Registrar of Titles v Mrsa - [2015] WASCA 204

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: REGISTRAR OF TITLES -v- MRSA [2015] WASCA 204

CORAM: MARTIN CJ
NEWNES JA
MURPHY JA

HEARD: 20 JULY 2015

DELIVERED : 12 OCTOBER 2015

FILE NO/S: CACV 27 of 2015

BETWEEN: REGISTRAR OF TITLES
Appellant
AND
LINDA ANN MRSA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :ALLANSON J
Citation  :ZELJKO MRSA (as Executor of the Estate of the Late IVAN MRSA) -v- MRSA [2014] WASC 482
File No  :CIV 2532 of 2010

Catchwords:

Real property - Transfer of Land Act 1893 (WA) s 205 - Whether Registrar entitled to recover amounts paid pursuant to s 205 by way of contribution or indemnity - Whether such proceedings to be commenced by Registrar or State of Western Australia - Proper construction of pts XI and XII of the Transfer of Land Act - No implied exclusion of common law causes of action - Registrar authorised to claim contribution or indemnity

Tort - Deceit - Statutory liability to pay compensation constitutes loss - Statutory liability to pay compensation does not prevent satisfaction of element of causation

Legislation:

Real Property Act 1900 (NSW), s 120
Transfer of Land Act 1893 (WA), s 195, s 199, s 201, s 205

Result:

Appeal upheld
Decision of the trial judge dismissing the appellant's claim against the respondent set aside
Judgment entered in the amount of $1,390,301.91

Category: A

Representation:

Counsel:

Appellant: Mr G T W Tannin SC & Ms M J Elliott
Respondent: No appearance

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: No appearance

Case(s) referred to in judgment(s):

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Balog v Independent Commission Against Corruption (1990) 169 CLR 625
BIL (NZ Holdings) Ltd v ERA House Ltd (1991) 23 NSWLR 280
Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205
Challenger Managed Investments Ltd v Direct Money Corp Pty Ltd [2003] NSWSC 1072; (2003) 59 NSWLR 452
Kirkland v Quinross Pty Ltd [2008] NSWSC 286
Magill v Magill [2006] HCA 51; (2006) 226 CLR 551
Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494
Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687
Mrsa v Mrsa [2014] WASC 482
Pedulla v Panetta [2011] NSWSC 1386
Potter v Minahan (1908) 7 CLR 277
Registrar-General v Behn (1981) 148 CLR 562
MARTIN CJ:

