Federal Court of Australia

Dungog Shire Council v Attorney General of New South Wales [2024] FCA 166

ORDERS

THE COURT ORDERS THAT:

1.    The parties confer and provide to the Associate to Justice Burley within 21 days, draft short minutes of order giving effect to these reasons, marked up to indicate any points of disagreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1.1    The proceedings

1    These proceedings concern an application brought by Dungog Shire Council pursuant to s 61(1) of the Native Title Act 1993 (Cth) seeking a determination that native title does not exist in respect of the Paterson Sportsground, which is located in the town of Paterson, New South Wales, and described by reference to Lot 102 in Deposited Plan 1277773 and Lot 81 in Deposited Plan 823698 (the Land).

2    The first respondent is the Attorney General of New South Wales, the second respondent is NTS Corp Limited and the third respondent is Scott McCain Franks.

3    The claim advanced by Dungog Shire Council is based on the contention that before 23 December 1996 the Land was the subject of a previous exclusive possession act within the meaning of s 23B(2)(c), being the grant or vesting of a freehold estate. This is said to have been so either by virtue of a grant on 30 June 1823 of 2,090 acres (including the Land) by Governor Thomas Brisbane to James Phillips by instrument (1823 Deed) or alternatively by virtue of a conveyance in fee simple on 15 May 1880 of land (including the Land) by Deed of Indenture (1880 Deed). As noted below, the alternative argument based on the 1880 Deed was not pressed at the hearing.

4    Mr Franks, who claims to hold native title in respect of the area, including the Land, opposes the application. He contends that Dungog Shire Council is not vested with the power to bring it. This gives rise to a preliminary question concerning whether the application has been properly brought and arises in the context of question (1) below. Mr Franks also contends that in any event the application should fail on its merits because the 1823 Deed did not vest a freehold estate in Mr Phillips and nor did the 1880 Deed. This gives rise to questions (2) – (5) below. NTS Corp generally adopts the position taken by Mr Franks. The Attorney General generally, but not entirely, supports the position adopted by Dungog Shire Council.

5    The dispute between the parties has been framed by reference to the following five separate questions:

(1)    Does Dungog Shire Council have power, having regard to the terms of the Local Government Act 1993 (NSW) (LGA), the Crown Land Management Act 2016 (NSW) (CLM Act) and/or the Interpretation Act 1987 (NSW), to make the present application pursuant to s 61 of the Native Title Act?

(2)    Were all native title rights and interests that might once have existed in respect of the Land extinguished by the grant of 2,090 acres of land by Governor Thomas Brisbane to James Phillips by the 1823 Deed?

(3)    Was the grant described in question (2) a ‘previous exclusive possession act’ within the meaning of s 23B of the Native Title Act and s 20 of the Native Title (New South Wales) Act 1994 (NSW) (NSW Native Title Act)?

(4)    In the alternative to (2) and (3), were all native title rights and interests that might once have existed in respect of the Land extinguished by the sale of land described in the 1880 Deed, for an estate in fee simple conveyed by Stephen Stanbridge and Harriet Stanbridge to Queen Victoria?

(5)    Was the grant described in question (4) a ‘previous exclusive possession act’ within the meaning of s 23B of the Native Title Act and s 20 of the NSW Native Title Act?

6    Dungog Shire Council has given notice under s 78B of the Judiciary Act 1903 (Cth) to the effect that if the answer to question (1) is “no” and it is found that, properly construed, legislation of the State of New South Wales precludes or materially qualifies the power of Dungog Shire Council to make an application under s 61 of the Native Title Act, then matters arising under the Constitution or involving its interpretation may arise. The parties have agreed that the applicability of this notice will await the outcome of the answers to (1) – (5).

7    For the reasons set out in more detail below, I have found that the questions should be answered as follows:

(1)    Yes.

(2)    No.

(3)    No.

(4)    No.

(5)    No.

As the answer to question (1) is “yes”, the constitutional question does not arise.

8    Dungog Shire Council relies on three affidavits of Vanessa Field, solicitor, which set out the background to the applications, provide documents relevant to the history of transactions applicable to the Land and identify and annex documents concerning the power of Dungog Shire Council to make the present application. The Attorney General relies on an affidavit of Sasha Lowes, solicitor, annexing historical records that have been obtained with the assistance of researchers and an historian engaged to assist the Court in considering the transactions under scrutiny. Mr Franks relies on two affidavits of Dante Mavec, solicitor, annexing further historical records relevant to the transactions under scrutiny. No objection was taken to any of the evidence filed and there was no cross-examination. At this point, I should like to express my gratitude to those who have conducted the historical research involved, which must have been extensive.

1.2    The Land

9    The Form 2 Application records the following details in relation to the Land.

10    The 1823 Deed concerned the grant of 2,090 acres to James Phillips which was subsequently surveyed (possibly in 1833) as portion 35 in the Parish of Houghton County of Durham. It was shown in Crown Plan 4862. Mr Phillips named the property “Bona-Vista”. The Land forms a part of the grant.

11    In 1841, some of the 2,090 acres located to the east of the Land were sold to Felix Wilson and the balance was mortgaged in favour of David Jamieson and George Turner.

12    An indenture dated 24 January 1848 records that that part of Bona-Vista was transferred to Mr Jamieson and Mr Turner and that Mr Turner in August 1841 acquired Mr Jamieson’s rights to it. Mr Turner’s rights were sold to William Todd and subsequently Mr Todd’s rights were sold to Mr Turner and Oswald Bloxsome.

13    The rights of Mr Turner and Mr Bloxsome were transferred by indenture dated 30 March 1850 to Mr Bloxsome and Thomas Iceton.

14    On 26 September 1861, that part of the original land grant identified as Lots 36 – 43 of what was then known as the “Bona Vista Estate” was purchased by Stephen Stanbridge from Mr Iceton and John Ritchie.

15    On 15 May 1880, that land was purchased by Queen Victoria from Stephen and Harriet Stanbridge under the 1880 Deed.

16    On 29 December 1885, the purchased land was declared subject to the Public Parks Act 1884 (NSW) (48 Vic No 22) to be known by the name of Paterson Park.

17    On 15 February 1886, seven men, including Mr Stanbridge, were appointed as the initial trustees of Paterson Park.

18    On 5 December 1986, by notice in the NSW Government Gazette, Paterson Park was renamed “Paterson Sportsground”.

19    On 11 July 1997, the 1885 proclamation for public park was revoked and lots 80 and 81 of DP 823698 were reserved for Public Recreation.

20    On 11 February 2022 (after the filing of the application) by notices in the NSW Government Gazette No 41, the Crown Lands Minister revoked part of the reservation and reduced the amount of land within the Paterson Sportsground. The remaining part of Lot 80 in DP 823698 (now identified as Lot 102 in DP 1277773) remains part of Paterson Sportsground along with Lot 81. The parties proceeded on the basis that the separate questions concerned this amended description of the Land. Accordingly, the Land comprises Lot 102 in DP 1277773 and Lot 81 in DP 823698.

1.3    Dungog Shire Council

21    The Land is located within the Local Government Area of Dungog Shire Council, which is the Shire Council constituted for the area pursuant to s 219 of the LGA.

22    Prior to 2016, Dungog Shire Council was the trustee corporation having powers to manage the Land as trustee under the Crown Lands Act 1989 (NSW). Upon commencement of the CLM Act, by operation of its transitional provisions, Dungog Shire Council became the “Crown land manager” under the CLM Act. That Act provides at s 3.20 that Crown land managers that are councils are “council managers” with respect to certain reserves.

23    Dungog Shire Council is a Crown land manager or “council manager” in relation to the Land, with powers, rights and privileges over or in connection with the whole of the Land pursuant to the provisions of the LGA and s 3.20 of the CLM Act. As such, it is common ground that Dungog Shire Council is a “person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought” within s 61 of the Native Title Act (see s 253 of the Native Title Act and the definition of “interest”).

2.    DUNGOG SHIRE COUNCIL’S POWER TO BRING THE APPLICATION

2.1    Introduction

24    Mr Franks submits that whilst s 61(1) of the Native Title Act provides standing to Dungog Shire Council to make the present application, it does not confer statutory power on a person who otherwise does not possess such power to bring the application. For that purpose, he contends that it is necessary to consider the scheme of the LGA and the CLM Act. He submits that, when read together, having particular regard to Part 8 of the CLM Act, the public policy implications of the construction of the CLM Act for which Dungog Shire Council contends and the policy and purposes underlying Part 8, it must be implied that the intention of the legislation is that the power to take or authorise action that extinguishes native title is retained by the Minister and does not reside in a local council.

25    Dungog Shire Council and the Attorney General contend that when the LGA and the CLM Act are read together it is plain that Dungog Shire Council has the requisite power and standing.

2.2    The relevant legislation

2.2.1    Native Title Act 1993 (Cth)

26    Section 13(1) of the Native Title Act permits an application to be made to the Court for an “approved determination of native title” in relation to an area for which there is no other approved determination of native title. The Court has jurisdiction to hear and determine applications that relate to native title under s 81 of the Native Title Act. A determination of native title is a determination of whether or not native title exists in relation to a particular area of land or waters: s 225. Accordingly, a determination of native title may be a positive determination that native title exists in a particular area, or a negative determination, to the effect that native title does not exist.

27    Section 61 includes a table which sets out various kinds of application that may be made by various persons to the Federal Court pursuant to Div 1 of Part 3 of the Native Title Act. As Madgwick J explained in Kanak v Minister for Land and Water Conservation [2000] FCA 1105; (2000) 106 FCR 31 at [35], “[s]ection 61 is plainly concerned to confer rights on some persons to institute legal proceedings in relation to native title and to prevent others from doing so.”

28    Section 61 of the Native Title Act relevantly provides:

61    Native title and compensation applications

Applications that may be made

(1)    The following table sets out applications that may be made under this Division to the Federal Court and the persons who may make each of those applications:

29    The reference to s 13(1) provides the basis for the conclusion that a person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought may make applications under s 61; Mace v Queensland [2019] FCAFC 233; (2019) 274 FCR 41 at [33].

30    “Interest” in relation to land or waters is defined in s 253 of the Native Title Act:

interest, in relation to land or waters, means:

(a)    a legal or equitable estate or interest in the land or waters; or

(b)    any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(i)    the land or waters; or

(ii)    an estate or interest in the land or waters; or

(c)    a restriction on the use of the land or waters, whether or not annexed to other land or waters.

31    It is common ground that Dungog Shire Council is a “person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought” within the meaning of s 61 of the Native Title Act.

2.2.2    Local Government Act 1993 (NSW)

32    Section 220 of the LGA provides (emphasis added):

220    Legal status of a council

(1)    A council is a body politic of the State with perpetual succession and the legal capacity and powers of an individual, both in and outside the State.

(2)    A council is not a body corporate (including a corporation).

(3)    A council does not have the status, privileges and immunities of the Crown (including the State and the Government of the State).

(4)    A law of the State applies to and in respect of a council in the same way as it applies to and in respect of a body corporate (including a corporation).

33    As to a council’s functions generally, ss 21 to 23 provide as follows (emphasis added):

21    Functions under this Act

A council has the functions conferred or imposed on it by or under this Act.

Note— This Act classifies certain of a council’s functions as service, that is, non-regulatory (Chapter 6), regulatory (Chapter 7) or ancillary (Chapter 8). Ancillary functions are those functions that assist the carrying out of a council’s service and regulatory functions. A council also has revenue functions (Chapter 15), administrative functions (Chapters 11, 12 and 13) and functions relating to the enforcement of this Act (Chapters 16 and 17).

22    Other functions

A council has the functions conferred or imposed on it by or under any other Act or law.

Note— While the main functions of councils are provided for under this Act, councils also have functions under other Acts. An important general provision is contained in section 50 of the Interpretation Act 1987 which provides, in part—

(1)    A statutory corporation—

(a)    has perpetual succession,

(b)    shall have a seal,

(c)    may take proceedings and be proceeded against in its corporate name,

(d)    may, for the purpose of enabling it to exercise its functions, purchase, exchange, take on lease, hold, dispose of and otherwise deal with property, and

(e)    may do and suffer all other things that bodies corporate may, by law, do and suffer and that are necessary for, or incidental to, the exercise of its functions …

(4)    This section applies to a statutory corporation in addition to, and without limiting the effect of, any provision of the Act by or under which the corporation is constituted.

…

23    Supplementary, incidental and consequential functions

A council may do all such things as are supplemental or incidental to, or consequential on, the exercise of its functions.

34    The LGA classifies certain of a council’s functions as service, that is, non-regulatory (Ch 6), regulatory (Ch 7) or ancillary (Ch 8). A council also has revenue functions (Ch 15), administrative functions (Ch 11–13), and functions relating to the enforcement of the LGA (Ch 16–17) (see the note to s 21).

35    As to the council’s service functions, s 24 provides:

24    Provision of goods, services and facilities and carrying out of activities

A council may provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and of the wider public, subject to this Act, the regulations and any other law.

