WCL (Qld) Albert St Pty Ltd v Orb Holdings Pty Ltd

[2021] HCATrans 93

[2021] HCATrans 093

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B63 of 2020

B e t w e e n -

WCL (QLD) ALBERT ST PTY LTD (ACN 600 302 976)

Applicant

and

ORB HOLDINGS PTY LTD (ACN 010 227 371)

Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 20 MAY 2021, AT 11.00 AM

Copyright in the High Court of Australia

MR P.J. DUNNING, QC:   May it please the Court, I appear with my learned friend, MR S.B. WHITTEN, for the applicant.  (instructed by CDI Lawyers)

MR J.D. McKENNA, QC:   May it please the Court, I appear with my learned friend, MR J.P. HASTIE, for the respondent.  (instructed by HWL Ebsworth Lawyers)

GAGELER J:   Yes, Mr Dunning.

MR DUNNING:   Thank you, your Honours.  Your Honours, in our respectful submission, questions regarding Torrens legislation always are of particular importance given they are very similar – though it is accepted not identical – schemes throughout Australia in that regard, and it plays a vital role in the transmission and security around land tenure in this country.

This case, and the application for leave in Imago which is to immediately follow, raise for the first time directly in this Court the interplay between an unregistered public right of user and an indefeasible title.  In our respectful submission, that alone would be sufficient for a grant of leave.

Moreover, in our respectful submission, it is the manner in which the Court of Appeal, in our respectful submission, fell into error that justifies a grant of leave.  That is in two ways.  Firstly, their Honours’ error in the approach to the construction of a contemporary Torrens statute and, secondly, the misunderstanding – respectfully – their Honours had of three critical cases, starting with Vickery, that play an important part in the jurisprudence in respect of Torrens title in Australia.

GAGELER J:   Is there a difference between President Sofronoff’s approach and Justice McMurdo’s approach?

MR DUNNING: In our respectful submission, Justice Gageler, there is not – and can I illustrate that point in this way. May I ask your Honour please to take up the learned President’s reasons. They start at page 47 of the bundle, but critically, if I can take your Honours please to page 50 and paragraph [10]. Your Honour will see there that his Honour engages, as Justice McMurdo had, with section 369 of the Land Act and important ultimately to his Honour’s disposition was the analysis of the then acting Justice Rich in Vickery.  His Honour sets out that oft‑cited passage from Vickery we see in that paragraph there.

When one then goes to Justice McMurdo’s reasoning, if I can ask your Honours please ‑ I will do this in a little more detail, but just in direct answer to your Honour’s question ‑ may I ask your Honours please to go to page 54, and in paragraph [39], his Honour picks up the joint reasoning of Justices Gaudron, McHugh and Gummow in this Court in Brodie, and then over to the next page just before paragraph [40] picks up the footnote in Brodie to Vickery, and then at paragraph [42] says:

The reasoning in these authorities cannot be distinguished in this case.

His Honour elaborates on that theme in paragraph [43].  Notwithstanding the President’s careful analysis that precedes paragraph [10], ultimately it seems a matter that drives his Honour’s reasoning is that same passage in Vickery, and that is perhaps unsurprising because his Honour opens his reasons by saying he simply – he agreed with Justice McMurdo and simply wished to expand a little, so it is unsurprising he ends in the same…..in our submission. 

GAGELER J:   Thank you. 

MR DUNNING:   Your Honours, can I take you to what in our submission are the critical provisions in the Land Title Act, and then I will come back and deal with the reasons of Justice McMurdo.

EDELMAN J:   Just while you are taking us to those provisions, do you accept that a public right of way cannot be registered on the title?

MR DUNNING:   No, Justice Edelman, in this respect.  The provisions I am about to take your Honour to, in our respectful submission, have that effect, and just as we see in some of the cases talking about the machinery to recognise them, and that is, in our submission, what the Land Title Act provided in 1994.  Your Honours, if I can then ask you please to go to page 95 of the book, there are a couple of earlier sections I will take you to when I go to the judgment, but can I ask your Honours please to notice 48:

The State may, under this Act, acquire, hold and deal with lots.