Summary

Some time in late 2003, or perhaps in 2004, the respondent, Linda Ann Mrsa, forged the signature of her father, Ivan Mrsa, on a document which appointed her his attorney with power to sell any of his land. Ms Mrsa used the forged document to obtain a replacement duplicate certificate of title to land owned by her father. She also used the forged document to effectively convey title to that land to the Western Australian Planning Commission (the Planning Commission), which became the registered proprietor of the land under the Transfer of Land Act 1893 (WA) (the Act). Ms Mrsa misappropriated the money which the Planning Commission paid in order to obtain title to the land.
The transfer of the land to the Planning Commission, and the fraud, were discovered by members of the Mrsa family some years later. In 2010, Mr Mrsa commenced proceedings against Ms Mrsa and against the appellant, the Registrar of Titles (the Registrar). Mr Mrsa died in 2011, and the proceedings were continued by his executor on behalf of his estate. Ms Mrsa failed to file a defence, and judgment was entered against her by reason of that default. The Registrar claimed contribution and indemnity from Ms Mrsa in respect of any amount the State was obliged to pay her father by reason of her fraudulent conduct. The Registrar also claimed contribution and indemnity from Ms Vinka Grubelich, Ms Mrsa's sister, who signed the power of attorney as a witness to her father's signature, thereby falsely asserting that she had seen him execute the document.
The claim brought on behalf of the estate of the late Mr Mrsa for an assessment of the damages to be paid by Ms Mrsa, the estate's claim against the Registrar, and the Registrar's claims for contribution and indemnity against Ms Mrsa and Ms Grubelich went to trial. The trial judge declined to assess the damages due from Ms Mrsa to the estate, upheld the estate's claim against the Registrar and ordered the Registrar to pay damages to the estate in an amount of $1.29 million, together with interest on that sum in the amount of $100,301.91, and dismissed the Registrar's claims for contribution and indemnity. As the Registrar discontinued an appeal which was brought against the dismissal of her claim for contribution and indemnity from Ms Grubelich, it is unnecessary to consider the reasons why that claim was dismissed.
The trial judge dismissed the Registrar's claim for contribution and indemnity against Ms Mrsa for a number of reasons. First, he considered that the statutory scheme for compensation created by the Act impliedly excluded the actions in deceit which the Registrar had brought against Ms Mrsa, and any other claim by the Registrar in tort. Second, he considered that the loss suffered by the State by reason of its obligation to compensate the estate of the late Mr Mrsa was not caused by Ms Mrsa's deceit, viewed in the context of the statutory scheme. Third, he considered that the Registrar was not the appropriate party to claim relief against Ms Mrsa, and that any such claim had to be brought in the name of the State of Western Australia.
The Registrar appeals from that aspect of the decision of the trial judge. For the reasons which follow, each of the reasons given by the trial judge for dismissing the Registrar's claim for contribution and indemnity against Ms Mrsa was erroneous. The appeal should be allowed and the Registrar's claim for contribution and indemnity upheld.

The facts

As the Registrar does not contest any of the findings of fact made by the trial judge, the facts relevant to this appeal can be taken from the reasons which he gave.
A document in the form of a power of attorney dated 23 December 2003 was lodged at Landgate. Mr Mrsa was living in Croatia at this time. The document purported to appoint Ms Mrsa as the attorney of her father with various powers, including the power to sell land. The document purports to be signed by Mr Mrsa, in the presence of Ms Grubelich, who signed the document as witness to the signature, although in fact the signature of Mr Mrsa was forged by Ms Mrsa. Ms Grubelich was asked to sign the document as a witness by her sister, who represented to her that the document was a document which she needed in order to borrow money from the bank.
On 7 September 2004, Ms Mrsa applied for the issue of a replacement duplicate certificate of title in respect of land owned by her father. In the statutory declaration lodged in support of that application, Ms Mrsa declared that she was the attorney of her father under the power of attorney dated 23 December 2003.
During 2004, Ms Mrsa negotiated with the Planning Commission for the sale of the land owned by her father. Purportedly acting on behalf of her father, she agreed to sell the land to the Planning Commission for a price of $315,000. She executed a transfer of the land to the Planning Commission, purportedly as attorney for her father. The transfer specifically referred to the forged power of attorney previously lodged with Landgate.
Settlement of the transaction took place in October 2004. The purchase price was paid to Ms Mrsa, who misappropriated the funds. The transfer of the land to the Planning Commission was accepted for registration, and the Planning Commission became the registered proprietor of the land.
Mr Mrsa did not discover that title to his land had been transferred to the Planning Commission until 2008. He claimed compensation from the Registrar in 2009 and commenced proceedings in pursuit of that claim against the Registrar and against Ms Mrsa in 2010.
Mr Mrsa had no intention of selling the land. The land would not have been sold until after his death. The earliest reasonable time at which the executor could have sold the land following the death of Mr Mrsa was between November 2012 and August 2013. At that time the land had a value of $1.29 million.

