Ringen Pty Ltd v Shelmerdine & Ors; Ringen Pty Ltd v Coghill

[1993] HCATrans 147

~

~ --~··JA

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M79 of 1992

B e t w e e n -

RINGEN PTY LTD

Appellant

and

JANICE MARY SHELMERDINE (As

Administratrix Ad Litem of the

Estate of Peter Edgar

Shelmerdine Deceased), JOHN

BARSON and THE REGISTRAR OF

TITLES

Respondents

Office of the Registry

Melbourne No MBO of 1992

B e t w e e n -

RINGEN PTY LTD

Ringen(2)	1	10/6/93
MASON CJ
BRENNAN J
DAWSON J
TOOHEY J
McHUGH J

Appellant

and

COLIN HALLEY COGHILL and JOHN

BARSON

Respondents

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 JUNE 1993, AT 10.23 AM

Copyright in the High Court of Australia

MR A.H. GOLDBERG, QC:  May it please the Court, I appear

with my learned friend, MR P.O. SANTAMARIA, for

Ringen Pty Limited, the appellant in both matters.

(instructed by Cornwall Stodart)

MR R.A. FINKELSTEIN, QC:  May it please the Court, I appear

with my learned friend, MR W.F. LALLY, for the

respondents in each appeal apart from the Registrar

of Titles. (instructed by Best Hooper)

MASON CJ: Yes, Mr Finkelstein. The Deputy Registrar has

certified that she has received a letter from the

solicitors for the thi~d-named respondent, the

Registrar of Titles, advising that the Registrar

does not wish representations to be made on his

behalf at the hearing of this matter and will abide
by any order of the Court. Yes, Mr Goldberg.

MR GOLDBERG:  If the Court pleases, there are some

preliminary matters, if I may. We have filed a

notice of motion dated 4 June, Your Honour, in

relation to the leave that was granted by the Court

last November, and might I inquire whether that

motion has come before the members of the Court?

MASON CJ: Yes, it has.

MR GOLDBERG:  Your Honours will see that the motion seeks

orders in the alternative, in substance seeking to

add a ground of appeal in relation to the point

about abandonment of easements and whether one

needs to show intention to abandon before an order

can be made by the Registrar under section 73 of

the Transfer of Land Act. That was a matter that

Ringen(2) 2 10/6/93

was agitated before the Court on the special leave

application in November last, and the motion is

supported by an affidavit sworn by

Garry James Eather. Might I inquire whether the

affidavit has come before the members of the Court

and members of the Court have had the opportunity

to read it?

MASON CJ: Yes, I have read it. I have read it quickly. If

you want to make any point about it you should do

so.

MR GOLDBERG:  Your Honours, the point can be made succinctly

this way. There are two aspects to the leave

application. One of the exhibits to the affidavit

of Mr Eather is the transcript of the leave

application, which is exhibit GJEl.

Four points were submitted before the Court,

Your Honours. One was in relation to whether

easements were appurtenant to land pursuant to the

Transfer of Land plan in the good old days, as it were, compared with approval and registration.

provisions of section 98 of the

That was a distinct po~nt and that was a point

that ultimately foundered, I would submit, on the

special leave point because in 1989 there had been

an amendment to the legislation which was in effect

retrospective and made the point moot for the

future, albeit not for this particular case.

The second point was whether the words being

struck out of a transfer relating to the grant of a

carriageway easement w~s a matter that indicated

that no grant of an easement had been made. That

was a point of construction. The third point

related to the abandonment of the easements.

The first two points related to the imposition

of the easements, if I can put it that way. The third point related to whether the easements had

been abandoned under section 73 of the Transfer of

Land Act. That was a separate and discrete point

and the point there was whether intention to

abandon was part of the statutory scheme, intention

to abandon being necessary at common law.

The fourth point that was submitted as being a

ground for special leave related to a triangular

piece of land - and this was separate from the

other three points - whether, in order to acquire a

registered title of land which had been the subject of adverse possession, the adverse possessor had to

be in possession of the land at the time he applied

to get a registered title under the provisions of

Ringen(2) 10/6/93

section 60 and following of the Transfer of Land

Act.

Your Honour the Chief Justice ruled on the

special leave application at page 28 of the

transcript.

MASON CJ: Well, the Court ruled. I indicated the grounds.

MR GOLDBERG:  I am sorry, Your Honour. The Court through

Your Honour is what I was seeking to say. The

Court indicated the grounds and the Court indicated

that the first three grounds did not have

sufficient prospects of success, the first two

grounds relating to the imposition of the

easements, the third ground relating to the

question of the abandonment of the easements. At

line 14, the Court said:

In expressing that view of the first and third points -

Transfer of a plan that had only been deposited, and the third point which was the abandonment point, a separate

the first point being the section 98

point Your Honours, we have had particular regard

to the definition of the expression "registered

plan" in section 3 of the Subdivision Act 1988, as

amended in 1991, and section 97(1) of the Transfer

of Land Act. And then, Your Honours, the Court
granted special leave in relation to the adverse
possession point.

Now, Your Honours, the definition of the

expression "registere4 plan" in section 3 of the
Subdivision Act, et cetera, that point was only

relevant to the question as to whether the

easements had come into existence. It had no

relation to, no bearing upon, certainly was not

submitted and could not have been, that it related

in any way to the third point which was the other

end of the spectrum, that is, abandonment of the

easements after 30 years of non-user. And it would

appear, with respect, that there was a

misunderstanding of the issue, or perhaps a

misunderstanding of the argument, in relation to

the way the conclusion of the Court was so

expressed.

We would submit that if the Court had taken

into account the section 3 of the Subdivision Act

1988, as amended in 1991, in relation to the third

point, the abandonment of the easement, that was an

error because that point only related to the first

point of the four points submitted.

Ringen(2) 4 10/6/93

BRENNAN J: I am not following this, Mr Goldberg. Looking

at what the Chief Justice said:

In expressing that view of the first and third

points, we have had particular regard to -

So, you say it did relate to the first point but not to the third?

Yes, Your Honour. But if that was a matter

that was taken into account in relation to the

third point, it was a misunderstanding of the

issue, because it had nothing to do with the third

point. It was fairly and squarely, Your Honour, I

hasten to say, on the first point, so that one is

faced with this difficulty, if I can put it this

way, that looking at that short analysis, it

appears that there has been a misunderstanding or
an error in a consideration of the third point.

And if that be so, Your Honours, we submit that the

Court has the jurisdiction to vary the special leave -

MASON CJ: Well, of course, the Court has jurisdiction to

vary the grant of special leave, but the real
question is whether or not you have sufficient

prospects of success to warrant the grant of

special leave on this point.

MR GOLDBERG:	Of course.
MASON CJ:	The Court indicated that you did not.

MR GOLDBERG:  Yes, Your Honour. But all one can see on the

face of the transcript, Your Honour, if the

sufficient prospects of success were in some way

related to the statutory provisions referred to,

then we submit that that was an error and that if

you take away - and this is my difficulty,

Your Honour; I cannot say whether taking away the

section 3 matters - - -

MASON CJ:	We can.
MR GOLDBERG:	I know, and I can only submit, Your Honour, and seek a response, but on the face of the
transcript it appears that there was a
misunderstanding of the point - - -
DAWSON J:	Mr Goldberg, the section 3 point goes to the existence of the easement, does it not?

MR GOLDBERG: Exactly.

DAWSON J: Well, of course, it does apply to both; you

cannot abandon an easement unless it exists.

Ringen(2) 10/6/93

MR GOLDBERG:  0 ~ourse, but the section 3 point only

establishes - the relevance of section 3 is that

you have got insufficient prospects of success in

relation to saying the easement never came into

existence.

DAWSON J: All I can say is that section 3 is relevant to

both in the sense in which I have just said; in a

sense that you cannot abandon an easement if you do

not have one.

