Queensland Medical Laboratory v Blewett

[1988] FCA 423

CATCHWORDS

ABORIGINAL LAND RIGHTS - Decision to grant land - Land said to

include a road over which the public has a right of way -

Elements necessary to constitute opening by Crown of public

road - Whether dedication suffices, without public user	-
Whether marking of line on map constituted dedication	by Crown
- Necessity for consent to dedication by lessee.
ADMINISTRATIVE LAW - Challenge to decision on grounds	of error
of law and improper exercise of power	- Admissibility in

evidence of material not before the decision-maker at the time

of decision.

Aboriginal Land Rights (Northern Territory) Act 1976	5.11.
Administrative Decisions (Judicial Review) Act 1977	5.5.
NSW G.235 of 1988

THE ATTO~BY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA V

HONOURABLE GERARD LESLIE HAND, MINISTER FOR ABORIGINAL AFFAIRS

3 August 1988

& ORS

Wilcox J

Sydney

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY	)	No. NSW G.235 of 1988
)
GENERAL DIVISION	)

BETWEEN: THE ATTORNEY-GENERAL FOR

THE NORTHERN TERRITORY OF

AUSTRALIA

Applicant

AND: HONOURABLE GERARD LESLIE

HAND, MINISTER FOR ABORIGINAL AFFAIRS

First Respondent

JIMITJA JUNGARRAYI, TOBY

JUNGARRAYI and PETER	JAPALJARRI -
Second Respondents

AND:	IN THE MATTER of the JILA (CHILLA WELL) W A R L P I R ~ D
-  CLAIH

CORAM :	WILCOX J
PLACE :	“SYDNEY

DATE :  3 AUGUST 1988

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The Application be dismissed.

2. The applicant pay to each of the respondents their

costs of the proceedlng.

Note:	Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.

.

,

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT REGISTRY No. NSW G.235 of 1988

)

DIVISION GENERAL )

BETWEEN: THE ATTORNEY-GENERAL FOR

THE NORTHERN TERRITORY OF

AUSTRALIA

AND: HONOURABLE GERARD LESLIE

HAND, MINISTER FOR

ABORIGINAL AFFAIRS

First Respondent

JIMITJA JUNGARRAYI, TOBY
JUNGARRAYI and PETER

JAPALJARRI

Second Respondents

AND: IN THE MATTER of the JILA

(CHILLA WELL)	WARLPIR-D
CLAIM

CORAM :	.-	WILCOX J
PLACE:	SYDNEY
DATE :	3 AUGUST 1988

REASONS FOR JUDGMENT

This is a challenge by the Attorney-General of the

Northern Territory of Australia to the validity of a decision

made by the first respondent, the Minister for Aboriginal
Affairs, in connectlon with a claim made under the Aboriginal
Land Rights (Northern Territory) Act 1976. The case concerns

the Jila (Chilla Well) Warlpiri Land Claim. At their own

request, Jimitja Jungarrayi, Toby Jungarrayi and Peter proceeding in order to enable them to represent the traditional owners of the land.

The facts

On 20 November 1978 the Central Land Council lodged

with the then Aboriginal Land Commissioner an application for
a land grant over an area of alienated Crown land known as

"Chilla Well Pastoral Lease no.764". The lessee of that land

was then, and has since remained, the Aboriginal Development
Commission; an entity established under the Aboriginal

Development Commission Act 1980. The area clalmed constituted

most of Portion 1337. It was situate in the Tanami district

north west of Alice Springs.

On 14 November 1983 the application was amended to include in the land claimed an area of unalienated Crown .- so as

land which lay within Portion 1337	but which had been excluded
from pastoral lease 764 because	it was part of a stock route
and a stock reserve.
The hearing of the land claim commenced on 16 June 1986 before the then Aboriginal Land Commissioner, Maurice	J.

Both the claimant and the Northern Territory government were represented at that hearing.

Portion 1337 is traversed diagonally, near its north eastern corner, by a road known as the Tanami road. It	is
common ground between the present parties that the Tanaml	road

is "a road over which the public has a right of way", within

the meaning of s.ll(3) of the Land Rights Act.	Consequently,
the site of that road may not	be included in a land grant

under the Act. In his report, delivered to the then Minister concession by the applicant "that a reserve 100 metres wide

for Aboriginal Affairs and to the Administrator of the

followrng the present alignment of the road should	be excised
from the claim area	for the road and associated works".

