Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Young v Richmond Valley Council [2021] NSWCA 255 Hearing dates: 13 October 2021 Date of orders: 26 October 2021 Decision date: 26 October 2021 Before: Gleeson JA at [1] Simpson AJA at [2] Decision: Leave to appeal refused Catchwords: APPEALS — Leave to appeal — where applicant seeks leave to appeal from summary dismissal — where applicant had brought proceedings for recovery of land against party other than the registered proprietor — where no viable claim Legislation Cited: Limitation Act 1969 (NSW), s 27(1) Local Government Act 1919 (NSW), ss 232, 224(3) Real Property Act 1900 (NSW), s 45D(3)(a) Roads Act 1993 (NSW), ss 152D, 152T Supreme Court Act 1970 (NSW) s 101(2)(r) Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 The Age Company Ltd v Liv [2013] NSWCA 26 Young v Richmond Valley Council [2020] NSWSC 514 Young v Richmond Valley Council (No 2) [2021] NSWSC 525 Category: Principal judgment Parties: Gary Young (Applicant) Richmond Valley Council (First Respondent) State of New South Wales (Second Respondent) Representation: Counsel: Applicant self-represented S Fitzpatrick (First Respondent) E White (Second Respondent) Solicitors: Swaab Attorneys (First Respondent) Crown Solicitors Office (Second Respondent) File Number(s): 2021/163589 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Equity Division Citation: [2021] NSWSC 525 Date of Decision: 12 May 2021 Before: Darke J File Number(s): 2019/368414 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. GLEESON JA: I agree with Simpson AJA. 2. SIMPSON AJA: On 12 May 2021, in the Equity Division of the Supreme Court Darke J (the primary judge) summarily dismissed, pursuant to UCPR 13.4(1), proceedings brought by the applicant (Mr Gary Young) against the State of NSW ("the State"): Young v Richmond Valley Council (No 2) [2021] NSWSC 525. Mr Young now seeks to appeal against the orders so made. He contends that he has a right to appeal because the matter in issue is of or above the value of $100,000: Supreme Court Act 1970 (NSW) s 101(2)(r). That contention overlooks s 101(2)(l) by which a judgment or order of the Supreme Court in a Division on an application for summary judgment under the rules requires leave. As an alternative to his primary contention, Mr Young seeks such leave. 3. The issue in the proceedings before Darke J, and in this Court, concerns a claim made by Mr Young in an amended statement of claim filed on 8 July 2020 for orders that would have the effect of vesting in him ownership of three separate (but contiguous) parcels of land at Irvington, on the Richmond River in the north of NSW. Mr Young's claim is based on what he asserts to be adverse possession over many years. It is worth noting at this point that Mr Young does not claim himself to have occupied the land in question adversely to the owner for the requisite period; he depends upon on occupation by others, whom he described as "predecessors in interest". That may not of itself be fatal to his claim: see Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464. 4. The three parcels of land of which Mr Young claims possessory title may conveniently be referred to as: Parcel 1: Wharf Road; Parcel 2: Lot 246 of Deposited Plan 755742 (which is geographically located in Wharf Road ("Lot 246"); Parcel 3: River Road (also called River Street). 1. Lot 246 is land subject to the provisions of the Real Property Act 1900 (NSW). A claim for title by reason of adverse possession is therefore to be determined in accordance with Pt 6A of that Act. 2. The remaining two parcels of land are land under Old System title. A claim for adverse possession is therefore to be determined by reference to the principles applicable thereto. For reasons that will emerge it will not be necessary to consider the principles upon which either claim is to be determined. 3. Although Mr Young asserts that the State is the rightful owner of each parcel of land, the evidence established, and the primary judge found, to the contrary: that the rightful owner of each parcel of land is the Richmond Valley Council ("the Council") and the Council is therefore the only appropriate defendant. Mr Young appears to accept that, as a matter of law, the Council is the owner of each parcel of land; in oral argument (although not within the grounds stated in the summons seeking leave to appeal) he asserted that the Council holds each parcel of land in trust for the State. Some relevant history 1. Mr Young's original statement of claim was filed in the Supreme Court on 22 November 2019. It named only the Council as defendant. Mr Young was then, as he has been throughout, not legally represented. His documentation makes the lack of legal expertise apparent. 2. Mr Young then claimed, as he does now, that he has an entitlement to possession of each parcel of land by reason of continuous possession by others adverse to the rights of the rightful owner (which he then contended to be the Council). The statement of claim was met by a notice filed by the Council seeking orders under UCPR 13.4 for dismissal of the proceedings, or, alternatively, under r 14.28, that the statement of claim be struck out. The Council adduced evidence that the registered proprietor of Lot 246 was the State. That, as later emerged, and as will be seen below, was incorrect. 