MR GOLDBERG:	No, but if you have the easement - and you assume you have got the easement - a consideration,
Your Honour, of whether you have abandoned it has
no bearing on section 3. That was all I was
seeking to say.

DAWSON J: True, true. But all that the Court said is, in

approaching this problem which involved the

existence of an easement and the abandonment, they

have regard to section 3.

MR GOLDBERG: Well, Your Honours, the matter is set out in

the affidavit. Have the single sheets with the

short outline of argument been handed to

Your Honours?

MASON CJ: Yes.

MR GOLDBERG: Well, Your Honours, that is the submission we

wish to make in relation to the variation of the

special leave. But there is a second limb to the

motion, which is this: Your Honours, if you look

at the appeal book at page 332, there is a plan and

if I can hand up five loose copies of it, because

it may be of assistance to Your Honours to have it

in front of you rather than leaf through the book

from time to time.

MASON CJ:  We had it in front of us in the special leave

application, if I remember rightly.

MR GOLDBERG: Indeed, Your Honours did, and I referred

Your Honours to it, but this is the second limb of

the motion, Your Honour, which is this: if

Your Honours look at that with Nepean Highway at

the foot of the page, so holding the page cross-

ways, Your Honours will see where the adverse

possession point arises. It is the. triangle that

intrudes into Namerong Street and it is just next

to the words "High Plain".

As a result of the decision of the Court of

Appeal, it has been held that there are easements

across the whole of Namerong Street. But that

triangular piece of Namerong Street has been

physically excluded since about 1950 until 1981 by

Ringen(2) 6 10/6/93

the fence. Your Honours will see the fence which

is drawn outside in between the words "High Plain"

and the heavier indentation of the walls of the

laundry.

If, Your Honours, we succeed in our appeal in

relation to the adverse possession point so that

the declaration that Mr Barson is entitled to

possession of that triangular piece, so that the

adverse possession goes, the question will then

arise: is that former adverse possessed land

subject to the easements which have been declared by the Court across the whole of Namerong Street? In other words, if that triangular piece goes out is that triangle then burdened by the easements,

because physically for 30-odd years it is said it

was not available or open. That will then give

rise, we would submit, to a question, a

consequential question, as to whether easements

have been abandoned over that triangular piece.

BRENNAN J: What concern is that of yours?

MR GOLDBERG: Because we are in possession, Your Honour.

BRENNAN J:	I see.
MR GOLDBERG:	We have been physically in possession since

1981. What happened was in 1981 in August through

to November, having purchased.Namerong Street, what

Ringen did was to relocate the fence along the

title boundary line. So that is the second limb,

Your Honours, we would submit, of our motion, that

if we get up on our appeal there will then be alive
the issue do the easements burden that triangular

piece.

MASON CJ:  Do we need to worry about this?

McHUGH J: You may getting into dangerous territory. This

may mean this is not a suitable vehicle for

determining this issue and that special leave

should be revoked.

MR GOLDBERG:  We would submit that does not follow from the

argument, Your Honour.	I understand how
Your Honour puts it to me.	When one looks at this

matter in detail and follows it through to a

logical conclusion, one has two assumptions or one

makes two assumptions: "What is goi·ng to happen if

I lose the appeal?". "Well, so be it, the matter

rests where the Court of Appeal said it was." "If I win the appeal on the point of principle", which

was what we sought to submit was the point that

gave us the entitlement to seek special leave, it

was the point of principle, Your Honour, not the

fact, "it is a consequential issue."

Ringen(2) 7 10/6/93

McHUGH J: Yes, but if these points had been raised on the

special leave application, this matter had been

raised, arguably, you would not have got a grant of

special leave.

MR GOLDBERG:  Yes, Your Honour. I do not want it to be

thought that I concealed points from the Court on

the special leave application. What I sought to

argue on the special leave application were the

major points of principle and I most certainly did

not develop this argument at that time and I

concede that.

MASON CJ:  I do not think anyone is suggesting that there

was any concealment, Mr Goldberg.

McHUGH J:  I certainly am not, Mr Goldberg.

MR GOLDBERG:  Thank you. That is the only point I can make,

Your Honour. It may be premature, as Your Honour

the Chief Justice puts to me, but what I want to be

careful about was not to raise the point, as it were, in reply or at a later point of time. It seemed to me the appropriate time to put it to the

Court was now and that is why we have raised it in

the alternative having looked at the transcript of

the special leave application, and that arose in
the context of us preparing the argument and seeing

where it got us.

TOOHEY J:  If the Court were to refuse the motion to add a

ground of appeal and you were to succeed on or to

fail on the appeal, where does that leave the

parties?

MR GOLDBERG: That leaves the parties, Your Honour, in the

position that there has been a declaration by the

Court which is still in place that Mr Barson has

acquired title by adverse possession to the land,

that triangular piece of land. So there is a

declaration in place that he has acquired title by

adverse possession.

TOOHEY J:  And that title would be free of any easement, or

not?

MR GOLDBERG:  It is a possessory title, Your Honour. I am

reminded, the concept of a possessory title, as

Your Honour observed in the Mabo ca~e, is a matter which is a notoriously difficult concept with which

to grapple. That is part of the difficulty we have

here because if that declaration stays in place, it

stays in place where you have got a registered

proprietor who is on title and a registered

proprietor who is, in fact, in possession.

Your Honour may recall what the trial judge did was

Ringen(2) 10/6/93

to direct a vesting of that registered land in

Mr Barson, but the Court of Appeal set that aside.

TOOHEY J: Yes, thank you.

BRENNAN J: That triangle, at the moment, is that subject to

any declaration in respect of easements?

MR GOLDBERG:  No, Your Honour.

BRENNAN J: Well, then

MR GOLDBERG:  Your Honour, I had just better check the exact

words of the Court of Appeal. The relevant

declaration, Your Honours, is on page 443 of the

appeal book and you have to relate it back -

because it says that the dominant tenements have

appurtenant to them:

an easement of way with or without vehicles

over that part of the land comprised in

Certificate of Title ..... coloured yellow on the plan -

and that is at page 346, Your Honours, and that

physically includes the triangular piece of land.

MASON CJ:  The easement physically includes the triangle?

MR GOLDBERG: Well, one can only do it by a visual

examination, Your Honour. If you look at page 346,

Your Honour will see it is almost a rectangle, so

the yellow piece covers the triangle, Your Honour.

BRENNAN J: That means if your present application for

amendment fails and the appeal proceeds and you

succeed, you emerge with title to that triangular

piece subject to an easement.

MR GOLDBERG:  Yes, because if I succeed on appeal, I still

have my registered title unencumbered by any

subsisting rights of adverse possession.

BRENNAN J: But subject to the easement.

MR GOLDBERG:· The declaration stands, yes.

BRENNAN J: If, however, you fail, then that triangle is to

be regarded as part of Positano?

MR GOLDBERG:  No, Positano is registered in the name of

Barson - it is not yet registered in the name of

Barson, as I understand it, but there has been a

transfer from Coghill to Barson. If I lose this

appeal, the triangular piece is still registered in

the name of Ringen.

BRENNAN J:  What happens to it if you lose this appeal?

Ringen(2) 9 10/6/93

MR GOLDBERG: If I lose this appeal, Ringen is physically in

possession of the land and there is a declaration

that Barson has acquired title to it by adverse

possession and we are in, in a sense, a no man's

land. My learned friend, Mr Finkelstein, tells me

that he believes we have given an undertaking to

put the fences back. Yes, there is an undertaking,

Your Honours, to reinstate the fence at page 341.

BRENNAN J:  Is the way then open to Mr Finkelstein to

acquire registration of title for that triangle?

MR GOLDBERG:  What Mr Finkelstein then has to do is to make

an application under section 60 of the Transfer of

Land Act to have his - - -

BRENNAN J: That is as far as you take it? It is open to him to make the application which you may or may

not resist?

