Australian Indigenous Law Reporter
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Court and Tribunal Decisions – Australia
Federal Court of Australia (French, Tamberlin and Sackville JJ)
17 December 1999
Application for judicial review of decision of Judge sitting as Aboriginal Lands Commissioner — whether land was ‘unalienated Crown land’ — ability of Northern Territory to hold and transfer a pastoral lease — effect of Torrens system on pastoral lease — effect of doctrine of merger on pastoral lease — land was not ‘unalienated Crown land’
Certain land in the Northern Territory, comprising Northern Territory Portion 1323 and known as Billengarrah Station (the land), was the subject of a pastoral lease granted in 1972 under the Crown Lands Ordinance 1931 (NT). The lease was bound in the Register Book of Crown Leases under the Real Property Act. The lease was the subject of several transfers between 1972 and 1984. In March 1993, the land was declared to be a Perpetual Pastoral Lease (PPL 1069) under the Pastoral Land Act 1992 (NT) and was registered under the Real Property Act. Later in 1993, pursuant to the exercise of a mortgagee’s power of sale by the Commonwealth Development Bank of Australia, the land was transferred to the Northern Territory and subsequently to the Northern Territory Land Corporation (NTLC).
The applicants lodged a claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Land Rights Act) in respect of the land. The land under claim was said to be ‘unalienated Crown land’ and available for claim under that Act.
The first respondent, in his capacity as the Aboriginal Land Commissioner, decided that the Billengarrah land claim was not an application of the type referred to in s 50(1)(a) of the Land Rights Act and that he had no function to perform in relation to it. The Commissioner reached this conclusion because the NTLC, as the registered owner, had an absolute and indefeasible title to the land and was not an authority or emanation of the Crown. Accordingly, the land was not unalienated Crown land for the purposes of the Land Rights Act and could not be the subject of the claim made by the applicants.
The applicants sought review of the decision of the Commissioner. Pursuant to s 20(2) of the Federal Court Act 1976, the matter was listed for hearing by a Full Court.
In summary, the applicant contended:
1.
(a) The Pastoral Land Act 1992 (NT) authorises the grant of pastoral leases by the Crown. It does not authorise the Crown to itself hold a pastoral lease nor to transfer a pastoral lease to another.
(b) As a matter of statutory implication, the Crown cannot itself hold a pastoral lease, a proposition supported by logical principles analogous to those underpinning the doctrine of merger at common law.
(c) For these reasons, PPL 1069 was either extinguished upon transfer to the Northern Territory or the transfer to the Northern Territory was ineffective.
2. The procedures mandated by s 16 of the Northern Territory Land Corporation Act for the acquisition by the NTLC of an estate or interest in real property were not followed. PPL 1069 was therefore never validly transferred to the NTLC.
3.
(a) The indefeasibility provisions of the Real Property Act are ineffective to vest in a person an estate or interest in unalienated Crown land because such vesting is inconsistent with the Land Rights Act which prevails as a law of the Commonwealth.
(b) The Real Property Act, by virtue of s 95, cannot improve the title of a person taking a lease from the Crown beyond that which would otherwise have resulted.
(c) In any event, indefeasibility does not operate to protect a transfer by a person under a legal disability. Given the Northern Territory’s lack of authority to hold or transfer PPL 1069, it was a person under a legal disability for the purpose of the statutory qualifications on the indefeasibility principle.
A pastoral lease is a creature of statute, the scope and effect of which is not to be determined by preconceived notions derived from the common law (Wik Peoples v Queensland (1996) 187 CLR 1 cited). The characteristics and incidents of pastoral leases, as creatures of statute, are to be determined not merely by the Pastoral Land Act, but by the Real Property Act, in particular, sections 150 and 151. No inference need be drawn from the Pastoral Land Act that the Territory cannot be both a pastoral lessee and the entity responsible for enforcing the terms and conditions of a pastoral lease, a position from which nothing in the Crown Lands Act detracts (English Scottish and Australian Bank v Phillips, Cooper v Federal Commissioner of Taxation [1958] HCA 46; (1958) 100 CLR 131, Shell Co of Australia Ltd v Zanelli [1973] 1 NSWLR 216 cited).
Section 95 of the Real Property Act does not alter the position because either:
(Section 95 of the Real Property Act explained).
In the Northern Territory, as in the other States of Australia, the Crown is only authorised to dispose of Crown land in accordance with statutory authority (Commonwealth v State of Western Australia [1999] HCA 5; (1999) 160 ALR 638 at 666 (Gummow J) applied; De Britt v Carr [1911] HCA 32; (1911) 13 CLR 114 at 122 (Griffith J), Cudgen Rutile (No.2) Pty Ltd v Chalk [1975] AC 520 at 533, cited; Mabo v Queensland [1992] HCA 23; (1992) 175 CLR 1; Wik Peoples v Queensland (1996) 187 CLR 1 considered).
There is no reason why a statute may not provide for the creation, by the Crown, of an interest in land or rights in relation to land which can be held as a direct interest or bundle of rights by the Crown. In the case of the grant of a Crown lease under statute, there is no basis for the operation of the doctrine of merger with the radical title of the Crown. Radical title does not of itself have the character of the greater beneficial estate with which a lesser estate will merge (Mabo v Queensland [1992] HCA 23; (1992) 175 CLR 1, Wik Peoples v Queensland (1996) 187 CLR 1 cited). In the case of an interest in unalienated Crown land created by statute, the necessary substratum for the operation of the doctrine (the subsistence of a reversionary interest in the Crown) does not exist. There is nothing in the nature of a pastoral lease granted under the Pastoral Land Act that requires the application of the doctrine of merger, nor does any implication from the provisions of the Act require the extinguishment of a lease upon its acquisition by the Crown in right of the Northern Territory (Wik Peoples v Queensland (1996) 187 CLR 1, Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] NTSC 47; (1986) 42 NTR 1 cited). Moreover, there is powerful authority for the proposition that the Torrens title system is inconsistent with the doctrine of merger (English Scottish & Australian Bank v Phillip [1937] HCA 6; (1937) 57 CLR 302; Cooper v Federal Commission of Taxation (1958) CLR 131; Shell Co of Australia v Zanelli (1973) 1 NSWLR 216, cited).
The Pastoral Land Act does not have the effect of extinguishing a pastoral lease. Registration of a pastoral lease under the Real Property Act does not have the effect of extinguishing the title thereby created.
There is no doubting the power of the NTLC, under the Northern Territory Land Corporation Act, to take a transfer of a pastoral lease from the lessee thereof. Section 15 of the Northern Territory Land Corporation Act is facultative. The transfer of PPL 1069 from the Northern Territory to the NTLC was a mode of lawful acquisition allowed under section 15 and was valid.
Sections 4(2), 15 and 16 of the Northern Territory Land Corporation Act considered.
There was an anterior question as to whether the Northern Territory was entitled to the protection of the indefeasibility provisions of the Real Property Act in respect of its title to PPL 1069. Subject to one exception (namely, where a registered proprietor has obtained registration from a ‘person under a disability’), the position in South Australia (the source for much of the Real Property Act) and the Northern Territory is consistent with the construction of Torrens legislation in other States and Territories. That is, a registered proprietor who obtains registration in good faith and for value on the basis of an instrument that is void will ordinarily be entitled to an absolute and indefeasible title notwithstanding the invalidity of the instrument or dealing by which he or she obtains registration (Breskvar v Wall (1971) 126 CLR 376 applied; Arcadi v Whittem (1992) 59 SASR 515 at 535-536, Public Trustee v Paradiso (1995) 64 SASR 387, contra Rogers v Resi-Statewide Corporation Ltd [1991] FCA 186; (1991) 29 FCR 219, cited). Registration or deemed registration of title to pastoral leases is integral to the legislative scheme governing such leases (sections 129, 130 and 132 of the Pastoral Land Act and section 113 of the Real Property Act considered). A pastoral lease granted under the law of the Territory and registered under the Real Property Act is capable of being transferred to the Northern Territory so that, upon registration, the Territory acquires indefeasible title to the pastoral lease (sections 67 and 68 of the Pastoral Land Act and sections 150 and 151 of the Real Property Act considered; English Scottish and Australian Bank Ltd v Phillips [1937] HCA 6; (1937) 57 CLR 302 and Kerr, The Principles of Australian Lands Titles (Torrens) System (1927), cited).
1. The Aboriginal Land Commissioner, appointed under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act), is required by that Act to inquire into applications by Aboriginal people claiming to have traditional land claims to areas of land which are unalienated Crown land or Crown land in which all estates and interests are held by or on behalf of Aboriginals. On 28 September 1998 the Commissioner declined to proceed with an inquiry into a claim over Billengarrah Station on the basis that it was not unalienated Crown land. This was because a pastoral lease over the land was held by the Northern Territory Land Corporation (‘NTLC’), which is not an emanation of the Crown.
2. The Commissioner’s decision is challenged in these proceedings on the basis that the NTLC had no valid title to the pastoral lease which it purported to hold. The applicants seek to impugn the chain of title by contending that the prior holder of the lease, namely the Northern Territory itself, which had taken a transfer of the lease from a mortgagee exercising its power of sale, was not empowered by the Pastoral Land Act 1992 (NT) to do so or to hold such a lease. Moreover the purported transfer to the NTLC is said to have failed for non-compliance with procedural requirements of the Pastoral Land Act. The case raises issues of principle in relation to property law in the Northern Territory and questions of statutory construction, including the application of the Real Property Act to transactions involving Crown lands.
...
4. Following an inquiry the Commissioner made a determination on 28 September 1998 in the following terms:
1. Northern Territory Land Corporationa) is not an emanation of the Crown in the right of the Northern Territory,
b) has a valid and absolute and indefeasible title to an estate and interest in leasehold in the claimed land.
