Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cavric v Willoughby City Council [2015] NSWCA 182 Hearing dates: 2 June 2015 Decision date: 03 July 2015 Before: Basten JA at [1]; Meagher JA at [36]; Emmett JA at [50] Decision: (1) Allow the appeal and set aside the judgment in favour of the defendant given in the District Court on 7 May 2014. (2) Give judgment for the plaintiff against the defendant in the amount of $285, 915.00, the judgment to take effect from 7 May 2014. (3) Order that the defendant pay the plaintiff's costs of the trial. (4) Order that the respondent pay the appellant's costs of the appeal. Catchwords: HIGHWAYS – car park used to pass from one street to another – whether car park a "public road" – whether owner council a "roads authority" – legislative history in relation to opening public roads in NSW area not a road under the common law – whether user sufficient basis to establish existence of public road under statute – whether the Roads Act 1993 (NSW), s 249 a separate test of what is a public road or evidentiary provision only – effect of the Conveyancing Act 1919 (NSW), 178 – Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 not followed NEGLIGENCE – customer injured in car park of shopping centre – whether council as owner of car park a "roads authority" protected from liability under the Civil Liability Act 2002 (NSW), s 45 REAL PROPERTY – Torrens title – indefeasibility of title – dispute whether car park a public road where certificate of title not relied on – inference that no disclosure of public road on the certificate of title – Real Property Act 1900 (NSW), s 46B STATUTORY INTERPRETATION – whether case law on the meaning of "public street" in the Motor Traffic Act 1989 (NSW) and "road" in the Traffic Act 1919 (WA) relevant to interpretation of "public road" under the Roads Act 1993 (NSW), s 249 WORDS AND PHRASES – "roads authority" – "public road" Legislation Cited: Civil Liability Act 2002 (NSW), s 45 Conveyancing Act 1919 (NSW), ss 88, 178 Crown and Other Roads Act 1990 (NSW), ss 4, 11, Pt 2 Crown Lands Consolidation Act 1913 (NSW), s 24 Local Government Act 1906 (NSW), ss 78, 99-101, 194 Local Government Act 1919 (NSW), ss 232, 237, 249, 323, 327, 329, 518, 526, 623, 703; Pt IX Local Government Act 1993 (NSW), ss 44, 701; Sch 7, cl 6 Public Roads Act 1902 (NSW), s 18 Public Works Act 1912 (NSW), s 81 Real Property (Amendment) Act 1921 (NSW), s 14 Real Property (Amendment) Act 1970 (NSW), s 22 Real Property Act 1900 (NSW), ss 42, 46B Roads Act 1993 (NSW), ss 7, 10, 249; Pt 2; Sch 2, cl 15; Dictionary Cases Cited: Ashfield Municipal Council v Roads & Traffic Authority of NSW [2001] NSWCA 370; 117 LGERA 203 Attorney General v The City Bank of Sydney (1920) 20 SR (NSW) 216 Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; 195 CLR 566 Blakeney v Mosman Municipal Council (No 2) [2013] NSWLEC 100 Blakeney v Mosman Municipal Council (No 2) [2013] NSWLEC 100 Boyton v Nominal Defendant [1980] 2 NSWLR 509 City of Canada Bay Council v Bonaccorso Pty Ltd [2007] NSWCA 351; 71 NSWLR 424 Folkestone Corporation v Brockman [1914] AC 338 Goodtitle v Alker (1757) 1 Burr 133; 97 ER 231 Greenwich Board of Works v Maudslay (1870) LR 5 QB 397 Harrison v Duke of Rutland [1893] 1 QB 142 In re A Caveat by the Council of the Municipality of Botany; Ex Parte Homelands Development Co Ltd (1936) 36 SR (NSW) 615 Lake Macquarie City Council v Luka [1999] NSWCA 447; 106 LGERA 94 Mann v Brodie (1885) 10 App Cas 378 Newington v Windeyer (1985) 3 NSWLR 555 Permanent Trustee Company of New South Wales Limited v Council of the Municipality of Campbelltown [1960] HCA 62; 105 CLR 401 Roberts v Gilgandra Shire Council [2008] NSWSC 1244; 15 PBR 28,295 Schubert v Lee (1946) 71 CLR 589 South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia (1939) 62 CLR 603 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364; [2009] Aust Torts Rep 82-043 Turner v Walsh (1881) 6 App Cas 636 Vickery v Strathfield Municipal Council (1911) 11 SR (NSW) 354 Williams v State Transit Authority of NSW [2004] NSWCA 179 Texts Cited: Harold Parrish and Lord de Mauley, Pratt and Mackenzie's Law of Highways (21st ed 1967, Shaw & Sons) R A Woodman and P J Grimes, Baalman – The Torrens System in New South Wales (Law Book Co, 2nd ed, 1974) Category: Principal judgment Parties: Despina Cavric (Appellant) Willoughby City Council (Respondent) Representation: Counsel: B Walker SC / K W Andrews (Appellant) R S Sheldon SC (Respondent) Solicitors: NSW Compensation Lawyers (Appellant) Mills Oakley Lawyers (Respondent) File Number(s): 2014/146607 Decision under appeal Court or tribunal: District Court Citation: [2014] NSWDC 46 Date of Decision: 07 May 2014 Before: Elkaim SC DCJ File Number(s): 2012/383072 [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. BASTEN JA: On 6 June 2011 the appellant, Despina Cavric, was wheeling a trolley laden with shopping and one small child, in Northbridge Plaza car park. A front wheel on the trolley hit a depression in the ground, described as a "pothole", causing the trolley to tilt to one side. In seeking to stop the trolley from overturning, and thus saving her child from injury, she fell heavily. She suffered injuries for which she claimed damages from the respondent Council, based on its negligent maintenance of the car park. Her loss was assessed by the trial judge in an amount of $336,371, subject to a deduction of 15% for contributory negligence. Those findings are not in issue. Those findings were, however, contingent upon a finding as to liability. The judge found that the car park was a public road, as a result of which the Council was entitled to the protection of s 45 of the Civil Liability Act 2002 (NSW). On that basis, the judge dismissed the plaintiff's claim. 2. If the car park did not constitute a public road, the appeal must be upheld and the appellant is entitled to a judgment in her favour in an amount of $285,915. The appellant's submission should be accepted and there should be judgment in her favour for that amount against the Council. Statutory scheme 1. To appreciate how the issue came to be formulated in the way noted above, it is necessary to have regard to particular provisions of the Civil Liability Act and the Roads Act 1993 (NSW). 