MR GOLDBERG: That is right, and that is the difficulty;

that is the issue.

BRENNAN J:	What is the issue in this case then.
MR GOLDBERG:	The issue in this case is this: whether at

the time you apply to have your possessory title

converted - and I am speaking loosely for the

moment - into a registered title, you have to be in

possession of the land, because what happened

was - - -

BRENNAN J: That does not arise on what you have just said,

because they are not in possession of the land, you

are.

MR GOLDBERG: Well,that is right, so therefore we submit - -

BRENNAN J: This case is just not a suitable vehicle for

determining that question.

McHUGH J: Your point is they cannot make the application

because they can only make the application under

section 60 only if they are in possession.

MR GOLDBERG:	Yes, that is right. And we refer to the case of Johnson v Templeton, which I think I took the
Court to on the leave application, ~hich said you
had to be in possession at the time you made the
application.

DAWSON J: But as I understand it, the undertaking is then

if you lose on that point, you put them in

possession.

MR GOLDBERG:  We put the fences back, yes.

Ringen(2) 10 10/6/93

DAWSON J: Well, whatever the consequence of that is;

curious, is it not?

MR GOLDBERG:  It is part of the problem that was faced by

the way the case was run, I suppose, Your Honour,

but the point is this:	we say that they are never
going to be able -

DAWSON J:  If you lose, you lose on the basis they do not

have to be in possession to make the application.

MR GOLDBERG: If I lose the appeal on this point - - -

DAWSON J: Yes.

MR GOLDBERG:  - - - I am in possession and was in possession

back in 1981. Is Your Honour taking me to the

undertakings?

DAWSON J: Yes. As I understand it, if you lose, you

undertake to fence the land off, which may be

viewed as putting back your opponents in

possession.

MR GOLDBERG:  Yes, Your Honour, but - - -

DAWSON J: But you lose on the basis that they did not need

to be in possession to - - -

MR GOLDBERG:  But the putting back of the fence does not

create, in itself, the natural possession. And

that was part of the other point that we have

raised in our argument that is consequential on the

adverse position point, that Mr Barson, in whose

favour the declaration was made, only became

entitled to the dominant tenement to Positano, I

think it was 1983 or 1984, which was two years

after the case started, so the declaration should

never have been made in his favour in the first

place.

MASON CJ:	But if you lose on the ground you want to argue, does it not follow that they are then entitled to
apply under section 60 and will, in all probability, succeed?

MR GOLDBERG: Well, they have always been entitled to apply,

Your Honour. In a sense, if the relevant facts

were there, if they were in possess~on, if they had

acquired the - - -

MASON CJ: But your real point is that they cannot succeed

because they are not in possession at the time of

application.

MR GOLDBERG: That is so, Your Honour.

Ringen(2) 11 10/6/93

MASON CJ:  Now, if you lose, presumably you are going to

lose on that ground.

MR GOLDBERG:  And they have not as yet, Your Honour, made

any application.

BRENNAN J: Well, does that mean that the whole of the

litigation is premature on this point?

MR GOLDBERG:  The point will not arise, Your Honour - my

point only arises when an application is made.

BRENNAN J:	And no application has been made?
MR GOLDBERG:	No application has been made.

MASON CJ: Well, it is premature, is it not?

MR GOLDBERG:  It is premature to this extent, that they have

not put in the application. It was raised and

argued at trial because all the parties were there

at trial and it was raised and argued before the

trial judge in the Full Court because the Registrar

of Titles was a party to the action and, as I

understand it - I may be wrong about this - I think

he was joined as a party so that there could be

binding declarations made that would solve the

problem for the future.

BRENNAN J: What are the terms of the declaration in respect

of which special leave has been given? Could you

draw my attention to that?

MR GOLDBERG: Sorry, Your Honour?

BRENNAN J:  The declaration which you are challenging under

the existing appeal.

MR GOLDBERG: That is at page 342, Your Honour, paragraph 1.

BRENNAN J: Well, what is meant by the declaration that:

the thirdnamed Plaintiff has acquired title by

adverse possession.

What does that mean?

MR GOLDBERG:  That can only mean, Your Honour, that he has a

possessory title which has been acq~ired by virtue

of the provisions of the Limitation of Actions Act.

And I say that - - -

BRENNAN J: Well, before you go on can I ask you this

question: is that intended to mean that the third

named plaintiff has acquired a title by possession

to land within the meaning of that phrase in

section 60(1) of the Transfer of Land Act?

Ringen(2)	12	10/6/93
MR GOLDBERG:	Would Your Honour pardon me for one moment?	I

will just look up that section. It cannot mean

anything else.

BRENNAN J: Well, if it means that, it means that so soon as

you fail, if you were to fail in this appeal, they

are entitled to registration under section 60.

MR GOLDBERG:  And if I raise the point because of the

procedure there I will probably be met with an

issue estoppel.

BRENNAN J: Yes.

MR GOLDBERG:  Which is why the point perhaps is not

premature.

BRENNAN J: Well, that is what I wanted to clarify.

MR GOLDBERG:  Yes.

BRENNAN J: Either that is the agreed basis on which this

appeal proceeds or, undoubtedly, the special leave

should be revoked.

MR GOLDBERG: Well, there was certainly no agreement between

my learned friend's predecessor and myself as to
what the issues were, but we assumed that this

declaration would bind us in relation to a future

act, the future act being the application.

BRENNAN J: Well, you cannot have your cake and eat it too.

Either the issue is a live one for the purposes of

section 60, and this appeal will conclude a matter

which is i~ issue between the parties with respect

to section 60, or it is not. Now, if you contend

that it is, it seems to me that the appeal stands

on foot. If you contend that it does not, then it

seems to me that the appeal is premature, the issue

is premature, and special leave should be revoked.

MASON CJ: If not premature, we should revoke the grant of

special leave on the basis that it is not correct

that this Court should be called upon to decide
this question if it is not going to put an end to

this interminable dispute between these parties.

MR GOLDBERG:  I understand, Your Honours. Your Honours,

that is a matter in respect of which I would seek

the opportunity to obtain specific instructions.

Might I be permitted to leave the lectern for a

moment?

MASON CJ: Yes.

MR GOLDBERG:  Could I put it in colloquial terms,

Your Honour, this is it. We wish the appeal to be

Ringen(2) 13 10/6/93

a live appeal and to have this point determined,

once and for all, so that it is binding, as it

would be.

MASON CJ:  In the event that you lose, then there will be no

resistance to an application under section 60?

MR GOLDBERG:	I am so instructed, Your Honour.
MASON CJ:	Now, the other question I want to ask you is,

what is the importance, as between these parties,

of a resolution of this question in relation to the

triangular piece? What is the practical importance

of it, Mr Goldberg?

MR GOLDBERG:  The practical importance, Your Honour, is

this. Ringen purchased the land for the purpose of

developing it and putting, I believe, a residential

property on it, and it had to do that in a number

of stages. First of all, it had to acquire the

land; secondly, it had to seek to have the

easements removed; and thirdly, it had to square

off the land.

Your Honour will appreciate, from the plan,

that the triangular piece occurs on what is called
"the high plain", that is roughly level with Nepean

Highway, and then a cliff face drops down to the

beach. The reason why we want to resolve the

triangular piece is because there may still be

opportunities to develop the land.

DAWSON J: Not while the easement is there?

MR GOLDBERG:  Not as such, Your Honour, that is so, and in

any event we would hav~ to get council approval.

But there are a number of further developmental

steps that may be taken that can - - -

DAWSON J: What, you would seek to extinguish the easement,

would you?

MR GOLDBERG: Possibly, in the future, Your Honour, and time

sometimes heals wounds, Your Honour, albeit severe

ones.

MASON CJ: Is there any present prospect of this development

going forward?

