (EB fols 208 – 210). The Landcom Corporation Act commenced on 19 December 2001.

39. On 7 February 1986, the then Minister for Natural Resources (at that time responsible for the historic portfolio of “Lands”) declared, in the Government Gazette, pursuant to s 25A of the CLCA, that the claimed lands “may be dealt with as ... Crown land within the meaning of” that Act (EB fols 119, 186, and 244, and SAF 10).

40. The proprietor noted on the Register became the “State of New South Wales”, on 28 May 1986, pursuant to application W337534, authored by Trent, as a dealings examination officer (pars 4 – 6, and Tp101), and dated 13 May 1986 (EB fols 53, 120, 188, 239, and 277), and “Land Commission” was ruled through on at least one relevant Certificate of Title (Lot 3) shortly after (Lot 2 similarly, but not until 1992 – fol 223). (SAF 11 – 12). Trent has no specific recollection of attending to these titles (Tp107).

41. The Register (including the subject claimed lands) has been largely converted to computer folios, commencing in late 1988 (EB fols 162 – 163, and see recent searches of computer folios in Exhibit R1). Symington is the “Lead Developer for the Integrated Titling System” (“ITS” – her par 1). Her role is “operational or mechanical”, and does not involve any merits assessment of departmental dealings (Tpp94 – 95). “Some manual folios” remain to be converted to ITS (Tp96, L32).

42. In 2005, a “Conversion Project” was inaugurated to “convert all land records to an electronically administered Torrens title system” (Medaris par 5. He also deposed, at par 10, to his being responsible for the Conversion Project, and Symington deposed (her par 9), that in 2015 some 9893 amendments were made to the Register by LPI officers using “departmental dealings”.)

43. Trent explained how the Register “works”, its relationship to Certificates of Title held by “the client”, other than the State (Tpp102 – 103, and 107), and the notation on some of the documents “Filmed in lieu of missing register” (Tpp105 – 106).

44. The registered proprietor of the claimed lands remained unchanged beyond the date of the LALC’s claim, i.e. 18 September 2009. Indeed, the Register remained unchanged until the alteration to which we referred above ([30]), which was initiated by a senior “Status Branch” officer (Sonja Hughes), and effected by a “Conversion Project” team leader in LPI (Christine Tilley), during January 2011 (EB fols 92 – 93, 129 and 284 and SAF 19 and 20), taking effect (by “departmental dealing” AG 30519K, at fols 94, 130, 164, 225, and 275) on 1 February 2011.

45. At that time, “Status Branch” was part of the LPMA, but separate from the business division known as LPI. “Status Branch” was grouped in the “Legal Services” section of “Business Services” in LPMA, along with “Native Title” and “Aboriginal Land Claims”. Tilley understood that “Sonia worked for Crown Lands”, but the LPMA’s organisational chart in the evidence shows, inter alia, both the LPI and Crown Lands divisions as quite separate from “Business Services”. (Tp79, L32 – p80, L20. See also Tp30, L46 – p31, L8, p36; L39 – p37, L50; p57, L12; Exhibit A1, fol 1; and Mooney par 2, at EB fol 96.)

46. We note that Hughes told Tilley, in her emailed request, that:

These title (sic) are both subject to section 25A. They currently show the wrong registered proprietor. The title was changed by LTO based on an incorrect understanding of section 25A of the Crown Land Consolidation Act 1913.

I need the titles corrected because of Aboriginal Land Claims. They need to show the correct registered proprietor.

Serge use (sic) to refer these on to be amended for me.

(“Serge” is a reference to Serge Rivers, who held the position of Manager Crown Title Conversion until December 2010 or early January 2011. During January-February 2011, Tilley reported directly to Medaris in the absence of a replacement for Rivers – see Medaris pars 10 – 12, at EB fol 135, organisation chart at EB fol 152, and Tilley’s job description at EB fol 156.)

47. As Mr Stewart SC, for the Minister, pointed out (Tp16, LL34 – 39) “no case [was] advanced by the applicant that the amendment was done for an improper or ulterior purpose”. Indeed, we also note:

1. that Aboriginal Land Claims over the subject lands had been refused in May 2010, so there was no land claim current as at the date of Hughes’s request to Tilley;

2. that Mooney testified in response to cross-examination (Tp31, LL35 – 43):

Q. Do you consider it appropriate, in my (sic) position as head of LPI, for the title to be changed as a result of an email sent by one of the parties where there is an Aboriginal land claim?

A. It wasn't changed on that basis. It was changed on the basis of Mogo [a 2002 Court of Appeal decision to which we will return – [66] below] and other information that we saw there. That's why we determined that it had an inner it doesn't matter what someone else wrote, from someone outside the organisation. What matters is that we went through the evidence and the evidence showed that there was an incorrect proprietor on it, as far as we could ascertain from the Mogo and the other information that we had.

and

3. that Medaris testified (Tpp56 – 57) that it was not unusual for internal requests to be made for changes in title because of Aboriginal land claims.

48. SAF 18 records:

In January and February 2011:

(a)   Mr Mooney was employed as (sic) in the position of General Manager of LPI.

(b)   Ms Maclean was employed in the position of Director of Land and Property Products and Services in LPI. Ms Maclean reported to Mr Mooney.

(c)   Mr Medaris was employed in the position of Manager of Titling Conversion Projects in LPI. Mr Medaris reported directly to Ms Maclean.

(d)   Ms Christine Tilley was in (sic) employed in the position of Team Leader Conversion in LPI. Ms Tilley reported directly to Mr Medaris.

(See also Tpp23 – 24, 40 – 41, and 52.)

49. Relevantly, the then “Registrar-General of NSW” (Warwick Watkins) and the then General Manager of LPI (Mooney) had entered, on 1 March 2009 (SAF 15), into a “Service Level Agreement” (“SLA”; see EB fols 103 – 116), for the period 1 March 2009 to 30 June 2011.

50. That agreement annexed a “formal Instrument of Delegation”, but also made clear (EB fol 105) that it did not “transfer” to LPI or its officers “the statutory authority or functions” conferred upon the Registrar-General by, inter alia, the RPA: “Both parties agree that under this SLA activities and services relying upon these statutory functions will be carried out by the ... LPI under the authority of the Registrar General for statutory purposes”. The SLA then lists (EB fol 106) some statutory functions which are excluded from the SLA “and will continue to be carried out by the Registrar General himself”. That list does not include amendments or corrections to the Register.

51. The SLA then says (EB fol 106):

Appropriate delegations to positions within LPI to carry out specific functions as detailed in the formal Instrument of Delegation are attached to this Agreement.

52. Mooney signed the SLA, as the then General Manager of LPI, but gave evidence before us, as the now Registrar-General, that he “has no recollection of there being any delegations, as referred to in that paragraph” (Tp10, LL10 – 11).

53. On 18 May 2010, s 4A is inserted into the RPA, providing (Joint Chronology p6):

The Registrar-General may delegate any of the powers and functions of the Registrar-General under this or any other Act, other than this power of delegation, to a member of staff of the Land and Property Management Authority.

54. SAF 21 records that Tilley did not amend the Register as the “Registrar-General’s delegate”, and the Minister contends that Tilley “validly exercised the power conferred by s 12(1)(d) of the RPA, “as the Registrar-General’s agent” (Tp3, LL39 – 40 – emphasis ours).