There 1s a second "road" within the claim area. This

road is unsealed. Indeed it is no more than a graded bush
track. The road leads from the Tanami road to Mt Theo. Its
]unction with the Tanami road lies a little to the south of

the stock reserve.	The road travels in an approximate
east-north-east direction within Portion 1337. On the way	it
crosses the stock route.	After leaving Portion 1337, the road

.

passes through land within Portion 1740.	Since 24 September
1980, that land has been vested in fee simple in the Central

Desert Aboriginal Trust pursuant to a grant made under the

Land Rights Act.

A question arose before the Aboriginal Lands Commissioner as to whether the Mt The0 road	1s a road over
which the public has a right	of way. In his report Maurice J

said that, as the section of the road between the eastern

boundary of Portion 1337 and Mt The0 traversed land vested in

a Land Trust under the provisions of the Land Rlghts Act,

"(in) the absence of consent to public use	by the Minister
under s.68(3), there can be no doubt that this section	of the
road is not public".	The Commissioner went on:

"AS for the section between the Tanami Road and

the eastern boundary of the Pastoral Lease,

there is no evidence of express dedication by

the A.D.C.	and not really the slightest
evidence of implied dedication. The terms	of
the Pastoral Lease	do not appear to permlt the

Northern Territory to create a public right of

way over it merely	by publishing plans and
maps as it says it	has done."

On 30 January 1988 the Minister wrote a letter to the

then Chief Minister	of the Northern Territory relating to the
claim:

"I am writing to inform you that I have made a

declsion in respect of the land recommended
for grant by the Aboriginal Land Commissioner
in his report of 17 July 1987 on the Jila

(Chilla Well) Warlpiri land claim.

I have decided that the land in the Chilla

well pastoral lease section of the claim

should be granted to	an Aboriginal Land Trust
as recommended by the Commissioner in	his
report.
I have deferred a decision	in respect of the

portion of the North	West Stock Route and the
Chilla Well Stock Reserve	within the claim
pending the outcome	of litigation in the
Courts in respect	of the status of land in
stock routes.
In making my decision	I have had regard to

matters of detriment referred to by the
Commissioner in his report. That detrlment is
not sufficient to persuade me that the land in

the pastoral lease section of the claim should

not be granted. However I note that the

Northern Territory may require access to materlals and water to maintain the Tanami

Road, in sltuations not covered by s.14 of the

Aboriginal Land Rights (Northern Territory)

5.   .

Act 1976.	I do not see that matter being a
problem and I am sure that arrangements	can be

made to provide access to the land for road

malntenance where necessary.

I will be inserting a notice in the Northern

Territory press within the next few days announcing details of my decision."

The litigation referred to by the Minister, in respect of the status of land in stock routes, was apparently Re Warumungu Land Claim; Ex parte Attorney-General (NT) (1987) 77 ALR 27;

an application for special leave to appeal to the High	Court
of Australia from the decision of a Full Court of this	Court
then being unresolved.

Although, in the second paragraph of his letter, the

Minister referred to a	decision "that the land ... should be
granted . . . ' I ,	it is accepted by the parties that the relevant

decision of the Minister was that he was satisfied of one of the alternatives set out in para.(b) of s.ll(1) of the Land

Rights Act. That sub-section deals with the establishment of

one or more Land Trusts to hold land intended to be granted
under the Act. The pre-requisites of the MiniSteK'S duty to
establish one or more Land Trust6 are, firstly, receipt of a
report f r h an Aboriginal Land Commissioner containing a

recommendation that an area of Crown land should be granted to

a Land Trust for the benefit	of Aboriginals entitled by
Aboriginal tradition to the	use or occupation of that area

and, secondly, that the land, OK part of the land, should be

granted to one or more Land Trusts to be so held.

The substance of the matter, therefore, was that the

Minister had decided to proceed wlth the action necessary to enable a grant by the Governor General under s.12 of the Act of the whole of the land initially claimed In 1978; leaving

for later consideration the additional land	-- the section of
the stock route and the stock reserve	-- claimed by virtue of
the 1983 amendment.
The present proceedlng was commenced on 19 February 1988 when the applicant filed	in the Court an Application

seeking review, under the Administrative Decisions (Judicial by his letter of 30 January 1988. Three grounds were

specified: that the decision involved an error of law, that

the decision was an improper exercise of power and that the decision involved a breach of the rules of natural justice. The applicant sought an order setting aside the decision and

remitting the matter to the Minister for reconsideration

according to law. ne also sought an injunction restraining

the Minister from taking any action to give effect to his

decision. .