MR GOLDBERG:  I do not have instructions on that,

Your Honour.	I have not addressed that in
preparing the appeal.	I am happy to do so.

MASON CJ:  I think you might obtain instructions,

Mr Goldberg, because it does seem to me there is

not much point in this Court determining what is an

Ringen(2) 14 10/6/93

interesting question of law if it does not lead to

practical worthwhile consequences.

MR GOLDBERG:  I understand that, Your Honour. If I am to

seek instructions on that, Your Honour, it might

take me a few minutes.

MASON CJ:  We will adjourn for a few minutes, Mr Goldberg,

and you can obtain instructions on it.

MR GOLDBERG:  Thank you, Your Honour.

AT 10.58 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.14 AM:

MR GOLDBERG:  I apologize for the delay, Your Honours. It

was necessary for me to understand matters about

which I have had no prior knowledge.

MASON CJ: Yes.

MR GOLDBERG:  Your Honours, it is put this way. The

intention is to seek to apply to the council to

have the upper part of the land developed. Your

Honours will recall that essentially the whole of

the land at the moment is sterilized, there is what

I will call loosely, a cliff top block that can be

used for residential purposes were it not for the

easements in this part of Portsea, then the drop of

the cliff and then down below where the tennis

court is, and the trial judge found that there had

been easements down the bottom but found that there

had never been vehicular use from top to bottom and

could never have been.	So we had a sterilized
block, Your Honour, and that was the reason why we

were seeking to have the easements removed.

There is a procedure now, Your Honours, under

Victorian legislation which, if I can hand

Your Honours a copy of section 36, this is taken

out of a CCH Reporter. It is torn at the top,

Your Honours, because there was some annotations by

my instructor about the section.

Can I say this, under Victorian law until 1988

under the Property Law Act, you could apply to

remove or vary restrictive covenants. I

understand, while I have had no personal

experience, under New South Wales law there was a

procedure, not only for the removal of restrictive

Ringen(2) 15 10/6/93

covenants but also easements. I am told by those

behind me there was a case, I think, of

Re 36 Wolseley Road that dealt with that sort of

issue and a case that came to this Court with which

I have no particular familiarity.

In 1988 our Subdivision Act was passed and

section 36 of the Subdivision Act gives a power in

(1), Your Honours will see down at the bottom, to

go to the administrative appeals tribunal for leave

to remove an easement, and you can do that in a

planning context because Your Honours will see in

36(1):

When considering a proposed amendment to

a planning scheme or an application for a

permit ..... the Council ..... considers that the

economical and efficient subdivision

or ..... servicing of, or access to, land -

requires the removal of the easement. We are not

dealing here with historical legal issues,

Your Honours, we are dealing with planning issues.

MASON CJ: Yes.

MR GOLDBERG:  So, what I am instructed is this, that my

client desires to pursue through the planning

procedures the opportunity to seek to have the

easements removed.

At the moment the land is zoned public road,

there was an application for a permit earlier, some

years ago, for a permit to build. That permit was

rejected by the council.	I think it is page 236 of
the appeal book.

MASON CJ:  We need not go into detail about this,

Mr Goldberg. But we are seized of what you say,

that this is what your client proposes to do in

relation to the easement.

MR GOLDBERG:  Yes, and that is in response to Your Honour's

question, "Is this the end of the road so far as

the dispute between the parties is concerned?".

MASON CJ: Yes. Well now, Mr Goldberg, having regard to

your motion, all that remains is for us to rule on
your application to vary the grant of special

leave. ·

MR GOLDBERG: And/or the application under order 70 to amend

the notice of appeal, but I would see the two tied

up together. They are just alternative vehicles

for the same application, Your Honour.

Ringen(2) 16 10/6/93

MASON CJ: Yes, because the other aspect of the motion has

disappeared as a result of the undertaking that you

have given.

MR GOLDBERG:  Yes, Your Honour. I have nothing further to

say about the motion, Your Honour.

MASON CJ: Yes, Mr Goldberg, the Court has considered what

you have put in support of the notice of motion and

the Court has come to the conclusion that no ground
has been made out for variation of the grant of

special leave to appeal, or for amendment of the

notice of appeal.	The motion is therefore
dismissed.

MR GOLDBERG: If Your Honours plE e. Your Honours, can I

now go to the issue whi~a is	the issue in respect
of which leave was granted.	Have our short notes
of argument been supplied to	the Court?

MASON CJ: Yes.

MR GOLDBERG:  Your Honours, the issues arise this way. Our

submission is a fairly short and concise

submission. We have prepared a volume of

legislation and the relevant provisions,

Your Honours, of the - have those books reached

Your Honours?

MASON CJ:  I think so.

MR GOLDBERG: Materials, volume 1, Victorian Statutes.

MASON CJ: Yes.

MR GOLDBERG:	If Your Honours go to page 235A of that legislation, but it should be at tab 18.
MASON CJ:	235A?
MR GOLDBERG:	Yes, Your Honour, section 60(1), which is the

second sheet inside tab A, says: 

A person who claims that he has acquired a

title by possession to land which is under

this Act may apply to the Registrar in writing

in an appropriate approved form, accompanied

by a plan or survey ..... for an order vesting

the land in him for an estate in fee simple -

Then Your Honours can go to sectiorr 62 on the next

sheet at the foot of the page:

the Registrar if satisfied that the applicant
has acquired a title by possession to the land
may make an order vesting the land in the

applicant -

Ringen(2) 17 10/6/93

That wording, Your Honours, in an approved form was

a change from previous legislation, because in

previous legislation there had been a schedule. At

the time of the case of Johnson v Templeton in

1917, it was the sixth schedule; it became the

ninth schedule. But the approved form now is in

the regulations which are four or five sheets,

235G, Transfer of Land (General) Regulations 1984.

These are still within tab 18. If Your Honours

look at page 235H:

An application instrument or document of any of the following kinds shall, unless a form

has been approved by the Registrar ..... be in

or to the effect of the ·~ in the Schedule -

If Your Honours then turn to 1	235I,
Your Honours will see the sixt	try on that page
is section 60(1):

Application for vesting order based on title

by possession -

Schedule 14. Then if Your Honours turn to the next

page, 235K, schedule 14, paragraph 1.of that

application, the applicant applies and declares:

(1) That (set forth short particulars of the

possession on which the claim is based).

That is an identical provision mutatis mutandis to

a provision that was considered by the Victorian

Supreme Court in 1917 in the case of Johnson v

Templeton to which I will come in a moment.

Might I give Your Honours a background to the learning and trace it through very quickly in our

short notes of argument. Although we have

annotated it with a number of cases, I would doubt

that these propositions are controversial.

Your Honours will see in paragraph 1 that a person

in possession of land can assert his rights against

all but the true owner, and we refer to Asher v

Whitlock, Perry v Clissold, and Allen v Roughley.

If Your Honours have those notes there, the

particular page of Asher v Whitlock is 5 and 7;

Perry v Clissold is 79; Allen v Roughley is 108,

110, 115 and 130, and a number of those cases are

also referred to in the judgment of. Your Honour Mr

Justice Toohey in Mabo v The State of Queensland.

The only reference I have at the moment, Your

Honours, is (1992) 107 ALR 1. At page 162 Your
Honour Mr Justice Toohey dealt with the

relationship between possession and title and it is

footnote 633.

Ringen(2) 18 10/6/93

At common law, Your Honours, paragraph 2, once

the limitation period had run against the true

owner, he lost his right to recover the land by

action, he lost his entitlement to resume

possession of the land and his title was

extinguished.	The particular page in
Dawkins v Penrhyn is page 59.	Now, Your Honours,

it appears that the Limitation of Actions Act - - -

BRENNAN J: Just pausing there, at common law, was the true owner treated as a trespasser if he did attempt to

resume possession?