The reasons of the trial judge

The estate's claim against Ms Mrsa

The trial judge recorded that default judgment had been entered against Ms Mrsa, for damages to be assessed, by reason of her failure to file a defence to the claim brought against her by the estate. The trial judge noted that Ms Mrsa had played no active part in the proceedings for some time prior to the entry of the default judgment, that no member of her family had been able to contact her, and there was doubt as to whether she was still in Australia.[1]
[1] Mrsa v Mrsa [2014] WASC 482 [11] (Reasons). On the hearing of the appeal, counsel for the Registrar advised that Ms Mrsa had been located in New Zealand, where she was served with notice of the appeal and with the appellant's case. The court was also advised that proceedings had been commenced for her extradition to Australia.
The trial judge declined to proceed with the assessment of damages against Ms Mrsa because she had not been given notice that the estate claimed damages on the basis of equitable fraud, by reference to the value of the property at about August 2013. The trial judge noted that at the time default judgment had been entered against Ms Mrsa, the estate sought damages at common law, on the basis that damages would be assessed as at the time of the fraud in 2004, with interest on damages as from that date.[2]

The estate's claim against the Registrar

[2] Reasons [13].

The trial judge noted that the estate's claim against the Registrar was brought pursuant to s 205 of the Act which relevantly provided:[3]
Any person sustaining loss … by the registration of any other person as proprietor and who by the provisions of this Act is barred from bringing an action of ejectment or other action for the recovery of the land, estate or interest may in any case in which the remedy by action for recovery of damages as herein provided is inapplicable bring an action against the State with the Registrar as nominal defendant for the recovery of damages.
[3] Reasons [19].
The trial judge noted that s 199 of the Act barred the estate from any action of ejectment or other action for the recovery of the land against the Planning Commission as registered proprietor, because the fraud which resulted in the registration of the Planning Commission as registered proprietor was not that of the Planning Commission. The trial judge further noted that for essentially the same reason, the statutory cause of action for compensation created by s 201 of the Act was inapplicable. Accordingly, having found that Ms Mrsa acted fraudulently, and that the consequence of her fraud was the loss of the interest in the land which the estate would otherwise have enjoyed, it only remained to assess the damages payable in respect of that loss.
The trial judge considered that the value of the estate's interest in the land should be assessed as at the date at which it would have been sold, had it not earlier been lost, at which time it would have had a value of $1.29 million. Accordingly, he awarded damages in that amount, together with interest on that amount from the time of a notional sale on 31 August 2013 until the date of judgment, resulting in a total award of $1,390,301.91. Judgment in that amount was entered against the Registrar.

