Williams v State Transit Authority of New South Wales & Ors

[2005] HCATrans 296

[2005] HCATrans 296

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S246 of 2004

B e t w e e n -

TREVE WILLIAMS IN HIS CAPACITY AS THE CHAIRMAN OF AND FOR AND ON BEHALF OF THE AUSTRALIAN JOCKEY CLUB

Applicant

and

STATE TRANSIT AUTHORITY OF NEW SOUTH WALES

First Respondent

ANSON CITY DEVELOPMENTS 1 (AUSTRALIA) PTY LIMITED

Second Respondent

TRISTAN ANTICO AND LESLIE FREDERICK BRIDGE IN THEIR CAPACITY AS TRUSTEES OF ROYAL RANDWICK RACECOURSE

Third Respondent

AUSTRALIAN JOCKEY CLUB

Fourth Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 APRIL 2005, AT 10.04 AM

Copyright in the High Court of Australia

__________________

MR J.R. SACKAR, QC:   If the Court pleases, I appear with my learned friend, MR R.G. McHUGH, for the applicant.  (instructed by Mallesons Stephen Jaques)

MR B.A.J. COLES, QC:   If your Honours please, I appear with MR L.J.W. AITKIN for the first respondent, the State Transit Authority.  (instructed by Abbott Tout)

MR S.G. FINCH, SC:   If the Court pleases, I appear with my learned friend, MR I.M. KHAN, for the second respondent, that is, Anson City Developments.  (instructed by Allens Arthur Robinson)

GUMMOW J:   Thank you.  The Court holds a certificate from the Deputy Registrar stating that she has been informed by the solicitor for the third respondents and fourth respondents that they submit to any order of the Court save as to costs.  Yes, Mr Sackar.

MR SACKAR:   If the Court pleases.  The point that we identify as the special leave point arises cleanly, as it were – forgive the pun – in relation to the sewage easement, but not so cleanly in relation to the rights of way.  The rights of way issue has an inclusion or a hurdle, namely, section 178 for the relevant statute in New South Wales.  We accept that that is not a special leave point as such, but for reasons we will briefly come to in a moment, if your Honours were disposed to grant special leave, we would urge your Honours to give it in respect of that as well so as to raise the issue, as it were, in full.

GUMMOW J:   Where do you say Justice Mason erred?

MR SACKAR:   In two respects.  First by his ‑ ‑ ‑

GUMMOW J:   And what do you say about paragraph 135 on page 92?  You are trying to set up a personal equity, are you not, within the cases on the Torrens system?

MR SACKAR:   Well, your Honour, what we would say first of all an error ‑ ‑ ‑

GUMMOW J:   You did not.

MR SACKAR:   I am so sorry?

GUMMOW J:   You did not, that is what he is saying there.

MR SACKAR:   Yes. 

GUMMOW J:   You set up a doctrine of lost modern grant, but the grant would be a Torrens system grant.  It would not be an old system grant.

MR SACKAR:   Well, can I deal with it this ‑ ‑ ‑

GUMMOW J:   What is put against you is, that just does not work.

MR SACKAR:   I understand.  Can we deal with it two ways.  On the question of the equitable interest, it is clear we say on the authorities that section 42 or any other revision of the Real Property Act does not exclude equitable interests of any sort.  For example, on our learned friend’s argument, if there were an executed ‑ ‑ ‑

GUMMOW J:   It does not exclude equitable interests.

MR SACKAR:   No.  We say, with respect, no.  It depends what the equitable interest is, of course.  But take, for example, a case where there is a validly executed transfer for value ‑ ‑ ‑

GUMMOW J:   Obviously, it does not exclude the equitable interests between a vendor and a purchaser.

MR SACKAR:   Well, we say, with ‑ ‑ ‑

GUMMOW J:   That is a personal equity arising between them ‑ ‑ ‑

MR SACKAR:   Well, we say, with respect, it does not ‑ ‑ ‑

GUMMOW J:    ‑ ‑ ‑ in the understanding of risk…..and Frazer v Walker.

MR SACKAR:   But what Golding v Tanner and the other cases say really is this, that where there has not been a successor in title, in other words, when the registered proprietor has not changed, the registered proprietor will be burdened with such problems as he or she or it has created.

GUMMOW J:   That is problems.