At the hearing counsel for the applicant announced

that their client did not press the claim of denial of natural
justice. Furthermore, they explained that the first two

grounds stated in the Appllcation were intended to embrace

only a single point:	that the Minister's decision was invalid
in law because it involved a decision in favour	of granting

land which was not capable of being granted under the Act viz

that portion of the claimed area over which lay the road to	Mt
Theo.	This land, says the applicant, is "land on which there
1s a road over which the public has a rlght of	way". AS they
point out, s.11(3)	provides that the reference made In

sub-s.(l) of 5.11 to land "shall be read as not including a

reference to any land on which there is a road over which the

public has a right of way".	The effect of s.ll(3) is that
such land is not available for grant under the	Act.

The admissibility of evidence of dedication and acceptance

In support of their claim that the public has a right

of way over the road from the Tanami road to Rt Theo, the applicant sought to rely upon a number of affidavits. Those affidavits deal with three matters. First, they disclose the

circumstances under which the Mt The0 road was constructed.

It appears that, some time before 1982, an Aboriginal

outstation was established at Rt Theo. The Northern Territory

Department of Community Development favoured the drilling of a bore at Mt The0 to supply water to that outstation. It was

necessary for that purpose to take a drilling . rig to Mt Theo.

Consequently, the Department raised the matter with the .

Commonwealth Department of Aboriginal Affairs. On 8 February

1982 Mr R A Styles, Area Officer (Western) of that Department

-- who was apparently based in Alice Springs -- wrote a letter

to the Offlcer-in-Charge of the Community Government Division of the Department of Community Development at Alice Sprlngs in which he confirmed "that the following roads would be of great

benefit to people resident or proposing to reside at

outstations in the vlcinity of Yuendunu". There followed a

list of six roads including that from the Tanami road to Mt
Theo.

In November 1982 the Northern Territory Department of Transport and Works formed the existing road by grading the

route. The cost of that work was $3,942.40. Since that date

the road has been regraded upon one occasion; by the Yuendunu

Council but at the cost ($1,560) of the Department of

Community Development.

The second matter disclosed by the affidavits that, at some stage between is

23 November 1982 and 15 April

1986, an official map was drawn by the Survey and Mapping

Division of the Northern TeKrltOry Department of Lands. This

plan, which was a public record of the Northern Territory

government and was available for inspection by members of the

public, was entitled "Tjila (Chilla Well) Warlpiri Land

Claim". It was numbered CP4569. The plan showed Portion

1337, its relationship to the adjoining portions and the

relevant rQad.	The Mt The0 road was shown as a single
unbroken line marked "Road. Approx 45 km to Mt Theo".	The

map was drawn to a scale of 1:250,000. It did not show the

width of the road, or of any road reserve. There is no

evidence whether the line	of the road, as It was constructed,
corresponds with the line of the road	as shown on the map.

Finally, there are several affidavlts from people who

have driven over the Mt Theo road since Its construction in

1982. Four of the deponents are persons concerned with the

water supply at Mt Theo, public servants or contractors. One
deponent, M r Max Heggen, is a field officer of the Office of
Local Government within the Northern Territory Department of
Labour and Administrative Services. His duties include the
monitoring of Aboriginal communities and outstatlons in the
Alice Springs region. For that purpose he regularly visits Mt

Theo. The other deponent, Mr D F Gibson, a brologist under

contract to the Conservation Commission of the Northern to, and egress from, the Tanami Wildlife Reserve.

There is some evidence to indicate that the Central Land Council has consented to M r Gibson's use of the road.

Otherwise the evidence is silent upon the question whether any of the deponents have obtained permission before using the road.

The respondents objected to the reading of the affidavits to which I have just referred. They submitted that	.-
the question before the Court, upon an application under the

Administrative Decisions (Judicial Review) Act to review an administrative decision, must be the validity in point of law of the subject decision and that, in all cases, that question

had to be determined solely by reference to the materlal

before the decision-maker. They cited the following passage

in the reasons for ludgment of Davles	J in Ruangrong v
Minister for Immigratlon and Ethnic Affalrs	(not reported, 29
March 1988) at p.7:

"The material considerations which a
decision-maker must take into account are
those whlch were before h m at the tlme he
made his decision or which, if not actually
before him, were or should have been in the
hands of his officers and ought to have been
brought to his attention. In judicial review
proceedings, it is not permissible to adduce

other material for, ex hypothesi, that was not

before and ought not to have been before the

decislon-maker when he made his decision."