The Registrar's claims for contribution and indemnity

As I have noted, the trial judge dismissed the Registrar's claim for contribution and indemnity from Ms Grubelich, and the Registrar's appeal from that aspect of the trial judge's decision has been discontinued. Accordingly, it is not necessary to recount the reasons for the trial judge's dismissal of the claim against Ms Grubelich.
In relation to the claim against Ms Mrsa, the trial judge noted that the Registrar's claim was brought in deceit.[4] He took the elements of the tort to be correctly stated by Viscount Maugham in the following terms:[5]
First, there must be a representation of fact made by words, or, it may be, by conduct. The phrase will include a case where the defendant has manifestly approved and adopted a representation made by some third person. On the other hand, mere silence, however morally wrong, will not support an action of deceit. Secondly, the representation must be made with a knowledge that it is false. It must be wilfully false, or at least made in the absence of any genuine belief that it is true. Thirdly, it must be made with the intention that it should be acted upon by the plaintiff, or by a class of persons which will include the plaintiff, in the manner which resulted in damage to him. If, however, fraud be established, it is immaterial that there was no intention to cheat or injure the person to whom the false statement was made. Fourthly, it must be proved that the plaintiff has acted upon the false statement and has sustained damage by so doing.
[4] In fact the Registrar's claim for contribution and indemnity was also brought in equity, but no point has been made with respect to the alternative claim in pursuit of the appeal.
[5] Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205, 211, cited with approval in Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 [37] (Gleeson CJ), [114] (Gummow, Kirby & Crennan JJ).
The trial judge also observed that the measure of damage for deceit would be 'the sum representing the loss suffered by the plaintiff because the plaintiff altered its position in reliance on the defendant's misrepresentation'.[6]
[6] Reasons [34] citing Marks vGIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494, 510 - 512 (McHugh, Hayne & Callinan JJ).
Applying those principles to the facts which he had found, the trial judge concluded that Ms Mrsa had made representations of fact which she knew to be false, including representations to the effect that her father had signed the power of attorney in her favour, that the duplicate certificate of title to the land had been lost, and that she had the authority to execute the transfer of the land to the Planning Commission as the attorney of her father. He further found that Ms Mrsa intended to deceive the Registrar when making these representations and that the Registrar had acted upon the false representations when registering the Planning Commission as a registered proprietor of the land. Having made those findings, the trial judge concluded:[7]
In that sense, the damages claimed are caused by the fraudulent inducements which, I find, were made. But for Ms Mrsa's fraud, the title of the Planning Commission would not have been registered and the statutory compensation provision would not have been enlivened. Causation, in the legal sense, is not, however, confined to that factual question.
In pt XI of the Act, the legislature has provided for recovery of compensation payments by the state where those payments were made under s 201. There is no provision for recovery of payments made under s 205. The liability of the state under s 205 arises out of the operation of a statutory compensation scheme. That scheme supports the operation of a title registration system that provides for indefeasibility of title. The liability of the state does not depend upon fraud or some other tort. Relevantly, in this case, it depended on three factors: the registration of the Planning Commission as proprietor; the provisions of the Act which bar the plaintiff from bringing an action of ejectment or other action for the recovery of land; and the remedy by action for recovery of damages under the Act being inapplicable. In my opinion, the Act does not contemplate any payments made by the state, as a result of its liability under s 205, being a loss that is recoverable in an action in deceit or any other tort. Within this statutory scheme, the loss is not caused by the deceit.
Because of my findings on this issue, it is not necessary to address another troubling feature of this case. The deceit was committed by Ms Mrsa falsely representing her authority to the Registrar, as the officer who maintains the Register under s 48 of the Act. Ms Mrsa intended to deceive the Registrar acting in that capacity, and also to deceive the Registrar and the Commissioner of Titles in their functions under s 75 of the Act. The Registrar appears as a nominal defendant to the plaintiff's action, by reason of s 205. The claim against Ms Mrsa and Ms Grubelich is not, however, a claim in which the Registrar is interested. If such a claim is available it should, in my opinion, be brought by the State of Western Australia.
[7] Reasons [76] ‑ [78].
The trial judge went on observe that if he was wrong in those conclusions, the measure of damages payable to the Registrar would be the amount which the Registrar was ordered to pay to the estate of the late Mr Mrsa, namely, $1,390,301.91.

The grounds of appeal

There are three grounds of appeal. They are:
1.The learned trial judge erred in law in finding that any right of the appellant to recover payments made under s 205 of the Act was excluded by the scheme established by pt XI and pt XII of that Act since the loss is not 'caused' by the deceit within that statutory scheme.
2.The learned trial judge erred in law in finding that the appellant was not the proper plaintiff to bring the proceedings against the respondent.
3.The learned trial judge erred in law by failing to give notice to the appellant during trial of the issues referred to in appeal grounds 1 and 2.