2. The claimed land is not, nor was it at 29 May 1997, either ‘unalienated Crown land’ or ‘alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals’.
3. The application made to the Aboriginal Land Commissioner on 29 May 1997 is not an application of the type referred to in s 50(1)(a) of the Land Rights Act and the Aboriginal Land Commissioner has no function to perform in relation to it.
5. By an application filed in this Court on 26 October 1998 the applicants sought an order for review of the Commissioner’s determination and orders under s 39B of the Judiciary Act 1903 (Cth). They asserted that the Commissioner had denied them procedural fairness by refusing to adjourn the consideration of the preliminary question. They also claimed that there were errors of law in the reasoning that led to the determination.
6. By virtue of s 20(2) of the Federal Court Act the matter has been listed for hearing by a Full Court as the Commissioner is a Judge of this Court, albeit he was acting administratively in this case.
7. The Commissioner’s decision was made pursuant to the Land Rights Act which defines his functions in s 50(1)(a) thus:
50(1) The functions of a Commissioner are:(a) on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals:
(i) to ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and
(ii) to report his findings to the Minister and to the Administrator of the Northern Territory, and, where, he finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minister for the granting of the land or any part of the land in accordance with sections 11 and 12.
... Apart from deciding he lacked power to proceed with any inquiry into the application the Commissioner made no diapositive decision in relation to it. Nor does the Act explicitly provide for such a disposition.
8. Before turning to the statutory framework and the Commissioner’s reasons for making the determination he did, it is necessary to refer to the history of dealings or purported dealings in respect of the land under claim.
9. The point of departure in that history is 13 January 1965 which saw the grant of Pastoral Lease 694 to Ross and Francis Berry over Northern Territory Portion 816. That lease which was granted under the Crown Lands Ordinance 1931 (NT) and covered 1,582 square miles, was surrendered on 12 September 1972. In the meantime on 25 January 1972 a new lease, PL759, was granted to the Berrys. It was one of two new leases, 758 and 759, which evidently together covered land comprised in PL694. It is the land covered by PL759, some 820 square miles and comprising NT portion 1323, that is the Billengarrah Station and is the subject of the application under the Land Rights Act. The Pastoral Lease 759 was granted under the Crown Lands Ordinance for a term of forty three years commencing 1 July 1971. It was bound in the Register Book of Crown Leases as Volume 111 Folio 76 under provisions of the Real Property Act which are no longer applicable. Between 25 January 1972 and 12 September 1972, it appears there were two pastoral leases in effect over the same land. There were in 1973, 1975 and 1984 successive transfers of PL759 to other entities, the last of those transfers being to Sydney Galvin and Heather Josephine Galvin on 16 January 1984.
10. On 2 March 1993, acting pursuant to ss 130(2) and 131(1) of the Pastoral Land Act, the Minister for Lands Housing and Local Government, by notice, declared Pastoral Lease PL759, less certain excised areas, to be a Perpetual Pastoral Lease, PPL 1069, on and from 1 April 1993. The declaration was expressed to be subject to reservations and conditions applicable to Perpetual Pastoral Leases by virtue of the Act. On 23 March 1993, the Galvins lodged, at the office of the Registrar-General, an ‘Application to Register Statutory Vesting’, being the declaration of the PPL 1069. The registration, under the Real Property Act, took effect on 21 July 1993 at 9.10am.
11. On 20 July 1993 a number of related events occurred which led to the purported transfer of PPL 1069 from the Galvins to the Northern Territory under a power of sale exercised by the Commonwealth Development Bank. In the same sequence of events, the Northern Territory transferred PPL 1069 to the Northern Territory Land Corporation (NTLC). It is the holding of that interest by the NTLC which led the Commissioner to his conclusion that the land under claim was alienated Crown land and that he was therefore not empowered to deal further with the application. The sequence of events on 20 July was as follows:
1. A Discharge of Mortgage from the Northern Territory of Australia to the Galvins, executed on 22 June, was lodged at the Registrar-General’s office for registration at 12:17:25.... Registration was effected on 21 July 1993 at 9.20am.
2. A Discharge of Mortgage from Westpac Banking Corporation to the Galvins, executed on 5 July 1993, was lodged at the Registrar-General’s office for registration at 12:17:27. Registration was effected on 21 July 1993 at 9.20am.
3. The Commonwealth Development Bank of Australia lodged a transfer in the exercise of a power of sale at 12:17:29. The transfer showed the buyer as the Northern Territory of Australia. Registration was effected on 21 July 1993 at 9.20am.
4. With the transfer lodged pursuant to the power of sale by the Commonwealth Development Bank of Australia was a letter signed by a delegate of the Minister of Lands Housing and Local Government consenting to the transfer of the lease (now designated Perpetual Pastoral Lease No 1069 — Billengarrah) from the Commonwealth Development Bank of Australia to the Northern Territory of Australia.
5. A further transfer was lodged for registration at 12:19:37 from the Northern Territory of Australia to the NTLC. This transfer had been executed on 6 July 1993 by the Northern Territory of Australia but was not executed by the NTLC. It was also accompanied by a letter of consent signed by the delegate of the Minister for Lands Housing and Local Government. It was expressed as a consent ‘ ... to the transfer of Perpetual Pastoral Lease No 1069 — Billengarrah from the Northern Territory of Australia to the Northern Territory Land Corporation.’ It was also registered on 21 July at 9.20am.
...
14. The first element of the Commissioner’s determination related to the status of the NTLC which he held was not an emanation of the Crown in the right of the Northern Territory. In so doing he applied the decision of the High Court in R v Kearney; Ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395. That aspect of his determination was not and could not be in dispute before him or in this Court.
15. The question for determination therefore was whether the NTLC had an estate and interest in leasehold in the claimed land, namely PPL 1069. The Commissioner held that s 69 of the Real Property Act which provides for the indefeasibility of registered title, was decisive of the issue:
It is the registered proprietor of the land and so long as it so remains it has an absolute and indefeasible title to the leasehold interest identified in the certificate as to title. To say that does not deny the authority of a court of competent jurisdiction to direct the Registrar-General to give effect to any judgment, decree or order of the court given or made in any proceeding respecting the land (s 64), but so long as the NTLC remains the registered proprietor its title remains absolute and indefeasible. On that basis therefore the NTLC has an estate or interest in the claimed land and as it is not an authority or emanation of the Crown, it must follow that the claimed land is not Crown land as defined in s 3 of the Land Rights Act. The land is not capable of being made the subject of an application of the kind referred to in s 50(1)(a) of the Land Rights Act and accordingly the application made to the Aboriginal Land Commissioner on 29 May 1997 is not an application that can give rise to the exercise by the Commissioner of the functions referred to in that section.
...
In the event he found that the Perpetual Pastoral Lease in question had been validly granted to the NTLC.
16. The argument advanced for the applicants focused exclusively upon the question whether the land the subject of the application to the Commissioner was unalienated Crown land. It was sought to demonstrate by a variety of submissions that, contrary to the Commissioner’s conclusions, there was, at the time of the application, no estate or interest held by the NTLC. In pursuit of that goal the applicants attacked upon the chain of title leading to the transfer of PPL 1069 to the NTLC on 20 July 1993.
17. The applicants’ essential propositions were as follows:
1.(a) The Pastoral Land Act authorises the grant of pastoral leases by the Crown. It does not authorise the Crown to itself hold a pastoral lease nor to transfer a pastoral lease to another.
(b) The proposition that, as a matter of statutory implication, the Crown cannot itself hold a pastoral lease is supported by logical principles analogous to those underpinning the doctrine of merger at common law.
(c) For these reasons PPL 1069 was either extinguished upon transfer to the Northern Territory or the transfer to the Northern Territory was ineffective.
2. Procedures mandated by s 16 of the Northern Territory Land Corporation Act for the acquisition by the NTLC of an estate or interest in real property were not followed. PPL 1069 was therefore never validly transferred to the NTLC.
3.(a) The indefeasibility provisions of the Real Property Act are ineffective to vest in a person an estate or interest in unalienated Crown land. That is because such vesting is inconsistent with the Land Rights Act which prevails as a law of the Commonwealth.
(b) The Real Property Act, by virtue of s 95, cannot improve the title of a person taking a lease from the Crown beyond that which would otherwise have resulted.
(c) In any event, indefeasibility does not operate to protect a transfer by a person under a legal disability. Given the Northern Territory’s lack of authority to hold or transfer PPL 1069, it was a person under a legal disability for the purpose of the statutory qualifications on the indefeasibility principle.
18. The applicants contended that the transfer of PPL 1069 to the Northern Territory by the Commonwealth Development Bank was ineffective. In the alternative, they argued, in written submissions, that, if effective, the transfer resulted in the destruction of the interest created by PPL 1069 by operation of the doctrine of merger.
19. The first limb of the argument depended upon the statutory scheme for the grant and transfer of pastoral leases and was along the following lines:
1. The grant and transfer of pastoral leases is provided for by the Pastoral Land Act.
2. The Pastoral Land Act contemplates the grant of leases by the Crown to other persons and, subject to ministerial consent, the transfer of leases between persons other than the Crown.
3. Neither the Pastoral Land Act nor any other statute authorises the Crown to grant a pastoral lease to itself nor to acquire such a lease by transfer.
The alternative ‘merger’ argument, although initially advanced as an application of the common law doctrine of merger, reduced to a logical argument in support of the statutory construction for which the applicants contend. So it was submitted that the proposition that the Northern Territory could hold a lease from itself, being attended by difficulties of the kind avoided by the common law doctrine of merger, is not contemplated by or implied in the Act.