The only relevant material before the Minister, the respondents claimed, was the report of the Aboriginal Land

Commissioner. That report not only provided no factual

material from which the Minlster should have realized that the
Mt The0 road was a road which the public was entitled to use

as of right; it said the opposite. The present proceeding, the respondents submitted, was really an attack upon the

Commissioner's factual finding.	As such, counsel argued, it
ran into formidable diffficulties: the Commissioner	was not a
respondent to the	application, the application was made out of
time and, in any event, the applicant sought to resort to	.
material which was not before the Commissloner.

It was obvious when the objection was raised that it

was strongly arguable that the affidavits were inadmissible.

However, the objection went to the heart of the case. As

counsel did not propose to cross-examine the deponents to the

affidavits, I took the view that the convenient course	was to
read the affidavits, subject to the objection.	This course

.. .

being taken, certain additional evidence was tendered on

behalf of the respondents. That evidence shows that,

according to a search made In the records	of the Aborlginal
Development Commission, no consent was ever given	by that

Commission, as lessee of Pastoral Lease 7 6 4 , to the

construction of the portion of the Mt The0 road which lies within the leased area. Nor, according to a search of the records of the Central Land Council, was consent given to the

construction of that part of the road which is within Portion

1 7 4 0 .    Furthermore, Mr E J Tickner, co-ordinator of Yuendunu

Outstations Aboriginal Corporation, says that in the course of his duties he has driven to Mt The0 along the subject road

upon approximately 2 4 occasions but he has never seen	it used
by any persons except the local Aboriginal people.

Having had the opportunity of further reflection upon the point, I think that the objection taken by the respondents to the admission of the affidavits tendered on behalf of the

applicant is well founded. However, the respondents go too

far in saying that reference may never be made, in an
applicatioc under the Administrative Decisions (Judicial
Review) Act, to material which was not before the

decision-maker. It is true that this Act provides for the

making of an application under the Act by a "person who is
aggrieved by a decision to whlch this Act applies", that such

an application must be "for an order of review in respect of

the decision" upon one or more of the grounds specified	in the
section, and that similar limitations are made	by s . 6 in

connection with the review of conduct relating to the making

of a decision. I agree that the focus in each case 1s upon

the validity in law of a particular decision or of conduct in connection with the making of a particular decislon. But it

is not possible to postulate a general rule	that, In reviewing
under the Act the validity of a decision or	of conduct, the
Court is limited to an examination of the material which	was,

or which ought to have been, before the decision-maker.

I think that the ambit of the relevant evidence must

depend upon the ground upon which the decision or conduct is challenged. For example, as Davies J has pointed out, in a case where the complaint is that the decision-maker has failed

to take into account a material consideration It must be shown

that this consideration was before the decision-maker; either

in actual fact or notionally, in the sense that it was, or

should have been, known to the officers of the decislon-maker.

In such a case it is difficult to see the relevance of material not before the decision-maker, actually or

notionally. Where it is suggested that the impropriety lay the decision-maker taking into account in

an extraneous

consideration, the focus of the evidence will be the material	..
before the decision-maker and the nature	of, and reasons for,
his or her decision. In the case of unreasonableness,

attention will primarily focus upon the material before the

decision-maker, but not necessarily to the exclusion of other

material: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at pp.169-170.	A complaint of denial
of natural justice may require reference	to the material
before the decision-maker,	as, for example, in Kioa v West

(1985) 159 CLR 550; but In many cases, for example, where the decision-maker falled to accord a hearing, the nature of the

material before the decision-maker, as distinct from the

nature of the decision itself, may be quite immaterlal.

As mentioned, the two grounds of review advanced in

the present case are error of law and improper exercise of

power. Whether or not there is an error of law in a

particular case must depend	upon the reasoning of the
decision-maker, read against the material then before	that
decision-maker.	It is difficult to see that other material
could ever be relevant	in determining whether the

decision-maker had erred in law. This was pointed out in a different context -- appeal to the Court from a decision of

the Administrative Appeals Tribunal -- by Brennan J in

Waterford v Commonwealth	of Australia (1987) 71	ALR 673 at
p.689. His Honour said:

"The error of law which an appellant must rely

on to succeed must arise	on the facts as the
AAT has found them to	be or it must vitiate
the findings made or it must have led the	AAT
to omit to make a finding	it was legally

required to make. There is no error of law

simply in making a wrong finding of fact.

Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact."