55. The material prepared to support the recommendation that the Minister refuse the land claims included a “Land Status” report dated “30/03/2010” (EB fol 231; and see fol 250), which included the following notation under the heading “Other”:

TITLE HELD IN THE NAME OF THE STATE OF NEW SOUTH WALES (LOT 3 DP 39760)

SEC.25A TAKEN – SEE GAZ 7 FEBRUARY 1986 FOL 599

NOTE: TITLE WILL BE AMENDED TO SHOW LAND COMMISSION OF NEW SOUTH WALES AS THE REGISTERED PROPRIETOR

56. The subject claims were refused by Minister Kelly on 20 May 2010.

57. The circumstances and effect of that 2011 change to the Register, and the authority of those involved (e.g. delegate, c.f. agent), were central to the determination of this appeal, and we will return to them below ([110]ff).

58. It is common ground that, if the claimed lands were vested in the Land Commission as at the date of claim, they would not be land “vested in Her Majesty”, as required by ALRA s 36(1), and these appeals must fail (Tp7, LL4 – 6). SAF 22 (a) records that, as at the date of the SAF (18 January 2016), the Register shows the registered proprietor as “Land Commission of New South Wales”.

59. Prior to the Court of Appeal decision in Mogo Local Aboriginal Land Council v Eurobodalla Shire Council (“Mogo”) (2002) 54 NSWLR 15; [2002] NSWCA 12, delivered on 11 February 2002, it had been thought that a s 25A declaration had the effect of vesting land in the Crown.

60. The applicant tendered memoranda exchanged in the Registrar-General’s department in January 1929 (EB fol 166). Although the context is specific to a particular Certificate of Title for a Public Recreation Ground at Mosman, it appears to have established a general practice to be followed in “s 25A cases”. For completeness, we set out the exhibit in full:

61. The Registrar-General noted (on 8 January 1929):

Notwithstanding that the abovementioned Certificate of Title remains in force, parts of the land comprised therein have recently been included in Crown Grants of Portions 826, 827 and 828. Portions 827 and 828 have, moreover, passed out of the hands of the grantees by Transfers endorsed on the original Grants. It is presumed that, before the issue of these Grants, the land in the abovementioned Certificate had become Crown land within the meaning of the Crown Lands Acts, and, if so, I should be glad if you would inform me of the action taken and forward the Certificate of Title, in order that a notification, as provided by Section 49 of the Real Property Act, 1900, may be endorsed thereon.

In order that, in similar cases, the titles of grantees of the land and of persons claiming under them may not be questioned by reason of the existence of an earlier Certificate or Crown Grant which has not been cancelled and upon which a notification as provided by Section 49 of the Real Property Act has not been endorsed, I should be glad if you would be so good as to arrange that, before the issue of any Crown Grant in such a case, this Department be notified that the land in the earlier Crown Grant or Certificate of Title has become Crown land within the meaning of the Crown Lands Acts, and forward the earlier Grant or Certificate for the entry thereon of the appropriate notification.

62. The then officer “In Charge Deeds Branch”, under the heading “CANCELLATION OF EXISTING TITLES WHERE ACTION UNDER SECTION 25A HAS BEEN TAKEN”, noted (on 18 January 1929):

Part of the land comprised in Certificate of Title Vol.3750 Fol.38 was reserved from Sale and Lease generally and such reserve subsequently revoked.

It has also been ascertained that the land comprised in Certificate of Title Vol.3231 Fol.l64 had been similarly dealt with.

The subject Certificate of Title have been obtained from the Crown Solicitor, and the Registrar General has been asked as per carbons.

In order to avoid any complaints similar to the attached one from the Registrar General, it is suggested that, in all cases where action is taken under the Section mentioned, instructions be given that the papers be referred to this Branch, so that appropriate action may be taken. (Underlined on folio 166.)

63. The then Deputy Chief Inspector (on 21 January 1929) endorsed the document “For necessary action in future cases”, and a series of people initialled the page. The last such signatory referred the document to a “Mr Hamilton”, on 22 January 1929, with the instruction “Place in Precedent Book”.

64. It would appear that that policy and practice remained in place for the next fifty or so years. (The applicant also tendered copies of other memoranda dated 1972-3, at EB fols 167 – 170, which mention the use of s 25A, but the provenance of those documents was not established.)

65. Medaris and Trent both told the Court that they had not seen the 1929 document, but Medaris deposed (pars 14 – 17, and 33 – 35, at EB fols 135 – 139. See also Tpp46 – 49, and p108):

14.   Prior to the Court of Appeal's decision in [Mogo], I understand that the practice of LPI was to treat a declaration under s. 25A of the Crown Lands Consolidation Act as a statutory order by virtue of which the land became vested in the State of New South Wales. I further understand that, in accordance with this practice, LPI adopted a further practice in the 1980s whereby LPI would, following the making of such a declaration, unilaterally amend folios on the Register of Titles (the Register) to record "The State of New South Wales" as the registered proprietor.

15.   Following the decision in Mogo, LPI adopted a practice of correcting folios for which "The State of New South Wales" had been incorrectly recorded as registered proprietor pursuant to a s. 25A declaration (a s. 25A error).

16.   LPI was not able to systematically identify all of these errors. Rather, the errors were corrected when identified by LPI staff or by external stakeholders.

17.   My understanding of the matters in the preceding three paragraphs is based upon my direct observations of the practices of LPI, my review of documents generated by LPI and conversations with my colleagues at LPI. A number of those observations, reviews and conversations occurred while I was the manager of the Manager Old System Conversion.

...

33. In January and February 2011, I considered that, having regard to their seniority and expertise, Team Leaders in the Conversion Project, including Ms Tilley, were authorised to correct s. 25A declaration.

34.   I considered that Team Leaders in the Conversion Project were authorised to effect such corrections without consulting with me first. However, the usual practice was that a Team Leader would consult with me prior to effecting such a correction.

35.   I understand from the notation “CT” at the bottom of AG30519, that Ms Christine Tilley effected that dealing. I have no personal recollection as to whether Ms Christine Tilley consulted with me prior to her effecting AG30519K.

66. The Court of Appeal held, in Mogo, in 2002:

1. that the effect of a s 25A declaration was that

“the land could be dealt with as Crown land, but it did not become Crown land”;

and

2. that that fact

“did not make the land claimable Crown land for the purpose of the [ALRA].”

(see items (2) and (4) of headnote at 54 NSWLR 16).

67. In April 1999, the New South Wales Aboriginal Land Council had expressed concern to the Registrar-General regarding the possible impact of s 25A on interests held by Aboriginal Land Councils under the ALRA. The NSW Council’s letter to the then Registrar-General was annexed to Mooney’s affidavit (at EB fols 122 – 124). It referred to an affidavit from Warren Leslie Wright, filed by the Minister in what are known as the Birrigan Gargle proceedings – Birrigan Gargle Aboriginal Land Council v Minister Administering the Crown Lands Act (1999) 102 LGERA 33; [1999] NSWLEC 12. (Costs decision [1999] NSWLEC 123.)

68. The letter said:

That affidavit was relied upon by the Minister in the Birrigan Gargle proceedings in order to seek to satisfy the Court that the registered title holder to the land in question, being the State of New South Wales, was not the correct title holder and therefore the Applicant land council was not entitled to the land in question. That Affidavit made a number of statements on behalf of the Registrar-General, Land Titles Office. In particular it stated that:

“The Registrar-General is considering the correctness of recordings made by him in the Real Property Act Register pursuant to notifications made under s.25A of the former [CLCA]. At this time the Registrar-General will not take any action in regard to any folios of the Register until the proceedings are concluded." (para 15)

The Affidavit also stated that there are "other folios of the Register to lands in New South Wales where the Registrar-General may have recorded the State of New South Wales as the registered proprietor on the folio of the Register when the lands were the subject of notifications in the Government Gazette pursuant to section 25A of the former [CLCA]."