20. The Crown Lands Act 1992 came into operation on 26 June 1992 (s 2). It repealed the Crown Lands Ordinance 1931 and its many amending Ordinances. It also repealed the Crown Lands Act 1979 and its various amendments. The Act came into force on the same day as the Pastoral Land Act 1992. It deals with the way in which Crown lands may be alienated by grant of estates in fee simple and by lease (ss 4, 9 and 12). Section 4 provides:
4(1) Subject to subsection (2), Crown lands shall not be alienated from the Crown otherwise than in pursuance of this Act.
(2) This section does not affect —
(a) the granting of a lease in pursuance of an agreement or right in existence at the commencement of this Act;
(b) the granting of an estate in fee simple in pursuance of an Act;
(c) the granting of a lease in pursuance of an Act; or
(d) the granting of an estate in fee simple under the Aboriginal Land Rights (Northern Territory) Act 1976 of the Commonwealth.
The exclusion of leases granted under ‘an Act’ from the operation of the Crown Lands Act, at first blush does not apply to pastoral leases granted under the Pastoral Land Act. That is because the definition of ‘lease’ in the Crown Lands Act excludes pastoral leases. But that definition, which appears in s 3, is qualified as are all definitions in the section by its opening words ‘unless the contrary intention appears’. There is a plain legislative intention in the Crown Lands Act and the Pastoral Land Act, to be derived from the statutory regimes they establish and their contemporaneous enactment, that the latter Act shall govern the grant and transfer of pastoral leases. Indeed it is for that very reason that a pastoral lease is excluded from the definition of ‘lease’ in s 3 of the Crown Lands Act. So the exemption from the operation of the Crown Lands Act contained in s 4(2)(c) of that Act, for leases granted under ‘an Act’ must be taken as applying to pastoral leases.
...
22. The Crown Lands Act operates within the general framework of the Torrens Title System established by the Real Property Act... There is provision for the cancellation of certificates of title where the Territory becomes the owner of land in which no person other than the Crown has a registered interest. Upon such cancellation the land becomes unalienated Crown land (s 11).
23. The Act also provides for the case in which the Northern Territory holds a registered estate in fee simple from itself. The absence of any equivalent section in relation to the grant of pastoral leases was said to indicate that the Pastoral Land Act was not intended to authorise such a circumstance. Section 9(2) purports expressly to preempt the application of the doctrine of merger in respect of estates in fee simple held by the Territory. Its object, which appears misconceived, is to prevent merger between estates in fee simple and the radical title of the Crown. It provides:
(2) A power to grant under subsection (1) an estate in fee simple includes a power to grant an estate in fee simple to the Territory and, subject to section 11, an estate in fee simple so granted or otherwise obtained by the Territory shall not merge with the radical title to the land.
Transfers of estates in fee simple from the Territory are contemplated by virtue of s 9(3):
(3) A reference in this Act to the grant of an estate in fee simple in land shall include, where the Territory is the registered proprietor of an estate in fee simple in land, a reference to the transferring of the estate in fee simple in that land under the Real Property Act.
There is no equivalent of subs 9(2) or 9(3) in the Pastoral Land Act.
...
26. The long title of the Pastoral Land Act is:
An Act to make provision for the conversion and granting of title to pastoral land and the administration, management and conservation of pastoral land, and for related purposes.
The primary object of the Act, as set out in par 4(a) is:
to provide a form of tenure of Crown land that facilitates the sustainable use of land for pastoral purposes and the economic viability of the pastoral industry;
Additional objects relate to the prevention, minimisation and rehabilitation of environmental damage, the recognition of the right of Aborigines to follow traditional pursuits, provision of reasonable access to water and places of public interest, and the establishment of Aboriginal community living areas.
...
28. The Act defines a ‘pastoral lease’ thus:
‘pastoral lease’ means a lease granted over Crown land for pastoral purposes and includes a pastoral homestead lease and land which, in pursuance of an arrangement under s 50, is held over by the former lessee after the expiration of the term of the pastoral lease;
...
‘Crown land’ under the Pastoral Land Act is narrower in scope than under the Crown Lands Act and is defined thus:
‘Crown land’ means all lands of the Territory, including the bed of the sea within territorial limits, but does not include reserved or dedicated land;
A reference to a lease as ‘perpetual’ means the lease is granted in perpetuity. That means that the term of the lease continues indefinitely (s 3(2)). The term of a lease under the Act is either in perpetuity or for a period not exceeding twenty five years (s 48). A term may be extended for up to twenty five years (s 49).
...
32. The Act makes no express general provision for the application of the registration requirements of the Real Property Act to dealings in relation to pastoral leases under the Act ... Section 31 which makes provision in that regard also provides for the Registrar-General to create a folio of the Register and to issue a certificate as to title in relation to the land (s 31(3)). The Act in this respect mirrors the terms of s 10 of the Crown Lands Act. It also contemplates that mortgages of leases can be registered under the Real Property Act (s 53). Generally speaking application of the provisions of the Real Property Act relating to the transfer of, and other dealings with, pastoral leases under the Act is assumed.
33 The transfer of pastoral leases requires the consent of the Minister (s 67). Before consent is given, the Minister can refer the application to the Board for its report.
...
35. The Real Property Act of the Northern Territory sets up a Torrens system of title by registration. Section 113 of that Act provides for registration of statutory vesting or grants of land or interests in land. The power of the Registrar to register such vestings or grants may be exercised on his own motion or on an application in the prescribed form. In this case the registration of Sydney and Heather Galvin as proprietors of PPL 1069 following the Ministerial declaration of 2 March 1993 became effective on 21 July 1993 at 9.10am. That registration was done pursuant to s 113. That section provides as follows:
113 (1) Where the Registrar-General is satisfied, either on an application in the prescribed form or of his own motion, that the land or any interest in land has become vested in or granted to a person by or under an Act (including an Act of the Commonwealth), the Registrar-General-(a) shall make in the Register such entries in relation to the land as he considers necessary in connection with the vesting or grant; and
(b) may issue such certificates of title as he thinks fit in consequence thereof and, where that is necessary or appropriate, cancel any existing certificate of title.
...
36. The instrument by which the Galvins’ perpetual lease was transferred to the Northern Territory was a document entitled ‘TRANSFER BY LENDER EXERCISING POWER OF SALE’. The transfer, not being a vesting or grant under an Act, did not attract the operation of s 113 of the Real Property Act. But being an instrument purporting to pass land, defined in s 3 to include ‘every estate and interest in land’, it could not be effected until registration. This is the result of s 67 of the Real Property Act. Section 67 provides:
67. No instrument shall be effectual to pass any land or to render any land liable as security for the payment of money, but upon the registration of any instrument in manner herein prescribed, the estate or interest specified in such instrument shall pass, or, as the case may be, the land shall become liable as security in manner and subject to the covenants, conditions and contingencies set forth and specified in such instrument or by this Act declared to be implied in instruments of a like nature.
37. Prior to 1991, s 93 of the Real Property Act provided for the entry of Crown Leases in a Register Book of Crown leases. Crown lease was defined for that purpose as ‘a lease of Crown land’ and so included a pastoral lease (s 91). PL759 was registered under these provisions but s 93 was substituted by a new provision in 1991 pursuant to the Real Property Amendment Act 1991 (No 32 of 1991). Section 93 now provides:
93 (1) The Registrar-General shall issue a certificate as to title in the prescribed form in accordance with a grant of an estate in fee simple, or a lease of Crown land, under a law of the Territory relating to the alienation of land if requested to do so by the Minister responsible for the administration of that law.(2) A person who is entitled to an estate in fee simple or a lease from the Crown is entitled to receive a certificate as to title as referred to in subsection (1).
This provision can be read together with s 10 of the Crown Lands Act and s 31 of the Pastoral Land Act to which reference has already been made whereby the Minister may lodge details of a grant or lease with the Registrar who is then obliged to issue a certificate of title.
38. Indefeasibility of title on the Register is provided by s 69 of the Real Property Act which, in the relevant parts, reads as follows:
69. The title of every registered proprietor of land shall, subject to such encumbrances, liens, estates, or interests as may be recorded in the Register or which were notified on the original grant of title from the Crown for such land, be absolute and indefeasible, subject only to the following qualification:
...
II. In the case of a recording in the Register made as the result of fraud or forgery, or a certificate as to title or other instrument of title obtained by forgery or by means of an insufficient power of attorney or from a person under some legal disability, in which case the recording in the Register or the certificate as to title, or other instrument of title shall be void: Provided that the title of a registered proprietor who has taken bona fide for valuable consideration shall not be affected by reason that a certificate as to title or other instrument of title was obtained by any person through whom he claims title from a person under disability, or by any of the means aforesaid:
...
39. Section 69 is to be read with s 70 which provides for the paramountly of the title of the registered proprietor.
40. Registration of transfers is provided for in s 96 ...
42. The proposition that the Crown in right of the Northern Territory, or otherwise, can hold an interest in land granted by itself is inconsistent with the common law doctrine of tenure. Under the common law all lands and tenements in England were ultimately held from the Crown. The doctrine, which derived from the time of the Norman Conquest, relied upon the ‘fundamental maxim and necessary principle (although in reality a mere fiction) ... that the King is the universal lord and original proprietor of all the land in his kingdom’ — Blackstone Comm. II c.4. p 51. Statutory reforms in England, many of them mirrored in Australia, have substantially suppressed the practical consequences of tenure but they have not struck at the root of the theory of tenure itself — Megarry and Wade, The Law of Real Property 4th Edition (1975) p 38. It was a corollary of the basic doctrine that the Crown could not hold an interest from itself:
the King in this sense cannot be said to be a tenant because he hath no Superior but God Almighty — Coke, Commentaries upon Littleton at 1b.