Ground 1

The terms used in the first ground of appeal replicate the terms used in the critical portion of the reasons of the trial judge which I have set out above. For that reason, they replicate the ambiguity that is evident in those reasons. That ambiguity arises from the assertion that 'the loss is not caused by the deceit' because of the statutory scheme. The aspect of the statutory scheme which is said to produce this consequence is said to be the lack of any contemplation within the Act of payments made in accordance with the duty imposed by s 205 being losses recoverable in any action in tort. In other words, the trial judge appears to have concluded that the statutory scheme impliedly deprives the Registrar of any cause of action in tort which might lead to the recovery of amounts paid in the discharge of the duty imposed by s 205 of the Act. However, with respect, it is not pellucidly clear whether the expression of the conclusion in terms of causation is intended to be a separate and distinct reason for denying recovery, or simply the consequence of the implied deprivation of the right to recover amounts paid pursuant to the section by way of a tortious remedy.
On balance, it seems to me that the better view is that the observations made by the trial judge with respect to causation are nothing more than the consequence of his view of the proper construction and effect of the statutory provisions, and are not intended to provide a separate and distinct reason for denying recovery. That is because the trial judge expressly found that factual causation was established,[8] and there cannot be any doubt with respect to factual causation. As the trial judge found, Ms Mrsa made representations which she knew to be false with the intention of deceiving the Registrar who relied upon those representations to register the Planning Commission as proprietor of the land, with the result that the damages were payable pursuant to s 205 of the Act. So, unless the Act impliedly deprives the Registrar of any remedy in tort to recover losses arising from the obligation to pay damages imposed by s 205 of the Act, in this case all the elements of the tort of deceit, and factual causation of the loss, were clearly established.
[8] Reasons [76].