36    Mr Franks places emphasis upon the words “subject to this Act… and any other law” and submits that Dungog Shire Council must rely on the terms of the CLM Act to empower it to deal with the Land, as it is not land which it owns or for which it otherwise has power under the LGA. Accordingly, the CLM Act is relevantly “any other law” by which a council exercises power, citing R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; (2009) 237 CLR 603 at [87].

2.2.3    Crown Land Management Act 2016 (NSW)

37    As noted, Dungog Shire Council is the “Crown land manager” of the Land, and specifically a “council manager”, within the meaning of the CLM Act.

38    The Objects of the CLM Act are set out in s 1.3 and are:

(a)    to provide for the ownership, use and management of the Crown land of New South Wales, and

(b)    to provide clarity concerning the law applicable to Crown land, and

(c)    to require environmental, social, cultural heritage and economic considerations to be taken into account in decision-making about Crown land, and

(d)    to provide for the consistent, efficient, fair and transparent management of Crown land for the benefit of the people of New South Wales, and

(e)    to facilitate the use of Crown land by the Aboriginal people of New South Wales because of the spiritual, social, cultural and economic importance of land to Aboriginal people and, where appropriate, to enable the co-management of dedicated or reserved Crown land, and

(f)    to provide for the management of Crown land having regard to the principles of Crown land management.

39    Part 3 of the CLM Act is entitled “Management of Crown Land”. The introductory note states, amongst other things, that this Part includes provisions that enable the Minister to appoint Crown land managers for dedicated or reserved Crown land and make a Crown land manager of dedicated or reserved Crown land responsible for the care, control and management of the land.

40    Section 3.1 relevantly provides (emphasis added):

3.1    Responsibility for management of Crown land

(1)    The person responsible for the care, control and management of particular dedicated or reserved Crown land is—

(a)    for land with one Crown land manager—the Crown land manager, or

(b)    for land with 2 or more Crown land managers—each of the Crown land managers in accordance with any allocation made under section 3.14.

(2)    The Minister is responsible for the care, control and management of—

(a)    all Crown land that is not dedicated or reserved Crown land, and

(b)    all dedicated or reserved Crown land for which there are no Crown land managers.

Note— This subsection does not affect any responsibility of a local council over a public reserve that is Crown land that it has under section 48 of the Local Government Act 1993. See section 1.15 (2).

(3)    This section does not—

(a)    limit the functions of the Minister under this Act or another Act in relation to dedicated or reserved Crown land for which there is a Crown land manager, or

(b)    limit the functions of a person or body taken to be the Crown land manager of dedicated or reserved Crown land for the purposes of this Act because of the operation of another Act, or

(c)    affect a different allocation of management responsibilities made by another provision of this Act.

41    Section 3.13 relevantly provides (emphasis added):

3.13    Functions of Crown land managers

(1)    The functions of a Crown land manager of specified dedicated or reserved Crown land are—

(a)    to be the person responsible for the care, control and management of the Crown land for purposes referred to in section 2.12 applicable to the land, and

(b)    to exercise any other functions that are conferred or imposed on the manager by or under this Act or another Act (including by Divisions 3.4 and 3.5).

(2)    The Crown land manager must exercise the manager’s functions in accordance with—

(a)    the provisions of the manager’s appointment instrument and the regulations, and

(b)    if there are 2 or more Crown land managers for the Crown land concerned—in accordance with any allocation of responsibility made by the Minister under section 3.14, and

(c)    any applicable Crown land management rules, and

(d)    any applicable plan of management (whether under the Local Government Act 1993 or Division 3.6), and

(e)    for managers except local councils—the requirements of any community engagement strategy applicable to the manager.

Note— See also any guidance materials and handbooks issued by the Department.

42    Section 3.20 relevantly provides:

3.20    Application of Division

(1)    This Division applies in relation to any local council that is a Crown land manager of dedicated or reserved Crown land (a council manager).

43    Section 3.21, which is in that Division, relevantly provides (emphasis added):

3.21    Management in accordance with Local Government Act 1993

(1)    A council manager is authorised to classify and manage its dedicated or reserved Crown land as if it were public land within the meaning of the Local Government Act 1993, subject to this Division.

Note— The term public land (as defined by the Local Government Act 1993) excludes land to which this Act applies even if it is vested in or under the control of a local council. The Act also requires local councils to classify their public lands as either community land or operational land and manage the land accordingly.

(2)    Accordingly, a council manager is also authorised to manage its dedicated or reserved Crown land as if it were community land or operational land, but only as permitted or required by this Division.

Note— For example, requirements relating to reporting and plans of management will generally be as provided by the Local Government Act 1993 rather than this Act.

44    Section 3.22 relevantly provides (emphasis added):

3.22    Functions of council managers

(1)    Except as provided by subsection (2) or (3), a council manager of dedicated or reserved Crown land—

(a)    must manage the land as if it were community land under the Local Government Act 1993, and

(b)    has for that purpose all the functions that a local council has under that Act in relation to community land (including in relation to the leasing and licensing of community land).

(2)    A council manager of dedicated or reserved Crown land that is a public reserve (as defined in the Local Government Act 1993)—

(a)    must manage the land as a public reserve under that Act, and

(b)    has for that purpose all the functions that a local council has under that Act in relation to a public reserve.

Note— Section 2.22 enables the Minister to assume responsibility from a local council for the care, control and management of dedicated or reserved Crown land that is a public reserve.

(3)    A council manager of dedicated or reserved Crown land that is classified, with the written consent of the Minister under this section, as operational land under the Local Government Act 1993—

(a)    must manage the land as if it were operational land under that Act, and

(b)    has for that purpose all the functions that a local council has under that Act in relation to operational land.

(4)    However, a council manager of dedicated or reserved Crown land cannot—

(a)    sell or dispose of the land in any other way unless the Minister gives written consent for it, or

(b)    classify the land as operational land under the Local Government Act 1993 unless the Minister gives written consent for it, or

(c)    do any other thing under the Local Government Act 1993 that would involve a contravention of a provision of this Act that applies to council managers, or

(d)    do anything that contravenes—

(i)    any limitations or other restrictions specified by the provisions of the manager’s appointment instrument, or

(ii)    the regulations, or

(iii)    any applicable Crown land management rules, or

(iv)    any applicable plan of management under Division 3.6 (if there is no requirement for a plan of management under the Local Government Act 1993).

…

45    The CLM Act also confers additional functions on council managers with respect to “Native title rights and interests” where the Crown land referred to is “relevant land”.

46    Part 8 is entitled “Native title rights and interests”. The Introductory note observes that this Part provides for (a) the issuing of native title certificates by the Minister; and (b) the obligations of certain Crown land managers for dedicated or reserved Crown land and local councils vested with Crown land in connection with the management of native title in relation to the land; and (c) compensation responsibility concerning native title rights and interests for the conduct of these Crown land managers and local councils.

47    Section 8.1 defines “relevant land” to include “dedicated or reserved Crown land managed by a council manager”. The Land is accordingly “relevant land”.

48    Under s 8.1, the definition of “excluded land” means: (a) land which has been subject to an approved determination of native title (as defined under the Native Title Act) that has determined that native title has been determined not to exist or there are no native title rights and interests in relation to the land; (b) land where native title rights and interests have been surrendered under an indigenous land use agreement (as defined in the Native Title Act); (c) land to which s 24FA protection under the Native Title Act applies; (d) land where all native title rights and interests have been compulsorily acquired; and (e) land for which a native title certificate is in effect.

49    Section 8.4 provides for the issuing of native title certificates by the Minister:

8.4    Issue of native title certificates

(1)    The Minister may, at the Minister’s absolute discretion, issue a certificate (a native title certificate) to a person for specified Crown land or former Crown land stating that, following investigations made by the Department, there is adequate evidence to show that native title rights and interests in relation to the land have been extinguished or do not exist.

Note— Section 12.8 enables the Minister to charge fees for services provided by the Department (including in connection with issuing native title certificates).

(2)    The Minister may, by notice given to the person to whom a native title certificate is issued, revoke the certificate.

(3)    A native title certificate is taken to be revoked if the land becomes subject to an approved determination of native title (as defined in the Native Title Act 1993 of the Commonwealth).

(4)    Copies of any native title certificates issued under this section may (but need not) be published on the Department’s website.

(5)    Any requirements of the native title legislation in relation to land are not affected by the issuing of a native title certificate for the land.

50    Division 8.3 of the CLM Act is entitled “Management of relevant land”. The provisions relied upon by Mr Franks are as follows:

8.6    Employment or engagement of native title manager

(1)    A responsible person for relevant land must employ or engage at least one native title manager to ensure the person’s dealings with the land comply with any applicable provisions of the native title legislation.

(2)    A native title manager must have approved training or qualifications.

8.7    When advice of native title manager required

(1)    A responsible person for relevant land cannot do any of the following unless the person has first obtained the written advice of at least one of the person’s native title managers that it complies with any applicable provisions of the native title legislation—

(a)    grant leases, licences, permits, forestry rights, easements or rights of way over the land,

(b)    mortgage the land or allow it to be mortgaged,

(c)    impose, require or agree to covenants, conditions or other restrictions on use (or remove or release, or agree to remove or release, covenants, conditions or other restrictions on use) in connection with dealings involving the land,

(d)    approve (or submit for approval) a plan of management for the land that authorises or permits any of the kinds of dealings referred to in paragraph (a), (b) or (c).

(2)    However, the written advice of a native title manager is not required for the sale or other disposal of the land.

Note— See also Divisions 3.4 and 3.5 and section 4.9 for limitations on Crown land managers and local councils vested with Crown land to sell or dispose of managed or vested land in relation to which native title rights and interests may or do exist.

…

8.9    Compulsory acquisition of native title rights and interests requires Ministerial consent

(1)    This section applies to a responsible person for relevant land, but only if the person is managing the land as Crown land manager.

Note— This section does not apply to a local council that is vested with Crown land under Division 4.2.

(2)    The responsible person for relevant land cannot, without the written consent of the Minister, take action that will result in the compulsory acquisition of native title rights and interests in relation to the land.

51    Section 8.10 should also be noted:

8.10    Division does not affect compliance with native title legislation

A responsible person for relevant land must comply with any requirements of the native title legislation in relation to the land (including in respect of the matters referred to in sections 8.7 (1) and 8.9).

2.3    Mr Franks’ submissions

52    In summary, Mr Franks submits that:

(a)    local government authorities are Crown land managers in respect of Crown lands (including those in respect of which they were formerly trustees) and local government managers who are Crown land managers are ‘council managers’;

(b)    council managers have the care, control and management of reserved land as if it were community land under the LGA;

(c)    the exercise of functions under the LGA cannot be inconsistent with the provisions of Part 8 of the CLM Act;

(d)    Part 8 of the CLM Act provides for a regime to be followed by council managers in respect of native title including for the issue of a native title certificate to protect council managers from compensation liability for acts for which native title compensation may be payable;

(e)    Native title managers provide advice to council managers regarding the steps to be taken to ensure compliance with the Native Title Act but not with respect to the sale or disposal of land;

(f)    Part 8 is silent on whether a council manager has the power to bring an application pursuant to s 61 of the Native Title Act and it must accordingly be implied that the intention of the legislation is that the power to take or authorise action resulting in a declaration of extinguishment of native title is retained by the Minister;

(g)    The Explanatory Note to the Crown Land Management Bill 2016 (NSW) supports this submission as does the second reading speech of the Hon. Niall Blair, Minister for Primary Industries and Minister for Lands and Water upon the introduction of that Bill into Parliament.

53    Mr Franks submits that the broad and permissive powers conferred upon the Dungog Shire Council under the terms of the LGA are constrained by the terms of the CLM Act, which establishes a regime for the management of Crown land which is still subject to native title under the Native Title Act. He submits that the scheme does not specifically empower a council to make an application under the Native Title Act, and that it should be inferred that the legislation contemplates that the only person able to bring such an application is the Minister. This arises, he submits, because all aspects of the role that the council has under the CLM Act are directed towards the day-to-day management of Crown reserves. The CLM Act does not in terms confer power on the manager (here, Dungog Shire Council) to address the question of the existence or extinguishment of native title. Indeed, the terms of the NSW Native Title Act provide that the provisions of the CLM Act cannot be applied so as to affect native title rights and interests; s 3, s104A. He submits that the Native Title Act provides a regime for a preferred outcome of native title claims by conciliation rather than litigation. That Act, when read in conjunction with the CLM Act confers relevant functions (such as entry into indigenous land use agreements, consent to compulsory acquisition and the issue of native title certificates) upon the Minister. It would be contrary to the object and purposes of the legislative scheme to read into the CLM Act and the LGA an implied power on the part of a council manager of Crown land to bring proceedings for a determination that native title has been extinguished. Rather than fragment power to bring such proceedings by placing that ability in the hands of local shire councils, the better way to understand the legislation is that such bodies are not empowered to do so. Conversely, the CLM Act provides that it is the council that is liable to pay compensation for any compensable act that occurs if native title is not extinguished. It is not consistent with the policy aim of achieving non-litigated outcomes if it is suitable for a council manager to bring an application. By conferring such a power on a council, the scheme sets up a conflict of interest between the rate payers on the one hand, who have a desire to limit liability for compensation and those claiming compensation under the Native Title Act.