McNeil put it thus:
At common law, when the Crown had an estate in fee simple, or indeed any estate, it was necessarily lordless. Accordingly, an estate can exist without being held in tenure — Common Law Aboriginal Title (Clarendon 1989) p 149.
That an estate is an estate in fee simple indicates the quantum of the estate and not feudal tenure — Commonwealth v Anderson [1960] HCA 85; (1960) 105 CLR 303 at 325 (Windeyer J); Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1 at 42 and 45 (Isaacs J), see also Pollock and Maitland, The History of English Law Bk 2 Ch 1 p 213.
43. The basic principles of tenure, including the proposition that the Crown cannot hold as ‘tenant’ an interest from itself, are not, in the Australian context, constitutional in character. They may be displaced or modified in content or application by statute. The prerogatives of the Crown which, at common law, enabled it to grant and acquire interests, including absolute beneficial interests in Crown land, were displaced by what Gummow J has called ‘the constitutional settlement of the mid-nineteenth century’. This term was a reference to the power given to the Australian colonies by Imperial enactments, mostly in the 1850’s, to regulate the disposal of the waste lands of the Crown — Wik Peoples v Queensland (1996) 187 CLR 1 at 188-189. That power was given on the basis that it was to be exercised under statutory authority — eg Waste Lands (Australia) Acts Repeal Act 13 and 14 Vic c 55 ss 4, 5 and 7. In the States the Crown is only authorised to dispose of Crown lands in accordance with statutory authority, Commonwealth v State of Western Australia [1999] HCA 5; (1999) 160 ALR 638 at 666 (Gummow J) and cases there cited. See also De Britt v Carr [1911] HCA 32; (1911) 13 CLR 114 at 122 (Griffith CJ). The Territories derive their power from ordinances and statutes made pursuant to statutory authority conferred by laws of the Commonwealth made pursuant to s 122 of the Constitution. The authorities so granted did not confine the nature of the interests which could be created or granted to established categories of real property at common law. Moreover, rights can be created under statute, in relation to Crown land, which do not create an estate or interest in the land — R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 332, 344, 352 and 364. Relevantly for this case there is no reason why a statute may not provide, in effect, for the creation, by the Crown, of an interest in land or rights in relation to land which can be held as a discrete interest or bundle of rights by the Crown. The Crown Lands Act has done as much in expressly providing that the power to grant an estate in fee simple extends to the power to create such an estate to be held by the Territory itself (s 9(2)). The present case raises the question whether the same result applies to pastoral leases as a matter of implication from the statutory scheme. The central issue is therefore one of statutory construction. But statutes operate in a milieu of common law principle. It is necessary here to consider the impact of the common law and its relationship to the statutes which provide for the creation and disposition of interests in Crown lands. The proposition was initially advanced by the applicants, in their written submissions, that the Northern Territory could not acquire a pastoral lease and then transfer it to the NTLC because the lease would have been destroyed by merger with the radical title of the Territory. Although not maintained as a submission, it illuminates the question we have to decide.
44. The application of land tenure principles as against allodial ownership in the Australian colonies was asserted in Attorney General (NSW) v Brown (1847) 1 Legge 312. It was supported by the proposition that the Crown acquired absolute ownership of all lands in the colony when it acquired sovereignty. That proposition was rejected in Mabo v Queensland [1992] HCA 23; (1992) 175 CLR 1. The title of the Crown, upon acquisition of sovereignty in the colonies, was characterised as a ‘radical title’ which, burdened or qualified by indigenous rights and interests, could not expand into full beneficial ownership without some further step on the part of the Crown. It has been observed subsequently, in the light of Mabo that territorial sovereignty may not equate, even under the common law doctrine of tenure, to absolute beneficial ownership, the latter concept being arguably alien to the medieval cast of mind — Gray, Elements of Land Law, (Butterworths, 2nd edition 1993) p 52, referring to A W B Simpson, A History of the Land Law (2nd Edition, Oxford 1986) p 47f.
45. Radical title was described in Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 as ‘a pure legal estate, to which beneficial rights may or may not be attached’. It was in that case found to be burdened or qualified by an indigenous community’s usufructuary title. It was of variable scope depending on the impact of the indigenous title. The concept of a radical title of variable scope was to some degree reflected in the judgments of the majority in Mabo.
46. In Mabo, Brennan J, with whom Mason CJ and McHugh J agreed, accepted the proposition that the doctrine of tenure applied in Australia but did not accept that it was necessary to that doctrine that the Crown acquired full beneficial ownership in the land upon acquisition of sovereignty. Rather, as in Amodu Tijani and Nireaha Tamaki v Baker [1901] AC 561 the Crown was to be treated as having the radical title to all the land in the territory over which it had acquired sovereignty. His Honour explained radical title thus at 48:
The radical title is a postulate of the doctrine of tenure and a concomitant of sovereignty. As a sovereign enjoys supreme legal authority in and over a territory, the sovereign has power to prescribe what parcels of land and what interests in those parcels should be enjoyed by others and what parcels of land should be kept as the sovereign's beneficial demesne.
The attribution of radical title to the Crown enabled the grant of interests in land to be held of the Crown and the acquisition of land for the Crown’s demesne. It enabled the Crown to become ‘Paramount Lord’ of all who hold a tenure granted by the Crown and to become absolute beneficial owner of unalienated land required for the Crown’s purpose. Only if the land were desert and uninhabited would the Crown take an absolute beneficial title because there would be no other proprietor. His Honour said:
Recognition of the radical title of the Crown is quite consistent with recognition of native title to land, for the radical title, without more, is merely a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereign power to grant an interest in land) and to support the plenary title of the Crown (when the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown’s territory).
Deane and Gaudron JJ at 80 described as ‘the underlying thesis of the English law of real property’ that the ‘radical title to (or ultimate ownership of) all land was in the Crown ...’. They held that the practical effect of the vesting of radical title in the Crown was merely to enable the English system of private ownership of estates held of the Crown to be observed in the colony. If there were lands within the colony in relation to which there were no pre-existing native title, the radical title of the Crown carried with it a full and unfettered proprietary estate (at p 86). Mabo therefore left open the possibility that beneficial interests might be attached to the ‘pure legal estate’ comprising the radical title of the Crown as did some dicta in Wik (Wik at 127 per Toohey J, citing Amodju Tijani). But Wik rejected the notion that the grant of a statutory ‘lease’ on Crown land involved the creation of a beneficial reversionary interest in the Crown (129 per Toohey J, 155 per Gaudron J, 189 per Gummow J, 234-235 per Kirby J). Also rejected was the proposition that the mere exercise of sovereignty over the land by the Crown would somehow expand radical title into a beneficial interest.
47. In the end the concept of radical title has little if any relevance to the grant of interests in land in post-federation Australia. Indeed it has little relevance to the grant of interests in any of the self-governing colonies prior to federation. It was invoked in Mabo to support the conclusion of the majority that the assumption of sovereignty by the Crown upon its annexation of the various Australian colonies did not give rise to an absolute beneficial ownership in the land inconsistent with indigenous rights which ownership would extinguish native title. But the authority of the colonies, when they became self-governing, to make laws relating to the disposal of Crown lands, was derived from Imperial statutes and was not an incident of the radical title of the Crown therein. That authority in the case of New South Wales and Victoria was initially conferred by the Imperial statutes which authorised the enactments of their Constitution Acts of 1855. At the same time the Imperial Parliament passed the Waste Lands (Australia) Acts Repeal Act 1855 (18 and 19 Vic c.56) which, inter alia, authorised the legislatures of South Australia and Tasmania ‘to regulate the sale and other disposal of the waste lands of the Crown ...’ (s V).
48. Prior to 1 January 1911 the Northern Territory was part of the colony of South Australia. It was then surrendered to the Commonwealth as a territory of the Commonwealth. Thereafter all pre-existing estates and interests in the Territory were ‘to be held from the Commonwealth on the same terms and conditions as they were held from the State’ — Northern Territory Acceptance Act 1910 (Cth) (s 10). The Governor-General was empowered to make ordinances having the force of law in the Territory — Northern Territory Administration Act 1910 (Cth) (s 13). Ordinances so made included the Crown Lands Ordinance 1931. With the coming of self-government in 1978 the Northern Territory was established as ‘a body politic under the Crown by the name of the Northern Territory of Australia’ — Northern Territory (Self Government) Act 1978 (s 5). The Legislative Assembly was empowered to make laws for the peace, order and good government of the Territory (s 6). The Crown Lands Act 1979, the Crown Lands Act 1992 and the Pastoral Land Act 1992 are such laws. By s 69(2) of the Northern Territory (Self Government) Act all but certain interests in land in the Territory which were held from the Commonwealth were, by force of the Act, to be held from the Territory (s 69(4)). In the Northern Territory, as in the States of Australia, ‘the Crown cannot contract for the disposal of any interest in Crown lands unless under and in accordance with power to that effect conferred by statute’ — Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 at 533. Nor can the Crown dispose of any interest in Crown lands except under statutory power. The constitutional supremacy of Australian Parliaments and the Crown over all Australian lands, as much as the feudal doctrines of the common law, is the origin of most of the incidents of Australian land tenure — Fry, ‘Land Tenures in Australian Law’, Res Judicatae vol 3 (1947) 158 at 160-161, cited with approval by Toohey J in Wik at 111, see also Gummow J at 188-189.