If we can then ask your Honours please to notice paragraph 49:

A plan of subdivision ‑

and this is under the division dealing with plans of subdivision:

A plan of subdivision is a plan of survey providing for ‑

relevantly for our services:

dedication of land to public use ‑

Then if we can ask your Honours please to notice section 50 on page 99, which deals with:

Requirements for registration of plan of subdivision

and in particular (1)(a), that it “must” – notice the mandatory language:

distinctly show all roads ‑

Your Honours will notice:

and other proposed lots . . . that are to be public use land –

So, the legislature has considered the two, in our respectful submission, synonymous; that is, other “lots” and for present purposes “roads”.  And then we see in (c):

show all proposed lots marked with separate and distinct numbers ‑

So, the scheme provides that for present purposes roads are to be distinctly provided for and lots are to be distinctly provided for by number, but they are otherwise indiscriminate.

GAGELER J:   It is implicit in 51A, is it, that a road will be a lot?

MR DUNNING:  It is either implicit or, alternatively, the legislature treats them as synonymous.

GAGELER J:   I see.

MR DUNNING:   In our respectful submission, for the purpose of that it is unnecessary to come to a final conclusion on that topic.  Can I ask your Honours also please to notice ‑ because they are important in Justice McMurdo’s reasons ‑ section 51 on page 101.  Your Honours will come to see in his reasons that his Honour talks about this only applying to new lots.  In our respectful submission, that does not apply to 51(1).  All it is saying is that a dedication of a lot to public use has that legal consequence; the same with (2).  We accept 52 fits into the category of something for the creation of a new lot.

Can I then please take your Honours to what in our submission is the critical error that was made by the Court of Appeal, and for the reasons I have already given in answer to Justice Gageler, I was not proposing to return to the President’s reasons.  I mean no disrespect but effectively we say they are concurrent in this regard.  Can I ask your Honours please first of all to take up paragraph [64] on page 61 of the record and your Honours will see there that a “lot” is defined as:

a separate, distinct parcel of land created on –

(a)      the registration of a plan of subdivision –

So, Justice Gageler, in answer to your earlier question, it is capable, in our submission, of connoting a lot.  And then if we notice section 37 that:

An indefeasible title for a lot is created on the recording of the particulars ‑

Then if your Honours will notice section 38 in paragraph [66].  I have taken your Honours to section 48.

Can I come to paragraph [71] of his Honour’s reasons. Now, in our respectful submission, that was critical to the case, but that is the limit of the analysis in the Court of Appeal in relation to section 50 and the mandatory terms in which it is so expressed. His Honour then deals with 51 and 52, which I have taken your Honours to, and then concludes, importantly for our purposes, at [78] and [80]. Can I deal first of all with [78]. His Honour reasons:

Of course, ss 51, 52 and 54 provide for the opening of new roads.

I have endeavoured to demonstrate to your Honours that that respect is not correct, or at least for present purposes should not be assumed in the way, respectfully, the Court did.  Then, his Honour goes on to say:

However, it is significant that although they provide that a road will occupy a lot, they do not provide that the particulars of the lot will be entered in the freehold land register, nor that the Crown will be recorded, in the freehold land register, as the registered owner.

But with great respect to the Court of Appeal, that reasoning was circular because, as his Honour had earlier identified, section 95 had the consequence that the State was, relevantly, the only owner of the land. Your Honours will see that dealt with starting at paragraph [58] of his Honour’s reasons where his Honour sets out section 95 ‑ ‑ ‑

EDELMAN J:   Is there not a distinction, though, between the notion of “ownership” and notion of a “public liberty”?  The Crown can have ownership over something and separately from that there may be a public liberty to use it.

MR DUNNING:   That was undoubtedly, Justice Edelman, the position of the common law.  The real question this appeal raises is did this statute and other cognate statutes change that and provide the sort of machinery that Acting Justice Rich had talked about at the beginning of the last century to elide that distinction.