54    Mr Franks submits that s 61(1) of the Native Title Act serves to confer standing on an applicant, but not power on that person. In the case of Dungog Shire Council, power must be found in the terms of the LGA and CLM Act. He submits, relying on the decision in R & R Fazzolari at [87], that the powers conferred under s 24 of the LGA are not at large, and the constraining effect of the CLM Act must be applied.

55    Turning to the CLM Act, Mr Franks submits that s 2.12 does not permit the council to bring the native title determination application. This section provides that dedicated or reserved Crown land may be used only for the purposes for which it is dedicated or reserved (or an incidental or ancillary purpose), or any other purposes authorised by this or another Act. Neither the CLM Act nor the LGA authorise the making of a native title determination application. He further submits that s 3.1(3) leaves open the option for the Minister to bring the present application, whereas the terms of s 3.13, which specify the functions of Crown land managers, concern only the care, management and control of land, and do not include commencement of the present suit. The functions of a council manager are set out in s 3.22; and s 3.22(1) provides that a council manager must manage the land as if it were community land under the LGA subject, however, to s 3.22(4)(a), which provides that a council manager of dedicated or reserved Crown land cannot sell or dispose of the land in any other way unless the Minister gives written consent for it and s 3.22(4)(c), which provides that the council manager cannot do any other thing under the LGA that would involve a contravention of a provision of the CLM Act that applies to council managers.

2.4    Consideration

56    In my view, question (1) must be answered “yes”. As I explain in more detail below, the first reason for this is that as a body politic with legal capacity pursuant to the terms of the LGA, Dungog Shire Council is a person who is authorised, and thereby empowered, by the terms of the Native Title Act to bring the present application. Secondly, and separately, I am unable to accept that an inference arises, having regard to the terms of the LGA when considered with the terms of the CLM Act, that a Crown land manager such as Dungog Shire Council does not have such power, or that such power must reside in the Minister alone.

57    I have referred in section 2.2.1 above to ss 13(1), 61(1) and 225 of the Native Title Act.

58    Section 253 defines a non-claimant application to mean a native title determination application that is not a claimant application and defines “interest” to include, in relation to land or waters, “a legal or equitable estate or interest in the land or waters” or “any other right… power… in connection with (i) the land or waters; or (ii) an estate or interest in the land or waters”.

59    It is not in dispute that Dungog Shire Council satisfies the formal requirements for the bringing of a non-claimant application. First, there is no approved determination of native title with respect to the area claimed. Secondly, Dungog Shire Council has a relevant interest in the whole of the Land. Thirdly, the interest of Dungog Shire Council is a “non-native title interest”.

60    There are no provisions of the Native Title Act, including Division 1 of Part 3 (which deals with applications), which prohibit a local council, whether in its capacity as Crown land manager or otherwise, from bringing a non-claimant application or that limit the circumstances in which it may bring such an application. The only limitation imposed by the Native Title Act on any person’s right to bring such an application is that they hold a “non- native title interest”. The kind of interests that may enliven this are “reasonably broad”, although it must be an interest greater than that which a member of the public would generally hold; Kanak at [35].

61    Section 220(1) of the LGA provides that a council is a body politic of the State with the legal capacity and powers of an individual. By s 21 of the LGA, a council has the functions conferred or imposed on it by or under the LGA. The term “function” is defined in the Dictionary in the LGA to include “a power, authority and duty”. Section 22 provides that a council has the functions conferred or imposed on it “by or under any other Act or law”. One such other Act or law is, as the Note to s 22 points out, s 50 of the Interpretation Act which provides that a statutory corporation may take proceedings in its corporate name and may do and suffer all other things that bodies corporate may, by law, do and that are necessary for, or incidental to, the exercise of its functions. Section 220(4) of the LGA provides that a law of the State “applies to and in respect of a council in the same way as it applies to and in respect of a body corporate”, thereby giving s 50 of the Interpretation Act application to a council: Zhang v Woodgate and Lane Cove Council [2015] NSWLEC 10 at [36] (Preston CJ).

62    These provisions serve to demonstrate that a council satisfying the formal requirements for bringing an application under s 61(1) has the standing and power to do so.

63    Secondly, a council has the functions conferred or imposed on it by or under the LGA, and any other Act or law, including the CLM Act and the Native Title Act; ss 21 and 22. By s 23 of the LGA, a council may do all such things as are supplemental or incidental to, or consequential on, the exercise of its functions. This is a broad and facultative provision; Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council [2021] NSWLEC 69 at [84] (Robson J).

64    Amongst the functions of a council is a service function, which is set out in s 24 of the LGA. It involves the provision of goods, services and facilities and carrying out activities appropriate to the current and future needs within its local community and of the wider public “subject to this Act, the regulations and any other law”. The task of seeking a determination that native title does not exist in respect of the land falls within the broad ambit of services and activities that a council may provide within s 24 of the LGA, although, as the section states, that power may be limited by the terms of the CLM Act, to which I now turn: see also R & R Fazzolari at [87] – [88].

65    Dungog Shire Council has, as one of its roles, that of “Crown land manager” of the Land within the meaning of that term in s 1.5 of the CLM Act with the responsibility set out in s 3.1(1), which is broadly to be responsible for the care, control and management of reserved Crown land. The functions of Crown land managers are identified in s 3.13 and, again broadly, are to be responsible for the care and management of the Crown land in accordance with the purposes identified in s 2.12 and in accordance with the manager’s appointment instrument and the regulations. These functions must also be exercised having regard to the objects of the CLM Act as set out in s 1.3, which relevantly include: to provide for the ownership, use and management of Crown land; to provide clarity concerning the law applicable to Crown land; to provide for the transparent and fair management of Crown land for the people of New South Wales; and to facilitate the use of Crown land by the Aboriginal people of New South Wales.

66    Division 3.4 provides specifically for Crown land managed by councils and refers to such a Crown land manager as a “council manager”; s 3.20. Dungog Shire Council is accordingly such a council manager. By s 3.21, a council manager is authorised to classify and manage its reserved Crown land as if it were public land within the meaning of the LGA subject to the terms of that Division. By s 3.22(1), a council manager of reserved Crown land must manage the land as if it were community land under the LGA and has for that purpose “all the functions that a local council has under that Act in relation to community land”.

67    In my view, no provision of the CLM Act concerned with the function and role of Dungog Shire Council as council manager or Crown land manager is expressly or impliedly inconsistent with the concurrent force and application of the LGA insofar as the LGA permits the making of a non-claimant application under s 61(1) of the Native Title Act. In exercising its functions, it is not inappropriate that a local council as a Crown land manager takes steps to clarify, by way of a non-claimant application, the legal status of the land that it manages. That role is consistent with the objectives of the CLM Act.

68    I do not accept that the terms of Part 8 of the CLM Act give rise to an implication to the opposite effect. Nothing in the language of Part 8 indicates that a Crown land manager or a council manager is constrained in the exercise of functions and powers by reason of the terms of that Part. Contrary to the submission advanced by Mr Franks, the fact that Part 8 provides for the Minister to perform some specific roles (e.g. the issuing of native title certificates under s 8.4 and the provision of consent for compulsory acquisition of native title rights in relation to the land under s 8.9) tends to indicate that specific roles and responsibilities have been allocated to the Minister. It does not provide a basis to conclude that the Minister has a broader exclusive role to take some kinds of action that are not mentioned in Part 8 or that the Crown land manager is precluded from taking steps such as making the present application. Indeed, Part 8 is to be understood to impose functions on a local council that are additional to those under the LGA which are more specifically directed to the operation of the Native Title Act; ss 8.6, 8.7 and 8.10 provide examples. Section 8.10 contemplates that land under the care of a land manager will be the subject of a successful native title claimant application or a successful non-claimant application. No language concerning these matters (see also ss 4.9(4)(a) and 4.9(11)) suggests any inference that a council manager or Crown land manager is precluded from taking steps to clarify the native title status under its care.

69    Nor do I consider that the Explanatory Note or the second reading speech assist Mr Franks, which merely describe the “principal reforms” as being “special provisions… introduced to protect native title rights and interests (including when Crown land is managed by or vested in local councils)”.

70    Nor do I accept the conflict of interest argument advanced by Mr Franks. He contends that permitting non-claimant native title determination applications by council managers will provide positive encouragement to enable council managers to avoid native title liabilities and thereby avoid obligations to pay compensation. However, only if an application is successful will native title compensation payment be avoided and then only because no native title is found to exist in respect of the land, a determination which is left to the Court and not the Council. The bona fide advancement, on behalf of a Council, of a non-claimant native title determination application cannot be said to give rise to any real conflict of interest. The sections of the CLM Act would not be understood to contemplate an application to be brought otherwise than in good faith.

71    Finally, I do not accept that it is antithetical to the policy and purposes of either the CLM Act or the Native Title Act to reach the conclusion that a council has power to bring proceedings under s 61(1) of the Native Title Act. A council bringing such proceedings serves the legitimate interests of its constituents in seeking clarity under the Native Title Act as to whether or not actions in its contemplation will affect native title. The provision of a native title certificate under s 8.4 of the CLM Act provides an alternative route for recognition of native title rights and interests in relation to land, but the existence of that alternative route does not provide an indication that only the Minister should be able to move under the Native Title Act.

2.5    Conclusion in relation to question (1)

72    For the reasons set out above, the answer to question (1) must be “yes”.

3.    EXTINGUISHMENT BY THE 1823 DEED

3.1    Introduction

73    Dungog Shire Council contends that by virtue of the 1823 Deed, or alternatively the 1880 Deed, native title was extinguished by the granting or vesting of a freehold estate which is wholly inconsistent with the existence of native title and has the result of completely extinguishing such rights at common law.

74    Two broad arguments arise from the submissions. The first concerns aspects of the construction of the 1823 Deed (construction dispute – see section 4 below). The second concerns the question of approbation and whether a requirement of the instructions from King George IV to Governor Brisbane, as set out in the 1823 Deed, that there be approbation of the grant of land to Mr Phillips, had been met before, at the time of or after the execution of the 1823 Deed (approbation dispute – see section 5 below). Determination of these matters leads to the conclusion that each of questions (2) and (3) must be answered in the negative.

3.2    The relevant law

75    Section 13(1)(a) of the Native Title Act provides that an application may be made to the Federal Court of Australia under Part 3 for a determination of native title in relation to an area for which there is no approved determination of native title. A determination of native title is a determination of whether or not native title exists in relation to a particular area of land or waters: s 225. Accordingly, a determination of native title may be a positive determination that native title exists in a particular area, or a negative determination, to the effect that native title does not exist.

76    If native title is found to exist, there must also be a determination of the matters set out in s 225(a)-(e) of the Native Title Act. However, if native title does not exist, then those matters in s 225 are not engaged and the Court is not required to make a determination in relation to them: see CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 at [57] (North, Mansfield, Reeves, Jagot and Mortimer JJ).

77    Sections 61(1) and 253, which concern the applications that may be made and the persons who may make them, are summarised in section 2.2.1 above.

78    In considering a non-claimant application, the question for the Court is whether the applicant has discharged its burden of proof that no native title exists in the claim area: Mace at [44]; Western Australia v Ward [2000] FCA 191; 170 ALR 159 at [120]. A high standard of proof is required to establish extinguishment.

79    In Queensland Rifle Association Inc v State of Queensland [2021] FCA 110, O’Bryan J at [22]-[23] gave a summary of three overarching principles emerging from recent authority, including Mace, which I gratefully adopt (citations omitted):

(a)    First, whether there is a contradictor to an application for a negative determination or not, the legal question remains the same: has the applicant discharged its burden of proof that no native title exists in the area the subject of the non-claimant application? The burden of proof is the balance of probabilities.

(b)    Second, whether the applicant has discharged its burden depends upon the facts of the case as established by the evidence before the Court, including particularly the nature of the land and the tenure involved, the presence or absence of any present or previous native title claims and the nature and content of those claims, and any particular evidence adduced by the parties.

(c)    Third, account needs to be taken of the gravity of a negative determination, and its permanency in terms of its effect on native title rights and interests which are otherwise sought to be protected by the NT Act. The fact that a determination of native title (positive or negative) binds the world and does not operate only between the parties warrants heightened scrutiny by the Court about its state of satisfaction both that the onus of proof has been discharged and that the terms of the determination to be made are supported in all respects by the findings.

80    With the acquisition of sovereignty and radical title, the British sovereign gained the capacity (under British Colonial law) to create and extinguish rights and interests in land, including the capacity to extinguish pre-existing rights and interests to land by the grant of an inconsistent estate to that land by the Crown; Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 63 per Brennan J, 110 per Deane and Gaudron JJ. Justice Brennan summarised the effect of the Crown’s acquisition of radical title in Mabo at 69:

Native title to land survived the Crown’s acquisition of radical title but the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title.