MR GOLDBERG:  He was treated - in effect, yes, Your Honour,

because his right to, under the very early

Limitation of Actions Act - and I can take

Your Honour to it - he had no right to re-enter, so

if he had - - -

TOOHEY J:	Once the limitation period had expired.
MR GOLDBERG:	Once the limitation period had expired, he had

no right to re-enter.

BRENNAN J: And a writ of ejectment would lie.

MR GOLDBERG:  Yes, that is right. If Your Honours look at -

MASON CJ: That is because adverse possession extinguished

his title.

MR GOLDBERG: That is right, but there was a consequence of

that. If Your Honours look at the legislation

book, page 2 - it is the the English 1833

Limitation of Action Statute - paragraph II, it

starts "And be it further enacted" about 8 lines

down:

That after the Thirty-first Day of December

One thousand eight hundred and thirty-three no

Person shall make an Entry or Distress of

bring an Action to recover any Land or Rent

but within Twenty Years next after the Time at which the Right to make such Entry or Distress

or to bring such Action shall have first

accrued -

and then section III identifies when that right

first accrued.

TOOHEY J: But of course section 60 does not speak of loss

of title, it speaks of acquisition of title. It

assumes that a person can acquire a title, as it

were, outside the operation of the Act, does it

not?

Ringen(2) 19 10/6/93

MR GOLDBERG: Yes, the acquisition of title by the possessor

Limitations of Actions
is not relevant under the in possession - and this is a matter, again,

Your Honour dealt with in Mabo - has got right

against everyone but the true owner, but if the

true owner so identified has had his title

extinguished, then the right of the possessor, as

it were, ripens absolutely.

TOOHEY J:	I suppose the adverse possessor need do nothing by reason of section 42 of the Transfer of Land
Act, he can just sit tight. There are obvious
reasons why you would want to have title vested, but section 42 itself would be sufficient protection, would it not, to the adverse possessor?
MR GOLDBERG:	It would certainly be sufficient protection

for the adverse possessor, but how about a person

who seeks to acquire title through the registered

proprietor when no application has been made under

section 60, Your Honour? That is sort of a no

man's land we get in to. Say, for example, an

adverse possessor has gone in for 20 years and then

goes out of possession and then the registered

proprietor sells the land to someone else. The

problem then is that person cannot take, on the

face of the register - true it is that he is stuck

with section 42(2)(b) of the Transfer of Land Act
about subsisting rights of adverse possession, but

we would submit that those subsisting rights so far

as the Transfer of Land Act are concerned are the

rights which can ripen into a registered title if

you apply under section 60.

Your Honour is right about the adverse

possessor but, with respect, we have a problem with

someone who might seek to acquire from the

registered proprietor at a later point of time if,

in fact, the adverse possessor has gone out of

possession.

TOOHEY J: Well, I can understand that there are commercial

problems, but my original question was aimed at the
notion of acquiring a title which is the language
of section 60, which goes beyond the mere barring

of remedies - - -

MR GOLDBERG: Yes, indeed.

TOOHEY J: And that acquisition of title must arise outside

the operation of the Transfer of Land Act, must it

not?

MR GOLDBERG:  Indeed, it does. And there is no statute, for

example, that says if you occupy land for 15 years

or more you then have the ownership of that land.

Ringen(2) 20 10/6/93

Rather, it is done the other way. You extinguish

the title of the true owner. Because you are in

possession it is said then you have rights against

the world.

TOOHEY J: Well, unless it means that, I suppose, it cannot

mean anything really.

MR GOLDBERG:  That is so, that is the only way you can make

sense of it, Your Honour. But Your Honour is

right, when you are dealing with extinction of

title, the correlative of the extinction is the

creation, perhaps, of a right elsewhere, or the

creation of a greater right elsewhere.

BRENNAN J: Is 3 & 4 Wm IV in force in Victoria?

MR GOLDBERG:  I can answer that partly, Your Honour. became part of New South Wales law by virtue of the It

Act under tab 2, which is at page 8, which made it

part of New South Wales law.

BRENNAN J:  But this must have been dealt with in one of the Victorian consolidation, surely, must it not have?

MR GOLDBERG: It should have been, Your Honour. It probably

would have been. I cannot answer that question

immediately, Your Honour. All I can say is that we

now have in sections 3, 8 and 18 of the Limitation
of Actions Act and had in predecessor statutes, for

some time, virtually identical provisions.

TOOHEY J: It would have been picked up, probably in

Sir Leo Cussens - - -

MR GOLDBERG:  In 1922, Your Honour. I think that is

probably right, but I cannot - if I have the time

may be I - - -

BRENNAN J: Perhaps you could look it up and let us know

what is the relevant section which, at the relevant

times, applied in respect of the barring of the

right of re-entry?

MR GOLDBERG:  Yes, Your Honour. The first time it appears

in a Victorian statute is under tab 3. I just note

in passing, Your Honour Mr Justice Brennan, at

page 29, there is a note of Acts repealed, but it

does not include that particular one, but I will

certainly follow it up. But, under tab 3 and at

page 21, Your Honours will see section 18:

No person shall make an entry or distress -

et cetera, in virtually identical words. If

Your Honours then go to tab 5, in 1890, we have

Ringen(2) 21 10/6/93

again in section 18, on page 33, a similar

provision:

no person shall make an entry or distress or

bring an action to recovery any land or rent

but within fifteen years next -

et cetera. But for the first time, Your Honours,

in the Victorian Act we have section 43, on page

40, that says:

At the determination of the period limited by this Part of this Act to any person for making

an entry or distress or bringing any action or

suit, the right and title of such person to

the land ..... shall be extinguished.

TOOHEY J:  Mr Goldberg, could I just ask you this without

interrupting unduly. Is the purpose of historical

survey to explain the language of section 60? Is

it your argument that on a proper construction of

section 60, taking the words at their face value,

"a person must be in possession", in order to make

a claim for a title by possession.

MR GOLDBERG:  Yes.

TOOHEY J: Well, that is the answer. Well then, what is the

relevance of the historical survey?

MR GOLDBERG:  It was just to show Your Honours how we got to

that position. I can jump straight forward.	It is
for no other reason.

TOOHEY J:  I did not want to interrupt that, but I thought

it might be aimed at, as it were, throwing light

upon the operation of section 60, but your argument

appears to be that section 60 taken on its face

requires that the application be made by someone in

possession.

MR GOLDBERG:  Yes, Your Honour, because when you look at the

Limitation of Actions Act, as it now is, in its

present form - and Your Honours will find that

under tab 9 - - -

TOOHEY J:  If you are coming to that, leave it until then,

Mr Goldberg.

DAWSON J:  The argument is because it was couched in terms

of recovery of land, it must have been limited to

occasions when someone else was in possession.

MR GOLDBERG:  Yes, Your Honour.

DAWSON J: Notwithstanding the wording of section 60, that

history indicates what section 60 means.

Ringen(2) 22 10/6/93

MR GOLDBERG:  Yes, recovery of land assumes that someone

else is there and you are dispossessing them.

DAWSON J: Yes, I follow.

MR GOLDBERG:  Your Honours, as I have noted in paragraph 3

of our outline of arguments, sections 3(5), 8 and

18 codify these principles. Your Honours may care

to note that section 3(5) is page 94 of the

legislation book, section 8 is page 95 and

section 18 is page 100. We note as a matter of

background in paragraph 4 that several Australian

jurisdictions have attempted to resolve the tension

between the systems of acquisition of title by

registration and acquisition by possession in

different ways. Your Honours, we set them out and

I do not propose to take those any further.