2. The relevant provision of the Civil Liability Act conferring protection on the Council is s 45, which relevantly provides as follows: 45 Special non-feasance protection for roads authorities (1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm. ... (3) In this section: carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993. roads authority has the same meaning as in the Roads Act 1993. 1. Roads authorities are identified in s 7 of the Roads Act which, relevantly for present purposes, provides that "[t]he council of a local government area is the roads authority for all public roads within the area", subject to certain exceptions which are not relevant. [1] The term "public road" is defined in the Dictionary to the Roads Act: public road means: (a) any road that is opened or dedicated as a public road, whether under this or any other Act or law; and (b) any road that is declared to be a public road for the purposes of this Act. 1. It follows from these provisions that, for the Council to obtain the benefit of the protective provision in s 45 of the Civil Liability Act, it had to be a roads authority with respect to the area in question and it enjoyed that status only if the place of the accident was part of a public road as defined in the Roads Act. There are a number of ways in which a road may be "opened or dedicated" as, or "declared to be", a public road. In particular, a road may be opened pursuant to one of the methods specified in Part 2 of the Roads Act, which include registration of a plan of subdivision, publication of a notice in the Gazette dedicating land held as a public road and proclamation by the Governor dedicating the land as a public road. Although the language used and the manner of exercising the statutory powers have varied over the last century, similar provisions may be found in previous Acts. [2] The Roads Act also provides that "[a]ny road that, immediately before the relevant commencement, was a public road is taken to be a public road within the meaning of this Act." [3] 2. The record was sparse, if not non-existent, as to the use of the land before it came into the ownership of the Council. That occurred in October 1962 by way of transfer for a nominal sum from the then registered proprietor, Neighbourhood Centres Pty Ltd. There appears to have been no evidence which identified the specific title for the land on which the accident occurred, but the parties accepted it was on part of the land conveyed in 1962. The transfer, which included six titles, was subject to a covenant that the land not be used "for any purpose other than Public Car Parking and a Public Baby Health Centre." That language is not consistent with any part of the land having been opened, dedicated or declared as a public road before the date of that transfer. 3. There being no evidence that the car park where the appellant fell had been opened, dedicated or declared to be a public road prior to 1962, the Council's assertion of its authority depended rather upon the operation of s 249 of the Roads Act which relevantly provides as follows: 249 Evidence as to whether a place is a public road (1) Evidence that a place is or forms part of a thoroughfare in the nature of a road, and is so used by the public, is admissible in any legal proceedings and is evidence that the place is or forms part of a public road. (2) This section is subject to section 178 of the Conveyancing Act 1919 (No way by user against Crown etc). 1. Section 249 comes in Part 14 dealing with "Enforcement of Act". More particularly, it comes in Part 14 Div 6 dealing with "Evidentiary provisions". Indeed, that is consistent with its language. It does not provide its own test of what constitutes a public road. Thus, if an area may properly be described as "part of a thoroughfare in the nature of a road" and shown to be "so used by the public", it does not thereby constitute a public road. Rather those qualities may constitute evidence of a public road having been opened, dedicated or declared where there is otherwise no formal evidence of those steps having been taken. [4] Case for Council 1. The transfer by which the Council acquired the land in October 1962 was expressed to be subject to a covenant that "no portion of the said land shall at any time hereafter be used for any purpose other than Public Car Parking and a Public Baby Health Centre". [5] The Council relied upon the covenant, the action of making the land available for public car parking and use of the land by the public, as demonstrating that the land became a public road on or shortly after its transfer to the Council in October 1962. 2. The Council accepted that, except to the extent that it relied upon s 249 of the Roads Act, there had been no opening, dedication or declaration of the area as a public road in accordance with any statutory provision. To the extent that satisfaction of s 249 did not, of itself, provide a sufficient statutory basis for the existence of a public road, the Council relied upon the continued operation of the common law. Each of these limbs to the Council's contention must be addressed. Continued operation of common law 1. As was stated by Windeyer J in Permanent Trustee Company of New South Wales Limited v Council of the Municipality of Campbelltown: [6] "It is the public right to use the land as a way, rather than its physical nature, that makes land a highway. At common law a highway was created when a competent land owner manifested an intention to dedicate land as a public road, and there was an acceptance by the public of the proffered dedication. 1. The assumption underlying Council's argument was that a public road which owed its status to the general law was, if not within the definition of "public road" in the Roads Act, [7] nevertheless within the language of the saving and transitional provision, being a "road that, immediately before the relevant commencement, was a public road" and is thereby "taken to be a public road within the meaning of this Act." [8] There remains, however, a question as to whether a public road can be created by satisfying common law criteria on or after October 1962. 