On this view of the trial judge's reasons, the question which arises under ground 1 is the question of whether the Act, on its proper construction, deprives the Registrar of any remedy in tort for the recovery of damages payable pursuant to s 205 of the Act.
It should first be noted that this question is rather different to the question which the trial judge appears to have addressed, which is whether the Act 'contemplates' payments made by the State in the discharge of the obligation imposed by s 205 being recoverable in an action in tort. Causes of action in tort are available to all who have suffered loss, including the State and its officers, unless excluded by statute. So, the question is not whether the Act provides for or 'contemplates' a remedy in tort, but rather whether the Act has excluded tortious remedies which would otherwise be available.
The trial judge appears to have given two reasons for his conclusion that the scheme of the Act impliedly excludes tortious remedies for the recovery of damages paid pursuant to s 205 of the Act. The first reason is that s 195 of the Act expressly provides for various means by which amounts paid pursuant to the obligations imposed by s 201 of the Act can be recouped by the State. However, there is no equivalent provision in relation to the recovery of amounts paid pursuant to s 205 of the Act, presumably giving rise to an inference that the legislature did not intend such amounts to be recoverable, thereby impliedly excluding actions in tort. Second, liability to pay damages under s 205 of the Act does not depend upon the occurrence of fraud or any other tort but merely upon satisfaction of the conditions specified in the section. Presumably the process of reasoning is to the effect that tortious recovery of damages paid pursuant to s 205 of the Act should only be permitted if the commission of a tort is an element of the statutory cause of action. I will deal with each of these propositions in turn.
The question posed by ground 1 of the appeal is a question of statutory construction. It follows that primary attention must be directed to the plain and ordinary meaning of the words used in the relevant statutory provisions.[9] It is thus significant that there are no words in the relevant parts of the Act which expressly limit the availability of common law remedies, other than the provisions which preclude remedies which would undermine the indefeasibility of title which is the fundamental scheme of the Act. However, it cannot be suggested that the remedy which the Registrar sought to invoke in this case is in any way inconsistent with, or somehow undermines, indefeasibility of title. To the contrary, the remedy which the Registrar sought to invoke arose because of the provisions of the Act with respect to indefeasibility of title, and in particular a provision of the Act which provides compensation to persons who suffer loss through no fault of their own as a result of the operation of the scheme for indefeasibility of title.
[9] See, for example, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [4] (French CJ), [47] (Hayne, Heydon, Crennan & Kiefel JJ).
The absence of an express provision excluding tortious remedies for the recovery of damages paid pursuant to s 205 is not necessarily fatal to the proposition which found favour with the trial judge. There are cases dealing with legislation for the registration of land title in other jurisdictions in which it has been suggested that the scheme of the Act impliedly excludes a tortious remedy. In Pedulla v Panetta,[10] Pembroke J expressed the tentative although fairly strong view that s 120 of the Real Property Act 1900 (NSW) impliedly excluded claims against the Registrar General in negligence. A similar view was expressed somewhat more tentatively by Bryson J in Challenger Managed Investments Ltd v Direct Money Corp Pty Ltd.[11] However, significantly, in each of those cases relevant provisions governing the statutory remedy against the Registrar General imposed constraints and limitations upon the right to recovery, and the amount which could be recovered pursuant to statute. As Pembroke J pointed out, there was a high likelihood of overlap between a cause of action in negligence and the statutory remedy. Unless the legislature intended that the statutory remedy be the exclusive remedy available to those who had suffered loss, the continuing availability of a remedy in negligence would significantly undermine the statutory scheme and in particular the limitations upon the remedy imposed by the statute.
[10] Pedulla v Panetta [2011] NSWSC 1386.
[11] Challenger Managed Investments Ltd v Direct Money Corp Pty Ltd [2003] NSWSC 1072; (2003) 59 NSWLR 452 [79].
However, that process of reasoning has no application to this case. The question in this case is not whether the Registrar should be limited to some statutory remedy for the recovery of damages paid pursuant to s 205. Rather, the question in this case is whether the Registrar should be deprived of any remedy at all for the recovery of those damages.
In addressing the proper construction and effect of pt XI and pt XII of the Act, it should be presumed that the legislation is to be interpreted consistently with the existence of common law rights and principles unless clear language or necessary implication compels a contrary conclusion.[12] Although this presumption is most commonly applied in the sphere of fundamental rights and freedoms, it has also been applied to more general common law and equitable doctrines and remedies.[13]
[12] Potter v Minahan (1908) 7 CLR 277, 304 (O'Connor J), cited with approval in Balog v Independent Commission Against Corruption (1990) 169 CLR 625, 635 ‑ 636.
[13] See, for example, BIL (NZ Holdings) Ltd v ERA House Ltd (1991) 23 NSWLR 280; Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687.
With these principles in mind it is appropriate to return to the first of the reasons given by the trial judge for his conclusion that all tortious remedies for the recovery of damages paid pursuant to s 205 of the Act are impliedly excluded by the Act. That reason relies upon s 195 of the Act, which provides:
Moneys paid by State under s. 201 may be recovered
Whenever any amount has been paid by the State under section 201 on account of any deceased person such amount may be recovered by the State from the estate of such person by action against his personal representatives in the name of the Registrar; and whenever such amount has been paid on account of a person who shall have been adjudged bankrupt the amount so paid shall be considered to be a debt due from the estate of such bankrupt and a certificate signed by the Treasurer certifying the fact of such payment and delivered to the trustee shall be sufficient proof of such debt; and whenever any amount has been paid by the State under section 201 on account of any person who may have absconded or who cannot be found within the jurisdiction of the Supreme Court and may have left any real or personal estate within Western Australia it shall be lawful for the said court or a judge thereof upon the application of the Registrar and upon the production of a certificate signed by the Treasurer certifying that the amount has been paid in satisfaction of a judgment against the State with the Registrar as nominal defendant to allow the State to have judgment against such person forthwith for the amount so paid together with the costs of the application and such judgment shall be final and signed in like manner as a final judgment by confession or default in an adverse suit and execution may issue immediately; and if such person shall not have left real or personal estate within Western Australia sufficient to satisfy the amount for which execution may have been issued as aforesaid the State may, in the name of the Registrar, recover such amount or the unrecovered balance thereof by action against such person at any time thereafter if he shall be found within the jurisdiction of the Supreme Court.