We note in paragraph 5 the point that I made a moment ago that since the introduction of the

Torrens system into Victoria, the title of the

registered proprietor had always been subject to

page 113 of the legislation book. Section 49, which starts four lines from the bottom of the previous page, provides for the estate of the

rights subsisting by way of adverse possession.

registered proprietor and a certificate of title to

be paramount but, if you look down about 12 lines,

you will see in the middle of the line:

Provided always that the land which shall be

included in any certificate of title or

registered instrument shall be deemed to be

subject to ..... any rights subsisting under any

adverse possession of such land and to any

public rights of way -

et cetera.

MR GOLDBERG:  Now, Your Honours, what occurred in relation

to that section was this: there was a case in 1896

of In re Allen, (1896) 22 VLR 24, it is a judgment

of the Full Court, albeit a short one. Land had

been brought under the provisions of the Act, that

is, registered, in 1855 and 1866, but what then
happened was Mr Allen became an adverse possessor

of it and in 1892 he sought to apply to have the

lands in respect of which he was registered as the

proprietor brought under the provisions of the Act.

The Commissioner rejected him, his application you

will see half-way down page 24:

The grounds of rejection of the application

were stated thus:  "That the whole of the land

comprised in the said application is already

Ringen(2) 23 10/6/93

under the Act, and was so at the date of the

said application."

And the court upheld that proposition. If

Your Honours look at the foot of page 27, five

lines up from the bottom of the page:

Mr Cussen has argued that his client has a title, by adverse possession, which has

subsisted for some time, and that the moment

his title, by adverse possession, became

complete, the title of the registered owner

was destroyed and ceased to exist.

And he then contended that when the Act talks of
bringing land under the Act, it means bringing

title to the Act. And the court said on the fourth

line of page 28:

We think that the Act does not allow of this,

and that, in fact, there is no jurisdiction in

the Registrar to grant an application made to

him for the purpose.

And then the court identified in the next full

paragraph that there was a gap in the statute.

Another objection was raised by

Mr Cussen, that this is a case of hardship

which the Legislature never contemplated; that

it must have been intended to provide for
cases in which titles are obtained by adverse

possession, and to enable a person who had the

legal title to get himself registered under·

the Act in the place of the former owner; and

if, as it appears, no provision is made for

such a case then there is an omission in the

Act itself.

What His Honour then suggested, that there

might be an alternative procedure that you seek to	obtain a declaration if you have acquired title by	adverse possession, and then get an order
compelling a transfer. So at that stage there was
no procedure available for registering a title
acquired by adverse possession.
So what then happened, Your Honours, was this: that the Transfer of Land Act 1904 was brought in
to fill the gap and Your Honours will see this in
sections 10 to 27 at page 146 of the legislation
book, at the foot of the page, section 10, and I
will paraphrase it:

It is hereby enacted that notwithstanding any construction to the contrary -

Ringen(2) 24 10/6/93

in certain provisions -

a title to an estate of fee-simple in

possession of land under that Act can be

acquired by possession adverse to or in

derogation of the title of the registered

proprietor.

And section 11 then provided for an application to

be made and certain steps could then be taken to

get a court order compelling a transfer and

registration.

I do not need to take Your Honours to all

those sections other than to note sections 10 and

11. And that Act conferred jurisdiction on the court to compel the transfer. We have put the

parliamentary debates into the legislation book,

Your Honours, because the parliamentary debates

identify that the court recognized that there was a

gap as identified in Re Allen, land that was not

under the Act an adverse possessor acquired as it

were full title - I am sorry, land that was not

under the Act, it was not a problem for an adverse

possessor; land that was under the Act, an adverse

possessor had a problem because the registered

proprietor remained registered. So this provision

provided for the first time for the registered

proprietor as it were to be removed from the

legislation.

But what happened then, in 1914, the Transfer

of Land Act 1890 Amendment Act gave the power to

the Registrar rather than to the court, and

Your Honours will see that at page 152 of the

legislation book, in particular at page 153,

section 4 at the top of the page:

A person who claims that he has acquired a

title by possession to land registered under

the Principal Act may apply to the

commissioner for an order vesting the land

in -

et cetera. Section 5 said:

Every such application shall -

(a) be in writing -

and then a procedure was set out, and I do not need

to trouble Your Honours with it other than to note

that section 9 identified the power to make the

vesting order in the commissioner, and section 10

provided for consequential directions in relation

to the alteration of title.

Ringen(2) 25 10/6/93

And those provisions, Your Honours, were

consolidated in the 1915 Act, which is under

tab 14, and the relevant sections are,

Your Honours, page 176, sections 87 and following:

A person who claims that he has acquired a

title by possession ..... may apply to the

Commissioner for an order vesting the land in

him

Now, can I take Your Honours at this stage to the

schedule that gave rise to the case of, or was

considered in Johnson v Templeton at page 176 of

the legislation book, section 88 said:

Every such application shall -

(a) be in writing in the form or to the

effect of the Sixth Schedule -

And Your Honours will find the Sixth Schedule on

page 181 and it is in virtually identical form to

the schedule in the current regulations to which I

took the Court earlier today. On page 181,

paragraph 1 of that application, is.a declaration:

Set forth particulars of the possession on

which the claim is based -

and -

(d) The subsequent history and nature of the

possession up to the time of lodging the

application.

Now, Your Honours, that was the state of the

legislation when a case of Johnson v Templeton,

(1917) VLR 339, which is the next case to which I

wish to refer, and that involved a situation,

Your Honours, where land had been continuously

proprietor, but the person who had been in adverse	occupied by a person adverse to the registered
possession had gone out of adverse possession
before the application was made. If Your Honours
look at the foot of page 339, about 8 lines up,
Your Honours will see:

Johnson applied under section 87 of the

Transfer of Land Act 1915 -

and that is the section I took Your Honours to a

moment ago - it is page 176 of the legislation book

for a vesting order -

It was noted -

Ringen(2) 26 10/6/93

that the Commissioner took the objection that

as the applicant was not in possession he

would have to take steps to eject the occupier

before the application could be further dealt

with -

and the application was directed. Your Honours

will see at the foot of page 340 of the judgment:

The grounds for the Commissioner's refusal

were as follows:-

(3) Proof of present possession on the part

of an applicant for a title is regarded

as essential, and, where the land is in

the possession of another person holding

adversely to the applicant, the

established practice of this office has

long been to refuse to accept the title
offered unless and until the applicant by
appropriate legal proceedings recovers

possession.

Your Honours will see, two thirds of the way down,

there was an interjection by the judge in the

course of argument:

My impression is that in order to get on to

the register you must show present possession.

And that, in fact, Your Honours, is what he ruled

and determined on pages 344 and 345. Having set

out the facts and at about eight lines down that

the:

possession terminated in the year 1912

His Honour says, six lines up from the foot of the

page:

When Schedule VI is looked at, I think it

bears out the view taken by the Commissioner.

It requires the applicant to set forth the

following particulars of the possession on

which the claim is based:-(a) The date on and

circumstances in which the possession

commenced -

And he goes through to (d) on the top of page 345, and then said this on the second line:

The schedule is part of the Act, of course,

and so, it being part of the Act, the
applicant has to show the possession up to the
time of the lodging of the application, not

simply for any period of 15 or more years.

Ringen(2) 27 10/6/93

Now, Your Honours - - -

BRENNAN J: Just before you leave that page, I notice on the

bottom of page 344 paragraph (b) refers to:

the name of the person by whom the possession

was commenced -

MR GOLDBERG:	Yes.
BRENNAN J:	Does this case say anything about successive

possession?

MR GOLDBERG:  No, Your Honour, successive possession was not

relevant. The only issue was the applicant, it was

assumed that time had run in favour of the

applicant, as I understand the judgment, the only

point being he had gone out of possession in 1912

and made his application in 1917.

Now, Your Honour, that case was considered and

distinguished - we do this for the sake of

completeness - two years later in the case of

Ferguson v Registrar of Titles, (1919) VLR 509.