We advise that where land is vested in the State of New South Wales and a claim to land has been lodged under the [ALRA,] the Aboriginal land council lodging the claim is entitled to a fee simple interest to that land from the moment the claim is lodged provided the requirements of s.36(1) of the ALRA are subsequently satisfied. The relevant land council therefore has an interest in the land in that it has an enforceable statutory right in respect of it from the date of claim: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act [The Winbar Claim No 3] (1988) 66 LGRA 265, per Hope JA at 275-276.

The New South Wales Aboriginal Land Council is concerned that:

a.   The Registrar General is considering the correctness of entries on the Register, in regard to which Aboriginal land councils have an interest and that such consideration is occurring in the absence of any notification to those land councils; and

b.   The Registrar General is considering the correctness of entries on the Register, with regard to which Aboriginal Land Councils have an interest, without providing those land councils with an opportunity to be heard in relation to those considerations.

Accordingly we request that you advise of the following:

i. The folios of the Register with regard to which the Registrar-General "is considering the correctness of recordings made by him in the [RPA] Register pursuant to notifications made under s.25A of the former [CLCA]".

ii.   The reasons for considering the correctness of the recordings in the Register;

iii.   The documents being relied upon in considering the correctness of the recordings in the Register, including advice as to whether any Land Titles Office documents which are relevant to the consideration of the correctness of the recordings are thought to be missing or destroyed; and

iv.   The likely time frame by which the consideration of the correctness of the recordings in the Register is to take place.

...

We request that the Registrar-General take no action with respect to any folio of the register because of any consideration of the “... the correctness of recordings made by him in the [RPA] Register pursuant to s.25A of the [CLCA]" until such time as:

a.   The Registrar General has notified the relevant Local Aboriginal Land Council and the New South Wales Aboriginal Land Council that the correctness of a particular entry is being considered. That notice should clearly identify the folio in question, the reasons for the correctness of that folio being considered and the documents being relied upon in that consideration; and

b.   The relevant local Aboriginal Land Council and the New South Wales Aboriginal Land Council have been given a reasonable opportunity to make representations and submissions in relation to:

i.   The correctness of the entry on the Register; and

ii.   The Registrar-General's consideration of the correctness of the entry on the Register.

69. Mooney did not annex, nor depose to, any response made to that letter, by or on behalf of, the then Registrar-General. At the hearing, Dr Pritchard SC, for the applicant, had this exchange with him, regarding s 12A(1) of the RPA (Tp33, L21 – p34, L36):

Q. That makes provision, doesn't it, for the Registrar General, before taking any action that alters the Register, to give notice of the proposed action to any person that the Registrar General considers should be notified of it?

A. Correct.

Q. You're not aware, are you, of any notice given in this case in February 2011 to the local Aboriginal land council when Christine Tilley amended the Register in response to Sonia Hughes request, are you?

A. No.

Q. You would accept that no such notice was given?

A. I assume no such notice was given, yes.

Q. Was that under your direction?

A. There was no knowledge of the letter, so I had no knowledge that anyone had an interest in it and we were looking at the evidence that was given to us from Mogo and others and made those amendments based on that.

Q. You didn't look to see whether there was any Aboriginal land claim in respect of that?

A. I personally didn't but I assume nobody else must have either.

Q. It's the case, isn't it, that the email from Sonia Hughes to Christine Tilley refers to Aboriginal Land Claims, doesn't it?

A. It does, yes.

Q. Consideration was given at the time the Register was altered to the existence of Aboriginal land claims, correct?

A. Well, yes, in that case it must have been. Yes, sorry. Yes.

Q. Is it your understanding of the practice at the LPI when an officer in the LPI receives an email from the status branch requesting a change in title that the details of that request are not recorded on the Register anywhere?

A. I have no idea. That, sorry I'm not sure exactly what the relationship for status branch is, other than to provide advice but I don't know exactly what the process is from there.

Q. It's not your experience that details of such requests end up on the Register?

A. Not on the Register, no, definitely not.

Q. No, and that would be consistent with your direction as well?

A. Yes. Yes.

Q. When a title is changed, the new registered proprietor is not notified. Is that correct as well?

A. I am not sure of the process.

Q. This is a process within the LPI when the registered proprietor on a certificate of title is changed?

A. They yeah, sorry, they would normally be notified.

Q. In this case are you aware that the Land Commission was notified?

A. I am not aware. Not aware.

Q. You have not seen any evidence about that, have you?

A. No, I haven't.

...

Q. ... I take it from your earlier answers in relation to the questions concerning Crown conversion directions, that you have never given a direction to persons within the conversion project about amending titles, have you?

A. Personally I haven't, no.

70. Medaris deposed (par 15) that, following the decision in Mogo, LPI “adopted a practice of correcting folios for which ‘The State of New South Wales’ had been incorrectly recorded as registered proprietor pursuant to a sec 26A declaration (a s 25A error)”, but (par 16) that “LPI was not able to systematically identify all of these errors. Rather, the errors were corrected when identified by LPI staff or by external stakeholders”.

71. On 19 February 2009 (SAF 14), Medaris issued “Crown Conversion Directions 2008-4” to public servants engaged in the “Conversion Project”, which, as we have already noted ([42] above), was designed to “convert all land records to an electronically administered Torrens title system”.

72. The direction was issued in response to Mogo, and concerned “the procedures that they were to adopt in order to correct s 25A errors on folios in the Register” (pars 5 and 18, EB fols 134 and 136). It provided (fols 87 and 157):

Upon Gazettal of land to be declared Crown Land under Sec 25A of the Crown Lands Consolidation Act 1913, there was a requirement for the Registrar General to record such action as a note on our Charting Maps and as a pencil note of (sic) the affected Certificates of Title

Prior to the judgement [in Mogo,] declaring any alienated land affected by a Sec 25A notification, that the subject land does not revert to Crown Title, but remains freehold in the name of the Registered Proprietor prior to the Sec25A action, the Registrar Generals procedure was to note the affected Certificate of Title to the effect of the Gazettal action, and to cancel this Certificate of Title declaring the subject land to be Crown Land. In view of this judgement, there is now a responsibility of the Registrar General to (sic), during any processing of land affected by Sec 25A, to reinstate the Certificate of Title in the name of the Registered Proprietor prior to subject action, and to record any dealings with the subject land, as either an encumbrance in the Second Schedule, or as a note in the Notations section of the Certificate of Title. This requirement has been highlighted during both the Crown Lands Conversion project and the Old Form Register Conversion program. With the reinstatement of any Certificates of Title cancelled under this policy, it will now be required to enter a notification in the Second Schedule to the effect that the subject land is held subject to Sec 25A. ...

...

In view of this judgement, and in order for the State of New South Wales to be recorded as the Registered Proprietor, it will now be necessary for the Crown to invoke Section 138 of the Crown Lands Act 1989 by the publication of a notice in the Government Gazette declaring the land to be Crown Land

The appropriate action by the Crown in having THE STATE OF NEW SOUTH WALES recorded as being the Registered Proprietor of Torrens Title land under Sec 138 of the Crown Lands Act 1989 is currently under discussion and at this stage has not been resolved.

73. Direction 2008-4 went on (fols 87 – 89, and 157 – 159) to prescribe procedures to be adopted when the validation process revealed that the subject land was already affected “by any existing s 25A action”. It listed documentation to be assembled by “the Conversion officer”, and the steps to be then followed, including “recordings”, “notations”, and the completion of “the s 25A form”.

74. In her affidavit, and during her cross-examination, Tilley could not recall if she conferred with Medaris about preparing dealing AG30519K, in response to Hughes’s request, but she commonly did so, although she did not see herself as obliged to do so. She had “no reason to doubt that she would have followed her usual practice” (pars 10 and 11, and Tp68, LL20 – 36, and p80, LL22 – 35).