EDELMAN J:   But how can that distinction, which is a conceptual distinction, ever be elided?  There is a distinction between a right and a liberty.

MR DUNNING:   That is correct.  Again, to use the language, I think, of Justice Street, that right or liberty, though, is capable of being trenched upon by Parliament and if, on the proper construction of, in this case, the Land Title Act it has done so by making it mandatory that for such a right or liberty to persist against the title holder, it has to appear on a plan of subdivision, then Parliament is, in our respectful submission, competent to do so.

EDELMAN J:   Who would register the liberty?  It is not the Crown’s liberty.  It is the public’s liberty.  Would it be the Attorney‑General in right of the public that would register it?

MR DUNNING:   It would not, in our submission, necessarily follow that that is the case.  It would be at the time of, for present purposes, a registration of the subdivision.  The obligation to, if there is such a public right, ensure that it is recorded and that is, effectively, a policy choice that is then made between on the one hand the preservation of those un‑noted rights and, on the other hand, the protection of people who take only subject to what is on the register, including the notification of roads.

Your Honours, just before I pass back from [58], in our respectful submission, one of the errors that was made in the court below was to treat 95(a) and (b) as if the word “or” appeared there and not to recognise the fact that it was possible that there might be an overlap of them.  If I can return please to paragraph [78] on page 63.  His Honour records that:

ownership of such land does not derive from the freehold land register under this Act. It derives from the operation of s 95 of the Land Act 1994. In this way . . . maintains the distinction –

and, to a great extent, I have endeavoured to answer that by my response to Justice Edelman, that, in effect, the Parliament by the Land Title Act has chosen to take away that distinction and impose a requirement that rights such as those must be recorded in a subdivision.

Can I then take your Honours please to paragraph 80 of his Honour’s reasons. His Honour at that point returns to section 48 of the Land Title Act, and at the end of that paragraph his Honour says, about four or five lines from the bottom of the page:

It is one thing for the State to be able to –

relevantly, hold lots:

under the Land Title Act.  It is another thing to say that any land which has otherwise become vested in the State is to be held, and may be dealt with, as a lot under the Land Title Act.

Now, in our respectful submission, the distinction that his Honour draws is not one that is, with respect, apparent when one looks at the statutory scheme as it now exists.  It might well describe the situation when Acting Justice Rich decided Vickery, where there was no provision for the equivalent of the Land Title Act in New South Wales to provide for the registration of roads, and all roads had to be vested in the State.  It would be very different in the current situation.  So we would respectfully submit that is the key to the error that was made in the court below.

The matters that led to the making of that error are, in our respectful submission, this.  If one goes back to page 54 of the record, Justice McMurdo in the Court of Appeal refers to the passage in Brodie, and in particular, by way of footnote, picks up the reference to Vickery, and for the reasons I have given, his Honour considered that important.  I will not rehearse those other paragraphs with your Honour. 

Can I just take your Honours to three other paragraphs of the reasons before I turn to the cases.  Can I ask your Honours please to go to paragraph [50] on page 58.  The important passage starts about three‑quarters of the way down his Honour’s reasons, where his Honour says:

Nevertheless, as Street J said in Pratten, the observations in the judgments of the majority were directly relevant to the case before him.

Then his Honour picks out the passage from then‑Justice Street’s reasoning, and I will come to that in due course.  It was that that led his Honour to record at [51]:

The reasoning in these cases provides strong guidance for the interpretation of the relevant legislation in the present case -

and then relies on section 369, and I am going to take you to those three cases in what I hope will be success in demonstrating to your Honours that that was not so.