2. As McHugh JA explained in Newington v Windeyer, [9] "[s]ince 1906 a public road can be opened in New South Wales only when it is approved by the local council". [10] McHugh JA continued: "At common law the making of a public road required the fulfilment of two conditions: an intention to dedicate the land as a public road and an acceptance by the public of the proffered dedication. [11] The dedication could be made expressly or be inferred from the conduct of the owner. The lodging of a plan of subdivision in a Land Titles Office, showing a road as an open street and giving access to subdivided lots, is evidence from which an inference of dedication as a public road can be drawn …. Dedication to the public may also be presumed from uninterrupted user of the road by the public …. But care must be taken to distinguish evidence of user, from which dedication can properly be inferred, from mere evidence of continual use even for a very long period. At common law, continual trespassing could not create a public road. The evidence must raise the inference that, at some point of time, the owner dedicated the road to the public." 1. After referring to the evidence available in that case, McHugh JA reiterated that "[a]ny relevant intention to dedicate, however, had to be in existence before 1906 since, after that date, a public road could only be opened with the approval of the local council." [12] 2. Before concluding that, since October 1962, a public road could not have been created otherwise than pursuant to an express statutory provision, the other two limbs of the Council's contentions should be addressed. Whether conveyance effected the dedication of a road 1. The proposition that land required to be used as a car park became a public road, upon it being made available by the Council for such use, does not fit easily within the statutory scheme governing local councils. In 1962, the power of a council to accept and hold real property conveyed to it for a public purpose was conferred by s 526 of the Local Government Act 1919, under the subheading of Div 6, "Trusts." Upon the commencement of the Local Government Act 1993, land vested in a council subject to a trust for a public purpose was classified as "community land". [13] As such, the nature and use of the land could not be changed, absent a plan of management for community land adopted by the council. [14] Subject to certain exceptions which were not relied upon in the present case, the Act specifically states that "[c]ommunity land may not be dedicated as a public road under section 10 of the Roads Act 1993". The significance of that provision is not that the prohibition is conditional, but that the prohibition exists at all. Its existence militates against the submission that community land was itself liable to become, by operation of law, a public road. 2. While the provisions of the Local Government Act 1993 might deny the reclassification of community land not otherwise a public road as a public road after the commencement of the Act, they did not contradict an argument that the land automatically became a public road in 1962. However, the legislative history in New South Wales, discussed by the High Court in Bathurst City Council v PWC Properties Pty Ltd, [15] demonstrates that, prior to the Local Government Act 1993, land conveyed to a council for a public purpose pursuant to s 526 of the Local Government Act 1919, subject to the constraints on sale of such land imposed by s 518(2), created a "statutory trust" fitting within the description in Sch 7 of the Local Government Act 1993, as land "subject to a trust for a public purpose. [16] Furthermore, there was nothing in the Local Government Act 1919 which supported the view that a public road could be created by making land available for public car parking. Indeed, the Local Government Act 1919 was replete with provisions which sought to provide exclusive powers for the opening of new roads. [17] Furthermore, s 232 provided that "every public road… shall by virtue of this Act vest in fee-simple in the council". It would be surprising if, simply by making land available as a council car park for the public, a council enjoying a lesser interest would thereby have become entitled to a fee-simple in the whole of the land constituted by the car park. 3. These considerations contradict the proposition that either taking the land for the purpose of public car parking, making the land available for public car parking or any other similar step taken by the Council constituted a dedication of the land as a public road. 4. To the extent the Council relied on public use of the land, the evidence was limited, in effect, to the proposition that the area was part of a thoroughfare which allowed members of the public to pass from one street (Harden Street) to another (Eastern Valley Way). No doubt people did so, both on foot and in vehicles. However, to accept that this might constitute evidence of the area being part of a "public road", without more, would be to give s 249 an operation which it does not have, namely fixing the criteria by which an area becomes a public road. 5. There being no other evidence supporting the establishment of the place where the accident occurred as a public road, the trial judge should have found that its status as such was not established, with the result that the Council was not a roads authority with respect to that area and thus not entitled to rely upon s 45 of the Civil Liability Act. Reliance on authority 1. In coming to a contrary view, the trial judge understandably placed weight on the reasoning of this Court in Stojan (No 9) Pty Ltd v Kenway. [18] One of the defendants was the local council for the place in which the plaintiff tripped and fell. Although the council raised a defence based on s 45 of the Civil Liability Act and its status as a roads authority, the issue fell away because the council did not ultimately rely upon the protection provided by s 45. The case is otherwise distinguishable. The area where the plaintiff had fallen was not a vehicular thoroughfare, but a set of steps between a car park and a footway. However, the steps were constructed on a road reserve, which may have given