Robinson and Vincent Limited v Rice - [1926] HCA 12

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ROBINSON &VINCENT LIMITED RICE

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Land-Trespass-Right to take travelling stock across land-Road-Road ordinarily

used for three years by public-Objection by owner-Pastures Protection Act 1912 (N.S.W.) (No. 35 of 1912), secs. 4, 107 (1)-Pastures Protection (Amendment) Act 1918 (N.S.W.) (No. 49 of 1918), sec. 4 (XXIV.).

In an action in the Supreme Court of New South Wales for trespass to land in that State by driving stock over it, the defendant pleaded a justification under sec. 107 (1) of the Pastures Protection Act 1912 (N.S.W.), as amended by sec. 4 of the Pastures Protection (Amendment) Act 1918, alleging that the track over which he drove the cattle had been ordinarily used by the public for upwards of three years. The jury having found a verdict for the plaintiff, the Full Court ordered a new trial on the ground that the jury had wrongly been directed that in order for the defendant to succeed the user by the public must be found to have been without objection by the owner.

Held, by Knox C.J., Isaacs, Higgins, Rich and Starke JJ., that, as there was no evidence upon which a jury could reasonably find that the track had been

38 CLR 2

ordinarily used by the public for at least three years, the jury should have been directed to find a verdict for the plaintiff, and therefore that a new trial should not be ordered even if there was a misdirection. &VINCENT

Per Isaacs and Higgins JJ. The definition in sec. 4 of the Pastures Protection Act 1912 of a "road as "any road which has been ordinarily used for three years at least by the public " is satisfied without proof that the user has been without objection by the owner.

Per Higgins J.: Sec. 107 of the Pastures Protection Act 1912 does not give a new right to an owner of travelling stock, but imposes a restriction upon

Decision of the Supreme Court of New South Wales (Full Court): Robinson &Vincent v. Rice, (1925) 25 S.R. (N.S.W.) 436, reversed.

APPEAL from the Supreme Court of New South Wales.

An action was brought in the Supreme Court by Robinson &Vincent Ltd. against John Rice, in which the plaintiff alleged that on 20th August 1924 the defendant by his servants and agents broke and entered certain lands of the plaintiff being certain Western Lands leases situate at Toorale, near Bourke, in New South Wales and depastured the same with cattle and horses and damaged, removed and destroyed the plaintiff's gates, fences, water dams, tanks, sub-artesian and artesian bores and drains. The plaintiff claimed £1,000 damages. By his third plea the defendant alleged that "through all of the said lands there existed a track which had been ordinarily used by the public as a way for upwards of three years before the alleged grievances" and ' was a road within the meaning of the Pastures Protection Act 1912 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1926] HCA 12
Decision Date: 7 May 1926

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of New South Wales concerning an action for trespass to land. The appellant, Robinson & Vincent Limited, sued the respondent, Rice, for damages arising from the defendant's alleged unlawful driving of stock across the plaintiff's Western Lands leases. The defendant sought to justify his actions under section 107(1) of the Pastures Protection Act 1912 (NSW), as amended, by claiming the track used was a "road" as defined by the Act, having been ordinarily used by the public for upwards of three years. A jury had found for the plaintiff, but the Full Court of New South Wales ordered a new trial on the basis that the trial judge had misdirected the jury by stating that public user must be without the owner's objection to qualify as a road under the Act.

The central legal issue before the High Court was whether the definition of a "road" in section 4 of the Pastures Protection Act 1912, which includes "any road which has been ordinarily used for three years at least by the public," required proof of user without objection from the landowner. A secondary issue was whether there was sufficient evidence presented at trial to support the defendant's claim that the track had been ordinarily used by the public for at least three years.

The High Court, by majority, held that while the Full Court was correct in identifying a misdirection regarding the necessity of user being without objection, this did not warrant a new trial. The majority found that there was no evidence upon which a jury could reasonably conclude that the track had been ordinarily used by the public for the requisite three-year period. Consequently, the defendant had failed to establish the statutory defence.

Therefore, the High Court allowed the appeal, discharged the order for a new trial, and ordered that a verdict be entered for the plaintiff for one farthing, with costs.

Orders