Your Honours, if I can then ask you please to take up Vickery v Municipality of Strathfield and ask your Honours to go to page 363 of the reasons.  Your Honours have been - both in the judgment of the Court of Appeal and by our learned friends, much focus is given to what appears at the foot of 363, from about the last eight lines, in the case of the Real Property Act.  In our respectful submission, the critical part that was not appropriately understood in the Court of Appeal is this.  His Honour goes on:

Speaking generally, it secures this end by enabling a proprietor so to register his title that a purchaser from him may obtain title free from the interests of any persons who have not registered those interests in the manner prescribed by the Act.  But it makes no provision, express or implied –

We particularly focus on the word “implied”:

for the destruction of public rights –

which in our submission the land title would be competent to do, but even more importantly:

nor does it provide any machinery for the recognition of the existence . . . of such rights.

Now, the actual basis of Vickery was the absence of an equivalent like section 50 in the Land Title Act because there was not in the statue as is it stood in New South Wales then, to use his Honour’s language, “machinery for the recognition of the existence of such a right”.  In our respectful submission, Justice Edelman, that would ‑ ‑ ‑

EDELMAN J:   But that is not talking about rights in the sense of rights of the Crown, ownership by the Crown.  That is talking about rights in the sense of public liberties to use, is it not?

MR DUNNING:   That is correct, but if one takes away from that, then there can be no objection to it at all because the right exists only for that purpose – that is, to provide the means of passing over it.

EDELMAN J:   Is that right?  Could you have Crown ownership of a road and then the Crown makes a decision to extinguish any public liberty, the Crown would still own the road but there would just be no public rights of use over the road.

MR DUNNING:   That is correct.

EDELMAN J:   So, they are two distinct concepts, are they not?

MR DUNNING:   I accept that they are two distinct concepts.  The point I was endeavouring to make is, the reasoning of Justice Rich, that is then universally applied, is to indicate that you need machinery for the – sorry, you might have machinery – the recognition of the existence of such rights.  In our submission, that is not limited to just the property right of ownership but, for example, the public right of passing over and back.

Your Honours, can I give you then please the reference to Brodie?  Can I deal with it very briefly?  Brodie, as your Honours will well know, was a case about whether misfeasance or nonfeasance should apply in the highway rule and, instead, whether it should be a matter of negligence.  That is the matter dealt with extensively in the joint reasons.  The passage that is relied upon, at page 119, was simply in a passage that starts at paragraph 116, on page 564, about the discussion between nuisance and negligence.  What their Honours said was undoubtedly right when they said:

In Australia, the vesting by statute in local government authorities of the fee simple in land over which there are public streets leaves the streets dedicated to the public.

That was undoubtedly the correct statement of common law principle and we do not cavil with it.  The footnotes say:

This may –

and we stress the word “may”:

be so even in respect of land held under Torrens –

and they give the reference to Vickery.  The question then is, are they machinery provisions now provided that were not then?  It is unsurprising they would be because as the Torrens statutes became more mature, you would expect that they, in fact, comprehended things like public roads – public roads can be only vested in the State – and protected by a plan of subdivision.  Finally, your Honours, can I give you the reference ‑ ‑ ‑

GAGELER J:   That occurred in Queensland, you say, in 1994, did it?

MR DUNNING:   Certainly no later than 1994.  There is an argument that the previous real property scheme had also done that but, for the purpose of the disposition of this case, it is sufficient were we to demonstrate that that was the effect of the 1994 Act because it would be irrelevant otherwise.

Your Honours, can I just give you the – because I see my time is up – there is a reference to Pratten – if it is important to your Honours it is the very foot of page 166, going over to the first paragraph in 167, that is relevant.  In our respectful submissions, those are the reasons this is an appropriate case for a grant of leave.

GAGELER J:   Thank you very much, Mr Dunning.

MR DUNNING:   Thank you, your Honours.

GAGELER J:   Mr McKenna.

MR McKENNA: Your Honours, this is not a matter that raises any big questions about the Torrens system in Australia. The reason for that I think is apparent most clearly in the application for special leave on page 68 of the application book. You will see that the proposed grounds of appeal, numbered paragraphs 1 to 4, are all about the effect of the Land Title Act 1994.

GAGELER J:   So if you substitute “Queensland” for “Australia”, is it a big question for Queensland?