some support for the view that the area was a public road. 2. The reasoning to the conclusion that the area constituted a public road depended on s 249(1) being invoked as establishing the relevant criteria, a position accepted by both parties, as explained at [104]: "The Council submitted that the evidence disclosed that the lane and the unformed road reserve were used by vehicles and pedestrians, that the stairs were used by pedestrians so that that part of the lane/unformed road reserve containing the stairs was 'a place [that] is or forms part of a thoroughfare in the nature of a road, and is so used by the public' and therefore formed part of a public road. Stojan submitted that even if the staircase was a thoroughfare, whether for vehicular or pedestrian access, it was not a thoroughfare 'in the nature of a road'. It contended that there are a great number of areas over which members of the public are entitled to 'pass and repass', including public parks and beaches, which would not be considered a 'road' in the ordinary sense." 1. Those being the submissions of the parties, the reasoning of the Court followed the same approach to the operation of s 249: "[105] Section 249(1) requires three conditions to be satisfied. First that a place form 'part of a thoroughfare', secondly that that thoroughfare be 'in the nature of a road' and thirdly that the place 'is so used by the public'. The Roads Act does not provide express guidance on those terms save, that it should be observed that it is apparent from the generality of the first object (s 3(a)), that the rights of members of the public to pass along public roads means in whatever manner, whether by foot or in a vehicle. That should be borne in mind when considering the expression 'in the nature of a road'. [106] Otherwise the search for the meaning of the three s 249(1) conditions must be found in the common law. This accords with Hayne J's observation in Leichhardt Municipal Council v Montgomery (at [140]), that '[t]he form and content of these provisions of the Roads Act about ownership of roads, and about road work, may be properly understood only if account is taken of those historical features of the common law concerning the liability of highway authorities that were traced in detail in Brodie…'. … [109] The ordinary meaning of a 'thoroughfare' has been held to be 'a road which, either regularly or by license, passes from one place to another, not necessarily by a specifically defined way, but generally by getting from one place to another over an intervening space, by right or by permission of the owner': Sheahan v Jackman (1898) 4 Argus LR 47 (at 48) per Madden CJ, cited in Re application for a Writ of Certiorari against the Shire of Gingin; Ex parte Machlin (1999) 103 LGERA 21 (at 30) per Murray J. The 'primary meaning of a road or thoroughfare is that people usually pass along it': Sheahan v Jackman (at 48). [110] Courts have held to be 'roads' areas without what might be regarded as the conventional characteristics of a road. Thus a beach, frequently used by four-wheel drive vehicles (land rovers and similar vehicles, beach buggies and motor-cycles) was held to be a 'public street' for the purposes of a claim for damages pursuant to s 30(1) of the Motor Vehicles (Third Party Insurance) Act 1942 (NSW) (Boyton v Nominal Defendant [1980] 2 NSWLR 509)." 1. The assumption as to the function of s 249 inherent in this reasoning was not considered by the Court in Stojan. However, the issue now being raised, it should be rejected. Section 249 provides no set of criteria which, if satisfied, lead to the conclusion that the place in question is a public road: it merely provides an evidential basis for an inference, to be considered with other matters and subject to the constraint imposed by s 178 of the Conveyancing Act, to which further reference will be made below. 2. The reasoning based upon Boyton also cannot be accepted. Boyton was concerned with a markedly different statutory provision, namely the definition of "public street" in the Motor Traffic Act 1909 (NSW). That term was defined to mean "any street, road, lane, thoroughfare, footpath, or place open to or used by the public". The question in Boyton was whether the last phrase in that definition ("open to or used by the public") should be read down by reference to the earlier language, or whether it should be given its ordinary and general meaning. This language is far removed from the definition of "public road" in the Roads Act. The Court in Boyton held that the language was not so limited, and hence extended well beyond the common law concept of a public road. 3. Reliance was also placed in Stojan [19] on the reasoning of the High Court in Schubert v Lee [20] as to the meaning of "road" in the Traffic Act 1919 (WA). That definition was in similar terms to the definition of "public street" in Boyton. However, Schubert does not support an application of its reasoning (accepting that the broad words "place open to or used by the public" should not be read in a restrictive fashion) to the Roads Act. Mr Schubert had been prosecuted for obstructing the free passage of traffic along a "road" when accepting bets from members of the public in a passage alongside and between two allotments of land. His defence rested precisely on the proposition that "[n]o sufficient evidence was adduced on the part of the prosecution to establish positively that the lane had ever been dedicated to the public as a highway." That contention was dismissed on the basis that the statutory language was not limited to the common law concept of a public road. To apply the reasoning in Schubert and Boyton to identify the scope of s 249 is not tenable. 4. The appellant sought further support for distinguishing Stojan in s 178 of the Conveyancing Act which provides: 178 No way by user against Crown etc No dedication or grant of a way shall be presumed or allowed to be asserted or established as against: (a) the Crown, or (b) persons holding lands in trust for any public purposes, by reason only of user, and this whether in proceedings instituted by or on behalf of the Crown or not, and whether such user commenced before or after the eighteenth day of October, one thousand eight hundred and sixty-one (being the day of the commencement of the Crown Lands Alienation Act of 1861). 