MASON CJ: Before you leave that case, refusal of the

application is rather put on the ground that the

commissioner has a discretion. It is not put on

the ground that the applicant has not acquired an adverse title to the land in question, but on the

ground that the commissioner has a discretion which

he is entitled to exercise adversely to the

applicant where somebody else is presently in

possession of the land on the footing rather that

the application is brought with a view to the issue

of a title which could be used against the person

in possession. That is the ground it is put on, is

it not?

MR GOLDBERG:  I understand that, Your Honour, but it is

implicit in it that what the judge is saying is the

commissioner is right because you have to be in

possession at the time you make your application.

MASON CJ: Yes, I am not disputing that for the moment.

MR GOLDBERG:  No, but I accept what Your Honour says.

DAWSON J: But why in principle should it make any

difference? Why should not entitlement to

possession be sufficient in the proper case?

MR GOLDBERG:  Because a possessory title is a title by

possession, Your Honour.

DAWSON J: Well, that is all right.

Ringen(2) 28 10/6/93

MR GOLDBERG:  If you are not in possession you do not have

the title.

DAWSON J:. No, that is if you are entitled to eject the

person there, relying on your possessory title, why

should - - -

MR GOLDBBERG: Yes, unless the period runs against you by

subsequent adverse possessor, I accept that. But here, Your Honour, we are dealing with registered land, you see. Here the point is you want to

change the character of your title.

DAWSON J:  Why should not entitlement to possession be

sufficient, in principle?

MR GOLDBERG:  In principle, Your Honour, it is because it is

very important - what you have got under the

registered system is the certificate of title is a

paramount force and you have got to reconcile the

issues of people being in possession with being

able to convey title and people looking at the

register.

If a person is not in possession but is

claiming a possessory title, you have got a gap, if

you like, in relation to a person who is looking to

acquire land and this is the principle that lies

behind it, we would say. If you can go to a title

and see who the registered proprietor is, you buy

in the faith of the title. Section 42(2)(b) of the

Transfer of Land Act says you take subject to any

subsisting rights of adverse possession. So if you

know someone is in possession you can be aware of

that. But how about the situation, I ask

rhetorically, where a person had been in adverse

possession, time had run in his favour, he had then

gone out of adverse possession and then the

registered proprietor sells to someone else.

DAWSON J:  Does he lose his possessory title merely by going

out of possession?

MASON CJ:	No.
MR GOLDBERG:	No.
MASON CJ:	And that is not suggested.
MR GOLDBERG:	But I am talking about somethi~g different,

with respect.

DAWSON J: All you are saying is really that you would have

to do it in two steps: he has to eject the person

and then come to the titles office and ask to be

put on the register. But why should you have two

Ringen(2) 29 10/6/93

steps? In a proper case, why should it not all be

done with one?

MR GOLDBERG:  Because the principle is that it is the fact

of possession which gives you the right to go to

the register.

DAWSON J: That is right, but it does not mean possession

now. The fact of possession is sufficient to give

you a possessory title. That is what is important.

MR GOLDBERG: That is so. All I can say, Your Honour, is

that as a matter of principle I put it that

possession in terms of getting into a registered

situation is certainly desirable as a matter of

policy, so you can identify the continuity.	I
submit that Johnson v Templeton so found.

MASON CJ: But can I ask you this, and I direct your

attention to page 345. It is	about 10 or 11 lines
from the bottom of the page.	The judge is saying
of the commissioner:

he says - "You ask me to issue a second

certificate of title to land of which another

is in occupation. Before I do that you must

take proceedings to recover the land from the interfere in a dispute between you and the
possessor." The applicant says - "I cannot
bring an action to recover possession." The

person in possession -

and on it goes. Why could the applicant not

recover possession?

MR GOLDBERG:	He could have.
TOOHEY J:	The person in possession here, as it happened,

was the registered proprietor.

MR GOLDBERG:  I see. Your Honour, the answer is on page 342

- I am indebted to my friend. Section 244 of the

Act provided then:

that no action of ejectment shall lie against

the person registered as proprietor.

It is about 12 lines down on page 342.

MASON CJ:  Is there a similar provision in the Act now?

MR GOLDBERG:  No, that was repealed, as I recall it. I

cannot give Your Honour the precise date for the

moment. I can check that out, Your Honour. It is

certainly not in the legislation now and was	not in
the legislation at any time relevant to this	case.

Ringen(2) 30 10/6/93

MASON CJ: But it seems odd, does it not, that because the

man who has a title by adverse possession cannot

bring an action of ejectment against the registered

proprietor, you refuse to vest title in him in

order to give effect to the title that he has.

MR GOLDBERG: That must have been a value judgment, I

expect, as to, if you like, competing interests,

where you gave more weight to a person who was the

registered proprietor than a person who had

acquired a possessory title. If the registered

proprietor went back, you said, "Well, so be it.

He's the registered proprietor".	I mean, I can
only justify -

MASON CJ: But there is just nothing in the statute that

evidences that value.

MR GOLDBERG:  No, Your Honour. The problem is, as Justice

Toohey pointed out before, we do not have any

statute that says that after you have been in for

15 years you acquire a right; it is done in a

negative sort of way. The right is extinguished at

common law. At common law, leaving aside the

Transfer of Land Act, there is no positive

acquisition of title, it is done in a negative sort

of way.

TOOHEY J: Well, it was done in a positive way in one of

those statutes that you took us to.

MASON CJ: Yes.

TOOHEY J: 

I think it is the 1904 Act that spoke in

affirmative terms of acquiring title, but that
language then seems to have disappeared and the

statutes thereafter assume that you can get title.

MR GOLDBERG: 

Yes, the words are:

A person who claims that he has acquired a

title - - -

TOOHEY J:  No, that is not my point, Mr Goldberg. The

earlier Act, I think it is the 1904 Act, sets out

in some detail that you could in fact acquire title

by reason of adverse possession.	I just cannot
pick it up at the moment.

MCHUGH J: It is section 10.

MR GOLDBERG: Section 10 on page 146, Your Honour.

TOOHEY J: Yes, that is the one. Yes, it is the 1904 Act.

And that is in positive terms that a title can be

acquired by possession adverse to the registered

proprietor, but that language disappeared after

Ringen(2) 31 10/6/93

that and, as I say, the later statutes simply

assume that you can acquire title.

MR GOLDBERG:  That is right. Under the 1904 Act you then

had to go to the court to get a declaration and get

consequential orders, and then they changed it to

the administrative procedure in favour of the

Registrar in subsequent legislation.

BRENNAN J: But you said that at common law you could not

get - it was done in a negative way, but that is
not right, is it? If the adverse possessor could
bring ejectment against the true owner, then it was

a very positive way; he had the title and the true

owner did not.

MR GOLDBERG:  But that is because the title of the true

owner had been extinguished.

BRENNAN J: That is right.

MR GOLDBERG:  If the correlative of an extinction is a

creation, with respect, then Your Honour is right.

BRENNAN J: It is not just the correlative of that, it is

the right to bring ejectment, if ejectment lay at

the suit of the person in adverse possession.

MR GOLDBERG: Ejectment lay, Your Honour, because the person

who had been a true owner, his right had been

extinguished.

McHUGH J:  No, you might have a true owner, but if I had

been in adverse possession for eight years and

somebody turns me out, I can bring ejectment to eject the person who t~rned me out, even though

there is a true owner.	You could not plead the
jus tertii.

MR GOLDBERG:  Your Honour is right. So long as that person

is not the true owner, that is so. But then - - -

McHUGH J:	You could not plead the jus tertii, I take it.
MR GOLDBERG:	No, not in that case.

BRENNAN J: But if there was adverse possession for the

statutory period, is it right to say that on the

strength of that possession the adv~rse possessor could bring ejectment against the "true owner who re-entered"?

MR GOLDBERG: After the period had run?

BRENNAN J: After the period had run.

