State of Queensland v Beames

SUPREME COURT OF QUEENSLAND

CITATION:

State of Queensland v Beames [2002] QCA 209

PARTIES:

STATE OF QUEENSLAND
(plaintiff/respondent)
v
DOUGLAS MACLEOD BEAMES
(defendant/appellant)

FILE NO/S:

Appeal No 5021 of 2001
SC No 7742 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 June 2002

DELIVERED AT:

Brisbane

HEARING DATE:

25 March 2002

JUDGES:

Davies JA, Muir and Mullins JJ
Judgment of the Court

ORDER:

Appeal dismissed with costs

CATCHWORDS:

REAL PROPERTY - FENCING AND BOUNDARIES OF LAND - LAND BOUNDED BY WATER - ACCRETION AND ENCROACHMENT - where defendant was the registered proprietor of land - where one boundary of the land was a tidal navigable river - whether the high-water mark at common law differed from that defined in the Land Act 1994 (Qld)

PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PRACTICE UNDER RULES OF COURT - SUMMARY JUDGMENT - where defendant was the registered proprietor of land - where land resurveyed - where resurvey showed apparent increase in land area - where plaintiff pleaded apparent increase in land area was not caused by gradual and imperceptible degrees of accretion and erosion, but by reclamation - where defendant applied for summary judgment - where defendant raised questions of fact - whether the defendant was entitled to summary judgment on any part of the plaintiff's claim

Land Act 1994 (Qld), s 8, s 9, s 10

Attorney-General v Chambers (1854) 4 De G M & G 206; 43 ER 486, considered

Svendsen v State of Queensland & Anor, Demack J, Supreme Court Rockhampton No 32 of 1996, 29 April 1999, considered

COUNSEL:

Appellant appeared on his own behalf
R J Douglas SC, with D J Campbell, for the respondent

SOLICITORS:

Appellant appeared on his own behalf
C W Lohe, Crown Solicitor, for the respondent

1. THE COURT:  This is an appeal from a judgment given in the Supreme Court on 8 May 2001.  The judgment was principally one refusing an application for summary judgment by the defendant Mr Beames in an action against him by the State of Queensland.  In order to understand these proceedings it is necessary to say something about the relevant facts.

1. At all times since 12 December 1995 Mr Beames, whom we shall refer to as the defendant, is and was the registered owner of a parcel of land which may be described, for present purposes, as Lot 29 Norman Park. The land has as one of its boundaries, Norman Creek. Although, in the action, the defendant did not admit in his defence that Norman Creek was and is, at that boundary, a tidal navigable river within the meaning of s 8 of the Land Act 1994 (hereinafter "the Act"), he plainly accepted that it was for the purpose of his application.

1. The land had been surveyed in 1915 and that plan of survey became Registered Plan number 12574.  The title to Lot 29 is described by reference to that Plan.

1. Section 9 and…