1. Accepting that the Council fell within the terms of par (b), as it clearly did with respect to the car park, the appellant contended, that the section "repels any doctrine of presumption of dedication of a public road", adopting language used by this Court in Williams v State Transit Authority of NSW. [21] That provision is not necessarily inconsistent with s 249 of Roads Act, as s 249 itself recognises. It is possible that use as a road may, in combination with other evidence, form a basis for an inference that steps have been taken to make the place a public road, as explained by Heydon JA in Ashfield Municipal Council v Roads & Traffic Authority of NSW. [22] On the other hand, such cases are likely to be rare. Further, whilst a dedication and acceptance may have been available to constitute a public road under common law prior to 1906, that would only arise in cases like Newington where the land was not held in trust for public purposes. Section 178 is decisive in the present case, where the only evidence of a place being a public road is use by members of the public. As the appellant pointed out, this provision was not referred to in Stojan and thus provides a further reason for not applying this aspect of the reasoning of the majority in Stojan. 2. It follows that Stojan should not be accepted as authority for a reading of s 249(1) of the Roads Act as creating separate criteria by which a place may constitute a "public road". Indefeasibility of title 1. Although the case was apparently not run on this basis, there appears to be a further difficulty for the Council. The only evidence before the Court as to the title of the Council is the transfer to the Council in 1962, referred to above. That transfer does not indicate that the land is subject to any reservation for the proposed road. There is no exception in s 42 of the Real Property Act 1900 (NSW) with respect to public rights of way. On the other hand, that Act has, since 1921 [23] addressed a practical difficulty arising from the imprecision of boundaries of Crown grants in the early days of the Colony. The introduction of s 46B [24] was designed to address the problem of a road which bounded land the subject of a Crown grant, or was reserved in the Crown grant, within the boundaries of land granted, but which was not specifically identified in a certificate of title. The effect of s 46B was to deem the certificate of title "for all purposes to have been properly issued, and to include the area of the road or part thereof, as the case may be." As noted in Baalman: [25] "Section 46B does not pretend to be a solution of the problem. Its object is merely to quieten titles; to prevent any exhumation by the Crown, or by the local authority, of some indeterminate right which the Registrar-General has buried in an indefeasible title. When such a road has been included in the title, whether rightly or wrongly, it may not be disturbed." 1. As counsel for the appellant noted, if the Council had wished to rely on the certificate of title, it could readily have tendered it: it did not do so. It may therefore be inferred that no public road is disclosed on the certificate of title covering the area of the accident. As the certificate must be given full effect, arguably the title is not qualified by the existence of a public road. 2. Another purpose of the 1921 amendments was to authorize the Registrar-General to record titles of public authorities to land over which there was a road, which had been vested in the authority by statute. [26] That appears not to have happened with respect to this land, a fact which supports the inference that no public road was believed to exist before or after 1962. 3. There is, it is true, authority for the proposition that "public highways appear to lie wholly outside the scope of the [Real Property] Act", to adopt the language of Rich AJ in Vickery v Strathfield Municipal Council. [27] That reasoning depended on a construction of s 42 conferring on a registered proprietor an estate freed of all private interests not mentioned in the certificate of title, but not freed from public rights. Vickery (which predated the 1921 amendments to the Real Property Act) was concerned with land dedicated as a public road at common law. Whether the construction of s 42 adopted in Vickery can be sustained need not be determined in this case, which is not concerned with the dedication of a public road under the common law, prior to 1962. In some cases, Vickery has been cited in the same passages as South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia, [28] a case dealing with the quite different question as to whether a subsequent statute impliedly repeals (by conferring inconsistent rights) s 42 of the Real Property Act. Again, no such issue arises in this case: rather, the Council, which is the registered proprietor of the land, seeks to rely, in derogation of its registered title, on the existence of a public road. [29] Conclusion 1. The appellant's submissions should be accepted. The Court should make the following orders: 1. Allow the appeal and set aside the judgment in favour of the defendant given in the District Court on 7 May 2014. 2. Give judgment for the plaintiff against the defendant in the amount of $285, 915.00, the judgment to take effect from 7 May 2014. 3. Order that the defendant pay the plaintiff's costs of the trial. 4. Order that the respondent pay the appellant's costs of the appeal. 1. MEAGHER JA: The circumstances of this appeal are described in the judgment of Basten JA. To have the benefit of protection from liability under s 45 of the Civil Liability Act 2002 (NSW), the Council had to be, in the language of that section, a "roads authority" that was sought to be made liable for a failure to "carry out road work". For that to be so the car park where the appellant fell had to be a "public road" within the Council's local government area: subs 7(4) of the Roads Act 1993 (NSW). 