MR GOLDBERG:  Yes, he could.

Ringen(2) 32 10/6/93

BRENNAN J:  Then he must have done it on the strength of his

own title. You have only got ejectment on the

strength of your own title.

MR GOLDBERG: Perhaps, Your Honour, I am being a little bit

semantic, although I do not intend to be. You

ultimately become the true owner because the title

of the person who was the true owner is

extinguished, and you are there and there is no one

else in the whole wide world who can challenge your

right.

BRENNAN J:  Is your proposition that in some way the real

property legislation in Victoria has changed that?

MR GOLDBERG:  No, what the real property legislation in

Victoria has done is to say the Limitation of

Actions Act says that sections 3, 8 and 18 - I am

dealing with a different proposition. If you want

to go one stage further and say, "Now that I have

got a title by possession, well, I want to get a

registered title because it is going to be much

easier for me to sell it in years to come, or to

borrow against it, because no finance institution

will lend against a possessory title" - if you want

to go to that next stage and get registered, you

have to be in possession at the time you seek to

displace the registered proprietor.

BRENNAN J: That means that the right under section 60 is

held hostage to any trespasser as against the

adverse possessor. In other words, let any

trespasser dispossess the adverse possessor and the

right under section 60 is gone.

MR GOLDBERG:  The adverse possessor, yes, that is our

submission.

BRENNAN J: It seems very curious to me.

MR GOLDBERG:	If he then seeks to apply to be registered.
MASON CJ:	But you are not really putting that, are you?	I

thought you were putting it limited to the time

when the application was made.

MR GOLDBERG:  I am, yes, of course; I am sorry.

BRENNAN J: At that time. In other words - - -

MR GOLDBERG:  In other words, Your Honour, if at the time

the adverse possessor makes his application, not

only is the true owner not in possession but a

trespasser. Is that what Your Honour is putting to

me?

BRENNAN J: Yes.

Ringen(2) 33 10/6/93

MR GOLDBERG:  He would have to get rid of the trespasser

first.

BRENNAN J: That is right, so that the right under

section 60 is hostage to the action of any

trespasser.

MR GOLDBERG:  Yes, Your Honour.

BRENNAN J: It seems a very curious provision, a very

curious outcome.

MR GOLDBERG:  But it is only curious, with respect,

Your Honour, because there has been no

consideration of this issue that arises as to

whether or not you need to be in possession at the

time. What is curious about this in a sense is

that after Johnson v Templeton, we submit that the

decision of the Court is clear, yet there was no

legislative change to it at all; the legislation

has continued in that way. So we say the

legislation has built on and incorporates the

principles set out in Johnson v Templeton.

MASON CJ: But there is no principle; it is only an exercise

of discretion.

MR GOLDBERG:  Your Honour says it is only an exercise of

discretion, but it is based upon a substratum of a proposition. The substratum of the proposition is

that the commissioner was right; you have to be in

possession at the time that you make your

application. My learned friend will want to

challenge that now and maybe the Court will, too,

but the point is that is what he said.

BRENNAN J:  The only consequence of this is that the one and

only true owner of the land, namely the person who

has acquired the title by adverse possession,

cannot get registered unless he is in possession.

MR GOLDBERG:	Yes, that follows from my submission.
BRENNAN J:	So that at that stage, the title having gone from the registered proprietor by reason of the
adverse possession - - -

MR GOLDBERG: His right to possession at least, Your Honour,

because his registered title does n9t go.

BRENNAN J: But his registered title has been extinguished.

McHUGH J: It is extinguished by section 18.

MR GOLDBERG:  But that is the very tension to which I have

referred in the past. His title is extinguished,

Ringen(2) 34 10/6/93

yet he is on the register, and people can deal with

people on the register.

BRENNAN J: But his register is subject under 42(2)(b) to

the adverse possession rights.

MR GOLDBERG:  Subsisting adverse possession rights. Now,

the question is, with respect, Your Honour, what are subsisting adverse possession rights, and we submit those are rights which give you the right

under section 60, as it were, to go to get

registered.

BRENNAN J: That. is the ownership, surely, ownership of the

land.

McHUGH J: They are the rights to bring ejectment against

anybody who has not got superior possession to you.

MR GOLDBERG:	Yes, but it is still on the register.
McHUGH J:	A bit of paper.

MR GOLDBERG: Well, it might be a bit of paper, Your Honour,

but it can be quite valuable from time to time,

especially if you want to pledge it, although it is

not so easy these days. Your Honours, that is the

submission we make on the basis that - - -

MASON CJ:  I think we are seized of it.

MR GOLDBERG:  Thank you, Your Honour. Is that, Your Honour,

again what Mr Justice Toohey referred to as the

beatitude of seizin in Mabo?

MASON CJ: Well, probably.

MR GOLDBERG:  Your Honours, Ferguson v The Registrar of

Titles distinguished Johnson v Templeton, although

on an issue not really relevant to this point, but

I should take Your Honours to it. Your Honours,

this was Mr Justice Cussen, reported in (1919) VR

509. There was an adverse possessor and the person
had gone out of possession.	The council had

acquired control of the property for the purpose of

putting a tenant in so that some unpaid rates could
be paid and what happened was the adverse possessor

sought to be registered and the argument was, "But

the council is in possession; you are not", and the

distinction that was drawn was that the council was

there not for the point of being in· possession but

it was for the purpose of recovering moneys.	If
Your Honours look at page - - -

DAWSON J: But was the applicant in possession at all?

Ringen(2) 35 10/6/93

MR GOLDBERG:  No, the council had put a tenant in for the

purpose of getting rates.

DAWSON J:  So the applicant was not in possession.

MR GOLDBERG:  The applicant was not in possession. So that

if you apply Johnson v Templeton, the applicant

failed, but the applicant succeeded because the

court distinguished - Justice Cussen

distinguished - Johnson v Templeton at page 513.

MASON CJ: His Honour does not seem to have thought much of

Johnson v Templeton.

MR GOLDBERG: That is one interpretation of it.

TOOHEY J: Because he was the unsuccessful counsel.

MR GOLDBERG:  Or alternatively, Your Honour, being a little

more charitable - I mean me being a little more

charitable, of course - the point did not arise.

Your Honour is quite right about that and I readily

concede that he did not need to consider the

correctness of decision, but if Your Honours look

six lines from the bottom of the page:

The municipality under precise statutory

powers is entitled to take possession of land

for particular purposes, not for the purpose

of acquiring title, adverse or otherwise,

against the real owner -

and so on. And he says at the top of 514 it:

is clearly distinguishable.

DAWSON J: That seems to suggest that the mere fact that the

applicant is not in possession is of no importance.

MR GOLDBERG:  Would Your Honours just pardon me for one

moment. There is a matter that has been drawn to

my attention.

Your Honours, I wish to take a rather unusual

step, which is I have instructions not to proceed

with the appeal, but to consent to the appeal being

dismissed in both matters.

MASON CJ:  Do you wish to say anything about. that,

Mr Finkelstein?

MR FINKELSTEIN:  No, I will make an application for

consequential order.

MASON CJ:  Mr Goldberg, the order the Court would make is that the appeals be dismissed.

Ringen(2)	36	10/6/93
MR GOLDBERG:	Yes, Your Honours.	If Your Honours please.

MASON CJ: At the request of the appellant, the Court

dismisses both appeals.

MR GOLDBERG: If the Court pleases.

MR FINKELSTEIN:  I seek an order for costs, if the Court

pleases.

MASON CJ:	You cannot resist that, Mr Goldberg?
MR GOLDBERG:	I have nothing to say, Your Honour.

MASON CJ:  The appeals are dismissed, with costs. The Court

will adjourn until 10.15 am tomorrow.

AT 12.12 PM THE MATTER WAS ADJOURNED SINE DIE

Ringen(2) 37 10/6/93