3. The primary judge declined to order summary dismissal of the proceedings. He was not satisfied to the requisite standard that Mr Young's claim against the Council was bound to fail: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69. He was, however, satisfied that inadequacies in the pleading warranted an order that the statement of claim be struck out. He made an order to that effect and gave Mr Young leave to replead: Young v Richmond Valley Council [2020] NSWSC 514 ("the first judgment"). One – but only one – of the deficiencies identified by his Honour was Mr Young's failure to name the State (as the registered proprietor of Lot 246) as a defendant. That was because evidence put before his Honour identified the registered proprietor of Lot 246 as the State. As will be seen below, that was correct from 2012 until 1 April 2020, but it was not the case at the time of the first judgment. The amended statement of claim 1. On 8 July 2020 Mr Young filed an amended statement of claim in which he named the State as the second defendant. This was entirely in accordance with the finding by the primary judge that the State was the registered proprietor of Lot 246 and therefore the appropriate defendant in respect of that parcel of land. 2. In the amended statement of claim Mr Young pleaded: "2. … Defendant 1 is The Richmond Valley Council [Council] … Council is the local Council for the area in which the adverse possessed land is situated and Council claims an interest in the said land where plaintiff denies such interest exists in any way. 3. … Defendant 2 is The State of NSW [NSW] and is the now former owner and former controller of the Crown lands described herein and claimed by plaintiff under adverse possession." 1. The meaning of para 3 is obscure. One possible interpretation is that Mr Young intended to assert that the State's title to each parcel of land had, by reason of the adverse possession on which he based his claim, been extinguished. In any event, it is clear that Mr Young intended to assert that the State had, at some relevant time, held title to each parcel of land. He referred to notices published in the NSW Government Gazette of 2 October 1885 that, he pleaded, established that Wharf Road and River Road were established as public roads, and were, accordingly (he asserted), Crown land. 2. Mr Young also pleaded two alternative causes of action. The second cause of action pleaded appears to be a contention that, because the land could no longer be used as public roads (apparently because of a catastrophic flood in 1954) the public interest in avoiding waste of real estate required the award of title to Mr Young. By his third claim Mr Young sought a declaration that "a national emergency" was constituted by threats to the koala population justifying or requiring the award of title to him. Each of the second and third causes of action expressly relied upon and incorporated the facts pleaded in support of the possession claim. It was not suggested that, if the possession claim failed, either of the other causes of action could proceed independently. 3. The amended statement of claim was, like the original statement of claim, met with a notice of motion (on behalf of the State) by which summary dismissal of the proceedings was sought, or, alternatively, an order that the pleading be struck out (as against the State) on the ground that it disclosed no reasonable cause of action. 4. As indicated above, on 12 May 2021 the primary judge made an order of summary dismissal. The evidence 1. The State adduced evidence tracing the history of title to each of the three parcels of land. That evidence established, and the primary judge accepted, the following. 2. Each parcel of land was originally included in a grant of land made in 1857 to a Clark Irving. The grant was subject to reservation for "Public Ways, Canals or Railroads". 3. The reserved right was exercised and, on 2 October 1885, Wharf Road was opened as a public road. In 1920, for reasons that are not apparent (although, having regard to its location, it may have been to create a wharf) a portion of the land that constituted Wharf Road was excised and created as a separate Lot – Lot 246. Lot 246 remained part of Wharf Road. That is parcel 2 of the land that Mr Young claims. In January 1920 the Local Government Act 1919 (NSW) came into effect. By s 232 thereof the roads vested in the local council (then called the Tomki Council). Wharf Road, including Lot 246, can be seen in a Plan approved on 17 November 1920, which bears a notation "Resumed Area No (although the space for a number is blank). Mr Young placed some weight on the notation. 4. It is less clear that River Road was created as a public road in 1885. The primary judge considered it likely that, if it were not, it became so by virtue of a notification in the Government Gazette on 27 November 1959 pursuant to s 224(3) of the Local Government Act, and also vested in the Council. 5. In 2012 steps were taken to convert at least Lot 246 to Torrens title. In error the State was registered as the proprietor of that Lot. Prior to the filing of Mr Young's amended statement of claim (and, in fact, prior to the first judgment) the register was, by administrative action in the Crown Lands Department, corrected. That was completed on 1 April 2020. The Council was then registered as the proprietor of Lot 246. Then, the Council was shown to be the rightful owner of each parcel of land which Mr Young claims. 6. On the basis of those factual conclusions the primary judge considered that Mr Young had established no reasonable cause of action against the State and made the orders he did. He was satisfied that the claims advanced by Mr Young against the State were untenable, groundless, and bound to fail. That was (at least) because none of the land was relevantly in the ownership of the State. The second and third course of action pleaded were "entirely novel", and, as far as his Honour was aware, not known to the law. The application for leave to appeal 1. Leave to appeal will not, ordinarily, be granted unless the decision involves an issue of principle, a question of general public importance, or a reasonably clear injustice: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164; The Age Company Ltd v Liv [2013] NSWCA 26. 2. I would accept that, if there were any substance in Mr Young's contentions, the issues would be sufficient to warrant a grant of leave. Mr Young falls, however, at the first hurdle: there is no substance in any of his contentions. 