2. The Council's case before this Court was that the car park became a public road from or shortly after October 1962 when, by memorandum of transfer H931061, Neighbourhood Centres Pty Ltd transferred to the Council its interest as owner of an estate in fee simple in the car park land. That transfer was subject to a covenant by the Council for the benefit of surrounding land that no portion of that land should "at any time hereafter be used for any purpose other than Public Car Parking and a Public Baby Health Centre". 3. The Council submitted that at the time of or shortly after that transfer the land became a public road because from that time it had the characteristics described in s 249(1) of the Roads Act: namely, it was a place that "is or forms part of a thoroughfare in the nature of a road, and is so used by the public". That was said to be sufficient to establish the land as a public road because s 249 provides that evidence of a place having those characteristics "is evidence that the place is or forms part of a public road". 4. This argument directs attention to the meaning of the term "public road" as used in subs 7(4) and 249(1). The Dictionary to the Roads Act defines a "public road" as a road "that is opened or dedicated as a public road, whether under this or any other Act or law" and "any road that is declared to be a public road for the purposes of this Act". The public road for which the Council contended did not answer either of those descriptions because it was said to have existed before the commencement of the Roads Act on 1 July 1993. 5. The position with respect to such a road is dealt with by cl 15 in Sch 2 of the Act which provides that any road that immediately before the "relevant commencement" (1 July 1993) was a "public road is taken to be a public road within the meaning of this Act". This provision assumes, as Heydon JA observed in Ashfield Municipal Council v Roads and Traffic Authority [2001] NSWCA 370; 117 LGERA 203 at [44], that immediately before 1 July 1993 "there were 'public roads' quite independently of any satisfaction of" the yet to be enacted definition of "public road" in the Dictionary to the Roads Act. 6. The public roads in existence as at July 1993 included, as well as roads created by dedication under the common law, roads proclaimed, dedicated, notified, resumed or otherwise established by or under statute. Statutory provisions which established or authorised the establishment of public roads before that time included the Public Roads Act 1902 (NSW), s 18; the Public Works Act 1912 (NSW), s 81; the Crown Lands Consolidation Act 1913 (NSW), s 24; and the Crown and Other Roads Act 1990 (NSW), ss 4, 11. 7. Under the common law a public road is land over which a public right of way exists, the owner retaining ownership of the soil: Goodtitle v Alker (1757) 1 Burr 133; 97 ER 231 at 236; Harrison v Duke of Rutland [1893] 1 QB 142 at 155–158. It was created by acts showing an intention of the landowner to dedicate the land to the public for use as a right of way and acceptance by the public of that proffered dedication: Permanent Trustee Co of NSW Ltd v Campbelltown Corporation [1960] HCA 62; 105 CLR 401 at 420; Newington v Windeyer (1985) 3 NSWLR 555 at 558–559. 8. As was observed by Harvey J in Attorney General v The City Bank of Sydney (1920) 20 SR (NSW) 216 at 220, each of these elements of intention to dedicate and acceptance had to be proved as a fact. The dedication could be made expressly or inferred from acts and conduct of the owner. An example of the latter was the lodging of a plan of subdivision showing a road as an open street and then giving the public access to subdivided lots in the subdivision. Other examples of acts and conduct from which dedication was inferred are given in Newington v Windeyer at 559 by McHugh JA and in Harold Parrish and Lord de Mauley, Pratt and Mackenzie's Law of Highways (21st ed 1967, Shaw & Sons) at 30-31. 9. Where there was no such evidence of the owner's intention to dedicate, dedication could be presumed from uninterrupted user. That presumption would arise where the way had been used by members of the public openly as of right, and for so long a time that it must have come to the knowledge of the owners of the fee that it was being so used as of right: per Blackburn J in Greenwich Board of Works v Maudslay (1870) LR 5 QB 397 at 404. The circumstances of the user had to be such as to give rise to an inference that at some time the owner intended to dedicate the land to the public: Mann v Brodie (1885) 10 App Cas 378 at 386 (also Lord Blackburn); Folkestone Corporation v Brockman [1914] AC 338 at 352 (per Lord Kinnear), 362–363 (per Lord Atkinson). See also per McHugh JA in Newington v Windeyer at 559. If there was such continuous and connected user the presumption was of a complete dedication "coëval with the early user": Turner v Walsh (1881) 6 App Cas 636 at 639–640, 642. In that case the Privy Council also held that the presumption of dedication applied equally to the Crown and long-continued user of Crown lands. Its effect was reversed in the Dedication by User Limitation Act 1881 (NSW) and the Dedication by User Limitation Act 1902 (NSW). The latter was re-enacted as s 178 of the Conveyancing Act 1919 (NSW). 10. After 1 January 1907 (the commencement of the Local Government Act 1906 (NSW)), a new "road" could not be "opened" in New South Wales without the relevant Council's consent. A distinction was drawn by the provisions of that Act (ss 99–101) between the opening of a road and its dedication to the public. See Attorney General v The City Bank of Sydney at 220. Since September 1920 (the commencement of the Local Government Act 1919 (NSW)) a new "public road" could not be "opened" except in accordance with the provisions of that Act. They included by s 327 that an application to do so have been approved by the relevant Council. Nicholas J in In re A Caveat by the Council of the Municipality of Botany; Ex Parte Homelands Development Co Ltd (1936) 36 SR (NSW) concluded at 619 that the 1919 Act "forbids the opening and dedication of a road until the requirements of s 327 have been fulfilled". The correctness of that decision in this respect was accepted in Lake Macquarie City Council v Luka [1999] NSWCA 447; 106 LGERA 94 at [31]-[37]. 