The principle adopted by Brennan J may be illustrated

by the present case.	The argument for the applicant is that
the Minister erred in	law in regarding the site of the Ht The0
road as being "land" within the meaning of	s.11 of the Land

Rights Act, and therefore available for grant. That question

depended upon whether it was a road over which the public had

a right of way. But the only factual material before the

Minister on that point was the Commissioner's finding	as to
the absence of evidence of dedication. There could	be no

error in law in concluding, upon the basis of that finding, that the Mt The0 road was not a road which the members of the public were entitled to use. To attack the Minister's

decision upon that matter	by reference to other evidentiary
material is not to say that the Minister erred in	law but

rather to claim that different evidence would have impelled a

different conclusion of law.

There are similar difficulties about the second ground relied upon by the applicant. The ground taken,

improper exercise of power, is an umbrella ground inserted	in
s.5(1) to cover all of the diverse grounds specified in	s.5(2)
of the Administrative Decisions (Judicial Review)	Act. I have

already commented upon the relevance of evidence not before

the decision-maker to the grounds mentioned	in paras.(a), (b)
and (g) of s . 5 ( 2 ) :	taking into account an irrelevant

consideration, failing to take into account a relevant consideratjon and unreasonableness. It is difficult to see

that such evidence would be relevant to para.(h);
uncertainty.	As to the other grounds -- improper purpose

(para.(c)), bad faith (para.(d)), discretion of another person

(para.(e)), exercise of power in accordance with a rule or

policy (para(f)), and other abuse of power (para(j)) -- there

may well be relevant evidence in the form of material which
was not before the decision-maker. But none of these
paragraphs is relevant to the present case.

It seems to me that inappropriate grounds were

specified in the Application. The case which the appllcant
really seeks to make is that, Irrespective of the evidence
before Haurice J and of his findings, the Hinister was not
authorized to reach the state of satisfaction referred to in

s.ll(l)(b) of	the Land Rights Act in relation to the site of
the fit The0 road; the reason being that, upon the true facts, that site was not "land" within the meaning of s.ll(1).	The

appropriate ground under whlch to have raised that contention
would have been para.(d) of s.5(1) of the Administrative

Decisions (Judicial Review) Act; namely, "that the decision

was not authorized by the enactment in pursuance of which it

was purported to be made". Had that ground been taken It would, in my opinion, have been open to the applicant to adduce evidence to show that, regardless of the content of the

material actually before the Minister, the relevant decision
was one which he could not lawfully make. The situation would
be the same as that which would have arisen had the applicant

adopted the alternative procedure, open to him, of seeking an

injunction against the Minister pursuant to s.39B of the

.-

Judiciary Act 1903. In either case the validity of the

Minister's decision would be subjected to judicial review,

although by reference to materials not seen by the Minister and arising under circumstances where, even if the application succeeded, there could be no possible criticrsm of the

Minister.

On one view, the Court should dispose of this

appli catlon by notrng that the appllcant has not elected t rely upon either s.5(l)(d) of the Administrative Decisions 0

(Judicial Review) Act or s.398 of the Judiciary Act, by

holding that the chosen grounds are inapproprlate and, In consequence, by dismissing the claim. But the applicant does seek to raise for determination a serious question pertaining

to the validity of the Minister's decision. If the present

proceeding were dismissed without any determination	of that
question, it would be open to the applicant to	re-raise the
matter in a fresh application either under s.5(l)(d)	-- with
an extension of time	-- or under s.39B, without the necessiry
for any extension of time.	If that course were taken the

parties would incur additional delay and expense. Under these circumstances, and as there is no question of prejudice and the point of substance has been fully argued, the appropriate

course is to determine the point; doing	so upon the basis of
whatever evidence would properly have been admissible	if an

amendment had been made to the Application to include reliance

upon s.S(l)(d).	That evidence would include the statements in
the affidayits to which I have already	referred.

.

The elements necessary for openlng a public road
The submissions of all parties treat the words "road over which the public has a right	of way" as being synonomous

with "public road". I think that this is correct. Moreover,

the entitlement of members of the public to use a	road is
something quite different from their ability	to do so; for

example, because of the locatlon of the road or its state of

construction. All this was made clear by Windeyer J in

Permanent Trustee Company of New South Wales Limlted v

Campbelltown Hunicipal Council (1960) 105 CLR 401, in a passage at p.420 in which his Honour also deals with the creation of a public road:

' l . . .	when the Act speaks of a public road as a
road the public are entitled	to use, it means
land over which	a public right of way exists

-- that is to say, a highway in the common law

sense. . . .