75. While we found her oral evidence (Tpp80 – 86) quite vague about what she did or did not do, regarding the subject title corrections, she told the Court (Tp88) that she felt both “bound” and “authorized” by Direction 2008-4.

76. She conceded that she did not follow all of its elements: she conceded that she did not consult either the Land Commission (Tp84), or the applicant (Tp93), that she did no “investigation” beyond assembling the relevant documents (Tp91), and that she did not complete a s 25A form (Tp91). She prepared the dealing in an “ad hock (sic)” process (Tp92, L23), which Medaris, in her view, had authorized.

77. The now Registrar-General, Mooney, expressed his views (EB fol 98, par 22):

a.   That the identity of the registered proprietor of the land was changed by Dealing W337534.

b.   That Dealing W337534 was effected on the assumption that the Declaration vested the land in the Crown.

c.   That the assumption referred to in the preceding opinion was incorrect.

d.   That the State of New South Wales was recorded on the Register as the registered proprietor of the land prior to 1 February 2011 pursuant to Dealing W337534.

and he was cross-examined about them (Tp34, L40 – p35, L31).

78. SAF 22(b) records agreement between the parties that, as at the date of the SAF (18 January 2016):

(b)   pursuant to the 1986 s 25A Notification, the claimed land continues to be able to be dealt with "as if it had been acquired under the Closer Settlement Acts or as Crown land within the meaning of the Crown Lands Consolidation Act 1913".

The Issues before the Court

79. The main issue for determination by the Court in these proceedings is whether, as at the date of claim, the claimed land was “land vested in Her Majesty” within the meaning and intent of s 36(1) of the ALRA, but the parties agreed that a number of sub-issues were involved in it.

80. After exchange and amendment of competing Statements of Facts and Contentions, the parties agreed, on 18 January 2016, on the following list of “Real Issues” for the Court’s determination in this appeal (CB tab 5 – footnotes not included):

Issue for Determination

7.   The only matter to be determined in the proceedings is whether the claimed land was "vested in Her Majesty" as at 18 September 2009 when the land claims were lodged.

8. Pursuant to s 36(7) of the ALRA the Minister has the onus of satisfying the Court that the claimed land was not 'claimable Crown land' at the date of claim.

Sub-Issues

9.   In the Minister's Amended Statements of Facts and Contentions filed on 25 November 2015 the Minister contends that the land was not vested in Her Majesty because, after the date claim:

(a)   on 1 February 2011, "in her capacity as the Registrar-General's agent Ms Christine Tilley validly exercised the power conferred by s.12(1)(d) of the [RPA] to correct the Register so that it recorded that the Land Commission was the registered proprietor of the land, not the State of New South Wales"; and

(b) by force of s 12(3) of the [RPA], the effect of the correction is that the Land Commission is deemed to have been the registered proprietor of the land as at the date of claim.

10.   The Applicant disputes those contentions for the reasons set out in its Amended Statement of Facts and Contentions filed on 9 December 2015.

11.   The following sub-issues arise for determination:

(a)   Was it lawful for Ms Christine Tilley, of Land Property Information, to amend the Torrens title Register to record that the Land Commission was the registered proprietor of the claimed land (the Tilley recording) under s. 12(1)(d) of the [RPA]?

In this respect, the following issues arise:

i. Did Ms Christine Tilley exercise power under s. 12(1)(d) of the RPA?

ii. Was Ms Christine Tilley authorised to exercise the Registrar-General's power under s. 12(1)(d) of the RPA as the Registrar-General's agent?

iii. Was the recording on the Register that the State of New South Wales was the registered proprietor of the claimed land an "error" for the purposes of s. 12(1)(d) of the RPA?

(b) If Ms Christine Tilley did not lawfully exercise power under s 12(1)(d):

i. Is the Tilley recording nevertheless a recording to which s 42(1) of the RPA apply?; and

ii. Is the Tilley recording a recording to which s 12(3)(c) of the RPA can nevertheless apply?

(c)   As at 1 February 2011, when the Tilley recording was made, did the applicant have "a right accrued from a recording made in the Register before the [Tilley recording]" for the purposes of s. 12(3)(b) of the RPA?

(d) By operation of s. 12(3)(c) of the RPA, does the Tilley recording cause the claimed land to be taken to have been vested in the Land Commission as at the claim date for the purposes of s. 36(1) of the ALRA?

81. It is well-established that, where the registered proprietor of land under the RPA is recorded in the Register as the “State of New South Wales”, the land is taken to be “vested in Her Majesty”. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act(Boggabri) [2014] NSWLEC 58, Craig J observed (at [19]):

In Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act [1996] NSWLEC 223, Bannon J was required to determine whether land was vested in Her Majesty for the purpose of the Land Rights Act where the “State of New South Wales” was recorded as the registered proprietor under the Real Property Act. When addressing that issue, his Honour said (at 13):

“Obviously the subject land is not vested in the land mass known as New South Wales or in its legislature. In my opinion, the registered proprietor is the Queen, the head of the government of New South Wales. I do not consider the vesting of the property under the title ‘State of New South Wales’ has the effect of vesting the property in a Minister or a statutory corporation on behalf of the Crown.”

The effect of his Honour’s conclusion was not disturbed on appeal (Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459 per Cole JA at 461 D, and Beazley JA at 472 E-G).

82. As presented in counsel’s opening statements, it was put by the minister (Tp4, LL5 – 10), and refuted by the applicant (on five bases – Tp13, LL9 – 42), that there is some form of “retrospective deeming”, even where the amendments of the Register are made some 17 months or so after the land claim is lodged.

83. Dr Pritchard said (Tp13):

... because of the conclusive effect the Register under s 40 of the Real Property Act, the registered proprietor's title is indefeasible by reason of the indefeasibility provision in s 42 of the Real Property Act.

It follows, on the applicant's case, that as of 18 September 2009 the State of New South Wales was recorded as a registered proprietor of the claimed land. It follows the claimed land was at the date of claim vested in Her Majesty; it follows as the appeal allowed. There are five independent separate answers to the Minister's contention in relation to the retrospective deeming. The first is that ... the Land Rights Act mandates that the question of whether the requirements of s [36(1)] of the Land Rights Act are satisfied is to be determined by reference to the facts as they exist at the date of claim. Second, and independently, even if there was an exercise for (sic) power in 2011 to correct the Register under s 12(1)(d) of the Real Property Act, s 12(3)(c) to which Mr Stewart took the Court, does not have the effect of retrospectively altering the ownership of land almost 17 months earlier.

Thirdly, even if there was an exercise for (sic) the power to correct the Register under s 12(1)(d), and the effect of s 12(3)(c) is a retrospective deeming, both of which propositions are disputed, the applicant is protected by s 12(3)(b) because at the time of the correct[ion] it had a right accrued from a recording made in the Register before the correction. The Court will be taken in due course to the important decision of the Court of Appeal in Winbar No 3, with which are of course familiar in relation to the nature of the interest that our land council has upon the lodging of an Aboriginal land claim. Fourthly, further and separate, answer to the Minister's contention is that there were in fact no errors or omissions in the Register, hence no lawful exercise of power conferred by s 12(1)(d). And even if the Minister is correct, again, which is disputed, the effect of s 12(3), it simply has no operation here. Fifthly, there is the issue to which Mr Stewart has referred, that even if there was an error or omission in the Register, Ms Tilley had no lawful authority to exercise the power vested in the Registrar General. Hence there was no lawful exercise of the power conferred by s 12(1)(d).

84. As Mr Stewart brought to notice in his closing address (Tp112), the applicant also relied on s 13H of the RPA as a sixth basis for refuting his thesis.

