Lawson v Minister for Environment & Water (SA) [2021] NSWCA 6

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lawson v Minister for Environment & Water (SA) [2021] NSWCA 6 Hearing dates: 18 August 2020 Date of orders: 7 October 2020 Decision date: 11 February 2021 Before: Bathurst CJ at [1]; Basten JA at [30]; McCallum JA at [58] Decision: (1) Appeal allowed. (2) Set aside the orders made by the primary judge. (3) Answer the separate questions the subject of the appeal as follows: 1. Was the land the subject of the claim filed on 1 April 2015 vested in South Australia for an estate in fee simple under s 18 of the River Murray Waters Act 1915 (NSW) (RMW Act) on commencement of that Act on 31 January 1917? Answer: No. 2. If the answer to question 1 is "Yes": a. is the consequence of the vesting by the RMW Act that any and all interests in the land to which s 18 [of] the RMW Act applied acquired through adverse possession or held as native title rights were extinguished upon the commencement of the RMW Act? And b. was the vesting of the land by the RMW Act a 'previous exclusive possession act' for the purposes of s 23B of the Native Title Act 1993 (Cth) and s 20 of the Native Title (New South Wales) Act 1994 (NSW)? Answer: Does not arise. (4) Remit the further hearing of the proceedings to the Chief Judge in Equity or a judge nominated by her. (5) Order the respondents pay the appellant's costs of the appeal. (6) Costs of the proceedings in the Court below be determined by the judge responsible for the determination of the proceedings. Catchwords: NATIVE TITLE – extinguishment – compensation – whether extinguishment occurred (i) under legislation vesting land in South Australia or (ii) pursuant to resumption under the Public Works Act 1912 (NSW) STATUTORY INTERPRETATION – legislative purpose – whether land vested in South Australia for an estate in fee simple under the River Murray Waters Act 1915 (NSW) – right to compensation under the Public Works Act 1912 (NSW) – whether possessory title and any other interests extinguished STATUTORY INTERPRETATION – approaches – whether literal reading appropriate – whether a particular construction would be contrary to the purpose of an Act Legislation Cited: Interpretation Act 1897 (NSW), ss 15, 17 Native Title Act 1993 (Cth) Public Works Act 1912 (NSW), ss 34, 42, 43, 45 River Murray Waters Act 1915 (NSW), ss 5, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18. Sch B Western Lands Act 1901 (NSW) Cases Cited: Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 Cabell v Markham, 148 F 2d 737; 739 (2d Cir 1945) Lawson v Minister Assisting the Minister for Natural Resources (Lands) (2004) 139 FCR 548; [2004] FCAFC 308) Lawson v Minister for Land & Water Conservation for the State of New South Wales [2003] FCA 1127 Lawson v Minister for Land & Water Conservation for the State of New South Wales [2004] FCA 165 Lawson v South Australian Minister for Water and the River Murray (No 2) [2014] NSWLEC 189 Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 Mandurah Enterprises Pty Ltd v Western Australian Planning Commission (2010) 240 CLR 409; [2010] HCA 2 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Sydney Harbour Trust Commissioners v Wailes (1908) 5 CLR 879; [1908] HCA 19 Tabcorp Holdings Ltd v Victoria [2016] HCA 4; (2016) 90 ALJR 376 Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 Texts Cited: New South Wales Government Gazette, No 166, 1 December 1922 Category: Principal judgment Parties: Dorothy Lawson (Appellant) Minister for Environment and River Murray, South Australia (First Respondent) State of New South Wales (Second Respondent) Representation: Counsel: T McAvoy SC with D Yarrow (Appellant) DF O'Leary (First Respondent) J Waters and S Carpenter (Second Respondent)