It is the public right to	use the land as a
way, rather than its physical	nature, that
makes land a highway ... At common law a	highway was created when a competent landowner
manifested an intention to dedicate land as a public road, and there was an acceptance by the public of the proferred dedication. With some exceptions, any landowner absolutely entitled in fee simple is, at common law, competent to dedicate land as a road."
Part IV of the Control of Roads Act (NT) makes

provision for the opening of roads within the Northern

Territory by the Minister. It is not contended on behalf of the applicant that the Mt The0 road was opened in accordance with this-Part. But counsel for the applicant contend that

the existence of this legislation does not preclude the
opening of a public road in accordance	with common law rules.
The legislation does not expressly preclude such	a course and

it is not argued on behalf of any of the respondents that it does so by necessary implication. I thlnk that, in the absence of their exclusion by the Act, the common law methods

of opening public roads remain available.

Counsel for the applicant argue that the section of

the Mt The0 road which runs from the Tanami road to the

boundary of Portion 1337 has been opened as a public road at

common law. They put three alternative bases for thls

proposition: dedication simpliciter, dedication allied with

public user and dedication wlth public expenditure.

Notwithstanding the reference by Windeyer J in the

Permanent Trustee case to the necessity for public acceptance, counsel for the applicant argue that, in a case where land 1s owned by the Crown, dedication alone suffices to create a

public road.	Reference is made to two 19th century decisions,
Rapley v Martin (1865)	4 SCR (NSW) 173 and Scott v Shires of

Eltham and Heidelberq (1876) 2 VLR (L) 98.

Rapley and Scott were both actions for trespass, the

question in each case being whether the land upon which the

alleged trespasses had occurred were public roads.	In Rapley,
the subject land had been marked as a	road, both upon the

Crown advertisement for sale of the area and upon the Crown

grant itself.	There was, apparently, some evidence of user,
but the Full Court of the Supreme Court of New South Wales did	.-

not seem to regard this as essential. At pp.180-181	the Court
said:

“There was here, we conceive, both before and

at the time of the sale and grant to Hughes, a

dedication of the road	In question to the
public, as a highway	-- effectuated by the
terms of the grant,	at all events as against
Hughes and all claiming under h m .	There may

be some uncertainty, as to the portion of this
road described as commencing ‘about’ fourteen
chains from the river; but there is none
respecting the part now in controversy. The

actual user of the right, however, along a
certain line, especially if uninterrupted and
for a conslderable period, might perhaps be
sufficient to indicate that as the intended
roadway. ... But, be thls as it may, nothing can (we think) be clearer than that the Crown

meant to confer -- and did all in its power to	confer -- a general right of way to the
public, along his entire eastern boundary, by the grant to Hughes. The granting of a right of way to Martin, or to any other individual
or individuals specified, over then ungranted
Crown land, would have been inconsistent with
such an intention. So would the retention
(call it by what name you will) of such a
right, in or for the benefit of the Crown
itself. There was here either the dedication,
to the public at large, of the descrlbed road
as and for a highway, or there was nothing."
In the case of - Scott the relevant strip of land had

not been identified as a road upon the Crown grant; but there
was evidence that the line of the road was marked on the land
by a peg and by blazed trees. These markings corresponded to
the posrtion of a road shown on a government map. Stawell CJ,
speaking for the Full Court of the Supreme Court of Victorla
at p.100, approved of the following passage in the charge

which, as trial judge, he had given to the jury:

"The original plan or map is one of the public

records of the colony, and that agrees with

the peg and	also with the line of marked
t'rees.	The instant the Government put that
road on that map, that road was dedicated to

the public. That is a dedication, and we want seems to me merely adding to that which

no more. A proclamation was put in, but that

was

sufficient before."

The more recent authorities emphasise the need for

the party contending that a given strip of land constituted a

public road to prove use by the public: see, in addition to

the Permanent Trustee case, Vickery v Municipality of

Strathfield (1911) 11 CLR 354	at p.361, Attorney General v The
City Bank of Sydney (1920) 20	SR (NSW) 216 at p.220, Owen v

O'Connor [l9641 NSWR 1312 at pp.1319-1320, Newlngton v

Windeyer (1985) 3 NSWLR 555 at p.563. In Owen, at p.1320,

Sugerman J expressly affirmed the insufficlency of a mere declaration of intention to dedicate:

"A declaration of intention to dedicate is not,

however, sufficient of itself to bring about

the dedication of a public highway. There

must also be acceptance by the public, which
is to be inferred from public user of the way.