MR SACKAR:   Yes.  And I put by that ‑ ‑ ‑

GUMMOW J:   That is not a legal concept, Mr Sackar.

MR SACKAR:   Well, your Honour, if an easement ‑ ‑ ‑

GUMMOW J:   We are talking about the Torrens system.

MR SACKAR:   Your Honour, let me put it this way.  I was about to say that so far as his Honour Justice Mason is concerned, we put in writing, and I do not want to elaborate unnecessarily, but we say that his construction of section 42 insofar as it excludes the kind of right that we agitate here is wrong.  It says nothing about equitable rights at all or rights in personam.  That is the first proposition. 

The second proposition is this.  Can I take your Honours very briefly to a passage in Justice Debelle’s judgment in Golding v Tanner which is in the book of materials we have, your Honours.  I think it is in tab 1.  Now, what his Honour Justice Mason said and what is put against us is that the doctrine of lost modern grant arises and only arises in the common law context and in the old system title context. 

GUMMOW J:   Well, that is where it came from.

MR SACKAR:   Exactly where it came from.  But why it translates is for this reason.  If your Honours were to turn to page 493 of Justice Debelle, he says:

It is also necessary to consider whether there is any element in the matters which must be proved to establish a right of way either under the doctrine of lost modern grant or under the Prescription Act –

et cetera –

Central to the doctrine of the lost modern grant is the presumption that the grant has been lost.  As Cockburn CJ noted in Bryant v Foot:

“Juries were first told that from user, during living memory, or even during 20 years, they might presume a lost grant of deed; next, they were recommended to make such presumption; and lastly, as the final consummation of judicial legislation, it was held that a jury should be told, not only that they might, but also that they were bound to, presume the existence of such a lost grant, although neither judge nor jury, nor anyone else, had the shadow of a belief that any such instrument had ever really existed.”

Et cetera.  And then he makes a further point, which we say is supported in the authorities:

The presumption cannot be rebutted.

Now, what it was was a presumption of fact.  The presumption of fact which then led to substantive rights manifesting themselves in requisite orders arose naturally and historically, we accept, in the common law context.  But it is the recognition of the presumption of that fact which comes from the long user.  The mere fact that in the ‑ ‑ ‑

GUMMOW J:   But how would the fact help you in the Torrens system?  Grant of what?  By what means?

MR SACKAR:   Well, we certainly put it as an equitable easement.  We say that if we translate it into the Torrens context, as the deed never existed in the common law context and it was a mere fiction, what we have to say, and we embrace this obviously to get anywhere near the argument, is that it would have to be presumed as a fact that at one point we had an executed transfer, that is, in favour of creating the easement, and that at the time the transfer had been executed the certificate that was available will profit.  Now, that is no more or less than what would have to be presumed as a fact in the common law context.  That is really just the mechanics, because the starting point is long user.  That is what the law, as a matter of policy, recognises.

GUMMOW J:   The starting point is section 43, is it not?

MR SACKAR:   Well, we say, with respect, that none of the provisions ‑ ‑ ‑

GUMMOW J:   In the feasibility provision.

MR SACKAR:   Quite so.  But none of the ‑ ‑ ‑

GUMMOW J:   Of title by registration.

MR SACKAR:   None of the provisions in that Act we say ‑ ‑ ‑

GUMMOW J:   Not registered title.  Title by registration.

MR SACKAR:   We accept that, your Honour.  That is why all of the authorities that are put against us and all of the New South Wales authorities, except this South Australian case, to an authority deal with subsequent registered proprietors.  We accept that once the registered proprietor who has burdened his land by the easement moves on, then the provisions bite.  But before that person moves on, we say, with respect, there is a right there to be enforced against the registered proprietor who has burdened the land accordingly.  That is our argument.

CALLINAN J:   Mr Sackar, is there a provision in the New South Wales Torrens legislation for adverse possession of Torrens land?  There is, I know, in some states.

MR SACKAR:   45C.

CALLINAN J:   45C.

MR SACKAR:   45C, yes.  So, your Honour, in a nutshell that is our argument.

GUMMOW J:   Yes, we do not need to call on you, Mr Coles and Mr Finch.

There are insufficient prospects of success in any appeal in this matter to warrant a grant of special leave and special leave is refused with costs.

AT 10.12 AM THE MATTER WAS CONCLUDED