81    Subject to the operation of the Racial Discrimination Act 1975 (Cth), such extinguishment was not wrongful or compensable; Mabo per Mason CJ and McHugh J at [15].

82    The grant of fee simple extinguishes all native title rights that may exist in relation to the land, because the estate of fee simple does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title; Northern Territory v Fejo [1998] HCA 58; 195 CLR 96 at [43]; Mabo at [69].

3.3    The Governor’s Commission, his Instructions and the 1823 Deed

83    Before summarising the parties’ submissions, it is convenient to set out the relevant terms of the instruments relevant to the dispute.

84    Governor Sir Thomas Brisbane succeeded Governor Lachlan Macquarie as Governor in respect of the territory of New South Wales and held office for the period 1 December 1821 to 1 December 1825. The 1823 Deed cites his Commission and Instructions from King George IV dated 3 February 1821 and 5 February 1821, respectively, as his authority.

85    By his Commission, Governor Brisbane was granted the power to grant, in effect, an estate in fee simple over land. The Commission provides, however, that the power so granted was subject to such instructions “as shall be given to you under Our Sign Manual which said Grants are to pass and be sealed with the Seal of our Territory and its Dependencies, and being entered upon record by such Officer or Officers, as you shall appoint thereunto, shall be good and effectual in Law against Us, Our Heirs and Successors.”

86    The Instructions dated 5 February 1821 are the instructions identified in the Commission. They included the following stipulations (Historical Records of Australia (HRA) (1917) Series I Vol. X, at 600 – 601):

Tenth. And Whereas certain of Our Subjects, … may be desirous of becoming Settlers … such persons shall apply to you for Grants of Land, you do afford them every encouragement that can be given in that undertaking … and that Grants of Land, to such amount as you shall judge proper shall be made out for each person applying, not exceeding 100 acres over and above the quantity … to be granted to such [emancipated or discharged] Convicts, … free of all fees, taxes, quit-rents or other acknowledgements for the space of Ten Years; but after the expiration of that time, to be liable to an annual Quit-rent of One Shilling for every Fifty Acres.

Eleventh. It is nevertheless Our Royal Intention, in case of any peculiarly meritorious Settler or well deserving emancipated Convict becoming a Settler … that you shall be at liberty to enlarge the said Grants, so respectively to be made to such Settler or emancipated Convict as aforesaid, by the addition of such number of Acres to be granted to them respectively as you in your discretion shall judge proper subject nevertheless to our approbation thereof upon your transmitting to One of Our Principal Secretaries of State, which you are hereby directed to do by the first opportunity, your reasons for making the same.

Twelfth. And Whereas such persons, as are or shall become Settlers… may be desirous of availing themselves of the Labour of [convicts]… it is Our Will and Pleasure that … you assign to each Grantee the service of any number of [convicts], that you may judge sufficient to answer their purpose, on condition of their maintaining, feeding and clothing such Convicts …

Thirteenth. You are to take care that all Grants, to be given of Lands in Our said Continent … be made out in due form, and that the conditions, required by these Our Instructions be particularly and expressly mentioned in the respective Grants; that the same be properly registered and that regular Returns thereof be transmitted by the proper officers to Our Commissioners of Our Treasury … within the space of Twelve months after the passing of such Grants.

Fourteenth. It is Our Will And Pleasure that in all Grants of General Lands, to be made by you as aforesaid, regard be had to the profitable and unprofitable Acres, so that each Grantee may have a proportionate Number of one sort and of the other; as likewise the breadth of each Tract, to be hereafter granted, be one third of the length of such Tract; and that the length of such Tract do not extend along the bank of any Bay or River but into the Mainland, that thereby the said Grantees may have each a convenient Share of what accommodation the said Harbour or River may afford for Navigation or otherwise.

87    It will be necessary to address in more detail the background to the 1823 Deed, but it is convenient at this point to set out its relevant terms (paragraph numbering and emphasis added):

[1]    By His Excellency said Thomas Brisbane, Knight Commander of the Most Honourable Military Order of the Bath, Captain General and Governor in Chief in and over His Majesty’s Territory of New South Wales and its Dependencies (lines 1 – 3)

[2]    WHEREAS… His Majesty did give and grant unto me full Power and Authority to agree for such lands, Tenements, and Hereditaments, as should be in his Majesty's Power to dispose of; and then to grant to any Person or Persons upon such Terms, and under such moderate Quit-Rents, Services and Acknowledgements, to be thereupon reserved to His Majesty, according to such Instructions as should be given to me, under His Sign Manual, which said Grants were to pass, and be Sealed by His Majesty's Seal of His said Territory and its Dependencies; and being entered upon Record by such Officers or Officers as I should appoint thereunto, and should be good and effectual in Law against His Majesty, His Heirs, and Successors. (lines 4 – 14)

[3]    AND WHEREAS by His Majesty’s Instruction to me, Under His Sign Manual, bearing Date the Fifth Day of February, in the Year of Our Lord One thousand eight hundred and twenty-one, and in the Second Year of his Reign, I am restricted from granting more than One hundred and thirty Acres of Land to each Free Settler Twenty Acres more in Case he shall be married, and Ten Acres for every Child who may be with him at the Settlement at the Time of making such Grant, without the Approbation of His Majesty. (lines 14 – 20)

[4]    KNOW ALL MEN BY THESE PRESENTS, that I, the said Sir Thomas Brisbane, in Pursuance of the Power and Authority so given and granted unto me as aforesaid, have Given and Granted, and by these Presents do Give and Grant, unto James Phillips his Heirs and Assigns, all those Two Thousand & Ninety Acres of Land, situate, lying, and being in the County of Durham and Townships of Wolfingham and Middlehope: Bounded on the South by part of Webber’s farm bearing West Two hundred & fifty Chains: On the West by a line bearing North eighty Chains: On the North by a line bearing East Two hundred and Ninety Three Chains to Patterson’s River: And on the East by that River saving and reserving to His Majesty, His Heirs and Successors, such Timber as may be growing, or to grow hereafter, upon the said Land, which may be deemed fit for Naval Purposes; also such Parts of the said Land as are now, or shall hereafter, be required, by the proper Officer of His Majesty's Government, for a Highway or Highways. (lines 21 – 34)

[5]    To have and to hold the said Land hereby granted to the said James Phillips His Heirs and Assigns, for ever; free from all Taxes, Quit-Rents, Services, and Acknowledgements whatsoever, for the Period of Five years from the Date of these Presents; but from and after the Expiration of the said Term or Time, yielding and paying therefore to His Majesty, his Heirs, and Successors, the Quit-Rent or Sum of Two Pounds One Shilling of lawful Sterling Money, yearly, and every Year, for ever. (lines 34 – 40)

[6]

(a)    Provided always, and it is hereby expressly stipulated, that so much of the aforesaid Two Thousand & Ninety Acres of Land hereby granted, as exceeds the Quantity I am enabled to Grant to the said James Phillips under the before recited Instructions, is to be considered as granted subject to the Approbation of His Majesty, His Heirs and Successors: (lines 40-45)

(b)    And Provided always, and it is hereby expressly stipulated, that the said James Phillips and his Heirs, shall in no Wise, either directly or indirectly, sell, aliene, assign, transfer, or set over the said Land hereby granted, or any Part or Parcel thereof, within the said Term of Five Years: (lines 45 – 48)

(c)    And provided always, that the said James Phillips His Heirs and Assigns, shall use his or their best Endeavours to procure to be assigned to his or their Service, by the proper Officer of His Majesty’s Government (to be employed exclusively upon the Land hereby granted), Twenty transported Convicts, whom the said James Phillips His Heirs, and Assigns, shall, until the Expiration or Remission of their respective Terms of Transportation, duly victual, and clothe, agreeably to the Government Regulation for the Time-being; and shall (if required) execute a Bond to the said Officers of Government for such due Employing, Victualling, and Clothing: (lines 48 – 56)

(d)    Otherwise the Whole of the said Land hereby granted shall become forfeit, and escheat to His Majesty, His Heirs, and Successors, and these Presents shall be held and deemed null and void. (lines 56 – 58)

In Witness whereof, I have hereunto set my Hand, and the Seal of the Territory, at Sydney, In New South Wales, this Thirtieth Day of June in the Year of Our Lord One Thousand eight hundred and twenty three.

[Signed Tho. Brisbane L.S.]

88    It will be noted that by clause [4] the 1823 Deed purports to grant to Mr Phillips 2,090 acres of land. Clause [3] acknowledges that the Instructions permit the grant of a sum of 130 acres plus additional 20 acres if the settler is married and 10 acres for each child. Mr Phillips was married with five children. For convenience, I refer below to the allocation of 200 acres of land as the Allotment and the balance of the land as the Residue.

3.4    Chronology: 1817 to 1880

89    Before turning to analyse the matters in dispute, it is convenient first to set out a chronology of relevant documents. The matters set out below arise from the evidence provided by Ms Field and Ms Lowes who annexed what must have been meticulous research conducted by Mr Flynn, an historian engaged on behalf of the Attorney General, assisted by the efforts of researchers and paralegals employed by the Crown Solicitor’s Office. It is supplemented by the affidavit evidence of Mr Mavec, solicitor for Mr Franks, who annexed additional archival material.

90    On 18 January 1817, Governor Lachlan Macquarie issued a proclamation regarding “regulations” for the formal registration of private deeds and conveyances.

91    On 3 February 1821, King George IV issued a Commission to Sir Thomas Brisbane as Captain General and Governor-in-Chief of New South Wales, which concerned the grant of land within New South Wales (see section 3.3 above).

92    On 5 February 1821, King George IV issued Instructions to Sir Thomas Brisbane, specifying, among other things, the terms upon which Governor Brisbane could issue grants of land (see section 3.3 above).

93    On 26 January 1822, the Durham County Adviser published a memorandum issued by the Colonial Department “for the information of persons intending to emigrate”, which stated:

Persons desirous of settling in New South Wales or Van Diemen’s Land must be provided with the sanction of his Majesty’s Secretary of State; and this can only be obtained upon written application, accompanied by references to two or more respectable persons as to the character of the applicant, and the extent of his capital, which must amount to five hundred pounds at least.

94    On 21 August 1821, James Phillips of the Office of Inquiry into the Customs and Excise, sent a letter to Earl Bathurst, which stated:

My Lord,

Being desirous to emigrate to the Colony of New South Wales and possessing upwards of £500 property I have to request that your Lordship will be pleased to order me a grant of land there.

95    On 1 September 1821, Mr Phillips sent a further letter to Earl Bathurst, in which he refers to his 10 years’ government service and seeks permission to emigrate:

… to the Colony of New South Wales before my present capital (not exceeding £500) shall be reduced, which, if judiciously employed there should be the means of enabling me to support my family (consisting of a wife and 5 children) with credit.

Mr Phillips enclosed:

… copies of various testimonials of my character and conduct (the originals of which are registered at the Treasury) … trusting that from the manner in which I have conducted myself during such a length of service under government that your Lordship will have the goodness to order a free passage for myself and family to that Colony…

Partly legible handwritten notes on the letter indicate “Certificate returned to Mr Phillips” and “Give him a letter to the Gov[ernor] of New S[outh] Wales return him his certificates and [?] him that concerning the testimonials given to his conduct while in office Lord B asks of him should he cross in a convict ship [?] him a passage he paying for his victualling”.

96    On 10 September 1821, Mr Phillips sent a further letter to Earl Bathurst restating the situation in his letter of 1 September 1821 and seeking an order for free passage to emigrate. Mr Phillips refers to people willing to provide references of his character.

97    On 29 September 1821, a despatch was issued from Under-Secretary Henry Goulburn to Sir Thomas Brisbane titled “Recommendation of J. Phillips for a land grant”, which stated:

Sir,

This Letter will be delivered to you by Mr James Phillips who has received the permission of Earl Bathurst to proceed as a Settler to New South Wales. The very satisfactory Testimonials, which his Lordship has received of the Character and respectability of this Gentleman, have induced his Lordship to give me directions to recommend him, more particularly to your notice and protection; and I am therefore to desire that he may receive a Grant of Land, in proportion to his Capital with the usual Indulgences of Convict Labour, and that you will promote as far as possible, consistently with the usual regulations, his views in proceeding to the Colony.

Reference note 42 to the despatch indicates that “[c]opies of these despatches are preserved in the record office, London, but there is no evidence of their delivery to the governor in the colony”.

98    An extract from HRA (1917) Series I Vol. X contains a list of persons who were recommended for land grants by Earl Bathurst, including a “Mr Jas. Phillips” who by letter dated 5 October 1821 was recommended to be granted land in New South Wales.

99    On 1 December 1821, Mr Phillips sent a letter to Henry Goulburn Esquire MP and A. Gordon Esquire. Mr Phillips refers to having purchased a “threshing machine and other agricultural implements to take out with me to New South Wales” and seeks an order directing the equipment be stowed on board without delay. Mr Phillips ends the letter “on board the Mary Ann Convict Ship, Woolwich 1 December 1821”. A handwritten note on the letter states: “Do what is usual in such cases”.