85. Mr Stewart also put to us on the Minister’s behalf, after Mooney had been cross-examined about “Registrar-General’s Directions” (i.e. at Tp36, LL6 – 9):

... we don't understand there to be any challenge in this case with regard to their legality or lawfulness of the procedures followed, in other words not a case that there was some direction that should have been followed and wasn't followed.

86. As noted (at [14] above), pursuant to s 36(7) of the ALRA, the Minister in this, (and other) land claim appeal(s), bears the statutory and evidentiary onus of satisfying the Court that the claimed land was not “claimable Crown land” as at the date of claim (see also Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council (“Bathurst LALC”) (2009) 166 LGERA 379; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act(Winbar Claim (No 3) (“Winbar (No. 3)”) (1988) 14 NSWLR 685; 66 LGRA 265, at 692).

87. The claims in respect of Lots 2 and 3 were lodged on 18 September 2009, and refused by the respondent Minister on 20 May 2010, on the following basis (EB fol 251):

The land in each of these claims is not claimable Crown land within the meaning of the Aboriginal Land Rights Act 1983 as it comprises freehold land which is not land vested in Her Majesty.

88. The applicant submitted (par 8):

1. Previous cases establish that the relevant time for determining whether land is “claimable Crown lands” is the time the claim under the ALRA is lodged. Thus, the relevant question is whether, as at 18 September 2009, the claimed land was vested in Her Majesty.

2. Previous cases also establish that, where the registered proprietor of land under the RPA is recorded in the Register as the “State of New South Wales”, the land is vested in Her Majesty. That is so even if there is some error in the Register, because of the conclusive effect of the Register (under s 40 of the RPA), and the indefeasibility of a registered proprietor’s title (created by s 42 of the RPA).

3. As at 18 September 2009, the “State of New South Wales” was recorded as the registered proprietor of the claimed land. Accordingly, the claimed land was, at the time of the claim, vested in Her Majesty.

89. The submission went on to say (par 9) that the Minister did not appear to dispute this reasoning, but rather asserted that the land was not vested in Her Majesty as at 18 September 2009, on the following basis:

1. on 1 February 2011, in her capacity as the Registrar-General’s agent, Ms Christine Tilley validly exercised the power conferred by s 12(1)(d) of the RPA to correct the Register so that it recorded that the Land Commission was the registered proprietor of the land, not the State of New South Wales; and

2. by force of s 12(3)(c) of the RPA, the effect of the correction is that the Land Commission is retrospectively deemed to have been the registered proprietor of the land as at 18 September 2009.

90. Section 36(7) of the ALRA provides (i) that the Minister bears the statutory and evidentiary onus of satisfying the Court that the claimed land was not “claimable Crown lands” as at the date of the claim (see, relevantly, Bathurst LALC; and (ii) that, should the Court find that the Minister has failed to discharge the onus, the Court is bound to transfer the claimed land to the applicant land council (see, relevantly, Winbar (No. 3), at 692-693).

Sub Issue 11(a) – Exercise of Power by Ms Tilley

91. Tilley’s authority to amend the register to record the Land Commission as the registered proprietor of the claimed land, could be taken to be derived from s 12(1)(d) of the RPA, which vests the power in the Registrar-General, upon sufficient evidence, to correct errors and omissions in the Register.

92. The following issues arise for determination:

1. Did Tilley exercise power under s 12(1)(d) of the RPA?

2. Was Tilley authorised to exercise the Registrar-General’s power under s 12(1)(d) of the RPA as the Registrar-General’s agent?

3. Was the recording on the Register that the State of New South Wales was the registered proprietor of the claimed land an “error” for the purposes of s 12(1)(d) of the RPA?

(i) and (iii)Section 12(1)(d) of the RPA, and the concept of “error”?

93. It was contended by the LALC that Tilley’s recording could not be taken to constitute an exercise of power under s 12(1)(d) of the RPA, as there was no relevant error or omission in the Register to be corrected.

94. However, the Minister submitted (par 25) that there was such an “error”, as the registered dealing did not reflect the true legal position in relation to the land. As s 25A did not legally vest the land in the State of New South Wales, it was an error for the Registrar-General to have registered the dealing because the land had not, as a matter of law, been previously transferred by the Land Commission to the State of New South Wales: Giles JA held in Mogo that the s 25A declaration merely gave a general power to deal with the land as if it were Crown land.

95. In response, the LALC contends (1) that such competing claims to ownership of land should not be resolved by invoking the power under s 12(1)(d), but by using the procedures outlined in s 138 of the RPA ([25] above), and (2) that Tilley’s actions in changing the title to the claimed land as the consequence of an email exchange, and without notice to affected parties, was contrary to those procedures.

96. The LALC relies upon a narrow construction of s 12(1)(d) to argue that it does not confer upon the Registrar-General the power to alter the registered proprietor of land “contrary to the indefeasibility provisions of the RPA”. It rejects the Minister’s contention that the power under s 12(1)(d) is capable of being exercised if the Registrar-General is satisfied that there is an error or omission. An ordinary reading of s 12(1)(d) requires that there, in fact, be an error or omission in the relevant statutory sense. The terms of s 12(1)(d) distinguish it from numerous other powers, vested in the Registrar-General by the RPA, which operate upon the Registrar-General forming an opinion about certain matters.

97. The applicant submitted, and the Minister conceded (at 31), that such an argument is supported by obiter dicta in the Court of Appeal’s reasoning in Sahab Holdings Pty Ltd v Registrar-General (“Sahab”) (2011) 15 BPR 29, 627; [2011] NSWCA 395, which suggests that scope of the power to correct an “error” in s 12(1)(d) is to be “ascertained by reference to whether the correction of the error would impinge upon a right to which indefeasibility attached”. Sahab went on to appeal to the High Court (Castle Constructions Pty Limited v Sahab Holdings Pty Ltd (2013) 247 CLR 149), but those obiter observations were neither considered nor endorsed in that Court, and Gageler J specifically observed (at [57]) that it was neither necessary nor appropriate to consider them.

98. The Court of Appeal has emphasised the need to “read down” the ordinary meaning of errors in s 12(1)(d), consistently with the indefeasibility provisions of the RPA, and has, in a number of cases, supported the proposition that there is no error where the Registrar-General registers a document that is valid on its face: e.g. State Bank of New South Wales v Berowra Waters Holdings Pty Ltd (“Berowra Waters”) (1986) 4 NSWLR 398, at 404; Quach v Marrickville Municipal Council (No 2) (“Quach”) (1990) 22 NSWLR 65, at 71. However, that proposition is subject to the qualification that, where the registration of a dealing is prohibited by a caveat, the Registrar-General may correct changes to the Register made in contravention of the caveat: FNCB – Waltons Finance Ltd v Crest Realty Pty Ltd (“FNCB”) (1977) 10 NSWLR 621, at 626-628.

99. Hence, the applicant submits, a deliberate decision by the Registrar-General to record a person as the registered proprietor of land, in accordance with a dealing which is registered, and which the Registrar-General is not prohibited by a caveat from registering, cannot engage the power in s 12(1)(d).

100. In relation to the claimed land, the applicant submitted (par 59) that:

... there was no error or omission in the Register. The recording of the “State of New South Wales” as the registered proprietor of the claimed land was a deliberate decision. It was a decision made to reflect the terms of Application W3375534 to transfer the claimed land from the Land Commission to the “State of New South Wales”. There was no caveat that prevented registration.

101. On the other hand, the Minister submitted that the recording of the State of New South Wales as the registered proprietor of the claimed lands constitutes a relevant “error” in the Register. It is settled law, following Mogo, that the Register should not have been altered to record the State of New South Wales as the registered proprietor. Rather, at least since 12 December 1980, the land could not be taken to be Crown land vested in the State of New South Wales. The effect of the s 25A declaration was merely to give a general power to deal with the land as if it were Crown land. The changing of the Register to record the State of New South Wales as the registered proprietor of the claimed land is, therefore, contrary to the true legal effect of the s 25A declaration. As attested by Mooney, W337534 assumed that the s 25A declaration vested the land in the Crown, but Mogo has subsequently clarified that such an assumption was, in fact, incorrect.