3. Mr Young has not filed, as he is required by UCPR 51.12(2)(d) to do, a draft notice of appeal. He has, in his summons seeking leave to appeal, included 32 paragraphs said to be questions presented on the appeal. The questions are not presented or identified with any clarity. In any event, the oral argument presented by Mr Young departed significantly from the written argument, so far as it can be discerned from the questions. 4. Mr Young's first complaint is that the primary judge did not hold an evidentiary hearing in which the affidavit evidence could have been explored in cross-examination. The short answer to that contention is that it is not usual, in applications for summary disposal or strike out, to conduct oral hearings with cross-examination of witnesses. In this case the relevant evidence was all in documentary form, some of it dating back to 1857. The issue was the ownership of the three parcels of land as recorded in the relevant historical documents. Nothing could have been gained by an evidentiary hearing with cross-examination of witnesses. Mr Young had every opportunity to present his case in writing and orally, and did so. 5. A further complaint appears to relate to the use of the procedure by which, in 2020, the register was corrected with respect to the proprietorship of Lot 246. Mr Young presented a complex argument on this issue. He asserted that s 27 of the Limitation Act 1969 (NSW) precluded the amendment of the register. Section 27(1) of the Limitation Act provides: "An action on a cause of action to recover land is not maintainable by the Crown if brought after the expiration of a limitation period of 30 years running from the date on which the cause of action first accrues to the Crown or to a person through whom the Crown claims." 1. There appear to have been two separate strands to Mr Young's argument. First, he contended that the "action" taken in the Crown Lands Department to correct the register was an "action" within the meaning of s 27(1), and therefore barred by s 27(1) because the State's entitlement to possession arose more than 30 years prior to the date of that "action" (2020). 2. As Mr Young emphasised "action" is defined in s 11 of the Limitation Act to include "any proceeding in a court". Because the definition is inclusive, Mr Young contended, the "action" taken by the Crown Lands Department in correcting the register was an "action" for the purposes of s 27(1). I would reject that construction. "Action" for the purposes of s 27(1) must be construed by reference to the scope and purpose of the statute in which it appears: Interpretation Act 1987 (NSW), s 33; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, at [69]-[70]. The Limitation Act is entirely concerned with limitation periods in relation to legal proceedings. It is not, even on the widest possible construction, concerned with administrative action of the kind taken in the Crown Lands Department. In its context "action" within the meaning of s 27(1) cannot be taken to extend to administrative action of that kind. 3. A second strand of the argument appeared to proceed on the basis that the corrective action taken amounted to an "action on a cause of action" taken by the State "for the recovery of land". On Mr Young's hypothesis, the State's title to the land had been extinguished more than 30 years before 2020 and any action by it for recovery of the land was barred by s 27(1). 4. If it were correct that the correction of the register had been "an action on a cause of action to recover land" there may have been force in the argument. But the argument proceeds on the false premise that the administrative action was "an action on a cause of action to recover land". It was not. Section 27(1) is irrelevant. 5. So far as Lot 246 is concerned, s 45D(3)(a) of the Real Property Act precludes any possessory application for Crown Land. Thus, if Mr Young were correct, and the State is the rightful owner of Lot 246, s 45D(3)(a) would be a complete answer to his application. 6. In oral submissions Mr Young advanced a further argument, that ss 152D and 152I of the Roads Act 1993 (NSW) prescribed notices to be given before the sale or disposal or transfer of Crown roads and that these notices had not been given. The fundamental flaw in this argument is that it was based on the false premise that by the correction of the register with respect to Lot 246 the State effected a sale, disposal or transfer of Crown land. Lot 246 had not been Crown land since at least 1920, and probably 1857. The erroneous recording in the register did not make it so. 7. A further argument advanced by Mr Young depended on the 1920 plan by which Wharf Road and Lot 246 were identified as roads, ownership of which was transferred to or vested in the Council pursuant to s 232 of the Local Government Act. As indicated above, the documentation refers to the locations and has a notation "Resumed Area No". Mr Young appears to contend that this language signifies that the State had resumed ownership of the land from Mr Irving (or his successors in title). There is nothing in the documentation to support this interpretation. Indeed, the document bears a heading "Casino Municipality, County of Rous, Parish of Tomki". 8. Mr Young also contended that Wharf Road and River Road had been closed and had lost their status as roads. He relied upon notices published in the Government Gazette recording proposals to that effect. The consequences, if Mr Young were correct, need not be explored. Each notice on which Mr Young relied called for objections to the proposed closure; there was no evidence that either proposal had been followed up or implemented. There was no evidence that either road had been closed. 9. None of Mr Young's arguments casts any doubt on the conclusion of the primary judge that the title of each parcel of land to which he lays claim lies in the Council and not in the State. There is no viable claim against the State. The proposition that the Council holds its title in trust for the State is untenable. 10. Leave to appeal should be refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 October 2021