100    On 25 December 1821, the “Mary Ann” departed Portsmouth, England.

101    On 4 January 1822, Mr Phillips sent a letter from “on board the Mary Ann Convict Ship – Portsmouth” addressed to Earl Bathurst for the attention of R Wilmott Esquire. Mr Phillips notes that three months previous “I had a passage granted to me by my Lord Bathurst for all my family, and I accordingly laid in provisions to such an amount as my finances permitted, but from the great delay in the ships sailing my provisions were more than half expended” and refers to seeking an “order” to assist.

102    On 10 April 1822, a despatch was issued from Sir Thomas Brisbane to Earl Bathurst concerning the grant of land within the Colony, which notes that:

On my arrival in this Colony I discovered that Major General Macquarie had been exceedingly liberal in his promises of land: - so much so, that, exclusively of those he had himself been enabled to perfect, there remained a balance of unexecuted grants to the amount of 340 thousand acres.

…

I have further deemed it necessary, in the body of each deed, in obedience to the fifteenth [sic; thirteenth] article of the Royal Instructions, to introduce into direct view the power, that the Crown has expressly reserved to itself, of disapproving of all Grants greater than a given number of acres.

The despatch encloses a pro forma deed, which contains the stipulation the subject of these proceedings: “is to be Considered as Granted subject to the Approbation of his Majesty”. This letter is responded to by a pair of letters from Earl Bathurst on 30 May 1823 (see below).

103    An article in the Sydney Gazette dated 20 May 1822 indicates that Mary Ann arrived in Sydney with James Phillips and family.

104    On 29 May 1822, Frederick Goulburn, Colonial Secretary sent a letter to James Phillips, which states:

Sir

In compliance with a letter received from the Colonial Office in Downing that I am directed by His Excellency Sir Thomas Brisbane to acquaint you that a Grant of Land will be made to you in proportion to the means which you may possess of bringing the same into cultivation immediately upon sending into this office a statement of the number of convicts those means will enable you to take permanently off the Stores.

105    On 30 May 1822, Mr Phillips sent a letter in reply to Frederick Goulburn, which states:

Sir, In reference to your letter of this days date, I beg leave to state that my means enable me to take twenty men permanently off the stores, and I have the honor to request that the same indulgences may be granted to me as are allowed to others possessing similar capital

106    On 30 May 1822, Frederick Goulburn sent a letter in reply to Mr Phillips, which states:

Sir, I am directed by His Excellency Sir Thomas Brisbane to inform you in reply to your letter of the present date that he will make you a Grant of Two Thousand (2000) acres of land, in any part of the Colony already surveyed, and will order six convict servants to be assigned to you who with yourself and family will be victualled from the Kings Stores for six months from the date of your taking possession of your said land.

107    On 30 May 1822, Frederick Goulburn sent a letter to John Nicholson Esquire, Master Attendant, to permit Mr Phillips passage on the vessel Elizabeth Henrietta to Newcastle, no doubt so that Mr Phillips could proceed to take possession of the granted land.

108    On 11 July 1822, Government and General Orders of the Colonial Secretary’s Office were published in the Sydney Gazette and New South Wales Advertiser regarding the proviso in grants regarding convict labour.

109    An extract of a record titled “Abstracts from Orders for Grants and Town Allotments – 1822” indicates that in July 1822 “J. P. Phillips” was granted 2000 acres.

110    A record titled “List of Orders for Grants of Land by Sir Thomas Brisbane”, directed to John Oxley Esquire, Surveyor General, lists James Phillips as having been granted 2000 acres, by order dated 9 September 1822. The list is followed by the following direction, dated 22 November 1825:

You are hereby required and directed to mark and measure, according to existing Regulations for the Individuals in the foregoing list, numbered 1 to 947, inclusive, the number of acres of land specified against each name respectively; and to place them or their legal representatives in possession thereof, preparatory to Grants under the Great Seal of the Colony being regularly passed. And for so doing this shall be your sufficient warrant. Given under my hand and seal at Government House, Sydney.

111    An extract from a document titled “Surveyor General’s Department, Applications for Land 1811–1838” indicates that on 9 September 1822, Governor Brisbane granted 2,000 acres to “Phillips Jas.”.

112    An extract from a record titled “Index and Directory to Map of the Country Bordering upon the River Hunter – Emigrant’s Guide” indicates that James Phillips had been granted 2,090 acres by order dated 9 September 1822.

113    On 9 September 1822, Earl Bathurst sent a letter to Sir Thomas Brisbane (acknowledged by Brisbane on 28 April 1823), which among other things set out new exceptions that shall apply to the granting of lands to emancipists (these exceptions are referred to in the 30 May 1823 letter below).

114    On 30 May 1823, Earl Bathurst sent a letter (acknowledged by Brisbane on 29 December 1823) in reply to Sir Thomas Brisbane’s letter of 10 April 1822 (see [105] above) regarding Brisbane’s proposed form of deed for land. The letter from Earl Bathurst does not take issue with Sir Thomas Brisbane’s characterisation of the approbation proviso as “introduc[ing] into direct view the power that the Crown has expressly reserved to itself, of disapproving of all Grants greater than a given number of acres.”

115    On 30 June 1823, the 1823 Deed was executed. An extract of a record titled “Registers of Land Grants and Leases Counties of Durham and Brisbane within 1823 – 1837 (Vol 5)” indicates that “Jas. Phillips” was granted 2090 acres in County of Durham, Township of Middlehope.

116    On 31 July 1823, Earl Bathurst sent a letter to Sir Thomas Brisbane in relation to a grant of land to Mr Macarthur.

117    On 29 November 1823, Sir Thomas Brisbane sent a letter to Earl Bathurst, referring to Earl Bathurst’s previous letters “on the subject of the alteration which I had deemed it expedient to introduce into the terms, upon which Land had hitherto been bestowed by the Crown, whereby I restricted the confirmation of future grants to those applicants only, who would undertake to maintain free of expence to the Crown ‘one convict labourer for every hundred acres so to be granted’”.

118    On 8 March 1824, James Phillips sent a letter to Frederick Goulburn, Colonial Secretary, requesting a grant of land for his oldest son. An annotation appears to be to the effect that the Governor is prevented from complying with the request due to the general rule of not granting land to the sons of persons who have themselves received a grant.

119    In a document dated 6 November 1824 and entitled “Colonial Secretary – Returns of Free Settlers and other Free Persons to Receive Land Grants 1810–1828”, “James Phillips” is listed.

120    On 1 January 1825, Earl Bathurst sent a letter to Sir Thomas Brisbane (acknowledged by Brisbane on 30 June 1825), containing detailed instructions as to land in the Colony, including an order for a survey to be taken and the lands therein valued (at [5]-[15]) and instructions for the future grants of land (at [23]-[32]), including reference to two “distinct classes” of settlers: the first class being those capable of purchasing extensive tracts of waste lands; the second being those whose settlements cannot be made “unless they are placed in possession of the land by the bounty of the Crown without purchase” (at [26]).

121    On 28 January 1825, Frederick Goulburn sent a letter to John Oxley, Surveyor General, referring to the transmission of a grant in favour of James Phillips.

122    The document titled “List of Orders for Grants of Land by Sir Thomas Brisbane” (referred to above at [110]), is dated 22 November 1825. This suggests that this list of grants may have been prepared in compliance with, and for the purposes of, the instruction given by Earl Bathurst in his letter dated 1 January 1825.

123    An extract from the Colonial Secretary’s Index 1788 – 1825 records numerous correspondence with James Phillips between 12 April and 16 December 1825 in relation to various matters, including requests for convict servants.

124    In November 1828, the first official census was undertaken in New South Wales. An extract from the list of entries for “Phillips” includes James Phillips, free settler, resident of Bona Vista.

125    On 30 August 1829, Mr Phillips sent a letter to Alex McLeay, Colonial Secretary, referring to the grant of 2,000 acres of land at Hunter River and seeking an extension of that grant.

126    Extracts from official records indicate James Phillips, 2,090 acres, made payment of quit rent only in the first two years it was due (1 July 1828 and 1 July 1829), then not paid for 18 years, then paid sporadically in years after 1848.

127    On 30 September 1835, Lord Glenelg sent a letter to Sir Richard Bourke, preceding the adoption of the Land Grants Confirmation Act 1836 (NSW) (6 Gul IV No 16) (1836 Act). Lord Glenelg records that doubts had arisen as to colonial land grants:

… Grants of all Crown Lands hitherto issued to Settlers in New South Wales have been so issued in the name of the Governor… instead of… as is required by the Royal Commission and Instructions, in the name of the King and under the public Seal of the Colony…

…

You further apprize me that the method … of issuing new Grants in due form of Law to replace the illegal Grants already issued, would be productive of the most extreme and intolerable inconvenience.

…

The practical question which presents itself really is, by what means the validity of the Grants already issued can be placed beyond controversy.

…

I now therefore signify to you … his Majesty’s gracious Pleasure … that all Grants or Conveyances of Land theretofore issued by and in the name of any Governor … shall be taken from their respective dates to have been as valid as though they had been issued in the name of His Majesty.

128    On 23 October 1835, the decision in Terry v Spode [1835] TASSupC 25 was handed down. In this case, a land grant was challenged on several grounds, including that it was issued in the name of the Governor rather than the King, and that there was no evidence of approbation. The Court held the grant invalid on the basis that it was not issued in the name of the King. The Court offered no opinion as to other challenges, including the challenge about no evidence of approbation.

129    On 9 June 1836, the 1836 Act, entitled “An Act to remove doubts concerning the validity of Grants of Land in New South Wales” was passed. The second reading speech makes reference to the letter received from Lord Glenelg on 30 September 1835.

130    On 15 May 1880, an Indenture of Conveyance from Stephen and Harriet Stanbridge to Queen Victoria (that is, the 1880 Deed) was executed, which relevantly states:

…the said Stephen Stanbridge Doth hereby grant, bargain, sell, aliene, release, enfeoff, surrender and convey. And the said Harriet Stanbridge as such Executrix as aforesaid Doth release and confirm unto Her said Majesty Her Heirs and Successors All those pieces and parcels of land particularly described in the Schedule…

3.5    Summary of the submissions

131    Dungog Shire Council submits that the grant to Mr Phillips in the 1823 Deed “his heirs and assigns, forever” of 2,090 acres subject to the payment of quit rent and the performance of certain conditions, conveyed a right that was at the time of grant recognisable under the common law as a grant of fee simple estate in the Land. It submits that the 1823 Deed conformed in every material respect with the requirements set out in the Commission and Instructions, in circumstances where Mr Phillips was considered by Governor Brisbane (and relevantly, by the Secretary and Under-Secretary of State for the Colonies at the time) to be a “peculiarly meritorious settler”. It submits that subject only to the three requirements in [6](a), (b) and (c) of the 1823 Deed (which, if not fulfilled, would trigger the Crown’s right of escheat) it is clear that Mr Phillips was to have the benefit of the whole of the 2,090 acres.

132    Dungog Shire Council submits that the 10th stipulation of the Instructions does not identify the form of any approbation or the form of any “reasons” that must be given. It contends that a free settler would likely seek to establish their merit prior to departure from Britain so that they could be assured that they would receive a grant upon arrival in Sydney. It relies on a sequence of correspondence from 10 September 1821 until the grant of the 1823 Deed, which it says supports the fact that Governor Brisbane had formed the view that Mr Phillips was a “peculiarly meritorious” free settler and that Earl Bathurst and Henry Goulburn agreed.

133    Dungog Shire Council submits, by way of alternative, that the 1836 Act had the effect of validating the 1823 Deed to the extent, if any, it was invalid due to the absence of evidence of the Sovereign’s “approbation”. In the further alternative, Dungog Shire Council submits that entry into the 1880 Deed by Her Majesty indicated a form of approbation of the 1823 Deed.

134    The Attorney General broadly adopts the position of Dungog Shire Council, submitting that prior approbation was sufficient, and was given in the present case. The Attorney General submits in the alternative, that subsequent approbation can be inferred.

135    The Attorney General additionally submits that upon the proper construction of the Instructions a purported grant was valid immediately and would only be invalidated if the Crown communicated its disapprobation. This is an aspect of the construction dispute, which I address in section 4 below.

136    Mr Franks disputes that the 1823 Deed permits prior approbation and contends that no approbation was given prior to entry into the 1823 Deed. He further submits that no form of subsequent approbation has been given.

137    Mr Franks further contends that the subsequent 1836 Act was implemented to remedy a formal defect in deeds granted by Governor Brisbane (namely, that the deeds were made in the name of the Governor, rather than in the name of the King under the Public Seal) but was not an Act to effect an approbation by the King. Accordingly, Dungog Shire Council cannot prove a right of exclusive possession over the whole of the Land. Mr Franks otherwise disputes that any valid approbation was, or has been, given.