102. Hence, there was patently an “error” within the ordinary meaning of the word, and an error to which s 12(1)(d) of the RPA applies. While s 12(1)(d) may not operate where the Registrar-General “correctly” records a dealing which contains an error which is a fault of the parties, the scope of the provision extends to allow the correction of administrative mistakes made by the office of the Registrar-General: Berowra Waters, at 403E; and Quach, at 60D-E per Young J, his Honour holding that the power extended to administrative errors made within the office of the Registrar-General.

103. The misconception regarding the effect of a s 25A declaration was clarified by Mogo, which led to Direction 2008-4. In accordance with that Direction, once the matter was brought to the attention of the Registrar-General’s office – albeit as a result of the claims made by the LALC – the Tilley recording was made. The Minister submits that there was an obligation on the Registrar-General (or his agent) to make such a correction.

104. The Minister further submitted that decisions both prior to, and subsequent to, Sahab do not take the same restrictive view on the scope of the power to correct an error. The Minister submitted:

In [FNCB], for example, the Registrar-General exercised the power under s 12(1)(d) of the RPA to cancel a wrongly registered discharge of mortgage and reinstated the discharged mortgage. That correction plainly affected “a right to which indefeasibility attaches”, yet it was held that the Registrar-General could exercise the power, indeed was bound to exercise the power, once the error became apparent. As Waddell J said at 630:

The rights which are conferred by registration and the various matters which depend upon the state of the register can only have been intended to be governed by a register which is free from errors. In the present case the discharge of mortgage had been registered in error, and once this had been established to the satisfaction of the Registrar-General, he had power to correct the error. Indeed, he had a duty to do so: Pirie v Registrar-General (1962) 109 CLR 619 at 623 per Kitto J (at 644) per Windeyer J.

33. A similar approach was seemingly taken by Nicholas J to the correction of the register in respect of the incorrectly registered transfer and discharge of the mortgage in issue in Trethowan v Chief Commissioner of State Revenue [2013] NSWSC 576: see particularly [37], [38] and note also [45].

105. In line with those decisions, and assuming Tilley had the relevant authority, once it was established to the satisfaction of the Registrar-General that the Register contained an incorrect recording of the registered proprietor of the claimed land, the Registrar-General had both the power, and an obligation, to correct it. Giles JA was clearly of the view that a power to do so existed in respect of the similar error at issue in Mogo. His Honour said (at [52]) that it would be “remarkable if there was no power to rectify the steps erroneously taken by the Registrar-General” (as a consequence of the erroneous view as to the effect of s 25A.

Consideration

106. The recording of “State of New South Wales” as the registered proprietor of the claimed land was a deliberate action, by the LPI, to reflect accurately the terms of Application W337534 to transfer the claimed land from the Land Commission to the “State of New South Wales”. There was no error in the process of registration, and, at the time of amendment, the Register accurately reflected the dealing prepared by Trent.

107. Given that the recording of the “State of New South Wales” remained on the Register for a period of 17 years, and that the Land Commission, and its successors, did not enquire into, or seek Certificates of Title for, the subject land at any stage during that period, it is reasonable to conclude that the land was intended to be Crown land.

108. There is no evidence before the Court that Application W3375534 was prepared in error, or that the recording of “the State of New South Wales” as the registered proprietor was made in error. The inference from the available material is that Application W337534 reflected the intentions of the parties. Relevantly, in Moonbi, the Minister alleged that there had been a change of title, on the basis of similar evidence from Medaris to that which is put forward in this case. The Court rejected that speculative evidence as being insufficient to establish the basis for the change.

109. The same approach should be adopted in this matter.

(ii) Ms Tilley’s authority?

110. In relation to the question of Tilley’s authority, the applicant contends (Amended Statement of Facts and Contentions, at 31(a) – (a2)):

(a) there was no delegation, and there is no evidence of any delegation, to Ms Christine Tilley of the Registrar-General powers under s 12(1)(d) of the RPA.

(a1) Ms Christine Tilley was not the agent of the Registrar-General for the purpose of exercising power under s 12(1)(d) of the RPA nor was she capable in law of being an agent for the purpose of exercising that power.

(a2) the preparation and lodgement of Departmental Dealing AG30519K by Ms Christine Tilley was not authorised under delegation from the Registrar-General, and was not, and could not have been done as a lawful exercise of power pursuant to s 12(1)(d) of the RPA;

111. The Minister accepts that Tilley was not the Registrar-General’s lawful delegate (SAF 21, subs 36, 49, and 54), but argues that Tilley had the relevant authority to exercise the power under s 12(1)(d) of the RPA, in accordance with the so-called “Carltona” principle, as a foundation to agency: Carltona Ltd v Minister for Works [1943] 2 All ER 560; see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd (“Peko”) (1986) 162 CLR 24, in particular, Mason J’s description of the Carltona principle in the context of agency.

112. In Carltona, Lord Greene MR said (at 563A):

In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them… The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of ministers by responsible officials of the department. Public business could not be carried on if that were not the case.

113. The Carltona principle provides that, in certain circumstances, and out of administrative necessary, a decision-maker may act through a duly authorised agent. In the cases where it applies (see Peko at 38 (per Mason J; Gibbs CJ and Dawson J agreeing)):

the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible to him.

114. In Australia, the application of the Carltona principle is not restricted to Ministerial decision-making powers: O’Reilly v State Bank of Victoria Commissioners (“O’Reilly”) (1983) 153 CLR 1, in which Gibbs CJ (with whom Murphy J agreed), and Wilson J, held that it could extend to persons who were statutory office holders, but not Ministers, for example the Registrar-General. In O’Reilly the relevant taxation statute conferred an express power of delegation, and it was held that the Carltona principle could still be applied.

143. The Minister submitted that both Brantag and Bonaccorso make it clear that the “correction stands”, notwithstanding vitiating error, leaving a person “deprived of an interest in land [to] sue for deprivation under to (sic) compensation provisions of the Act”. If that is accepted, there is no logical reason that the retrospective consequences provided for by s 12(3)(c) of the RPA would not apply to the Tilley recording, even if not lawfully made pursuant to s 12(1)(d) of the RPA. The point made by Young J in Brantag (see [71], quoted in [132] above) applies equally to such a correction – “[t]he whole purpose of the [RPA] is that one need only look at the folio on the Register and see who owns what land for what interest” – see also Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45, at [39]; and Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (2013) 247 CLR 149, at [20].

144. In respect of this argument, the LALC contended that even if the Court could take into account a retrospective alteration of the facts resulting from the operation of other legislation, s 12(3)(c) of the RPA does not achieve that result. There is a strong common law presumption against construing provisions to have a retrospective effect. As was noted by Gibbs J in Mathieson v Burton (“Mathieson”) (1971) 124 CLR 1; [1971] HCA 4, citing Wright J in In re Athlumney; Ex parte Wilson [1898] 2 QB 547, at 551-552:

Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.

150. The applicant argued that the Minister relies on s 12(3)(c) not only to impair existing rights, but to operate ex post facto, such as to deem the facts in the past to be different from what they actually were.

151. The applicant (subs 34) would construe s 12(3)(c) as follows:

Section 12(3)(c) merely states that, subject to s 12(3)(b), “the Register shall, as so corrected, have the same validity and effect as it would have had if the error or omission had not occurred”. Rather than operating as a deeming provision, s 12(3)(c) operates prospectively from the date of correction but makes clear that the Register, “as so corrected” is equally valid and effective as if there had been no error or omission. In other words, subject to s 12(3)(b), a corrected recording on the Register is of no lesser status than other recordings on the Register.

