Quintal v Bataille [2004] NFSC 3

SUPREME COURT OF NORFOLK ISLAND

Quintal v Bataille [2004] NFSC 3 PROCEDURE – Claim of title to land by adverse possession – Claim so far not contested – Whether claim should be notified and processed under Land Titles Act 1996 (NI) – Direction made to gazette the application for registration.

Land Titles Act 1996 (NI) Pt VIII LARRY GUILFORD QUINTAL v ALLEN VINCENT ALBERT BATAILLE AS REGISTRAR OF LANDS AND REGISTRAR OF TITLES SC 3 of 2004 WILCOX J 22 OCTOBER 2004 SYDNEY

IN THE SUPREME COURT

OF NORFOLK ISLAND SC 3 of 2004

BETWEEN: LARRY GUILFORD QUINTAL

PLAINTIFF

AND: ALLEN VINCENT ALBERT BATAILLE AS REGISTRAR OF LANDS AND REGISTRAR OF TITLES

DEFENDANT JUDGE: WILCOX J

DATE OF ORDER: 22 OCTOBER 2004

WHERE MADE: SYDNEY

THE COURT DIRECTS THAT: 1. The proceeding be stood over generally with liberty to restore to the list on seven days notice. 2. Within 14 days after the date of this direction, the Registrar of Lands and Registrar of Titles is to publish, in the Norfolk Island Government Gazette, notice of the application made to him by the plaintiff on 27 September 2001, in relation to Portion 25g, New Cascade Road, Norfolk Island, and thereafter process the application in accordance with Pt VIII of the Land Titles Act 1996 (NI).

IN THE SUPREME COURT

NORFOLK ISLAND SC 3 of 2004

BETWEEN: LARRY GUILFORD QUINTAL

PLAINTIFF

AND: ALLEN VINCENT ALBERT BATAILLE AS REGISTRAR OF LANDS AND REGISTRAR OF TITLES

DEFENDANT

JUDGE: WILCOX J

DATE: 22 OCTOBER 2004

PLACE: SYDNEY

REASONS FOR DIRECTIONS WILCOX J: 1 The plaintiff, Larry Guilford Quintal, claims to be entitled by adverse possession to ownership of Portion 25g, New Cascade Road, Norfolk Island. 2 On 27 September 2001, the plaintiff's solicitor, Michael Zande, applied to the defendant, Allen Vincent Albert Bataille, Registrar of Lands and Registrar of Titles, for registration of the plaintiff's title under the Land Titles Act 1996 (NI) ('the Act'). 3 Between that date and March 2004, there was correspondence between Mr Zande and Mr Bataille. Mr Bataille was apparently persuaded that Mr Quintal had a strong claim to title by adverse possession. However, he did not publish notice of the application in the Norfolk Island Government Gazette, as required by s 135 of the Act. The apparent reason for this is that Mr Bataille believed that, regardless of any view he might form about the merits of Mr Quintal's application, it was necessary for the issue of his title to be resolved in this Court. It appears, from a letter from Mr Bataille to Mr Zande of 4 March 2004, that the basis of Mr Bataille's belief was a comment I made in Forrester v Bataille [2003] NFSC 2 ('Forrester') when reserving the matter of costs. I said: '[r]egardless of the defendants' attitude, the plaintiffs needed to come to court'. 4 The important thing to note about Forrester, for present purposes, is that both the proceedings covered by those reasons for decision were proceedings in which the plaintiff sought a declaration as to his title. Each proceeding was contested on the basis that the subject land was a public road. However, even if there had been no opposition, it would still have been necessary for the plaintiffs to come to court in order to obtain a declaratory order. That was the point of my comment. 5 My comment was not intended to indicate that it will always be necessary to seek a declaratory order in order to achieve registration of title obtained by adverse possession. In Forrester, that was a sensible course to take; the plaintiffs knew that Mr Bataille was not prepared to accede to an application for registration under s 133 of the Act. However, in many cases, it will be preferable for an applicant who seeks recognition of title obtained by adverse possession to make an application for registration under s 133. This course has two advantages, especially in a likely non-contentious case. 6 First, the statutory procedure includes a mechanism for public notification: see s 135 of the Act. As Mr Bataille observed in his letter of 4 March 2004, in the absence of gazettal of the application, it is impossible for him to determine 'whether any submissions might have been made in opposition to Mr Quintal's claim'. Possible sources of such submissions are not only persons claiming through an earlier documentary owner, but also persons who might wish to challenge an applicant's claim to have been in adverse possession of the land for the requisite 12 years. Second, resolution under the statutory scheme is likely to be less costly than resolution by the Court. 7 It seems Mr Bataille interpreted my comment in Forrester as an indication that it will never be appropriate for an adverse possession claim to be resolved by determination of an application under s 133 of the Act. I did not intend to so indicate. My comment was directed only to the case then before me, a case where the plaintiffs, sensibly enough, had decided to come to court. 8 In the present case, it is preferable for me to stand over the proceeding generally, with liberty to restore to the list, so that the statutory procedure may be followed. Gazettal under s 135 will provide the opportunity for any challenger to emerge. If there is none, Mr Bataille should examine Mr Quintal's claim under s 136 of the Act and make a determination under s 138. If that determination is favourable to Mr Quintal, he will presumably discontinue the present proceeding. If the determination is unfavourable to him, Mr Quintal may wish to restore the matter to the list, adding as a defendant any person who has challenged his claimed title. 9 I will direct that Mr Quintal's application of 27 September 2001 be gazetted under s 135 and that, thereafter, the application be processed in accordance with Pt VIII of the Act. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.