138    Finally, Mr Franks submits that by the 1823 Deed, Governor Brisbane made a grant pursuant to the 10th stipulation of his Instructions of about 200 acres of the 2,090 acres. This created a right of exclusive possession over those 200 acres (the Allotment). He also made a second grant pursuant to the 11th stipulation of his Instructions of about 1,890 acres, which is a grant of a licence to occupy and did not create a right of exclusive possession (the Residue). In the absence of the King’s approbation, Governor Brisbane could grant no more. As a result, on 30 June 1823, Mr Phillips received a grant of exclusive possession to a small portion being the Allotment, which had never been surveyed and cannot be shown to form part of the Land, and the Residue was never approved. Alternatively, Mr Franks submits that in the absence of the King’s approbation there was a defect in the grant which rendered it void or invalid. These points give rise to a further aspect of the construction dispute about the effect of the 1823 Deed.

3.6    Matters not in dispute

139    It is evident from the submissions advanced that the following matters are not in dispute in relation to the present application.

140    First, upon settlement in 1788, the Crown acquired a radical title to “all of the land in New South Wales” which extended to the territory of New South Wales; Mabo at 54; New South Wales Aboriginal Land Council v Minister for Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 at [111] (Crown Lands Act Case). After the acquisition of radical title, the Imperial Crown exercised supreme legislative and executive power with respect to the “waste lands” of New South Wales until the New South Wales Constitution Act 1855 (Imp) (18 & 19 Vict c 54); Crown Lands Act Case at [51].

141    Secondly, a corollary of the Crown’s radical title was the power either to grant interests in that land to another or to appropriate land to itself; Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1 at 186; Crown Lands Act Case at [111].

142    Thirdly, as at the date of execution of the 1823 Deed on 30 June 1823, King George IV was empowered to make laws with respect to the granting of land in the Colony of New South Wales. This power was exercisable through the British Parliament, where the Colony was expressly referred to in that legislation, and by royal prerogative, in the form of Letters Patent which conveyed the Commission and Instructions; Chitty J, Prerogatives of the Crown (Joseph Butterworth and Sons, 1820) pp 33 – 35. The 1823 Deed was executed prior to the establishment of a local legislature by the enactment of the New South Wales Act 1823 (Imp) (4 Geo IV c 96) on 13 October 1823.

143    In the Crown Lands Act Case, Gageler J said (citations omitted):

[101]    From the settlement of New South Wales in 1788, the Governor was authorised and empowered by the Crown to exercise non-statutory executive power to the extent and in the manner set out in Letters Patent. From 1823, the Governor was authorised and empowered by the Imperial Parliament to exercise legislative power for the welfare and good government of the Colony, and from 1828 the legislative power of the Governor was required to be exercised only on the advice of a local Legislative Council appointed by the Crown.

144    Fourthly, Governor Brisbane’s Commission confirmed that, provided the Commission and Instructions were followed, the grant “shall be good and effectual in law against Us, Our Heirs and Successors”. With the exception of the construction dispute and the approbation dispute, there is no argument that the 1823 Deed conformed, in form and in substance, in every material respect with the requirements set out in the Commission and Instructions.

145    Fifthly, no party questions that a Crown grant conveying a fee simple interest subject to a “quit rent” in the form set out in the 1823 Deed is capable of creating rights in Mr Phillips that are inconsistent with the continued existence of any native title. In this regard, in Australia quit rents functioned as purchase instalments for the land as distinct from obligations to the Crown as landlord, tied to the land; Brendan Edgeworth, Butt’s Land Law (Lawbook, 7th ed, 2017). Dungog Shire Council submits that the appropriate characterisation of the fee simple subject to a quit rent and conditions contained in the 1823 Deed is a grant of exclusive possession in line with the High Court’s approach in Fejo and Western Australia v Brown [2014] HCA 8; (2014) 253 CLR 507.

4.    THE CONSTRUCTION DISPUTE

4.1    Introduction

146    The primary dispute between the parties is whether or not the Crown provided the approbation required under the Instructions (and acknowledged in the 1823 Deed). In section 5 below, I have concluded that it did not. Accordingly, it is not strictly necessary for me to address the subsidiary argument advanced by Mr Franks which is that, absent approbation, the only effect of the 1823 Deed was to provide a grant in fee simple in respect of the Allotment and a permissive occupancy or licence to the Residue. Neither Dungog Shire Council nor the Attorney General support that argument. Nevertheless, in deference to the detailed arguments put, I consider the point below.

4.2    Consideration

147    The 1823 Deed is written in a form unfamiliar to the modern reader. It uses idiosyncratic capitalisation, unseparated paragraphs, unconventional punctuation and no meaningful formatting. The transcription set out in section 3.3 above is separated into numbered and lettered paragraphs for convenience of reference only and includes line numbers from the agreed transcription that was provided by Dungog Shire Council.

148    The role of recitals in a deed was considered in Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [379], [380] (Campbell JA, Allsop P and Giles JA agreeing). In broad terms, the Court notes that the recitals are part of the agreement and can be used as an aid to construction of an operative provision in an agreement. However, there is a distinction between the operative terms and the recitals. The latter can assist in the construction of a contract but are not themselves operative terms. Recitals may be used to determine the meaning of an ambiguous operative provision but cannot cut down operative words that are clear and unambiguous, even if the recital is also clear and is contrary to the operative provision. Recitals can also provide a means of proving background facts that are themselves legitimate aids to construction and may amount to an admission by the party to the deed of the truth of the matter stated under the general law concerning evidence and may give rise to an estoppel either by deed or by convention.

149    In the 1823 Deed, the first of the recitals (paragraph 2) identifies Governor Brisbane’s Commission, summarises its terms, and, inter alia, notes that the disposition of land shall be according to such Instructions as are given to him by the Sovereign.

150    The second recital (paragraph 3) refers to the Instructions and the restriction from granting more than 130 acres to each free settler subject to additional acreage being granted if the settler is married and has children whereupon he shall receive 20 additional acres for marriage and 10 additional acres per child at the date of grant. It is this formula that enabled the Allotment to be determined.

151    The operative provisions of the 1823 Deed are divided into three sentences. It is the first (paragraph 4) that conveys the substance of the grant. It is in the following terms:

KNOW ALL MEN BY THESE PRESENTS, that I, the said Sir Thomas Brisbane, in Pursuance of the Power and Authority so given and granted unto me as aforesaid, have Given and Granted, and by these Presents do Give and Grant, unto James Phillips his Heirs and Assigns, all those Two Thousand & Ninety Acres of Land, situate, lying, and being in the County of Durham and Townships of Wolfingham and Middlehope: Bounded on the South by part of Webber’s farm bearing West Two hundred & fifty Chains: On the West by a line bearing North eighty Chains: On the North by a line bearing East Two hundred and Ninety Three Chains to Patterson’s River: And on the East by that River saving and reserving to His Majesty, His Heirs and Successors, such Timber as may be growing, or to grow hereafter, upon the said Land, which may be deemed fit for Naval Purposes; also such Parts of the said Land as are now, or shall hereafter, be required, by the proper Officer of His Majesty's Government, for a Highway or Highways.

152    The grant is expressed as immediately operative (“have Given and Granted and by these Presents do Give and Grant”). The language is in such terms as would indicate the conveyance of an estate in fee simple (“unto James Phillips, his Heirs and Assigns”). As noted by the High Court in Fejo at [11], such language has long been recognised as conveying an estate in fee simple, citing Sexton v Horton [1926] HCA 25; (1926) 38 CLR 240 at 244 (Knox CJ and Starke J), 249 (Higgins J); In re Davison's Settlement [1913] 2 Ch 498 at 502 (Warrington J).

153    Further, this passage is unequivocal as to the amount so conveyed (“all those Two Thousand & Ninety Acres of Land”), that land being identified in terms. It contains within it reservations to the Crown (“reserving to His Majesty, His Heirs and Successors”) of timber which may be fit for naval purposes and parts of the land which may be required for roads. No language here provides a basis for concluding that two separate titles are conveyed.

154    The second sentence (paragraph 5) reinforces the position:

To have and to hold the said Land hereby granted to the said James Phillips His Heirs and Assigns, for ever; free from all Taxes, Quit-Rents, Services, and Acknowledgements whatsoever, for the Period of Five years from the Date of these Presents; but from and after the Expiration of the said Term or Time, yielding and paying therefore to His Majesty, his Heirs, and Successors, the Quit-Rent or Sum of Two Pounds One Shilling of lawful Sterling Money, yearly, and every Year, for ever. (lines 34 – 40)

155    It refers to the land “hereby granted to [James Phillips] his Heirs and Assigns, for ever” and notes that this is free from all taxes, quit-rents and acknowledgments for five years subject to payment of an amount each year after that term. As I have noted, the imposition of quit-rents payable does not give rise in this case to a submission that no estate in fee simple is conveyed. Tenants of a fee simple estate subject to a quit-rent could transfer their estates without consent of the Crown; Butt’s Land Law at 15 [1.110].

156    Notably, the quit-rent is not apportioned between the undefined areas granted in fee simple and those that are said, on Mr Franks’ analysis, to be held only on licence or permissive occupancy. This also tends against the construction propounded by Mr Franks.

157    The third sentence (paragraph 6) has four components. The first (paragraph 6(a)) provides the requirement for approbation:

Provided always, and it is hereby expressly stipulated, that so much of the aforesaid Two Thousand & Ninety Acres of Land hereby granted, as exceeds the Quantity I am enabled to Grant to the said James Phillips under the before recited Instructions, is to be considered as granted subject to the Approbation of His Majesty, His Heirs and Successors: (lines 40-45)

158    The second and third components (paragraphs 6(b) and 6(c)) stipulate conditions upon Mr Phillips and his heirs and assigns; one restricting alienation of the land within five years and the other requiring to use best endeavours to procure assignment of 20 convicts to be employed on the land and to feed and clothe them.

159    The final component (paragraph 6(d)) provides:

Otherwise the Whole of the said Land hereby granted shall become forfeit, and escheat to His Majesty, His Heirs, and Successors, and these Presents shall be held and deemed null and void. (lines 48 – 58)

160    Two points may be observed. The first is that in paragraph 6(a) the language that so much of the 2,090 “hereby granted” as exceeds the Allotment (which is permitted by the Instructions) “is to be considered as granted subject to the Approbation of His Majesty, his Heirs and Successors” indicates the grant of a single title of a single type of estate, contrary to the submission made by Mr Franks. This is reinforced by the language of paragraph 6(d) which indicates that, in the event that any of the conditions stipulated are not fulfilled, the grant of the whole of the land hereby granted is null and void, “escheat” contemplating reversion to the Crown on the termination of an extant interest in land.

161    Having regard to these paragraphs, in my view, on its proper construction, the 1823 Deed served to convey in fee simple the entirety of the 2,090 acres to Mr Phillips subject only to the satisfaction of the stipulations identified in paragraph 6 and, relevantly for present purposes, the approbation issue.

162    In this regard, I accept the submission advanced by the Attorney General that a further reason for preferring the construction that I have adopted is that to accept the approach adopted by Mr Franks would be to render the 1823 Deed insufficiently certain to be workable. Mr Phillips, if granted a split estate in respect of the 2,090 acres in the manner suggested would have little ability to know what part of the land was his to keep and what part was to be the subject of a licence. Which was the 200 acres in respect of which he held fee simple title? Where could he build his house? The Court will strive to construe a deed in a way that avoids invalidity, including for uncertainty; Throckmerton v Tracey (1555) 1 Plowd 145 at 160 (Staunford J); Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 at 109 (Gibbs J); Goldus Pty Ltd (subject to deed of company arrangement) v Australian Mining Pty Ltd (receivers and managers appointed) [2023] FCAFC 27 at [87] (Beach, Derrington, Halley JJ).

163    The Attorney General’s alternative argument is that on an available construction of the Instructions a purported grant was valid immediately and would only be invalidated if the Crown communicated its disapprobation either at all or within a reasonable time. The Attorney General submits that the grant of fee simple made “on condition that” or “provided that” some condition be satisfied will convey an estate in “fee simple conditional” or “fee simple defeasible”, the defining feature of which is that if the condition of defeasance is satisfied, then the estate will revert to the grantor if the grantor exercises a right of entry. If that right is not exercised, the grant remains absolute in its entirety. According to Butt’s Land Law at 110 [3.70]:

The fee simple continues unless the grantor exercises that right of entry. Unlike a determinable fee, a defeasible fee does not automatically come to an end when the specified event occurs.

164    The Attorney General contends first, that it was an express purpose of the Instructions as set out in the 10th stipulation to “afford…every encouragement” to men and women of capital to emigrate to New South Wales to settle there. It was necessary that those settlers should have some certainty as to the validity of their land holdings. Secondly, he submits that the 11th stipulation emphasises that the discretion residing in the Governor to enlarge grants to meritorious settlers was wide and was primarily reposed in the Governor. Thirdly, he notes that the 11th stipulation goes on to say that the direction to the Governor “by the first opportunity” to transmit to one of his Principal Secretaries of State “your reasons for making the same”. He submits that if approbation were a condition of a valid grant, the direction might be regarded as superfluous because transmitting reasons back to London would, if approbation were a condition of a valid grant, be a requirement in any event. The Attorney General relies on Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [92], [93] in support of the contention that the requirement of approbation may be characterised, in substance, as a procedural condition for the exercise of statutory power; failure to comply with that condition will not result in the invalidity of the act done. Having said this, the Attorney General accepts that the issue that he raises is attended by real doubt. I agree with that assessment, for reasons developed below.