49. Against this background of statutory and quasi-constitutional provisions for dealing in Crown lands the concept of the merger of a statutory interest with the radical title of the Crown, as first propounded by the applicants, seems far fetched. So too, does its statutory preemption in s 9(2) of the Crown Lands Act 1992. Merger occurs where a greater and lesser estate in land vest in the same person in the same right without any intervening estate. The estates merge. Effectively, the lesser estate ceases to exist — Bradbrook, McCallum, Moore, Australian Real Property Law (2nd edition LBC 1997) par 16.88. The doctrine operates in respect of leases so that if a lessor becomes lessee (for example by assignment) the lease merges in the reversion. In the absence of evidence as to intention, there is a presumption at equity that merger is not intended if this will not be in the party’s interest or if the party has only acted consistently with a duty. If there be no evidence of intention or of the necessary interest, then merger occurs unless the union was not due to a party’s own acts — Halsbury’s Laws of Australia para 245-4250. The equitable principle is now embodied in property statutes of all States and Territories.
50. In the case of the grant of a Crown lease under statute however, there is no basis for the operation of the doctrine of merger with ‘radical title’. Radical title does not of itself have the character of the greater beneficial estate with which a lesser estate will merge, albeit in some cases such an interest may attach to the radical title — see the discussion on this point in Mabo and Wik.
51. In the case of an interest in unalienated Crown land created by statute, the necessary substratum for the operation of the doctrine, the subsistence of a reversionary interest in the Crown, does not exist. And even if it did, the question of contrary intention would still have to be addressed by reference to the statute giving rise to the interest. In the case of the Pastoral Land Act a lease granted under the Act can be forfeited for exceeding the maximum holdings limit or for breach of condition (s 35(10) and s 40(6)). Forfeiture ‘has the same effect as a re-entry and recovery of possession by or on behalf of the Territory’. It extinguishes the statutory interest. So too does ‘surrender’, whether in exchange for a perpetual pastoral lease (s 62) or for the grant of a consolidated lease (s 64). The effect of forfeiture is the same in this case as its effect under s 135 of the Land Act 1910 (Qld) considered in Wik. That provision established a kind of statutory reversion, whereby forfeited land would ‘revert to His Majesty and become Crown land, able to be dealt with by [the] Act accordingly’. Its effect was to assimilate previously alienated land to land in respect of which the Crown had radical title. It did not assimilate it to any beneficially owned estate (at 156 per Gaudron J, see also 199-200 per Gummow J).
52. Given the character of a pastoral lease under the Pastoral Land Act as a statutory lease, analogous to those considered in Wik, and given the statutory provisions for forfeiture and surrender, and of course the simple termination of the interest by expiry of the term, there is no basis or necessity for importing into the statute common law doctrines of reversion or merger. There is nothing in the nature of a pastoral lease granted under the Act that requires the application of that doctrine. Nor is there any necessary implication from the provisions of the Act that requires the extinguishment of a lease upon its acquisition by the Crown in right of the Northern Territory.
53. In Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] NTSC 47; (1986) 42 NTR 1, O’Leary CJ, with whom Rice and Asche JJ agreed, held in relation to Crown leases that upon their grant ‘... the radical title of the land remains in the Crown; the Crown is still the legal owner of the reversion’. The reference to the ‘reversion’ is, with respect, of questionable authority in the light of the judgments in Wik, which have already been mentioned. The Jennings’ case was concerned with whether land, the subject of a Crown lease, was nevertheless still ‘vested in the Crown’ for the purposes of exemption from workmens’ liens under the Workmens’ Liens Act (NT). >
54. There is another consideration against the operation of merger or any statutory analogue requiring extinguishment of the interest upon its acquisition by the Territory. That is the dependence of legal title to land upon registration under the Torrens Title System for which the Real Property Act provides. There is powerful authority for the proposition that the Torrens Title System is inconsistent with the doctrine of merger. So in the case of a mortgage, nothing in the Real Property Act 1886 (SA) supports the idea that when the proprietor of an estate in fee simple becomes registered proprietor of a mortgage or encumbrance over the land, it is thereby sunk and merged in the estate of that proprietor — English Scottish and Australian Bank Ltd v Phillips [1937] HCA 6; (1937) 57 CLR 302 at 322-323. On similar reasoning the view was favoured, though not finally adopted, as it was unnecessary to do so, in Cooper v Federal Commissioner of Taxation [1958] HCA 46; (1958) 100 CLR 131 at 142 that ‘... a registered leasehold interest does not merge at law so long as it remains registered as a separate estate or interest’. That view, assumed to be correct for the purposes of that case, was said ‘to conform better with the Torrens System’. In Shell Co of Australia Ltd v Zanelli (1973) 1 NSWLR 216 at 221, Jacobs P (Hardie and Reynolds JJ agreeing) held that as long as a lease remained on a title as a distinct interest, it must be regarded as a separate interest under the Real Property Act 1900 (NSW) ...
See Post Investments Pty Ltd v Wilson (1990) 26 NSWLR 598, with respect to non-extinguishment of a registered restrictive covenant when dominant and servient tenements come into single ownership and possession and also Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (In Liq) (1998) 45 NSWLR 556 at 566-567.
55. The Pastoral Land Act is to be read within the general framework for title by registration created by the Real Property Act. There is nothing in the Pastoral Land Act to require that a pastoral lease held by the Northern Territory be extinguished. The registration provisions of the Torrens Title System in operation under the Real Property Act, in my opinion, have the effect that the registration of a transfer to the Northern Territory does not effect extinguishment of the title thereby conferred. The express provision made in the Crown Lands Act 1992 for the Territory to hold an estate in fee simple, does not indicate a contrary intention in relation to leases created under the Pastoral Land Act. The estate in fee simple is an estate well known to the common law which, it might have been thought, could attract some version of the common law doctrine of merger. That concern is, in my opinion, misplaced. But whether it is misplaced or not, the statutory leases granted under the Pastoral Land Act are not creatures of common law descent. They are, as is apparent from the provisions of the Act, sui generis statutory creations. They are not carved out of any larger title and their transfer could not attract the kind of apprehension that seems to have misinformed the drafting of s 9(2) of the Crown Lands Act.
56. There is a distinct argument that the Pastoral Land Act does not authorise the transfer of a pastoral lease from a lessee to the Northern Territory. In this connection reference was made to the requirement for ministerial consent to the transfer of leases under s 67 as well as the obligations of lessees to the Crown to comply with the conditions of their leases upon pain of forfeiture. These provisions and the scheme of the Act generally were said to exclude the possibility of a transfer to the Crown itself. It is true that these provisions may have little if any work to do in the case of a transfer of a lease to the Crown. But that does not of itself prevent the Crown from acquiring, by transfer or otherwise, the interests comprised in a pastoral lease. Indeed considerations of practical convenience may make the capacity of the Crown to hold such leases useful. There is nothing which offends any fundamental principle in so concluding. The Crown in right of the Territory could, consistently with the concept of radical title, in the exercise of its sovereignty under statutory powers create for itself a bundle of rights and interests comprising a pastoral lease.
57. In the reasons for judgment of Sackville J, which I have had the opportunity of reading in draft, his Honour suggests that the want of any explicit provision for transfer of leases under the Pastoral Land Act reflects a legislative intention that the transfer of such interests be effected under the Real Property Act which provides for such transfers to be effective by virtue of their registration. I agree with his Honour that this is the most plausible explanation of the relationship between the two statutes so that the special provisions of the Pastoral Land Act are seen to be integrated into the general system of title by registration for which the Real Property Act provides. That integration also provides an answer to the argument, based upon s 95 of the Real Property Act, that that Act could not be relied upon as a source of power for the transfer of PPL 1069 to or from the Northern Territory. To apply the transfer provisions of the Real Property Act to the transfer of pastoral leases, assuming them to be Crown leases for the purposes of that section, does not ‘give any greater effect or different construction’ to the leases, contrary to s 95, than if the Real Property Act had not been passed. The fact that a statutory lease can be transferred pursuant to a statutory provision goes neither to its effect nor to its construction.
58. Concluding as I do, that the Northern Territory was empowered to take a transfer of PPL 1069 and to hold the lease, there is no need to resort to the indefeasibility provisions of the Real Property Act to support its title.
59. The applicants submitted that the NTLC was not empowered by its Act to acquire an interest in land from the Crown. Alternatively it was said that the scheme of the Pastoral Land Act did not provide for a transfer by the Crown of any crown land to a third person.
60. The NTLC was initially established as the Northern Territory Development Land Corporation pursuant to the Territory Development Act. It was continued by the Northern Territory Land Corporation Act. By s 4(2) of that Act:
4(2) The Corporation is —(a) a body corporate with perpetual succession and a common seal; and
(b) capable, in its corporate name, of —
(i) subject to this Act, acquiring, holding and disposing of real (including leasehold) and personal property; and
(ii) suing and being sued.
The Corporation is not an authority or instrumentality of the Crown and is not subject to the control and direction of a Minister of the Crown (s 6). Its function is described in s 15 thus:
15(1) The function of the Corporation is to acquire (by agreement or otherwise), hold and dispose of real property (including an estate or interest in real property) in accordance with this Act and it may acquire and hold such property notwithstanding any other law in force in the Territory which would restrict or otherwise limit the capacity of the Corporation to acquire and hold it. ...
The Administrator is empowered to declare any land in respect of which all the right title and interest is vested in the Territory or where no person other than the Territory or the Corporation holds a right, title or interest, to be vested in the Corporation (s 16(1)). Application of such a notice vests in the Corporation all right, title and interest legal and beneficial in respect of the land as though the notice were an alienation in fee from the Crown by way of grant to the Corporation (s 16(2)). There is also provision for registration of such a notice as though it were an instrument of transfer or conveyance to the Corporation (s 16(3)).