But at common law adoption or acceptance by

Maintenance and repair at the public expense	the local authority is not essential ...
are, however, material and so also is use by public authorities for purposes, such as the laylng of water or sewer mains or the erection of electric power lines, for which
public highways are commonly used. 'The
proper way of regarding these cases is to look at the whole of the evldence together, to see whether there has been such a continuous and connected user as is sufficient to raise the presumption of dedication: and the presumption, if it can be made, then is of a complete dedication, coeval with the early
user. You refer the whole of the user to a
trespasses' (Turner v. Walsh (1881), 6 App
lawful orisin rather than to a series of -
Cas. 636, at p.642."
In none of the 20th century cases, which I have read,

is any ref6rence made to Rapley or to -.	This is
surprising, especially having regard to the identity of some

of the judges involved in the more recent cases. There is no

hint in the recent cases of the existence of a different rule, in relation to the necessity for acceptance, as between Crown and private dedications. It may be that this is because the

judges who decided those cases thought that there was no different rule. It may be that, being concerned with private

dedications, the question of Crown dedication did not	arise:
although it should be noted that	in the City Bank case the

relevant road was dedicated by the government, on resumed

land.

The necessity for evidence of acceptance in relation

to the dedication of roads by the Crown is an important

question having ramifications well beyond the present case.

There must be numerous holdings of land in Australia upon the

titles of which road reservations are marked; these

reservations being strips of land neither developed	for, or
used as, public roads.	If mere dedication is enough to

constitute those strips as public roads, as Rapley and Scott
suggest, these markings constitute a significant limitation

upon the title of the holders.

In the view I take, it is not necessary to decide this important question in the present case.	Even i f mere
dedication is enough, in the case of dedication	by the Crown,

it seems to me that the evidence does not establish the

necessary intention to dedicate.

.

The evidence as to dedication	.
In 1982 the relevant land was vested in the Crown in

right of the Northern Territory in fee simple, but subject to a lease in favour of the Aboriginal Development Commission. It may be accepted that officers of the Northern Territory

government intended that public moneys would be spent on
constructing the Mt The0 road, and that such moneys were

L

22.

'.

spent.	It is less easy to accept that such	offlcers had the
intention, or the	authorlty, to dedicate the land to	the

public. A dedicatron of land as a road confers rights upon

members of the public in derogation of the previous rights of

the dedicator. An intention to dedicate should be inferred only from unequivocal acts of dedication. No doubt it 1 s for that reason that the act of dedication usually takes the form

of marking the plan as a road reserve upon a document of title

such as a land grant or a plan of subdivision. In such a case

the position and dimensions of the road reserve	are clearly
stated, in such a manner that there	can be no question as to

the precise identity of the land the subject of the

dedication. Ey contrast, in the present case, the position of

the road has not been marked upon any document of title. The

road is merely shown upon a plan prepared in order to locate

the land the subject of the Aborlglnal land claim. The

dimensions of the road are not shown. The road is indicated

merely by a line, no clue being given as to its width. I

think that the proper view is that this plan was prepared for

information only, in relation to the land claim; and without

any intention that the drawing . of the plan would constitute a

dedication of the site of the road to the public in derogation

of the rights which would otherwise be available to the Crown.

A second aspect of intention arises out of the

position of the lessee, the Aboriginal Development Commission. with the question whether the consent of a lessee is required for the dedication by the freeholder of land as a public road.

However, the law relating to other lnterests provldes guidance. According to Halsbury "Laws of England" (4th ed)

V01.21 para.67, before 1926, when copyhold tltle was abollshed

in England, there could be no effective dedication of land
without the joint concurrence of the lord of the manor and of
the copyholder. Similarly, a leaseholder could not dedicate

land as a highway wlthout the consent of the owner of the

freehold (para.68).	When land was held in settlement,
dedication required the consent of all persons interested	in
the settlement (para.69).	Where land was subject to a
mortgage, the mortgagee's	consent was necessary (para.70).
The relevant principle is illustrated by the decision of the English Court of Appeal In Farquhar	v Newbury Rural
District Council [l9091 1 Ch 12.	That case concerned land

settled upon a tenant for life wlth lmmediate remainder to a

tenant in fee, both of whom were - sui juris. A question arose

whether a road constructed over the land and used	by members
of the public had been dedicated as a public	road. It was

contended that, by reason of the life interest, there could

have been QO valid dedication of the road. This proposition

.

was rejected, all members of the Court holding that the tenant

for life and the remainderman together could have dedicated
the land as a road. At	p.15 Cozens-Harding MR pointed out the

need for a joint intention: "The tenant for life alone, of course, could not bind the remainderman. The remainderman, not being in possession, could not dedicate without the concurrence of the tenant for life". Farwell LJ put the

' L

matter more succinctly at p.19:  "A man cannot dedicate that

which is not hls own, but there is nothlng to prevent several
owners who between them own the entlre fee from dedicating".

