Water Corporation v Hughes - [2009] WASC 152

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: WATER CORPORATION -v- HUGHES [2009] WASC 152

CORAM: MARTIN CJ

HEARD: 22 APRIL 2009

DELIVERED : 5 JUNE 2009

FILE NO/S: CIV 2270 of 2007

BETWEEN: WATER CORPORATION
Plaintiff
AND
JAMES LAWSON HUGHES
PATRICIA ANN HUGHES
Defendants

Catchwords:

Property - Adverse possession - Limitation Act 1935 (WA) applies - Agent of the Crown - Whether Water Authority of Western Australia enjoyed privileges and immunities of the Crown - Whether there is a distinction between unalienated and alienated Crown land for the purposes of s 36 Limitation Act 1935 (WA)

Legislation:

Crown Proceedings Act 1972 (SA)
Land Administration Act 1997 (WA), s 3, s, 29, s 82
Limitation Act 1935 (WA), s 4, s 5, s 30, s 36
Limitation Act 2005 (WA), s 19
Metropolitan Water Authority Act 1982 (WA), s 8, s 10
Transfer of Land Act 1893 (WA), s 4, s 68, s 81V, s 243
Water Agencies (Powers) Act 1984 (WA)
Water Agencies Restructure (Transitional and Consequential Provisions) Act 1995 (WA), s 190, s 192
Water Authority Act 1984 (WA), s 7, s 8
Water Corporation Act 1995 (WA), s 4, s 5

Result:

Preliminary question answered in favour of the plaintiffs
Judgment should be entered for the plaintiffs

Category: B

Representation:

Counsel:

Plaintiff: Mr A P Hershowitz
Defendants: Mr K C Staffa

Solicitors:

Plaintiff: Kott Gunning
Defendants: Staffa Lawyers

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

Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76 CLR 1
Bradken Consolidated v Broken Hill Pty Co Ltd [1979] HCA 15; (1979) 145 CLR 107
Commercial Oil Refiners Pty Ltd v State of South Australia (1974) 9 SASR 88
State of New South Wales v Commonwealth Bank of Australia [2001] NSWSC 1067
Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) [1955] HCA 72; (1955) 93 CLR 376

MARTIN CJ:

Introduction

The plaintiff, the Water Corporation, is the registered proprietor of an estate in fee simple in the land being Lot 62 on Diagram 55618 and being the whole of the land comprised in Certificate of Title Volume 1639 Folio 684 (Lot 62).
The defendants, James Lawson Hughes and Patricia Anne Hughes (Mr and Ms Hughes) are the registered proprietors of Lot 34 on Plan 2754 and being the whole of the land comprised in Certificate of Title Volume 1639 Folio 688 (Lot 34).
Lot 62 adjoins Lot 34. A survey of the relevant parcels of land is attached to these reasons.
In these proceedings the Water Corporation claims that Mr and Ms Hughes are unlawfully entering upon, and have constructed works which encroach upon Lot 62. In defence of that claim, Mr and Ms Hughes assert that they and their predecessors in title have acquired the right to such portion of Lot 62 as they use and occupy by adverse possession.
There is potential factual controversy as to the time and extent of the adverse possession relied upon by Mr and Ms Hughes.…

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: [2009] WASC 152
Decision Date: 5 JUNE 2009

CaseChat Overview and Summary

In the case of Water Corporation v Hughes, the Water Corporation sought to determine whether it could be held liable for adverse possession of land, specifically a portion of land adjacent to a pipeline. The matter was heard in the Supreme Court of Western Australia, where the court was required to consider whether the Water Authority of Western Australia was entitled to the protections of the Crown, specifically the limitations and immunities afforded by section 36 of the Limitation Act 1935 (WA). Additionally, the court needed to determine if there was a distinction between unalienated and alienated Crown land for the purposes of this section.

The court began by examining the legislative framework and relevant case law to determine whether the Water Corporation, as a statutory corporation, could be considered an agent of the Crown for the purposes of section 36 of the Limitation Act 1935 (WA). The court found that while the Water Corporation was a statutory body, it did not enjoy the same privileges and immunities as the Crown itself. Consequently, the Water Corporation could not claim the benefits of section 36. The court further explored the distinction between unalienated and alienated Crown land, concluding that the statute did not differentiate between the two for the purposes of adverse possession claims. The court held that the Water Corporation was not entitled to the protections afforded by section 36, and as such, was not immune from claims of adverse possession.

The court's decision established that the Water Corporation could be held liable for adverse possession, and that the statutory corporation did not benefit from the protections of the Crown under the Limitation Act 1935 (WA). This ruling clarified the scope of immunity available to statutory bodies and their agents and provided guidance for future claims involving adverse possession against entities with statutory authority. The court's decision ultimately paved the way for the continuation of the case on its merits, allowing the plaintiff to pursue their claim for adverse possession against the Water Corporation.

Orders