61. There can be no doubting the power of the Northern Territory Land Corporation, under its Act, to take a transfer of a pastoral lease from the lessee thereof. What is said in this case is that the transfer of PPL 1069 to the Corporation was not in accordance with the only permitted processes, set out in ss 15 and 16, by which it could acquire interests in land. The function of the Corporation to acquire interests in real property under s 15, it was submitted, was limited by the words ‘by agreement or otherwise’ which appear in parentheses in that section. Those words were said to confine the modes of acquisition permitted under s 15 to acquisition by purchase from a third party. Alternatively it was said the process under s 16, of vesting land or interests in land in the Corporation, was available but was not followed. In my opinion this argument is untenable. The provisions of s 15 are facultative and allow for acquisition by ‘agreement or otherwise’. The words ‘or otherwise’ allow for any mode of lawful acquisition. Transfer from the Territory is one of those modes. The transfer of the lease to the Corporation was therefore valid.
62. I also agree, for the reasons given by Sackville J, that the necessary consent to the transfer of PPL 1069 to the Northern Territory Land Corporation had been given.
63. Having regard to the conclusions I have already reached, it is unnecessary to consider the operation of the indefeasibility provisions of the Real Property Act upon the registration of the transfer of PPL 1069 to the Territory and the Corporation respectively. In the event, however, that my primary conclusions are wrong, I agree with Sackville J in relation to the operation and effect of the indefeasibility provisions.
...
70. For the reasons set out above, I would dismiss the application with costs.
71 I agree with the reasons for judgment delivered by Sackville J and the reasons of French J incorporated therein. I also agree with the orders proposed by Sackville J.
...
73. The course of events has been set out in the judgment of French J and I need not repeat his Honour’s account ...
80. The submission on behalf of the applicants was put in various ways, some of which were not pursued. In particular, Mr Basten QC, who appeared with Mr Williams for the applicants, abandoned a contention that any pastoral lease acquired by the Territory would necessarily merge with either or both of the Territory’s radical title or its reversionary interest in the land subject to the pastoral lease. Mr Basten did so, correctly in my view, having regard to observations made by members of the High Court in The Wik Peoples v Queensland (1996) 187 CLR 1.
...
84. The applicant’s submissions appeared to assume that, if the Pastoral Land Act did not authorise the transfer of PL 759 from the Bank (exercising its power of sale) to the Territory or the registration of the Territory as proprietor of PPL 1069, the latter’s title was void notwithstanding the fact that it was registered under the Real Property Act ...
85. There is, however, an anterior question, namely whether the Territory itself is entitled to the protection of the indefeasibility provisions of the Real Property Act in respect of its registered title to PPL 1069. These are contained in ss 67-70 of the Real Property Act, which are in precisely the same terms as ss 67-70 of the Real Property Act 1886 (SA). (The South Australian Act is the source for much of the Northern Territory enactment.) ...
86. As I have noted, Mr Basten initially framed the applicants’ contention, that the Territory could not acquire a pastoral lease in its own right, in terms of the doctrine of merger. When he abandoned reliance on that doctrine, I think it fair to say that the basis for the applicants’ argument that the Territory could not validly acquire such a lease was not formulated with precision. However, I understand the substance of the argument to be that the Pastoral Land Act assumes in its language and construction that pastoral leases will not and cannot be granted or transferred to the Territory. It was said that for this reason, while pastoral leases are generally assignable or transferable, they cannot be assigned or transferred to the Territory and thus the purported transfer of what was described as PL 759 by the Bank to the Territory was void. It appeared to have been assumed in oral argument that registration of the Territory on 21 July 1993 as the proprietor of PPL 1069 could not improve the Territory’s title.
87. Section 69 II of the Real Property Act has no counterpart elsewhere in Australia (other than South Australia). There has been some controversy as to the particular question of whether an innocent party registering a forged transfer or other instrument is entitled to the benefits of so-called immediate indefeasibility, having regard to the language of s 69 II. The view that has prevailed in South Australia is that the registered proprietor of an estate or interest in land, being a bona fide purchaser for value, acquires an indefeasible title to that estate or interest, notwithstanding that he or she acquired registration by means of a forged instrument: Arcadi v Whittem (1992) 59 SASR 515, at 535-536, per Debelle J with whom Matheson J agreed (special leave refused sub nom Nield v Whittem (1993) 67 ALJR 514); followed in Public Trustee v Paradiso (1995) 64 SASR 387 (FC); contra Rogers v Resi-Statewide Corporation Ltd [1991] FCA 186; (1991) 29 FCR 219 (von Doussa J).
88. Subject to one exception, this line of authority brings South Australia (and the Northern Territory) into line with the construction of the Torrens legislation in other States and Territories, notwithstanding that none of these has any equivalent to s 69 II: Breskvar v Wall (1971) 126 CLR 376. That is to say, a registered proprietor who obtains registration in good faith and for value on the basis of an instrument that is void will ordinarily be entitled to an absolute and indefeasible title notwithstanding the invalidity of the instrument or dealing by which he or she obtains registration. In the words of Barwick CJ in Breskvar v Wall, at 385-386:
The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor. Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument is void.
The exception in South Australia, to which I have referred, is that where a registered proprietor has obtained registration from a ‘person under disability’, s 69 II appears to deny the proprietor the benefits of immediate indefeasibility: Wicklow Enterprises Pty Ltd v Doysal Pty Ltd (1986) 45 SASR 247 (O’Loughlin J), at 260-261; Arcadi v Whittem, at 536. In addition, although the point was not referred to by counsel in oral argument, it may be that a volunteer cannot claim the protection of the indefeasibility provisions of Torrens legislation. This has been held to be the position in Victoria (King v Smail [1958] VicRp 44; [1958] VR 273 (Adam J); Rasmussen v Rasmussen [1995] VicRp 38; [1995] 1 VR 613 (Coldrey J); Valoutin Pty Ltd v Furst [1998] FCA 339; (1998) 154 ALR 119 (Finkelstein J)), although a different view has been taken in New South Wales (Bogdanovic v Koteff (1988) 12 NSWLR 472 (CA)): see also Sackville and Neave, Property Law Cases and Materials (6th ed 1999), para 6.3.69.
89. It is common ground that the Territory was a purchaser for value from the Bank. There is no suggestion that the transfer from the Bank to the Territory was a forgery (notwithstanding what, on one view, may have been an inaccurate or incomplete description of the interest transferred). Nor is it suggested that the Bank was a ‘person under disability’ (although Mr Basten did argue that, if the Territory’s registration as proprietor of the Billengarrah pastoral lease were void or otherwise ineffective, the Territory was a ‘person under disability’ in relation to its transfer to the Land Corporation). Thus whatever view is taken of the scope of s 69 II, the Territory, as the registered proprietor of PPL 1069, could not, by virtue of that provision, be denied the benefits of immediate indefeasibility. Nor, I should add, is there anything to suggest that the Territory’s title was subject to the so-called in personal exception to indefeasibility: Breskvar v Wall, at 384-385, per Barwick CJ; Bahr v Nicolay [No 2] [1988] HCA 16; (1988) 164 CLR 604, at 637-638, per Wilson and Toohey JJ.
90. Even in these circumstances, however, the principle of immediate indefeasibility does not necessarily lead to the conclusion that the Territory acquired an indefeasible title to PPL 1069 upon registration of its transfer from the Bank. It is well established, for example, that where there is a conflict between the title of the registered proprietor of land and an unregistered interest in the same land created by a statute enacted later than the relevant Real Property Act, the unregistered statutory interest prevails: The South-Eastern Drainage Board (South Australia) v The Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603 (an unregistered statutory charge held to prevail over the title of the registered proprietor); Pratten v Warringah Shire Council [1969] 2 NSWLR 161 (unregistered statutory vesting of land in a council prevailed over subsequently registered title of the proprietor); Travinto Nominees Pty Ltd v Vlattas [1973] HCA 14; (1973) 129 CLR 1, at 33-34, per Gibbs J (with whom Menzies J agreed, at 30) (statute avoiding a provision in a registered lease given effect). Similarly, a statute which renders a term in a registered lease illegal will have the effect of rendering that provision ineffective or unenforceable: Travinto Nominees, at 18, per Barwick CJ (with whom McTiernan and Stephen JJ agreed); cf Benmar Properties Pty Ltd v Makucha [1996] 1 Qd R 578 (CA).
91. Moreover, not all the provisions of a registered instrument will necessarily acquire the quality of indefeasibility. In Mercantile Credits Ltd v Shell Co of Australia Ltd [1976] HCA 9; (1976) 136 CLR 326, Gibbs J adopted (at 343) the proposition, endorsed by the Judicial Committee of the Privy Council in Waimiha Sawmilling Co Ltd (in liq) v Waione Timber Co Ltd [1926] AC 101, at 106, that ‘[n]othing can be registered the registration of which is not expressly authorized by the statute’. ...
92. It is therefore necessary to consider whether there is anything in the language or structure of the Pastoral Land Act or Real Property Act, which denies to the Territory the quality of indefeasibility that ordinarily attaches to a title registered under the Real Property Act ...
95. The Pastoral Land Act came into force on 26 June 1992. At that time, PL 759 was in existence and registered under the provision of s 93 of the Real Property Act and Ordinance 1886 (NT), although there had been several transfers registered in the intervening period. The continuing effect of a ‘pastoral lease’ (defined in s 3(1) to mean a lease granted over land for pastoral purposes) was dealt with by the transitional provisions of the Pastoral Land Act. Section 129 provides that a pastoral lease in existence immediately before the commencement of the Act ‘shall, subject to section 130, continue in existence under this Act after the commencement as if granted under this Act for the unexpired period of its term ...’.