MR McKENNA:   No, with respect, your Honour, because the problem that arises in this case was a problem that could only arise pre‑1923.  Before 1923 it was possible for a registered owner to create, by their conduct, public roads.  After 1923 you just could not do it, you had to go through statutory procedures.  So this problem only arises because it is a pre‑1923 subdivision, and that the land has never been subsequently amalgamated, re‑subdivided or the like that would involve a new statute resolving the problem.

The reason I am focusing on 1994 is that all the relevant events other than one occurred pre‑1994 in this case, and the fundamental error in the applicant’s submissions is to read the 1994 Act as if it applies to subdivisions that occurred 100 years ago.  The right approach was the approach the Court of Appeal took, which was to be rigorously chronological and work through the events that occurred in the statutes that occurred at the time, understanding their legal effect, and then ask the key question, given what was done pre‑1994, was the intention of the 1994 Act to undo it all?

So having set up a very careful statutory regime that vested all public roads in the State, his Honour the President held, not in fee simple but in absolute title, so it was removed from the – the grant, in effect, was undone, hence incapable of being held under the Torrens system.  So that was done pre‑1994.  All that happened in 1994 was that the old 1861 statute was replaced by a new Torrens statute, 1994. 

On the face of it, the provisions that our learned friend took you to are all prospective.  If you wish to register a plan of subdivision, this is what you do, and very significantly - or a clause that was significant to their Honours, but the applicant did not focus on, is at page 102 of the application book, which is section 52(a).  This is, in effect, the punchline of the lodgement of a new plan of subdivision that has public use land.

The particulars to be entered into the freehold land register are particulars of each proposed lot that is not public use land.  The reason for that is that that is consistent with the previous approach which was that if you dedicate land to the public it ceases to be governed by the Land Title Act or the Torrens system, but it is governed by the Land Act. 

So, that is, in a nutshell, why this case does not actually turn on any big questions of the Torrens system.  It turns on construction of the 1994 Act and the earlier questions just do not seem to have raised on the facts any particular issue of concern to the Torrens system generally or to your Honours.  They concern ‑ ‑ ‑

GAGELER J:   So, I mean, even more narrowly, you are really saying it turns on the transitional application of the 1994 Act to pre‑1923 subdivisions.  Is that right?

MR McKENNA:   I can make it much clearer for your Honour.  The background is this and these I do not apprehend are in issue in this appeal.  When the 1861 Torrens Act was introduced there was no problem about registered owners creating public lands by their acts.  You did not do it.  There was no provision that actually contemplated a provision of the Act creating a public road.  It was created by opening the road, letting the public use it and that being accepted. 

The kind of problem that might have arisen in Vickery could have arisen here if the owner had transferred title at that point, but it did not.  The Brisbane Grammar Trustees were the original registered owner and they stayed the registered owner until 2008, I think it was.  So, there was no problem about a subsequent registered own trumping public rights of way.  It was the same registered owner the whole time. 

What happened that was critical was in 1962 when section 369 of the Land Act was passed and you will see that in the application book at page 93.  This is the key provision that the case really turns on.  It operates on:

All land which, having been before, is at the commencement of this Act, or which may on or after the commencement of this Act be, dedicated by the owner thereof, not being the Crown, to public use as a road shall, by virtue of such dedication to be vested –

and please note:

(and in the case of land so dedicated before the commencement of this Act, is hereby declared to have always been vested) in the Crown and may be dealt with in the same manner as roads which have been dedicated to public use by the Crown.

So what one draws from that is a pretty clear statutory intention to deal with the problem of public roads, which are infrastructure of public importance, and you can understand why a provision like this would take public roads out of – solve the problem of public roads by a generic provision that vested it in the Crown, and restricted the way in which the Crown could deal with it, by only being able to deal with it as it would Crown land that has been dedicated to public purposes.

Interestingly, if one goes back to page 90 of the application book, you will see how land that had been dedicated by the Crown for public use could be dealt with and 365 deals with the permanent closure of roads, in which case the governing council may - this is subsection (a)(i) and (ii), sell the land to adjoining owners and issue them a fresh deed of grant.  That does not sound like an arrangement that contemplates being within the Torrens system.  It is an arrangement contemplated as being governed by the Crown Land Act.