The same principle must apply to a lease. Were ~t otherwise, it would be possible for the fee simple owner to

lease land -- perhaps for a substantial term such	as 99 years
and at a substantial premlum	-- and then to diminish the

utllity of that land to the lessee by opening a public road

through the land. I think that the words "competent

landowner", used by Windeyer J in the Permanent Trustee case,

must be read as referring to the person or persons holding all

of the existlng legal interests in the relevant land.

The submission is made on behalf of the applicant

that, if the consent to dedication of the Aboriginal glven. It is not suggested that the Commission itself gave any consent. But it is said that the Commission is an

emanation of the Crown in right	of the Commonwealth;
accordingly that it was open to the Commonwealth government	--
by a relevant officer	-- to grant consent to the dedication;
and that the letter of 8 February 1982 from MC Styles to the

Officer-in-Charge of the Community Government Division at
Alice Springs constituted such a consent.

I thlnk that each of the first two propositions in this argument is open to question; but I need not stay to

discuss them. Mr Styles did not purport to give any consent,

25.   .

on behalf of the Aboriglnal Development Commission	or any body
else, to the dedication of any land	as a public road. All

that MC Styles did, as an officer of the Department of

Aboriginal Affairs, was to indicate that, amongst other roads,

a road from the Tanami road to Mt	The0 "would be of great
benefit to people resident or proposing to reside	at
outstations in the vicinity of Yuendunu".	The letter left

open both the manner of providing the road and its route. As

counsel for the second respondents points out, it would be

possible to build a road linking the Tanaml road to Mt The0

without traversing any part of the land leased to the

Aboriginal Development Commission. It would also have been

consistent with Mr Styles' letter that	any road to be provlded
should be a private road, with limited	access, or that it
should be opened	in accordance with the formal requirements of

the Control of Roads Act, the Minister first acquiring from

the lessee its interest over the proposed road reserve.

Both the second and thlrd arguments put by the

applicant include, as an essential element, the proposition

that the relevant land	was dedicated as a road. They then
refer to added ingredients, in the alternative: user by the	.-
public and public expenditure. Having regard to the
restricted classes of persons who are shown to have	used the
road since 1982 and the absence	of evidence to negative the

possibility that those persons used the road pursuant to an

express permission given on behalf of the Aborlginal

Development Commission and the Central	Desert Aboriginal Land
Trust, it is not obvious that the user which	has occurred is

such as to amount to an acceptance by the public of any

dedicat ion as a road: cf Schubert v Lee (1946) 71 CLR 5

Ireland v Haesler [l9591 VR 4. The applicant may be on

stronger ground in relation to public expenditure. There is no doubt that public monies have been spent upon the road. In

the Permanent Trustee case,	at p.422, Windeyer J suggested
that a declared intention	to dedicate might "be ripened into
dedication by public user of the land	as a road, or by a

public body having authority to take it over on behalf of the

public doing so, by for example, expending money in forming or

maintaining it as a road". If there had been an act of

dedication in the present case, the expenditure of public

funds upon the maintenance of the	road might have made out the
applicant's	case on acceptance; although in determlning that

point it would have been necessary to consider the significance, if any, of the particular source, withln government, of the funds. In other words, there may have been

a question whether this expenditure was made as part of the

management of the public road system of the Northern Territory

or by way of special assistance to a particular class of

Territory residents. .

In view of my conclusion that there was no effective

act of dedication it is unnecessary to determine whether there
has been an act of acceptance. Even leaving aside the

procedural and evidentiary problems occasioned by the form of

the Application, it is clear that the challenge to the

Minister's decision must fail. The Application should be dismissed, with costs.

I certify this and the twenty-slx (26)

preceding pages to be a true copy of
the Reasons for Judgment of

his Honour Justice Wilcox.

Associate:/-fl

Date:	3 August 1988
Counsel for the Applicant:	Mr J D Heydon QC with
Mr J D Barrett

Solicitor for the Applicant: Solicitor for the Northern

Territory

Counsel for the First

Respondent:	MC R J Burbidge QC with MC T Riley
Solicitor for the First
Respondent:	Australlan Government Solicltor
Counsel for the second
Respondents:	MC T F Robertson
Solicitor for the Second
Respondents:	Holt  MC David Avery

Date(6) of hearing: 6 July 1988