That section must be read with s 201, which provides:
Compensation of person deprived of land
(1)Any person deprived of land or of any estate or interest in land in consequence of fraud or through the bringing of such land under the operation of this Act or by the registration of any other person as proprietor of such land estate or interest or in consequence of any error or misdescription in any certificate of title or in any entry or memorandum in the Register may bring and prosecute an action at law for the recovery of damages against the person upon whose application such land was brought under the operation of this Act or such erroneous registration was made or who acquired title to the estate or interest through such fraud error or misdescription.
(2)Despite subsection (1) except in the case of fraud or of error occasioned by any omission misrepresentation or misdescription in the application of such person to bring such land under the operation of this Act or to be registered as proprietor of such land estate or interest or in any instrument signed by him such person shall upon a transfer of such land bona fide for value cease to be liable for the payment of any damage beyond the value of the consideration actually received which but for such transfer might have been recovered from him under the provisions herein contained.
(3)In such last‑mentioned case and also in case the person against whom such action for damages is directed to be brought as aforesaid shall be dead or shall have been adjudged bankrupt or cannot be found within the jurisdiction of the Supreme Court then and in any such case such damages with costs of action may be recovered from the State by action against the Registrar as nominal defendant.
(4)All damages and costs to be paid by the State under this section shall be charged to the Consolidated Account and this section appropriates the Consolidated Account accordingly.
(5)In estimating such damages the value of all buildings and other improvements erected or made subsequently to the deprivation shall be excluded.
Significantly, s 195 of the Act says nothing about the general law remedies of the State against persons whose conduct has caused the State to make a payment under s 201 of the Act. Rather, the section is concerned with a number of limited and specific circumstances, being the circumstances in which the person who has caused such a loss is deceased or bankrupt, or has absconded and cannot be found within the jurisdiction of the Supreme Court, but has left real or personal estate within Western Australia. In those particular circumstances the section provides means by which recovery can be achieved by the State, in some circumstances through processes other than the commencement of legal proceedings, such as by the proof of debt in bankruptcy on the basis of a certificate provided by the Treasurer, or the entry of judgment by the court on the basis of such a certificate. Section 195 contains no provisions bearing upon the circumstance in which the State is obliged to pay damages pursuant to s 201 of the Act as a result of the conduct of a person who is alive, solvent and within the jurisdiction. It follows that s 195 cannot be construed as an exhaustive statement of the remedies available to the State for the recovery of moneys paid pursuant to s 201, because s 195 does not deal or purport to deal with all circumstances in which a person's conduct may have resulted in a liability being imposed upon the State - indeed, s 195 deals only with limited and specific circumstances which would presumably only cover a minority of such cases.
If s 195 cannot be construed as an exhaustive statement of the remedies available to the State for the recovery of moneys paid pursuant to s 201 of the Act, it obviously follows that the failure to provide a section similar in terms to s 195 in respect of liability imposed upon the State by s 205 of the Act cannot support the proposition that there is no remedy for the recovery of moneys paid pursuant to that section.
The trial judge cited no authority in support of his conclusions on this topic, and I have been unable to find any authority directly on point. However, there are decisions in a not dissimilar context concerning the legislation in New South Wales which recognise and accept that the provision of a statutory remedy to a person deprived of an interest in land by reason of the operation of the indefeasibility provisions of legislation does not exclude remedies available to that person at common law.[14] However, it must be conceded that these cases are of very limited utility because the question which they address, like the question addressed in Pedulla v Panetta, is whether the provision of a specific statutory remedy impliedly excludes a remedy at common law. That is not the question which arises in this case, because the Act does not purport to provide either the Registrar or the State with any statutory remedy for the recovery of damages paid pursuant to s 205 of the Act. However, if the provision of a statutory remedy does not necessarily exclude a common law remedy, a fortiori the provision of no statutory remedy cannot impliedly exclude a common law remedy.
[14] Registrar-General v Behn (1981) 148 CLR 562, 568 (Gibbs CJ); Challenger Managed Investments Ltd v Direct Money Corp Pty Ltd [69] (Bryson J), cited with approval in Kirkland v Quinross Pty Ltd [2008] NSWSC 286 [63] (Austin J).
For these reasons, the scheme of s 195 and s 201 of the Act provide no support for the trial judge's conclusion.
Turning then to the second reason given by the trial judge for his conclusion, with respect, I am unable to see any reason why the fact that damages may be payable under s 205 of the Act in circumstances in which no tort has been committed results in the implied exclusion of a remedy in those cases in which a tort has been committed and which has given rise to a loss in the form of damages payable under the section. Of course, if the elements of the cause of action in tort are not made out, the claim will fail. However, if, as in this case, the elements of the cause of action in tort are made out, I am unable to see why recovery should be precluded merely because the statutory preconditions to a payment under s 205 do not necessarily involve the commission of a tort.
For these reasons, the trial judge was wrong to conclude that the scheme of the Act precluded the recovery of damages paid pursuant to s 205 of the Act by way of remedies in tort. Ground 1 must be upheld.