EDELMAN J:   Is this case even a step further removed, in that it is concerned with public liberties rather than actual ownership of the road itself?

MR McKENNA:   It is, your Honour, in the sense that the purpose – and the judges of appeal found this – the purpose of 369 was to preserve public liberties.  So we have a State, we have road infrastructure, we have public liberties over roads, and there is this problem of these liberties not being appropriately protected.  Who is going to prepare the roads?  If it is owned by a private person, but they are to be repaired by a local authority or the Crown, there is a disconformity between the two.  So the purpose of the statute is to protect the public liberties by vesting, not just on an interim basis but permanently, title in the land in the Crown.

Our learned friend took you to parts of the judgment dealing with the public liberties point. The reason that was in issue below but is not in issue now is because the primary judge held that vesting in the Crown was inconsistent with public liberties, and therefore the public liberties were extinguished by section 369. The point of our appeal below was to demonstrate that was wrong. Their Honours accepted that it was wrong, and there is no issue about that now – so that reference to authority is not material.

GAGELER J: The relationship between section 369 and the 1994 Act – where do we go to understand that?

MR McKENNA:   I am struggling to find a place to take you to, your Honour, because it works really like this.  This provision, in the terms you have just seen, continued to be a specific provision enforced at the time the 1994 Act was passed.  So, you have a general statute – the Torrens statute – and you have a specific statute, 369.

The transitional provisions of the Torrens statute, which I do not think are in the bundle before you – that are referred to by the Court of Appeal – only operated to preserve the Torrens rights that existed at the point of transition to the new Act. Then, you have these provisions that our learned friend took you to, which are sections 48 and following, all of which the Court of Appeal found – and, in our respectful submission, correctly found – are all about new plans of subdivisions, the structure being, you can subdivide land. If you do subdivide it – section 50(1), page 99 of the application book:

A plan of subdivision –

not – and may I say, no sensible reading of section 50(1) would have a plan of subdivision referring to something that was lodged 100 years ago – it is talking about new plans of subdivision:

must‑

distinctly show all roads . . . that are to be public use land ‑

You see that in subsection (a).  It is words of the future.  It must:

include a statement agreeing to the plan and dedicating the public land by –

(i)the registered owner –

not by the Crown, as the Crown is not the registered owner on any view of this time.  Then you see at section 51(1) and (2) again words of the future.  Subsection (1):

The dedication . . . must be of the . . . whole interest in the lot.

Subsection (2):

On registration of the plan, without anything further –

(a)if the dedication is for a road – the road is opened for the Land Act 1994 -

So, it all about the future, it has nothing to do with this case which concerned a subdivision that occurred in 1876.

Can I say one further thing.  The Court of Appeal noted that the sequence of events was, earlier in 1994 the Land Title Act was passed, later in 1994 a new Land Act was passed.  It expressly confirmed the rights created by the former Land Act vesting in the Crown public land.

So, before any transaction occurred in this case, not only was there a change in the general Land Title Act, but a change in the Land Act which, on the face of it, seemed to confirm the intention to continue it.  You will see that in the application book at page 60.

GAGELER J: This is section 95?

MR McKENNA:   Yes.

GAGELER J:   I do not quite understand what is said at paragraph 61 about the relationship between section 369 and section 95. Can you translate that?

MR McKENNA: I think the primary judge was concerned that in section 95, the expression, “The land in all roads dedicated . . . under the following Acts”, was looking for a provision of those acts which itself dedicated the land. His Honour found that, if that were literally so, it would be a very odd construction and so the better construction was to construe it as including land such as this which was dedicated to the public outside the Act but treated - became a road under those Acts. So, the word “under” was given a broader construction than on the face of it would bear. Can I say that is not an issue, I do not believe, in this case either.