11. Returning to the Council's case and the Roads Act, the primary judge proceeded on the basis that ss 7(4) and 249(1) do not "require any compliance with other sections in the Roads Act or the LGA in order for the conclusion to be reached that a place is a public road": [2014] NSWDC 46 at [64]. That correctly states the position where the public road is said to have been created before the commencement of the Roads Act. However, it did not follow that any question concerning whether a "public road" had been created before July 1993 was at large. Schedule 2, cl 15 of the Roads Act provided for its application to public roads which, at some time earlier and in accordance with the principles discussed above, had been created under the common law or statute. 12. In so proceeding his Honour misunderstood s 249(1) as providing a freestanding test as to whether a place was or formed part of a public road created at some earlier time. I agree with Basten JA that s 249 is an evidentiary provision, as the heading to Pt 14, Div 6 and its language make clear. In the case of a public road created under the common law or statute, by acts or conduct occurring before July 1993, s 249 describes evidence which is admissible to prove that a place is or forms part of that public road. For example, in Blakeney v Mosman Municipal Council (No 2) [2013] NSWLEC 100 evidence was admitted under s 249 as relevant to whether an area of land formed part of a public road opened or dedicated under the common law prior to 1906. The same provision was enacted as s 701 of the Local Government Act 1993 (NSW) and there were similar, but more narrowly focussed evidentiary provisions in s 194 of the Local Government Act 1906 and s 623 of the Local Government Act 1919. 13. I also agree with Basten JA ([22]–[30]) that the decision of this Court in Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364; [2009] Aust Torts Rep 82-043 should not be accepted as authority for reading s 249 as describing any separate criteria by which a place may be or be part of a public road. 14. It follows that the appeal must be allowed and the orders proposed by Basten JA made. Before the primary judge and in this Court, the Council did not submit that either before or after the transfer of October 1962 there had been any proclamation, dedication or notification under any statutory provision so as to constitute the car park land as a public road. Nor did it submit that by virtue of what happened in 1962 a public road had been opened or dedicated in accordance with the provisions of the Local Government Act 1919. Furthermore, as Basten JA points out at [17]–[19], the acceptance by the Council of the land on terms that it only be used as a public car park or baby health care centre did not have that consequence. As his Honour explains at [28]-[29], s 178 of the Conveyancing Act 1919 prevents any subsequent user of the car park from providing a basis for a presumption that it had been dedicated as a right of way. 15. EMMETT JA: The question in this appeal is whether the Northbridge Plaza car park is a public road within the meaning of the Roads Act 1993 (NSW) (the Roads Act) such that the respondent is entitled to the statutory immunity provided for in s 45 of the Civil Liability Act 2002 (NSW) (the Civil Liability Act). The appellant, Ms Despina Cavric (Ms Cavric), suffered injury when a shopping trolley being wheeled by her struck a depression or hole in the car park causing the trolley to capsize. Ms Cavric sued the respondent, Willoughby City Council (the Council), on the basis that the Council owed her a duty of care and that her injury was caused by a breach of that duty of care by the Council. A judge of the District Court (the primary judge) found that, but for the operation of s 45 of the Civil Liability Act, the Council would have been liable to Ms Cavric in the sum of $285,915.39. However, his Honour dismissed the proceedings as against the Council and ordered Ms Cavric to pay the Council's costs. Ms Cavric now appeals from those orders to this Court. 16. Section 45 of the Civil Liability Act relevantly provides that a "roads authority" is not liable for harm arising from the failure of the authority to carry out road work unless, at the time of the alleged failure, the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm. Carrying out road work is relevantly defined in the Dictionary to the Roads Act as including any activity in connection with the maintenance, inspection, repair or replacement of a "road work", being any kind of work or structure, such as a roadway, that is constructed or installed on or in the vicinity of a road for the purpose of facilitating the use of the road as a road. For the purposes of s 45, the complaint by Ms Cavric was that the Council failed to carry out road work involving inspection of the car park and repairing the depression or hole in the car park that caused her injury. 17. However, the Council had to establish that it was the roads authority in connection with the car park. For the purposes of s 45, a roads authority has the same meaning as in the Roads Act. Section 7(4) of the Roads Act relevantly provides that the council of a local government area is the roads authority for all public roads within the area. The case was conducted on the basis that s 45 applied only if the car park was a public road within the meaning of the Roads Act. Under the Roads Act, a public road is: [30] (a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and (b) any road that is declared to be a public road for the purposes of this Act. 1. The Council acquired the land that became the car park by memorandum of transfer dated 30 October 1962, which was registered under the Real Property Act 1900 (NSW). The transfer contained a covenant by the Council, as transferee, that no portion of the land in question would be used for any purpose other than "Public Car Parking and a Public Baby Health Centre". A baby health centre is constructed in a corner of the car park. The evidence indicated that the car park is paved or asphalted and has road markings. It is possible to enter the car park from two different public roads, Harden Avenue and Eastern Valley Way. The evidence