152. The applicant supported that construction with a number of arguments (subs 36 – 40):

36.    First, the presence of s 12(3)(b) which preserves accrued rights is inconsistent with the notion that s 12(3)(c) is an ex post facto deeming provision. Given s 12(3)(b), there is no obvious reason why s 12(3)(c) should need to operate as an ex post facto deeming provision.

37.   Secondly, if Parliament had intended for s 12(3)(c) to operate as a retrospective deeming provision it could easily have made its intention clear. When Parliament wishes to deem matters to be different in the past, it will invariably use the word “deem”. The word “deem” does not appear in s 12(3)(c).

38.   Thirdly, the words “shall, as so corrected” suggest a temporal operation of the provision which is prospective, not retrospective.

39.   Fourthly, the presumption against retrospectivity strongly supports the construction of s 12(3)(c) as only operating as from the time of the correction.

40. In short, s 12(3)(c) is not a provision that has the effect of “altering the facts of history” in the way that the Minister contends, so as to remove the statutory entitlement of the applicant by administrative action without notice, and without compensation. Much clearer words would be required if that was to be the effect.

Consideration

153. There is nothing before the Court to support the argument that the general application of s 12 of the RPA is to effect the repeal of, or to have a retrospective effect on, s 36 of the ALRA, either as the intention of any Parliamentary enactment, or by implication.

154. Clearly there is a common law presumption against construing legislative provisions as having a retrospective effect: Mathieson, at 22.

155. In the present case, there is no evidence to support that there is, or was, a statutory intent for the general terms of s 12 of the RPA to prevail in any way over s 36(1) of the ALRA.

Sub-issue 11(c) – Did the Applicant Have a Right Accrued From a Recording Made in the Register Before the Tilley Recording?

156. The LALC submitted that, even if s 12(3)(c) of the RPA ([17] above) had the retrospective effect for which the Minister contended, it is expressly subject to s 12(3)(b), which provides that a correction to the Register under s 12(1)(d) shall have no force or effect to the extent that the correction would “prejudice or affect a right accrued from a recording made in the Register before the correction”.

157. Prior to the 2011 correction, the LALC had a “right” in the land, by virtue of the fact that the “State of New South Wales” was recorded as the registered proprietor of the claimed land. The lodging of a land claim pursuant to s 36(3) of the ALRA creates, from the date of claim, a statutory right to have the claim determined, and, accordingly, if the statutory criteria are satisfied, a right to have the land transferred: Winbar (No 3), at 693 – 694, and 696G – 697F.

158. That right has been described as an “inchoate property right”: Narromine Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 79 LGERA 430, at 333 – 334; and further as “a right in respect of the land notwithstanding that it was conditional on the court affirming and implementing it”: Winbar (No 3), at 696G.

159. The LALC argues that the Minister’s acceptance that the LALC may have such a right, coupled with a contention that the applicant does not have a right accrued “from a recording made in the Register”, is inconsistent with the text, context and purpose of s 12(3)(b). Contrary to the Minister’s submission, the LALC submitted that there is no sound basis to construe the “recording made in the Register” to which s 12(3)(b) refers as distinct from the recording that produced the error or omission which engages s 12(1)(d).

160. The LALC further submitted that, if, contrary to the Minister’s contentions, Parliament had wanted to limit the effect of s 12(3)(b) to rights acquired under a dealing which was registered after an error or omission was made, but before the correction, Parliament could easily have made that clear. Instead, in s 12(3)(b), Parliament used the broadest possible language, in contrast to other provisions of the RPA, which refer to an “interest in land” or “subsisting interests”. These submissions are supported by the reasoning of Craig J, in Moonbi, where His Honour said (at [87]):

[Section 12(3)(b)] ensures that until such time as the correction is made and recorded on the Register, rights accrued by reason of the information contained in the Register immediately prior to the correction are preserved.

161. The Minister considered (at 84) whether s 12(3)(b) of the RPA intercedes to deem that “the Tilley recordings shall have no force or effect (noting that s 12(3)(c) is made ‘subject to’ s 12(3)(b))”. He then conceded (at 85):

It might be said that the Land Council had a “right” conferred by s 36 of the ALR Act which amounts to: a right to lodge a claim; a duty on the part of the Minister to investigate it; an obligation to grant it if it was well-founded; and a right to an appeal if not granted. However, the Minister submits that as [sic] “right”, even if it can be so described, is not a “right accrued from a recording made in the Register” for the purposes of s 12(3)(b) of the RPA.

162. A number of reasons were said to support this (subs pars 86 – 88), in particular (at 86), the “recording made in the Register” as referred to by s 12(3)(b) must be distinct from the “recording” which produced the error or omission which engages s 12(1)(d).

163. The Minister’s submissions went on (at 89) to quote from Professor P Butt’s “Land Law” (6th ed, 2010) in which the learned author said (at 20 – 111) of the introduction of s 12(3) in 1970 that it appeared to overturn a few cases, but:

... Although lamentably drafted, this provision appears intended to give the Registrar-General the power to correct the Register even after a person has acquired an interest and becomes registered, although it adds the rider that the correction is not to prejudice that person’s rights. That is, the power to correct exists, but the correction is not to prejudice rights already accrued from recording made in the Register before correction.

164. The Minister submitted (at 90) that Professor Butt’s observations point to the mischief which s 12(3)(b) originally sought to address, “being the potential prejudice to rights accrued by a person who, prior to the correction, took a registered interest or estate in land. While the amendment made clear that a correction could be made notwithstanding the fact that such a person had acquired an interest on the faith of the uncorrected Register and had become registered, it nevertheless sought to protect that class of persons from adverse effects upon their rights”.

165. The Minister also submitted (at 91) that, to the extent the question requires the Court to reconcile two statutory schemes – the statutory right to make a claim under s 36 of the ALR Act and the statutory right under s 12 of the RPA to rectify the Register – “the Court should find that the statutory right to rectify the Register prevails over any s 36 right the Land Council may have to have the land claims determined in their favour”. The Minister argues that such a result would be inconsistent with the outcome of Mogo, in which the Court “recognised that within the ALRA there are powerful textual considerations supportive of a legislative purpose not to impact on the rights of persons other than the State (or Crown)”. The submission quoted what Giles JA said (at [57]), namely:

The definition of claimable Crown lands carefully delineates the land which may be transferred, with the evident intention that third parties are not to be deprived of their interests and rights (including of user) when the fee simple is transferred.

166. The Minister argues (at 92) that the “Court should be hesitant to adopt an analysis whereby a victim of an erroneous practice followed by the Registrar-General – here the Land Commission of New South Wales – can be dispossessed, such that the Land Council enjoys a transfer of title, to which, but for that erroneous practice, it would not be entitled”.

Consideration

167. For the purposes of this appeal, the corrections made to the Register on 1 February 2011 were corrections that would, and do, “prejudice or affect a right accrued from a recording made in the Register before the correction”, as expressed in s 12(3)(b) of the RPA.

168. Section 12(3)(b) is clearly intended to ensure that s 12(3)(c) of the RPA, which relates to the current and future operation of the Register, does not and should not prejudice any rights accrued through legitimate means, or by statute: Craig J, in Moonbi (at [87]).

169. In this appeal, the applicant accrued its “right” to claim both Lots 2 and 3 at the point in time at which it lodged its land claim.

170. It would be an error to provide the opportunity for diminishing the accrued rights of all Aboriginal Land Councils in NSW, by interpreting s 12 of the RPA as providing for any such corrections to the Register to be retrospective or retroactive in their application.

