Boensch v Transport for NSW [2024] NSWCA 119

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Boensch v Transport for NSW [2024] NSWCA 119 Hearing dates: 26 April 2024 Date of orders: 21 May 2024 Decision date: 21 May 2024 Before: Meagher JA at [1]; Payne JA at [62]; Basten AJA at [63] Decision: (1) Extend the time for the filing of Mr Boensch's Summons Seeking Leave to Appeal to 26 April 2024. (2) Grant leave to Mr Boensch to appeal from Order (1) made by the Land and Environment Court on 28 July 2023, but only on the following grounds: (a) that Mr Boensch had no right of appeal under s 135J of the Real Property Act 1900 (NSW) against the Registrar-General's refusal under s 135D(2) to make a boundary determination; and (b) that the time for commencing an appeal against the Registrar-General's earlier 1996 boundary determination had expired, the Court having no power to extend, vary or waive that time period. (3) Otherwise dismiss the Summons Seeking Leave to Appeal filed on 26 April 2024. (4) Dismiss Mr Boensch's appeal with respect to the grounds in Order (2)(a) and (b) above. (5) Otherwise dismiss the Further Amended Notice of Appeal dated 23 April 2024 and filed on 26 April 2024. (6) Order Mr Boensch pay the costs of the respondents of the application for leave to appeal and of the appeal. Catchwords: APPEALS – leave to appeal – interlocutory order dismissing Land and Environment Court Class 3 proceedings – leave to appeal required under s 57(4) of the Land and Environment Court Act 1979 (NSW) – where two of many proposed grounds raise questions of statutory construction, one of general application – leave granted in relation to those grounds LAND LAW – water boundary dispute – application for boundary determination made to Registrar-General under Pt 14A of Real Property Act 1900 (NSW) – application refused under s 135D(2) – whether right of appeal under s 135J(1) from a "determination" made under Pt 14A extends to a refusal to make a determination LAND LAW – water boundary dispute – where appeal filed in October 2022 from a boundary determination made under Pt 14A of Real Property Act in 1996– where s 135J(3) required "appeal" to be made within 28 days of notice of determination – where Land and Environment Court Rules 2007 (NSW), rr 7.1 and 7.3 do not provide for extension, variation or waiving of that requirement – where by Uniform Civil Procedure Rules 2005 (NSW), r 1.7 and Sch 2 those "local rules" prevail – appeal out of time and incompetent Legislation Cited: Coastal Management Act 2016 (NSW), s 28 Coastal Protection Act 1979 (NSW), s 55N Encroachment of Buildings Act 1922 (NSW), s 9 Land and Environment Court Act 1979 (NSW), ss 19, 39, 57 Land and Environment Court Rules 2007 (NSW), rr 7.1, 7.3 Land and Property Information NSW (Authorised Transaction) Act 2016 (NSW) Limitation Act 1969 (NSW), s 55 Real Property Act 1900 (NSW), ss 121, 122, Pt 14A Real Property and Conveyancing Legislation Amendment Act 1999 (NSW) Real Property (Boundary Determinations) Amendment Act 1989 (NSW) Supreme Court Act 1970 (NSW), s 69 Sydney Harbour Trust Act 1900 (NSW), s 3 Uniform Civil Procedure Rules 2005 (NSW), rr 1.7, 13.4, 51.10, 59.10, Sch 2 Cases Cited: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398; [2012] HCA 25 R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; [1933] HCA 30 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 Southern Centre of Theosophy Inc v South Australia (1978) 19 SASR 389 Texts Cited: Explanatory Note, Real Property (Boundary Determinations) Amendment Bill 1989 (NSW) F Hallmann, Legal Aspects of Boundary Surveying as apply in New South Wales (1973, The Institution of Surveyors, Australia) Gaius, Institutes Justinian, Institutes New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 15 November 1989 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 20 March 2002 Surveyor General of NSW, Surveyor General's Directions No. 6: Water as a Boundary Procedures (30 June 2016) Category: Principal judgment Parties: Franz Boensch (Applicant) Transport for NSW (First Respondent) Registrar General of New South Wales (Second Respondent) Representation: Counsel: Self-represented (Applicant) A Shearer SC / S Murray (First Respondent) L A Walsh (Second Respondent)