165    The construction advanced by the Attorney General depends on the language used in the Instructions and certain inferences as to their purpose. I have addressed the language used above. In my view, it does not support the Attorney General’s submission. Nor, in my view, is it to be inferred from the 10th stipulation that the only purpose of the Instructions is to afford an opportunity to settlers and emancipated convicts to take up and settle on land. That paragraph limits the grant to 130 acres (plus further allotments should the grantee be married or have children). The express terms of stipulation 11 provide a limitation on any grant over that amount, which is that the discretion must be the subject of the approbation by “[o]ne of our Principal Secretaries of State”. It also requires that there be transmitted to such a Secretary of State how the exercise of discretion has been exercised and the Governor’s reasons for doing so. Furthermore, stipulation 13 makes plain that grants are to be “made out in due form”, the conditions required be set out and mentioned in the grants and that they be properly registered. Such terms do not provide grounds for concluding, as a matter of the purpose of the Instructions, that the requirement of approbation is merely procedural or directory. Furthermore, having regard to at least one aspect of the background to the Instructions – highlighted in Governor Brisbane’s letter to Earl Bathurst on 10 April 1822 (set out [102] above), it would appear that the predecessor to Governor Brisbane was regarded as having been profligate in bestowing grants of land and that one purpose of the limitations set out in the Instructions was to enable the King to check and retain to himself the ability to decline grants so exercised. That purpose is also evident from the Instructions. Accordingly, it is incorrect to conclude that the Instructions served only the purpose of assisting settlers.

166    Furthermore, it is apparent from a letter dated 31 July 1823 from Earl Bathurst to Governor Brisbane that Earl Bathurst did play a material role in relation to grants. In that letter, Earl Bathurst refers to an earlier letter in which he directed the Governor to grant an “advantageous addition of property” to a settler who had satisfactorily fulfilled his obligations in respect of the land he had been granted, including by breeding sheep. He expressed disappointment that the further land proposed to be granted was apparently not of good quality (without water, mountainous, barren, etc) and directed that the settler be given immediately the 5,000 acres to which he is entitled and an “additional contiguous district” in accordance with a proposal made by the settler’s son.

167    Accordingly, I do not consider that it may be assumed that approbation has been granted in the absence of notice to the contrary. Nor do I consider that the 1823 Deed is merely voidable at the option of the King (his Heirs or Successors) such that absent approbation it may be assumed to remain valid.

168    The remaining issue is the question of approbation, to which I now turn.

5.    THE APPROBATION DISPUTE

5.1    Introduction

169    Dungog Shire Council submits that the approbation required by the 1823 Deed was supplied. The Attorney General joins in that submission, whilst noting that there is some “archival silence” on the question of approbation and accepting that the onus of proof rests on the party asserting extinguishment.

170    The submissions advanced in favour of extinguishment may be summarised as follows:

(1)    Approbation was capable of being given by the King’s Principal Secretaries of State. The Secretary of State for the Colonies, Earl Bathurst gave his approbation prior to execution of the 1823 Deed, which was sufficient;

(2)    In the alternative, subsequent approbation can be inferred by recommendations made in advance of the 1823 Deed and silence after entry into it, or by the receipt and retention of quit-rent and/or by the evidence that representatives of the Crown proceeded on the basis that the Grant was effective;

(3)    The Court may be informed in respect of the question of extinguishment by the presumption of regularity;

(4)    In the alternative, the terms of the 1836 Act had the effect of retrospectively validating the 1823 Deed.

171    Mr Franks takes issue with each of these points and submits that Dungog Shire Council has failed to discharge the onus on it to establish that approbation was given.

172    For the reasons provided below in 5.2 and 5.3, I do not consider that the approbation requirement was satisfied. As a result, the 1823 Deed is invalid and was not a “previous exclusive possession act” extinguishing native title in the Land.

5.2    Prior approbation

5.2.1    The submissions

173    Dungog Shire Council, supported by the submissions of the Attorney General, submits that approbation given prior to entry into the 1823 Deed was sufficient to satisfy the requirements of the 1823 Deed. In this respect, it contends that the Instructions are neutral about when approbation must be given and should be understood to contemplate that prior approbation may be given. It submits that it was more practical that aspiring settlers present themselves to the Colonial Office in London prior to embarking for Australia and obtain the Secretary’s advance written approbation to their receiving a grant. In such a case, the Governor’s reasons for a grant would be self-evident, because the reasons for the grant were to give effect to the Colonial Office’s recommendation. Nothing in the 1823 Deed stands in the way of this construction; the words “so much of the aforeseaid… hereby granted as exceeds the Quantity I am enabled to grant to the said James Phillips under the before-recited Instructions, is to be considered as granted subject to the approbation of his Majesty...” should be taken as reflecting the terms of the 13th stipulation of the Instructions requiring that they be mentioned in grants, but the words emphasised do not deny the possibility that such approbation might already have been given. To do otherwise would contravene the principle of construction that Crown Grants should be construed in a way that renders them valid, citing Doe dem Devine v Wilson (1852) 1 Legge 722 at 727, 740.

174    Dungog Shire Council submits that approbation need not be given personally by the King but may be given by the King’s Principal Secretaries of State, citing Buron v Denman (1848) 2 Exch 167; 154 ER 450 at 459.

175    On the facts, Dungog Shire Council submits that the King, through his Principal Secretaries of State, expressed his Majesty’s approbation of the grant to be made by reason of a series of letters and historical records from 21 August 1821 up until the 1823 Deed.

176    Mr Franks disputes many of these propositions. He submits that by requiring in the 11th stipulation of the Instructions approbation before Governor Brisbane could make a grant beyond the Allotment, the King reserved for himself a personal action and that such action – approbation – has not been demonstrated to have been given. Mr Franks submits that the requirements of the Instructions are to be understood in their historical context, which indicates the need for an act of approbation. Furthermore, prior approbation was not possible, because the 11th stipulation of the Instructions required that the Governor first transmit his reasons for the grant to a Principal Secretary of State. Mr Franks submits that the requirement of the King’s approbation is informed by Governor Brisbane’s usage of those words in the military sphere and in the context of convict paroles both of which required the transmission of a request and the receipt of an approval. Mr Franks submits that no approbation was given prior to the entry into the 1823 Deed on 30 June 1823.

5.2.2    Consideration

177    The terms of paragraph 6(a) of the 1823 Deed require that the grant be “subject to the Approbation of His Majesty, His Heirs and Successors”. In this context, “approbation” must be understood to mean “approval”. The 1823 Deed does not specify any particular form of approval. Nor do the Instructions, which in the 11th stipulation refer to this requirement, indicate that an amount to be granted must be the subject of any particular form of approbation, although that stipulation does additionally provide that:

…in case of any peculiarly meritorious Settler…that you shall be at liberty to enlarge said Grants…as you in your discretion shall judge proper subject nevertheless to our approbation thereof upon your transmitting to One of Our Principal Secretaries of State, which you are hereby directed to do by the first opportunity, your reasons for making the same.

178    The Instructions accordingly allow the Governor to exercise his discretion to enlarge grants beyond the Allotment for a “meritorious Settler” subject to the King’s approbation upon communication to a Principal Secretary of State, together with reasons.

179    The historical archives include a letter written by Governor Brisbane dated on 10 April 1822 to Earl Bathurst (apparently received on 30 May 1823) indicating that he had discovered that his predecessor Major General Macquarie “had been exceedingly liberal in his promises of land” and that he considered it necessary, in the body of each deed, in obedience to the Instructions, to “introduce into direct view the power”, that the Crown has expressly reserved to itself “of disapproving of all Grants greater than a given number of acres”. Attached to the letter is a copy of a pro-forma deed that takes the form of the 1823 Deed, leaving blank the spaces for the personalised details of each recipient of the grant and the size of the grant to be allowed. It may be inferred that Governor Brisbane considered the requirement of approbation to be more than a mere formality.

180    However, I do not accept the suggestion in the submissions advanced by Mr Franks to the effect that King George IV was required by his own hand to give personal approbation. As Dungog Shire Council points out, the notion that the Sovereign should give personal consideration to the aspirations of Mr Phillips to take up 2,090 acres at Paterson, on the other side of the world, is implausible. Rather, it would be sufficient for one of the Principal Secretaries of State to communicate such approbation. Such persons included the Secretary of State for the Colonies, Earl Bathurst, who occupied that role in Lord Liverpool’s Ministry between 1812 and 1827. The decision in Harrison v Bush (1855) 5 E & B 344 at 513 indicates that the Office of Secretary of State is an ancient one whereby the office bearer had the authority to communicate the wishes of the Sovereign to the subject, an authority recognised by the delivery to the Secretary of the Seals of Office.

181    Henry Goulburn was an Under-Secretary for the Colonies until December 1821, but did not occupy the role of Principal Secretary.

182    In this regard, in Buron at 459 the plaintiff, a Spaniard, sought compensation for the actions of a naval commander who at the request of the Governor of Sierra Leone had liberated two British subjects who had been detained as slaves by the son of the King of Sierra Leone. In the course of doing so, the defendant took possession of the plaintiff’s barracoon (a ship) which was carrying slaves and procured the release of the British subjects. An enterprising man, he then concluded a treaty with the King for the abolition of the slave trade in that country, burnt the barracoon to the water and released the plaintiff’s slaves at the same time also forfeiting other goods of the plaintiff that had been used in the slave trade.

183    Upon the commencement of proceedings, the Secretaries of State for foreign and colonial departments by letter adopted and ratified the actions of the defendant. Parke B (with whom Alderson, Rolfe and Platt BB relevantly agreed) concluded at 459-460:

…if the Crown, with knowledge of what has been done, ratified the defendant’s act by the Secretaries of State or the Lords of Admiralty, this action cannot be maintained. In the documents which have been read there is ample evidence of ratification, for the Secretary of State for Foreign Affairs, the Lords of the Admiralty and the Secretary of State for the Colonial Department, on receiving the report of the Governor of Sierra Leone, and the account of the transactions given by the defendant himself, expressed their approbation of what he had done. The acts, indeed have never been published, and that is one of the circumstances which created a doubt in my mind. But, although the ratification was not known before this action was commenced, that fact makes no difference in the opinion of the Court. A previous command would be unknown, if given verbally; and a subsequent ratification, though unknown will have the same effect.

It is argued, on the part of the plaintiff, that the Crown can only speak by an authentic instrument under the Great Seal, and that, therefore, the ratification ought to have been under the Great Seal. We are clearly of opinion, that, as the original act would have been an act of the Crown, if communicated by a written or parol direction from the Board of Admiralty, so this ratification, communicated in the way it has been, is equally good.

184    I am satisfied that Earl Bathurst, as Principal Secretary of State for the Colonies, had the authority of the Sovereign to give the necessary approbation under the 1823 Deed.

185    The parties are at issue as to whether the Instructions, as cross-referenced in clause 6(a) of the 1823 Deed, enable approbation to be given prior to its entry. Dungog Shire Council submits that the Instructions are neutral on the question of timing. The 11th stipulation simply provides “subject nevertheless to our approbation” but imposes no requirement as to when. However, the stipulation says “subject nevertheless to our approbation upon your transmitting reasons…” which at least indicates a sequence of events, with reasons for the additional grant to precede the King’s approval.

186    Furthermore, in my view, the 1823 Deed is not neutral as to timing. Paragraph 6(a) provides that such amount of the land as exceeds the Allotment “is to be considered as granted subject to the approbation of his Majesty”. The use of the present tense (“is to be considered as granted”) followed by the words “subject to approbation” might be taken to indicate that such present grant is subject to a future approbation, one step following the other.

187    Nonetheless, I accept that an approval granted may, as a matter of theory, be ongoing. For instance, a Principal Secretary of State may have granted approval for Mr Phillips to be granted an allotment of 2,090 acres before he set sail for New South Wales. Upon Governor Brisbane confirming to the King his view that Mr Phillips was meritorious (and thereby giving his reasons), the prior approval may have operated as a relevant approbation. However, as the events described below unfold, this is not what happened.

188    It is apparent from his letters of 21 August 1821, 1 September 1821 and 10 September 1821 that Mr Phillips sought a grant of land and free passage to emigrate with his family.

189    On 29 September 1821, Henry Goulburn, the Under-Secretary for the Colonies, wrote to Governor Brisbane recommending that Mr Philips receive a grant of land in proportion to his capital.

190    Annexure VK-23 to the affidavit of Ms Field is an extract from HRA which includes in a page dated 1821 a heading “Orders for Land Grants” then the statement:

During the year 1821, the following persons were recommended for land grants by Earl Bathurst, of which advice was sent in letters dated as under:-

…

5 October …Mr Jas. Phillips…NSW

191    I am satisfied, having regard to the evidence concerning the provenance of this document and the evidence concerning the identity and movements of Mr Phillips, that this reference is to James Phillips.