171. Section 12 of the RPA should not be held to have the effect of removing the remedial and beneficial entitlements/rights which the ALRA provides to Aboriginal Land Councils in NSW.

Sub-issue 11(d) – Retrospective Operation of s 12(3)(c) of the RPA?

172. The final sub-issue requires consideration of whether or not the Tilley recording causes the claimed land to be taken to have been vested in the Land Commission of New South Wales as at the date of claim, for the purposes of s 36(1) of the ALRA.

173. Section 12(3)(c) of the RPA provides that the Register, if corrected, will have the same validity and effect as it would have if the error or omission had not occurred (see [17] above).

174. Section 36(1) of the ALRA defines the characteristics which the land is required to satisfy before it can be classified as “claimable Crown land” (see [11] above).

175. The relevant date for the purposes of determining whether or not the subject land falls within the definition of “claimable Crown lands”, under s 36(1) of the ALRA, is the date on which the claim was made, in this case 18 September 2009.

176. As Hope JA (Samuels and Clarke JJA agreeing) outlined in Winbar (No. 3), at 691, also quote by Craig J in Moonbi, at [37]:

The first matter to be noticed is that the definition of “claimable Crown lands” in s 36(1) fixes the time as at which the conditions which it specifies must be satisfied as the time when the claim for the lands is made. It does not require the conditions to be satisfied at some later time, as, for example, when the Minister investigates the matter or when the court, on appeal, investigates it. What the Minister was then required to do under s 36(5) was to investigate whether the land the subject of the claim satisfied the conditions of the definition at the time the claim was made, and if so satisfied he was required, under the Act in its original form, to transfer the land to the claimant Land Council in fee simple. He had no discretion in the matter; he was simply required to look at a state of facts existing at the date of the claim.

177. As Jagot J observed in Dorrigo Plateau Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2007) 155 LGERA 307; [2007] NSWLEC 653 (at [9]):

It will be apparent that a fundamental prescription within this statutory scheme is that the identification of land as “claimable Crown lands” or not is to be carried out by reference to the date on which the claim was made (New South Wales Aboriginal Land Council v Minister at 691F). This requirement needs to be understood in the context of Parliament having expressly recorded the remedial purpose of the ALR Act in its long title by acknowledging “the importance which land has for Aborigines and the need of Aborigines for land” and accepting that “as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation”. Parliament, through the ALR Act, has sought to redress those circumstances by vesting a right in an Aboriginal land council to have certain land transferred to it provided the land satisfies the definition of “claimable Crown lands”. If the statutory definition did not establish the time when the claim was made as the controlling criterion then the rights of an Aboriginal Land Council would be contingent on whatever interest or view happened to prevail when the claim was determined. That would not achieve the objects Parliament identified and is not the scheme Parliament enacted.

178. The Minister did not dispute (subs 12) that, at the date the claim was lodged, the “State of New South Wales” was recorded as the registered proprietor, but the Minister’s Amended Statement of Facts and Contentions contends that the land was not vested in Her Majesty, because, after the date of claim (applicant’s subs 9):

(a) on 1 February 2011, in her capacity as the Registrar-General’s agent, Ms Christine Tilley validly exercised the power conferred by s.12(1)(d) of the RPA to correct the Register so that it recorded that the Land Commission was the registered proprietor of the land, not the State of New South Wales; and

(b) by force of s 12(3)(c) of the RPA, the effect of the correction is that the Land Commission is retrospectively deemed to have been the registered proprietor of the land as at 18 September 2009.

179. The Minister argues (subs 94) that s 12(3)(c) describes the “outer limits” of the consequences of the exercise of the power in s 12(1)(d) of the RPA, such that it confers upon the Register a retrospective effect.

180. The Minister relied on Moonbi (particularly at [86] – [90]) as introducing the possibility that the Register might be corrected, under either s 12(1)(d) or s 138 of the RPA, and suggested that, in the present case, the rectification of the Register has already been achieved, and the corrected Register should be taken to have the “same effect” as if the error, namely the recording of the State of NSW as the registered proprietor, had “not occurred”.

181. The applicant rejected the Minister’s contentions, submitting (par 31) that, even if the Court could take into account a retrospective alteration of the facts, resulting from the operation of other legislation, s 12(3)(c) of the RPA does not have that effect.

182. The applicant submitted (par 34) that:

... Rather than operating as a deeming provision, s 12(3)(c) operates prospectively from the date of correction but makes clear that the Register, “as so corrected” is equally valid and effective as if there had been no error or omission. In other words, subject to s 12(3)(b), a corrected recording on the Register is of no lesser status than other recordings on the Register.

183. This construction was said to be supported by a number of matters (subs 36 –39):

36.   First, the presence of s 12(3)(b) which preserves accrued rights is inconsistent with the notion that s 12(3)(c) is an ex post facto deeming provision. Given s 12(3)(b), there is no obvious reason why s 12(3)(c) should need to operate as an ex post facto deeming provision.

37.   Secondly, if Parliament had intended for s 12(3)(c) to operate as a retrospective deeming provision it could easily have made its intention clear. When Parliament wishes to deem matters to be different in the past, it will invariably use the word “deem”. The word “deem” does not appear in s 12(3)(c).

38.   Thirdly, the words “shall, as so corrected” suggest a temporal operation of the provision which is prospective, not retrospective.

39.   Fourthly, the presumption against retrospectivity strongly supports the construction of s 12(3)(c) as only operating as from the time of the correction.

Consideration

184. We have already considered in detail the issue of retrospectivity ([145] – [155] above), and we come to the same conclusion on this sub-issue – in the absence of any explicit indication by the Parliament that s 12(3)(c) of the RPA should be taken to have retrospective effect, it cannot be taken to have retrospective operation.

Conclusion

185. We prefer the applicant’s contentions and submission on all issues and sub-issues in this appeal:

1. Tilley did not have the requisite authority to alter the register;

2. Section 42(1) of the RPA applies to the recording of the Land Commission of New South Wales as the registered proprietor of the claimed land, irrespective of the fact we have determined that that recording was not made lawfully. As such, the current registered proprietor of the claimed land should be taken to be the Land Commission of New South Wales;

3. Section 12(3)(c) of the RPA is not a retrospective deeming provision. The recording of the Land Commission of New South Wales as the registered proprietor of the claimed land cannot, therefore, be said to have a retrospective effect, such that it was applicable as at the date of claim by the LALC, being 18 September 2009;

4. Irrespective of (c) above, the LALC’s rights would be protected by s 12(3)(b) of the RPA. As from the date of the claim, namely 18 September 2009, the LALC had a “right” in relation to the land. The corrections made by Tilley, to that extent, “prejudice or affect a right accrued from a recording made in the Register before the correction”.

Therefore,

5. The larger issue of whether or not the claimed land was “vested in Her Majesty”, as at 18 September 2009, when the land claims were lodged, is answered in the affirmative.

Orders

186. The orders of the Court will, therefore, be as follows:

1. The appeal is upheld.

2. The land subject of Land Claims 20644 and 20637 was “claimable Crown land”, as at 18 September 2009, for the purposes of s 36(1) of the Aboriginal Land Rights Act 1983, and is ordered to be transferred to the La Perouse Local Aboriginal Land Council in fee simple.

3. The Respondent is to transfer Lots 2 and 3 in DP 39760, in accordance with Order (2), within three (3) months of the date of these Orders.

4. The Respondent is to pay the costs of the La Perouse Local Aboriginal Land Council in respect of these proceedings, on a party-party basis, as agreed or assessed, according to law, unless either party files, within 14 days of these orders, a Notice of Motion seeking a different or additional costs order.

5. The Court Books, Evidence Books and all exhibits may be returned.

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Decision last updated: 01 May 2018