So, the big question for the Torrens system, do public roads – can they be trumped by individual acts – sorry, by later transactions under the Torrens system, that does not arise in this case because, before any transaction occurred, a specific statute came along – section 369 of the Land Act - which vested radical title back – vested title – not fee simple title – back in the Crown. There is no issue in this case, as I understand it, about the meaning and effect of section 369.

So, that is the state of play when the 1994 Act came along. The specific question that arises in this case, is there something in the 1994 Act that you can see that intends to undo the purpose of section 369 which was the specific Act that was still in force at the time the 1994 Act was enacted. So, given that we are speaking of public roads, public infrastructure, public liberties to use the roads, where would one see such an intention? There is nothing pointed to in the explanatory materials – extrinsic materials – to suggest that was a purpose.

Your Honour asked me if there was some transitional provision that might help.  No, there is not.  All there is are the provisions our learned friend took you to which have nothing to do with the earlier statute.  For those reasons, your Honours, this is not an appropriate vehicle.  

GAGELER J:   Thank you.  Mr Dunning.

MR DUNNING:   Thank you, your Honours.  We understood our learned friend to submit that nothing happens after 1994 that is relevant.  In our respectful submission, that is not so.  Could I ask your Honours please to go to paragraph 24 of Justice McMurdo’s reasons on page 52, and your Honours will see there that:

In 2008, the trustees transferred the land to a developer.  In 2012, another plan, numbered SP142332, was registered, which showed the land described as Beatrice Lane.

So there was a further plan that was registered which engaged the terms of section 50. His Honour deals with that as well at paragraph [81] on page 64, and whilst there are some words of qualification in that, none of it takes away from the fact that there was a new plan registered in 2012, and that would be a complete answer to what our learned friends had to say about section 50. In any event, the learned primary judge did not say that section 50 only acted in respect of future matters, and your Honours see that from paragraph [78] of his reasons.

Second, your Honours, by way of reply, could we make the submission that it is not a good answer, in our submission, to say, well, these were events that happened in 1923, they are unlikely to happen again. 

That is the very reason that Torrens is framed the way it is, so that it guards against the unexpected.  Old system land was confident to deal with the expected.  It was the unexpected that Torrens is intended for, and in our respectful submission, that would not be a basis for a refusal of leave, or a sound basis on which to deal with the matter.

Finally, your Honours, as to the collision of what as we understand our friends to be saying a general power in the Land Title Act, and a specific power in section 369 as it then was, and its later iteration in the Land Act, in our respectful submission, that is not the case.  The Land Title Act creates a specific regime for the registration of roads to have a particular effect in respect of indefeasible title, and in those circumstances, it cannot be said to be a provision of – matter of generality, rather, it is specifically intended to stipulate what is to occur in relation to the demarcation of roads on registered land under it.

GAGELER J:   Mr Dunning, in paragraph [79], page 63, in the last sentence, it is said:

importantly, there is no provision of the Land Title Act which brings within its operation the ownership of land which had derived from another statute and which was outside ‑ ‑ ‑ 

MR DUNNING:   I am sorry, Justice Gageler, I just missed the paragraph number.

GAGELER J:   Paragraph [79], the last sentence.

MR DUNNING:   I am sorry, yes.

GAGELER J: Do you point to section 50 of the Land Title Act - are you able to point to a provision which has the effect that is said to be missing?

MR DUNNING: No, your Honour, section 50 is the best provision upon which we would rely in that regard.

GAGELER J:   For that purpose, you have to say that it does not have a prospective - simply a prospective operation, new roads.

MR DUNNING:   That is correct, but that does not impact on this appeal and this application, as the 2012 plan demonstrates.  Even if it has that prospective operation, the issue still arises on this case.  Unless we can assist your Honours any further, they are our submissions in reply.

GAGELER J:   Thank you.  We will adjourn for a moment to consider the course we will take.

AT 11.38 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.40 AM:

GAGELER J:   In our opinion, there are insufficient prospects of success to warrant the grant of special leave to appeal.  The application for special leave is dismissed with costs.

AT 11.41 AM THE MATTER WAS CONCLUDED