Dormant adverse possession claims and historical acquisitions for public works: Lawson v South Australian Minister for Water and the River Murray (No 2) [2014] NSWLEC 189

Infrastructure projects in New South Wales have historically been aided by the provisions under the Public Works Act 1912 (Public Works Act). Under the Public Works Act,[1] the Minister could compulsorily acquire land for ‘authorised work’ by notification published in the Gazette. The Public Works Act continues to apply to the resumption of land affected before the commencement of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act).

An important, but generally unnoticed, decision was handed down by Biscoe J in December last year. Lawson v South Australian Minister for Water and the River Murray (No 2)[2] (Lawson) extended the time in which an applicant could claim compensation for a compulsory acquisition of land at Lake Victoria that had occurred almost 100 years ago.

The Lawson decision shows that we cannot always assume that lands on which public works have been constructed will be free from liability associated with past compulsory acquisitions.

Claim

Ms Lawson claimed that she should be granted an extension to make a claim for compensation because:

  • her Aboriginal great grandfather obtained possessory title by adverse possession in 1848 (60 years after the first European settlement in New South Wales)
  • in 1922, her paternal grandmother was a successor to that title, and had a statutory entitlement to compensation for a 1922 acquisition of lands around Lake Victoria
  • Ms Lawson was a successor to that title.

Respondent’s submissions

One of the respondents, the South Australian Minister for Water, submitted that the Court should refuse Ms Lawson’s application for an extension because:

  • the action is time-barred by virtue of section 14(1)(d) of the Limitation Act 1969 (Limitation Act)
  • the Court’s discretion should not be exercised in favour of Ms Lawson.

Under the Limitation Act,[3] a cause of action to recover money ‘recoverable by virtue of enactment’ is not maintainable if brought after 6 years from the date on which the cause of action first accrues to the plaintiff.

Justice Biscoe held that the weight of authority went against the Minister’s submission that the Limitation Act applied. Specifically, his Honour followed Stein J in Dobinson v Lake Macquarie City Council,[4] where it was held that:

The Limitation Act

it is plain that there was and is no limitation period for the commencement of proceedings in the Court to fix compensation for the resumption of land under the Local Government Act and Public Works Act.

Discretion

In relation to the Court’s discretion, the Minister submitted that:

  • there was no evidence of adverse possession ripening in 1848, nor evidence of the passing of possessory title
  • the purpose of the time limit was to afford protection against ‘stale claims’.

Despite being described by Biscoe J as ‘sketchy’, Ms Lawson’s evidence was unchallenged, and was accepted by the Court for the purposes of the application.

Interestingly, his Honour considered two examples in relation to adverse possession:

  1. Under The Crown Suits Act 1769 (Nullum Tempus Act), 60 years of adverse possession against the Crown was sufficient to pass title to an adverse possessor.
  2. In R v Steel,[5] the Crown sued to recover possession of land at the northern end of Macquarie Street, Sydney. In that matter, the question was whether the defendant had acquired title by adverse possession. Chief Justice Forbes noted that the land in the NSW colony vested in the King when it was taken possession of in the name of the King in 1788. Under the Nullum Tempus Act, the defendant could not claim title by an uninterrupted adverse possession against the Crown in less than 60 years thereafter.

Findings

Justice Biscoe held that the evidence before the Court was sufficient to show that Ms Lawson’s claim had some substance, even though it fell well short of proving that Ms Lawson had a prime facie claim to compensation. While his Honour held that the Public Works Act does not specify that the applicant to show a prime facie case, his Honour considered that a ‘manifestly hopeless case would not excite the exercise of the Court’s discretion to extend time’.   However, his Honour did not consider the present case to be ‘manifestly hopeless’.

His Honour noted that a claim for possessory title based on adverse possession that ripened in 1848 presented difficult evidentiary problems today. In this regard, the evidence must establish:

  • ‘both actual possession and an intention to possess’
  • a claim of ‘succession from those who had possessory title to the applicant’.

While noting these difficulties, Biscoe J held that the Court’s discretion should take account of the ‘fact that this was an Aboriginal land claim and its context’. His Honour stated that this context ‘includes the history of indigenous dispossession and disadvantage, including suppression and deprivation’. His Honour also referred to the ‘relatively recent, nascent recognition by the Courts that possessory title may have a role to play in land title claims by indigenous people’. His Honour referred to Toohey J in Mabo v Queensland (No. 2)[6] who acknowledged the possibility of an alternative to a claim to traditional title, namely a claim to possessory title by Aboriginal persons in the context of European settlement.

In this context, Biscoe J held that the Court’s discretion should take into account that Ms Lawson only became aware in 2013 that she had a potential right to lodge a notice under the Public Works Act if an extension of time was granted.

Accordingly, his Honour exercised the Court’s discretion in Ms Lawson’s favour.

What this means

Justice Biscoe’s reference to the ‘relatively recent, nascent recognition that possessory title may have a role to play in land title claims by indigenous people’ indicates that there might be more jurisprudence to come on this subject.

For owners of government land where public works acquisitions have occurred, potential claims such as Ms Lawson’s should be considered, particularly where future statutory land use and infrastructure development are proposed.

Although we have not seen how Ms Lawson’s claim was ultimately determined, based on Lawson, it cannot always be assumed that such lands are free from liability associated with past acquisitions.