96. Section 130(2) of the Pastoral Land Act provides a mechanism for the Minister to declare that a pastoral lease, on and from the date specified in the declaration, should be a perpetual pastoral lease, subject to the reservations and conditions specified in the declaration and those applicable to perpetual pastoral leases under the Act. As I have explained, it was the exercise of this power that resulted in the creation of PPL 1069 as from 1 April 1993 ...
97. The effect of the Minister’s declaration, as stated by s 130(2) of the Pastoral Land Act, was that, from the date specified in the declaration:
the pastoral lease shall for all purposes be taken to be a perpetual pastoral lease as if granted as such under this Act on that date.
Section 132 of the Pastoral Land Act provides as follows:
Nothing in this Act derogates the legal or equitable rights of a person that existed in or in relation to land immediately before becoming the subject of a perpetual pastoral lease under this Act by virtue of section 130 (other than the rights of the Crown in right of the Territory as the lessor of the land) and those rights shall continue and may be enforced against the pastoral lessee in the same manner as they could have been enforced immediately before the land became so subject.
98. The application to register the Minister’s declaration (VO No 282 998) recorded that it was made under ‘Section 113’. This is a reference to s 113 of the Real Property Act which was introduced in 1989 and amended in 1991. Section 113 provides that where the Registrar-General is satisfied, whether by reason of an application or on his or her own motion, that land or an interest in land has become vested in or granted to a person by or under any Act (including an Act of the Commonwealth), the Registrar-General must make an entry in the Register (that is, the Register established under s 47 of the Real Property Act) as he or she considers necessary and may issue such certificates of title as he or she thinks fit. This appears to impose a duty on the Registrar-General to act where land (which is defined to include any estate or interest in land) becomes vested in or granted to any person under an Act. There is no reason to doubt that s 113 encompasses registration of a Ministerial declaration made under s 130(2) of the Pastoral Land Act.
99. It is clear from this description of the statutory provisions that registration or deemed registration of title to pastoral leases, whether for a fixed term or in perpetuity, has been integral to the legislative scheme governing such leases. ...
100. Within this framework, the question that arises is whether a pastoral lease validly granted under the law of the Territory and registered under the Real Property Act is capable of being transferred to the Territory itself so that, upon registration of the transfer, the Territory acquires an indefeasible title to the pastoral lease. To answer this question, reference must also be made to the legislation relating to the transfer or assignment of pastoral leases and the provisions of the Pastoral Land Act governing the terms of pastoral leases.
101. The Pastoral Land Act does not expressly provide that pastoral leases granted or continued in existence under the Act are transferable or assignable. Section 67(1) simply states, so far as relevant, that a pastoral lessee is not, without the consent of the Minister, to transfer his or her pastoral lease and that compliance with the sub-section is a condition of the lease. Section 68 establishes a detailed procedure for the making of applications to the Minister and for recommendations to be made by the Board in respect of such applications. Plainly, as all parties in the present case accepted, ss 67 and 68 of the Pastoral Land Act assume that pastoral leases are transferable or assignable. And they apply to perpetual pastoral leases, as well as pastoral leases for a fixed term: see s 48 providing that a pastoral lease may be in perpetuity or for a fixed term.
102. During the course of argument it was suggested that the transferability of a pastoral lease derived from the fact that, under the general law, a lease is assignable. (Under the general law a lease is assignable even if it contains a covenant against assignment, although breach of the covenant may expose the assignee to forfeiture of the lease: Barrow v Isaacs & Son [1891] 1 QB 417.) It was said that the transferability of a pastoral lease was implicit in the statutory description of a lease or, alternatively, the transferability of a pastoral lease was to be inferred from the language of ss 67 and 68 of the Pastoral Land Act.
103. In my opinion, a more convincing explanation for the drafting assumptions underlying ss 67 and 68 of the Pastoral Land Act is that the drafter took the view that a pastoral lease would be registered or deemed to be registered under the Real Property Act. As such, the pastoral lease can be the subject of a transfer executed pursuant to s 150 of the Real Property Act, which provides, inter alia, that a registered lease ‘may be transferred to any person by a transfer as aforesaid, or by an instrument in the prescribed form’. Section 151 addresses the effect of such a transfer or instrument:
Upon such transfer or other instrument being registered, the estate or interest of the transferor, as set forth in the instrument transferred ... shall pass to the transferee, and such transferee shall, while he remains the registered proprietor of such estate or interest, be subject to and liable for all and every the same requirements and liabilities to which he would have been subject and liable if named in the transferred instrument originally as ... lessee ...
The reference in s 150 to ‘a transfer as aforesaid’ appears to be to s 96 of the Real Property Act. This provides that where any land is to be transferred, the dealing is to be effected by a transfer in the prescribed form executed by the registered proprietor or, in the case of a transfer of land by a mortgagee or encumbrancee, that mortgagee or encumbrancee.
104. There is no reason, in my view, to construe ss 150 and 151 as excluding Crown leases from their scope. In The English Scottish and Australian Bank Ltd v Phillips [1937] HCA 6; (1937) 57 CLR 302, at 322, a case on the Real Property Act 1886 (SA), the joint judgment of Dixon, Evatt and McTiernan JJ observed that the ‘language [of s 150] conferring the power of transfer by registered instrument is universal’. While that case did not involve a Crown lease, the broad view taken of s 150 gives no support to the notion that it should be read down. Moreover, the view that ss 150 and 151 extend to pastoral leases is consistent with practice in the Northern Territory. This is illustrated by the fact that the transfer of PL 759 in the present case followed the forms prescribed for transfers by the Real Property Regulations. It is also consistent with the view long taken under the Real Property Act 1886 (SA) that ‘Crown Leases when registered may be dealt with for all the purposes of the Torrens Statute, as if they had been granted under the System in the ordinary way ...’: Kerr, The Principles of the Australian Lands Titles (Torrens) System (1927), at 30.
105. At the heart of the applicants’ submissions was the proposition that the Pastoral Land Act did not permit the Northern Territory to acquire, whether by transfer or otherwise, title to a pastoral lease. There is nothing in the Pastoral Land Act which expressly prohibits or disentitles the Territory from acquiring a pastoral lease. Yet it is fair to say that, if the Pastoral Land Act is considered in isolation from the provisions relating to the registration and transfer of pastoral leases, there are some indications that the drafter did not contemplate that the Territory itself would acquire a pastoral lease ...
107. In my opinion, however, it is not appropriate to consider these and like provisions in the Pastoral Land Act in isolation from the legislative mechanisms for the registration and transfer of pastoral leases and from the provisions of the Real Property Act itself. As I have explained, the legislation at all material times has provided for the deemed registration, or required the registration of pastoral leases under the Real Property Act and has contemplated that they will be registered and dealt with under that Act.
108. In Wik, the judgments explored the long history of pastoral leases in Australia within the framework of statutory controls over the alienation by the Crown of interests in land: see at 108-112, per Toohey J; at 172-177, per Gummow J, at 226-230, per Kirby J. The judgments emphasise that pastoral leases are the creature of statute and that their terms and effect are not to be construed as if they are intended to conform to common law concepts: at 112, 118 per Toohey J; at 149-154, per Gaudron J; at 189-190, 195-198, 203, per Gummow J. As Kirby J said (at 242):
[p]astoral leases give rise to statutory interests in land which are sui generis. Being creatures of Australian statutes, their character and incidents must be derived from the statute.
109. It follows from Wik that a pastoral lease is a creature of statute and that its scope and effect are not to be determined by preconceived notions derived from the common law. The characteristics and incidents of pastoral leases, as creatures of statute fall to be determined not merely by the Pastoral Land Act, but by the Real Property Act. In particular, ss 150 and 151 of the Real Property Act provide a mechanism for a registered pastoral lease to be transferred, while s 69 confers the quality of indefeasibility upon the registered title of the proprietor of a pastoral lease. Subject to the effect of s 95 of the Real Property Act (to which I refer later), these provisions, in my view, overcome any difficulty that might otherwise arise from the circumstance that the Northern Territory is both the registered proprietor of a pastoral lease and, through the Minister or the Board, is responsible for enforcing its terms and conditions.
110. This conclusion is reinforced by the authorities dealing with the effect of the Real Property Act on the common law doctrine of merger. In ES&A Bank v Phillips, the question was whether the liability of a mortgagor on personal covenants contained in a registered mortgage was extinguished by reason of the fact that the mortgage, for a time, had vested in the mortgagor himself (that is, in the registered proprietor of the land). The majority of the High Court held that the common law doctrine of merger did not apply to a mortgage registered under the Real Property Act 1886 (SA).
111. The joint judgment considered (at 322) that ‘the most important consideration’ was the ‘universal’ language of s 150 which imposed no limit on the persons who could deal in the interest created by mortgage or lease ...
112. The majority in Phillips did not find it necessary to resolve the question of whether a registered lease might be affected by the doctrine of merger. However, in Cooper v Federal Commissioner of Taxation [1958] HCA 46; (1958) 100 CLR 131, the Court expressed the view (at 142), on the authority of Phillips, that
a registered leasehold interest does not merge at law so long as it remains registered as a separate estate or interest and that [this view] appears to conform better with the Torrens system.
See also Shell Co of Australia Ltd v Zanelli [1973] 1 NSWLR 216 (CA), at 221, per Jacobs P, with whom Hardie J and Reynolds JA agreed.
113. The issue in the present case is not whether a common law doctrine, such as merger, applies to leases created by statute. It is, rather, whether an inference should be drawn from the Pastoral Land Act to the effect that the Territory cannot be both a pastoral lessee and the entity responsible for enforcing the terms and conditions of a pastoral lease. The authorities to which I have referred support the conclusion that, having regard to the terms of the Real Property Act, no such inference need or should be drawn. It is true that the Territory, as the holder of the pastoral lease, will be required to observe the terms of the Pastoral Land Act and that the Minister will have simultaneous responsibility for enforcing the Act. But there is nothing inherently absurd or impracticable in this state of affairs.