Ground 2

The trial judge expressed the tentative view that the only party who could bring a claim against Ms Mrsa in deceit was the State of Western Australia. I do not agree.
First, it should be noted that the trial judge found that the Registrar was the person who was deceived by the wilfully false representations made by Ms Mrsa, and who acted in reliance upon them. In those circumstances it cannot be suggested that she was not an appropriate party to the proceedings in deceit.
Second, s 205 provides that when proceedings are brought pursuant to the section, they are to be brought against the Registrar as nominal defendant on behalf of the State. By that provision, the legislature has authorised the Registrar to act on behalf of the State, and to take all steps and actions appropriately taken on behalf of the State in relation to proceedings commenced pursuant to the section. The commencement and pursuit of claims for contribution and indemnity from persons whose conduct may have given rise to liability under the section is plainly within the scope of the actions appropriately taken on behalf of the State in relation to the defence of such proceedings and is therefore within the scope of the authority impliedly conferred upon the Registrar by s 205 itself. With respect to the trial judge, it would be perverse to impute to the legislature an intention that while the Registrar would have authority to defend proceedings brought under the section on behalf of the State, she would not have authority to claim contribution and indemnity on behalf of the State in such proceedings, with the result that the State itself would have to commence separate proceedings for the recovery of any amounts paid pursuant to the section. The legislature should not be presumed to have intended such an impractical consequence which would result in the unnecessary proliferation of proceedings and the possibility of inconsistent verdicts.
For these reasons ground 2 must also be upheld.

Ground 3

Ground 3 asserts a denial of procedural fairness. As the other grounds squarely raise the substantive issues bearing upon Ms Mrsa's liability to the Registrar, resolution of ground 3 would only be necessary if ground 2 had failed, and some question had arisen as to whether it was now too late to join the State of Western Australia as a party to the proceedings. However, as grounds 1 and 2 have both succeeded and result in the conclusion that the Registrar's claim against Ms Mrsa must be upheld, it is unnecessary to address the question of whether there was any denial of procedural fairness at first instance.

The orders properly made

In the papers filed in support of the appeal, the Registrar sought orders that Ms Mrsa pay damages in the sum of $1,390,301.91 together with interest at the rate of 6% per annum from 18 December 2014 to 27 February 2015. No reason has been given for the proposition that interest should terminate on 27 February 2015. The Registrar should be invited to address the court with respect to the appropriate orders made in relation to interest at the time the court's reasons are published.
The Registrar also seeks an order indemnifying her against any claims, losses, actions, damages, costs including legal costs and expenses arising in connection with her liability to the estate of the late of Mr Mrsa. The same claim was made to the trial judge. He found that the amounts the subject of that claim had not been proved.[15] As the claims were not established by the evidence at first instance, there is no reason they should be allowed on appeal.
[15] Reasons [81].

Conclusion

Grounds 1 and 2, and the appeal, should be upheld. The decision of the trial judge dismissing the Registrar's claim against Ms Mrsa should be set aside, and instead judgment entered in the amount of $1,390,301.91.

The Registrar should be invited to provide further submissions with respect to the interest payable on that amount, and with respect to the costs of the action and the appeal.

NEWNES JA: I agree with Martin CJ.
MURPHY JA: I agree with Martin CJ.