did not disclose when the car park was constructed as such. 2. There was no material before the primary judge from which a finding could be made that any part of the car park had been opened or dedicated as a public road or had been declared to be a public road for the purposes of the Roads Act, either before or after the transfer to the Council. Although the primary judge did not refer to it, the Roads Act also provides that any road that, immediately before the commencement of that Act, was a public road is taken to be a public road within the meaning of the Act. [31] However, his Honour concluded that s 45 was applicable in the circumstances of the present case, by the operation of s 249 of the Roads Act. 3. Section 249 relevantly provides that evidence that a place is, or forms part of, a thoroughfare in the nature of a road, and is so used by the public, is admissible in any legal proceedings and is admissible as evidence that the place is, or forms part of, a public road. However, s 249 is expressed to be subject to s 178 of the Conveyancing Act 1919 (NSW) (the Conveyancing Act). Section 178 of the Conveyancing Act relevantly provides that no dedication or grant of a way is to be presumed or allowed to be asserted or established as against persons holding lands in trust for any public purposes, by reason only of user. The Council holds the car park on a statutory trust for a public purpose, although that term is not a technical use of the word "trust". [32] His Honour found that the prerequisites of s 249 were satisfied. However, his Honour did not direct attention to the operation of s 178 of the Conveyancing Act. 4. Section 249 is, both on its terms and in its context (contained in Pt 14 Div 6, entitled "Evidentiary provisions"), no more than an evidentiary provision. Because of the intricacies of the common law in establishing whether particular land was a public road, s 249 and its statutory [33] and common law [34] predecessors have existed to assist a litigant to establish that particular land is a public road in circumstances where there is no evidence of any opening, dedication or declaration in respect of the land, so as to demonstrate that it is a public road. However, s 249 simply renders evidence of such use admissible to prove that land was a public road. [35] It has no other operational or juridical effect. In particular, it does not create a public road out of land that is otherwise not a public road. In the absence of any material indicating that, at some stage, the land on which the car park is constructed had been opened or dedicated as a public road or had been declared to be a public road for the purpose of the Roads Act, s 249 does not give rise to any presumption that the car park is a public road. 5. I have read in draft form the proposed reasons of Basten JA for concluding that the appeal should be allowed. I agree with the orders proposed by his Honour for the reasons proposed by him. In particular, I agree with his Honour's observations concerning Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364. ********** Endnotes 1. Roads Act, s 7(4). 2. See Public Roads Act 1902 (NSW), s 18; Local Government Act 1906 (NSW), ss 78, 99; Local Government Act 1919 (NSW), Pt IX and s 237 and s 327; Crown and Other Roads Act 1990 (NSW), Pt 2. 3. Roads Act, Sch 2, cl 15. 4. There is a provision in identical terms in the Local Government Act 1993, s 701. 5. The covenant included a statement as to the benefit and the burden and who could release the covenant, in accordance with s 88 of the Conveyancing Act 1919 (NSW). 6. (1960) 105 CLR 401 at 420 (footnote omitted). 7. See at [5] above. 8. Roads Act, Sch 2, cl 15. 9. (1985) 3 NSWLR 555 at 558. 10. Referring to Local Government Act 1906, ss 99-101; Local Government Act 1919, s 323; there are other means, but each depends on statute. 11. Permanent Trustee Co at 420 (Windeyer J); H Parish and Lord de Mauley, Pratt and Mackenzie's Law of Highways (Shaw & Sons, 21st ed, 1967) at 16. 12. Newington at 562C. 13. Local Government Act 1993, Sch 7, cl 6(2)(b). 14. Local Government Act 1993, s 44. 15. [1998] HCA 59; 195 CLR 566. 16. Bathurst at [66]-[67]. 17. Local Government Act 1919, ss 237, 327, 329. 18. [2009] NSWCA 364; [2009] Aust Torts Rep 82-043 (McColl JA, Ipp JA agreeing; I did not address the issue). 19. At [112]. 20. (1946) 71 CLR 589 at 592 (Latham CJ, Rich and Dixon JJ). 21. [2004] NSWCA 179 at [65] (Mason P). 22. [2001] NSWCA 370; 117 LGERA 203 at [59]. 23. Real Property (Amendment) Act 1921 (NSW), s 14. 24. By the Real Property (Amendment) Act 1970 (NSW), s 22. 25. R A Woodman and P J Grimes, Baalman – The Torrens System in New South Wales (Law Book Co, 2nd ed, 1974) at 246. 26. Local Government Act 1919, s 232. 27. (1911) 11 SR (NSW) 354 at 362. 28. (1939) 62 CLR 603. 29. City of Canada Bay Council v Bonaccorso Pty Ltd [2007] NSWCA 351; 71 NSWLR 424 (Mason P, Tobias JA, and Young CJ in Eq) (no implied repeal of s 42 with respect to the registered title of a transferee where transfer by a council occurred in breach of a statutory prohibition with respect to community land); Roberts v Gilgandra Shire Council [2008] NSWSC 1244; 15 BPR 28,295 (Bryson AJ) (obiter statement that unqualified certificate of title not effective to deny public rights of highway). 30. Dictionary to the Roads Act. 31. Roads Act, Sch 2 cl 15. 32. See Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; 195 CLR 566, particularly at [44]-[51]. 33. Local Government Act 1919 (NSW), s 623; Local Government Act 1906 (NSW), s 194. 34. See the authorities collected in Blakeney v Mosman Municipal Council (No 2) [2013] NSWLEC 100 at [42]. 35. Cf s 623 and s 194 cited above, which provided that, if a place was "proved" to be "a thoroughfare in the nature of a road or footway and is so used by the public", then that would be "sufficient evidence" (emphasis added) that the relevant place was, for example, a public road. Amendments 04 February 2016 - [26] Substituting "1909" for "1989". [34] fn 29 - Amending "PBR" to "BPR". [44] Reference to United Kingdom removed. [56] Substituting "contained" for "coming" in first sentence. 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: 04 February 2016