114. This conclusion is consistent with the stated objects of the Pastoral Land Act and the ‘general duty’ of pastoral lessees. The objects of the Act (s 4) include providing a form of tenure of Crown land that facilitates the sustainable use of land for pastoral purposes and the economic viability of the pastoral industry; monitoring pastoral land; preventing or minimising degradation of the land; and recognising the rights of Aborigines to follow traditional pursuits on pastoral land. Pastoral lessees are obliged (s 6) to carry out the pastoral enterprise under the lease; to participate in the monitoring of the environmental and sustained productive health of the land; and, within reasonable limits, to improve the condition of the land. There is nothing in these provisions which is incompatible with the Territory acquiring a pastoral lease. On the contrary, circumstances can be envisaged in which the acquisition by the Territory of a pastoral lease might well enhance the objectives of the legislation. The documentary evidence in this case, for example, indicated that the Galvins (the registered proprietors of PL 759 who mortgaged the land to the Bank) had walked off the property and that the Bank, prior to transferring the property to the Territory, had appointed a caretaker. There may well be environmental and economic reasons why it would be beneficial for the Territory to acquire the pastoral lease.
115. The position might of course be different if the Pastoral Land Act contained provisions prohibiting the Territory from obtaining registration as the proprietor of a pastoral lease. Such provisions would be likely to bring into play the principles established in cases such as South-Eastern Drainage Board, Pratten and Travinto Nominees. However, there is nothing to that effect in the legislation.
116. I should add that there is nothing in the Crown Lands Act which detracts from the conclusion I have expressed. The Crown Lands Act specifies detailed procedures governing the manner in which the Minister is to exercise the power to grant an estate in fee simple or lease of Crown land (ss 12-17). It also establishes classes of Crown leases (s 26) and makes provision, inter alia, for general conditions and reservations applicable to leases under the Act and the consequences of breach of conditions (ss 27, 36, 38).
117. The Crown Lands Act is not, however, intended to affect the grant or transfer of pastoral leases pursuant to the Pastoral Land Act [and] does not affect the statutory regime governing pastoral leases in any way material to the issues in the present case.
118. The applicants’ submissions relied on s 95 of the Real Property Act to impugn the registered title of the Land Corporation. The same, or similar, arguments can be used to support the proposition that the Territory cannot acquire a pastoral lease under the Pastoral Land Act and its position cannot be improved by registration of the pastoral lease under the Real Property Act. Section 95 of the Real Property Act reads as follows:
Nothing herein contained or hereby implied shall be construed to give any greater effect or different construction to any Crown lease registered pursuant to this part of this Act than would have been given to it if this Act had not been passed, nor shall any right or remedy, which the Crown would otherwise have possessed, be in any way prejudiced or altered.
121. ...[T]he explanation for s 95 taking its current form appears to be historical. Part IX of the Real Property Act, until its amendment in 1991, provided for registration of every Crown lease in the Register Book of Crown Leases (s 93(1)). It also provided (s 93(2)) that such Crown lease should thereupon
be deemed to be registered and may be transferred, mortgaged and dealt with for all the purposes of this Act, as if it had been granted by a registered proprietor and registered in the Register Book in the ordinary way excepting only that any entries which ordinarily would require to be made in the Register Book shall be made in the Register of Crown Leases, and on the folio constituted by the Crown lease.
Within that context, s 95 was apparently addressed to the effect of registration of a Crown lease in the Register Book of Crown Leases (and of the deemed registration under the Real Property Act). Section 95 has been carried over into the consolidated Real Property Act notwithstanding the repeal of the old s 93 and the insertion of the new s 93.
122. The Territory became the registered proprietor of PPL 1069 on 21 July 1993. PPL 1069 had come into existence by virtue of the exercise by the Minister of his powers under s 130(2) of the Pastoral Land Act to declare that so much of PL 759 as had not been excised would be, as from 1 April 1993, a perpetual pastoral lease. The declaration thus took effect prior to the execution by the Bank of the transfer to the Territory and by the Territory of the transfer to the Land Corporation. The declaration itself was registered in the Register established under the Real Property Act pursuant to s 113 of that Act. Apparently at the time the declaration was registered, a recording was made in the Register of Crown Leases that PL 759 had been cancelled.
123. This course of events seems to me consistent with the intention underlying s 130(2) of the Pastoral Land Act. The effect of the Ministerial declaration was that the pastoral lease was, for all purposes, to be taken to be a perpetual pastoral lease, as if granted as such under the Pastoral Land Act on the date specified in the declaration. To the extent that PPL 1069 can be said to have been registered pursuant to the Real Property Act, the registration took place pursuant to s 113. Section 113 is not in Part IX of the Real Property Act, but in Part X, headed ‘Transfers’.
124. It may be that PL 759, at least at one stage in its life, answered the description of a ‘Crown lease registered pursuant to [Part IX of the Real Property Act]’. But, as I have explained, PPL 1069 was created by the declaration made pursuant to the power conferred on the Minister by s 130(2) of the Pastoral Land Act (in Part XII of the Act). The declaration was effective as from 1 April 1993. If PPL had been granted as a perpetual pastoral lease under the Pastoral Land Act on 1 April 1993 (as s 130(2) says should be taken to be the case), it would neither have been granted nor registered under Part IX of the Real Property Act. It follows that PPL 1069 is not a ‘Crown lease registered pursuant to [Part IX of the Real Property Act]’ and is therefore not subject to s 95 of the Real Property Act.
125. Even if, contrary to my view, s 95 of the Real Property Act can be said to apply to PPL 1069, I do not think that it bears on the question of whether the legislative scheme permits the Territory to acquire title to a pastoral lease under the Pastoral Land Act or its legislative predecessors. As a matter of construction, s 95 is concerned with the interpretation and enforcement of particular terms and conditions of a registered Crown lease, rather than with the effect of registration of a transfer of a Crown lease on the title of the registered proprietor to that lease.
126. The point is illustrated by the direction in s 95 that a registered Crown lease is not to be given a different construction by virtue of registration of the lease pursuant to Part IX of the Real Property Act. That direction can only affect a term of the Crown lease, whether included in the text of the registered lease or incorporated by statute. Similarly, any right or remedy of the Crown is not to be in any way altered or prejudiced. This, too, is a reference to the Crown’s entitlement to enforce a term or condition of the Crown lease. Plainly, the legislature was concerned that, in the absence of a provision such as s 95, registration of the lease under Part IX of the Real Property Act might have led to a different construction of particular terms and conditions in or applicable to Crown leases, or to a diminution in the rights of enforcement of those terms and conditions otherwise available to the Crown.
127. It is true that s 95 also says that nothing in the Real Property Act is to give any greater effect to any Crown lease registered pursuant to Part IX. But this, too, seems to me intended to refer to the effect of particular terms and conditions in or applicable to a Crown lease. For example, s 95 addresses the kind of issue considered by the High Court in Mercantile Credits v Shell, namely whether what would otherwise be characterised as personal covenants in a Crown lease are to be elevated, by virtue of registration, to the status of covenants running with the land. I do not think s 95 is intended to abrogate the doctrine of indefeasibility of title which is integral to the scheme of registration of title established by the Real Property Act.
128. If the applicants’ construction of s 95 were correct, there would seem to be little point to the detailed provisions governing the registration or deemed registration of Crown leases under the Real Property Act. It is unlikely that the legislature intended both to create a structure which contemplates the applicability to Crown leases of the well recognised system of registration of title created by the Real Property Act, but, at the same time, to deny the applicability of that system to Crown leases.
...
138. At the heel of the hunt, the applicants submitted that no application had ever been made by the Territory pursuant to s 68(1) of the Pastoral Land Act for the Minister’s consent to the transfer of the pastoral lease to the Land Corporation and that any purported transfer by the Territory to the Land Corporation was therefore invalid ...
139. It is true that s 68(1) of the Pastoral Land Act provides that an application for consent to transfer a pastoral lease shall be made in writing by the lessee. There may be a factual question as to who was the lessee of PPL 1069 on 22 June 1993, for the purposes of s 68(1) of the Pastoral Land Act. In any event, there is no warrant for reading s 68(1) of the Pastoral Land Act as invalidating a consent given by the Minister’s delegate to the proposed transfer merely because the written request was made by the proposed transferee rather than the current lessee. The consent was given to precisely the transfer that ultimately was executed and registered.
140. In my opinion, upon registration of the Territory as proprietor of PPL 1069, it acquired an indefeasible title to PPL 1069. For the reasons given by French J, I agree that there was no impediment to the Land Corporation taking and registering a transfer of PPL 1069 from the Territory. Since the Territory had an indefeasible title to PPL 1069, the Land Corporation’s status as a volunteer is immaterial. It acquired a good title to PPL 1069 upon registration of the transfer from the Territory. It follows that the Commissioner was correct to conclude that he had no jurisdiction to perform in relation to the application. The application should be dismissed with costs.
Counsel for the Applicants:
Mr J Basten QC with Mr N J Williams
Solicitor for the Applicants:
Mr R Levy
Solicitor for the First Respondent:
Australian Government Solicitor
Counsel for the Second Respondent:
Mr G Hiley QC with Mr T Anderson
Solicitor for the Second Respondent:
Clayton Utz
Counsel for the Third Respondent:
Mr T Pauling QC SG with Ms R Webb
Solicitor for the Third Respondent:
Solicitor for the Northern Territory
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2001/3.html