192    The notes to the entry record that a letter is likely to have been sent (and I accept that it was) dated 5 October 1821 from Under-Secretary Goulburn to Governor Brisbane to the effect set out in the chronology, indicating that Mr Phillips has received the permission of Earl Bathurst to proceed as a settler to New South Wales, that he has “very satisfactory testimonials” and that his Lordship gives him directions “to recommend him” and “desire that he may receive a Grant of Land, in proportion to his Capital with the usual Indulgences of Convict Labour…”. I accept that this may be taken to be a communication from Earl Bathurst who had the Crown approval to give a grant of land, but the size of the grant and the scope of any conditions to be attached to it are not set out. Having regard to the onus lying on Dungog Shire Council, I would not infer that this is an approbation as required.

193    On 29 May 1822, Colonial Secretary Frederick Goulburn wrote to Mr Phillips informing him that a grant would be made to him “in proportion to the means which you may possess”. Some nine days before, Mr Phillips and his large family had arrived on the ship Mary Anne in Sydney.

194    On the same day, Mr Phillips indicated that he had the means to provide for 20 convicts (“my means enable me to take twenty men permanently off the stores”) to which the Colonial Secretary responded that he was:

directed by His Excellency Sir Thomas Brisbane to inform you in reply to your letter… that he will make you a grant of Two Thousand (2000) acres of land, in any part of the Colony already surveyed, and will order six Convict Servants to be assigned to you…

195    Dungog Shire Council and the Attorney General submit that the combined effect of the correspondence summarised above is such that the Court may properly conclude that the grant contained in the 1823 Deed was made with the King’s prior approbation.

196    Mr Franks raises four points to contest this submission.

197    The first is that to the extent the above correspondence evidences royal approval of Mr Phillips receiving a land grant, there is a difference between this and approval for the excess acreage in the Residue. There is force in this submission. When one considers the communications by or on behalf of Earl Bathurst, the highest point of the approval is that by reason of his character and respectability he desires “that he may receive a grant of land in proportion to his capital”.

198    The evidence does not disclose what Governor Brisbane was to make of the words “in proportion to his capital”. In my view the language is ambiguous. It may perhaps be inferred that Mr Phillips was considered to be a person eligible to receive a grant of his Allotment in accordance with the formula set out in the 10th stipulation in the Instructions, being some 200 acres. Alternatively, it may mean that, by reason of his respectability and character he was eligible to receive a discretionary amount of land in excess of that acreage. However, if the latter is correct, nowhere is there evidence as to what proportion may be regarded to be suitable. No indication is provided by Earl Bathurst as to what amount of land might be granted. That is, of course, entirely reasonable. No doubt considerations as to the grant included questions of the quality of the land granted and the means available to the settlor to work that land. However, the present question is whether or not approbation was given for a grant of the type actually made in the 1823 Deed, which was of some 1,800 acres in excess of the Allotment. Having regard to the express requirements of the 11th stipulation and paragraph 6(a) of the 1823 Deed, it must be regarded as unlikely that Earl Bathurst by those words was communicating carte blanche to Governor Brisbane an approval for him to allocate any amount of discretionary land that he considered fit. Indeed, the apparent purpose of those requirements was to ensure that the profligate granting of land by Governor Brisbane’s predecessor was placed under some control. An open-ended approval given before any indication as to quantity, or reasons offered by Governor Brisbane, would not fit either the language of the 1823 Deed or the evident purpose of that aspect of the 1823 Deed and the Instructions.

199    Secondly, Mr Franks submits that there is no suggestion in the documentation that Mr Phillips was aware, one way or the other, that approbation had been given. I do not consider that this is a material question. The question of approbation was apparently between the Governor and the Sovereign.

200    Thirdly, by his letter of 10 April 1822, Governor Brisbane eschewed any prior approbation in favour of receiving approbation from the King after grant. In this regard, Mr Franks relies on Governor Brisbane’s understanding of the terms of deeds such as the 1823 Deed, having regard to his correspondence with Earl Bathurst on 10 April 1822. However, in my view this does not have a direct bearing on the construction of the 1823 Deed. The reference to the 13th stipulation of the Instructions and “the introduction into direct view the power, that the Crown has expressly reserved to itself, of disapproving of all Grants greater than a given number of acres” does not serve to demonstrate that a prior approval of such a grant may not be given.

201    Finally, Mr Franks submits that Dungog Shire Council has failed to establish that, in conformity with the 11th stipulation in the Instructions, the Governor gave his reasons to the King for granting the Residue. It may perhaps have been inferred, and I am prepared to infer, that the Governor considered, upon receipt of the letters of introduction to which I have referred, that Mr Phillips was a meritorious settler and accordingly entitled to a grant exceeding the Allotment. The difficulty for the case advanced by Dungog Shire Council concerns approbation of the amount in excess of the Allotment, being the Residue.

202    Accordingly, I am not prepared to infer, as Dungog Shire Council asks me to do, that the correspondence indicates prior approval given by Earl Bathurst of the excess land in the Residue.

5.3    Subsequent approbation

203    Dungog Shire Council and the Attorney General submit that it may, in the alternative, be inferred that subsequent approbation was given in several different and alternative forms.

5.3.1    By silence

204    The first is that, on the basis of the correspondence described in the previous section, the Colonial Office in London, and therefore the Secretaries, expected the grant to be made and had notice of the grant and they took no steps to countermand it. This, it is submitted, may be regarded as a form of approbation by silence.

205    The difficulty with this proposition is that by the 13th stipulation in the Instructions the Governor is to take care that all grants be made out in due form and that they be “properly registered and that regular returns thereof be transmitted by the proper officers to Our Commissioners of Our Treasury…within the space of Twelve months after the passing of such Grants”. The Attorney General properly points out the evidence of Ms Lowes, which refers to a House of Commons parliamentary paper of 16 July 1832 entitled “New South Wales and Van Diemen’s Land: Crown Lands”. This document identifies returns of the alienations of Crown Lands during the previous 10 years. It indicates that returns of grants of land in New South Wales were not received for several years, including 1823. Although the Attorney General submits that on the current state of the evidence, the Court should not draw a conclusion one way or the other about whether returns were transmitted to London as contemplated by the 13th stipulation, he nevertheless contends that given the correspondence prior to the grant, the Court should conclude that the King’s representatives in London had notice of the grant, and took no steps to countermand it. He submits that this may be regarded as a form of approbation by silence.

206    However, I am not satisfied that on the state of the evidence there was such notice to the Secretary of the Colonies, or a person in authority in Britain, to draw the conclusion that is sought. Nor do I consider that the correspondence relied upon, which pre-dates the 1823 Deed, is sufficient basis for drawing an inference that the Secretary of the Colonies was aware of what subsequently came to pass. Indeed, for the reasons given, if there was an expectation on the part of those in Britain that an amount granted would be in excess of the Allotment (which is not entirely clear) there is no indication as to what amount that excess would be.

5.3.2    Upon receipt of quit-rent

207    The second is that Mr Phillips was required to start paying quit-rent after occupying the land for five years, and did so, although apparently only for the first two years that it was due (from 1 July 1828 to 30 June 1830) and for the single year for 1849. It is submitted that the receipt of this revenue by the Crown should be regarded as approbation in the sense that it is only consistent with approbation of the grant and is inconsistent with reprobating or countermanding the grant and that it is open to the Court to regard the acceptance of that money to be a form of approbation, or as being inconsistent with the Crown withholding approbation.

208    However, there is no evidence that the desultory payments received from Mr Phillips as quit-rent were transmitted to London or that the Secretary of the Colonial Office or his Under-Secretary or other agent was aware of the receipt of that money. Nor is it clear what such receipt would stand to communicate. It cannot be sensible to infer from such payments that a very particular requirement of approbation, stipulated by the Sovereign and recorded in a Deed, was by implication given in circumstances where (as I have found) express letters from the Secretary are inadequate for that purpose.

5.3.3    Implied from communications prior to the 1836 Act

209    The third basis is said to arise from communications prior to the 1836 Act and a presumption of regularity arising from some dealings or communications that have been identified from the records.

210    It is necessary to summarise some additional background matters before turning to this submission.

211    On 30 June 1823, the 1823 Deed was registered.

212    By letter dated 8 March 1824, Mr Phillips wrote to the Colonial Secretary, Frederick Goulburn requesting a grant of land for his eldest son (in his 15th year). A handwritten annotation to the letter states that the Governor is sorry that he is prevented from complying with the request because of his “invariable” practice of not allowing land to the sons of settlers who have themselves received a grant. I infer that a letter to this effect was sent to Mr Phillips by or on behalf of Mr Goulburn.

213    On 30 August 1829, Mr Phillips sent a further letter referring to his grant of 2,000 acres and seeking an additional grant of land. No response is in evidence.

214    According to an extract of a record entitled “List of Orders for Grants of Land by Sir Thomas Brisbane” on 22 November 1825 the Governor made a direction that the Surveyor General “mark and measure” for listed individuals the number of acres of land specified for each and to provide them to their legal representatives “preparatory to Grants under the Great Seal of the Colony being regularly passed...” Mr Phillips name is in the list and the number of acres identified is 2,000.

215    In the census of 1828, one of the persons named James Phillips is recorded as holding 2,090 acres of land in the District of Paterson Plains.

216    By about 1835, concern arose as to the validity of various grants of land because various Governors and administrators of New South Wales had failed to use the public seal of the Colony in making grants but had rather executed grants under their own names. The issue was that this approach did not reflect the Crown’s Instructions and may have rendered grants of land that had been made without the use of the seal invalid.

217    This concern was raised in a letter from Sir Richard Bourke, then the Governor of New South Wales. On 30 September 1835, Lord Glenelg, then the Secretary of State for the Colonies, based in London, replied to Sir Richard relevantly saying:

(1)    that he had received Sir Richard’s dispatch recommending that Lord Glenelg consult with Law Officers of the Crown on: whether grants not given under the Royal Seal are valid; if they are not, whether local legislation can be enacted to impart such Grants with retrospective validity; and, whether it would be necessary to revert to Parliament for assistance on the subject;

(2)    to issue new grants in proper form to replace illegal grants would be productive of “intolerable inconvenience”;

(3)    recognising the danger that casting doubt on the validity of prior land grants could cause panic and excite misgivings, the practical question is by what means the validity of grants already issued can be placed beyond controversy; and

(4)    the best way to proceed is to authorise the Governor on behalf of the Crown to communicate to the Legislative Council the King’s pleasure that he will assent to “any Law which shall appear to you to be properly framed, and which be passed by them, declaring that all Grants or Conveyances of Land theretofore issued by and in the name of any Governor or Officer…shall, although not bearing the name of His Majesty…nor under the Public Seal… be thence-forward, and shall be taken from their respective dates to have been as valid as though they had been issued in the name of His Majesty… under the Public Seal…”.

218    Two substantive submissions are made in respect of the records identified prior to Lord Glenelg’s letter and the letter itself. The first is that the Court may take into consideration the presumption of regularity or the due performance of official duty. The second is that Lord Glenelg’s letter, taken in context, should itself be taken as an expression of the King’s approbation of the 1823 Deed (the King by then being William IV). I address each of these in turn.

219    The presumption of regularity – that everything is presumed to be rightly and duly performed until the contrary is shown – was considered by the New South Wales Court of Appeal in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154. There, McHugh JA said at 164:

The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office …. And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit ….

220    In considering the application of the maxim in Neowarra v Western Australia [2003] FCA 1402, Sundberg J at [563] cited Wigmore on Evidence vol 9 (1981) at §2534 which says:

The general experience that a rule of official duty or a requirement of legal conditions is fulfilled by those upon whom it is incumbent has given rise occasionally to a presumption of due performance of official duty. This presumption is more often mentioned than enforced; and its scope as a real presumption is indefinite and hardly capable of reduction to rules.

It may be said that most of the instances of its application are found attended by several conditions; first, that the matter is more or less in the past and incapable of easily procured evidence; second, that it involves a mere formality or detail of required procedure in the routine of litigation or of a public officer’s action; third, that it involves to some extent the security of apparently vested rights so that the presumption will serve to prevent an unwholesome uncertainty; and, finally, that the circumstances of the particular case add some element of probability.

221    His Honour went on to say at [564]:

The applicants submit that the presumption does not apply so as to cure a formal defect. They rely on City Mutual Life Assurance Society v Elliot (1897) 18 LR (NSW) 391 for the proposition that the presumption has no application where validity derives from statute and the instrument in question is not validly executed in accordance with prescribed formalities. There a transfer of land was received in evidence executed by the defendant, but there was no evidence that it had been executed in the presence of a magistrate or land agent as required by the Crown Lands Act and the regulations made thereunder. Stephen and Owen JJ refused to apply the presumption. Owen J said (at 403‑404):

Section 119 of the Crown Lands Act of 1884 makes a transfer of land operate to pass to the transferee the whole estate at law and in equity of the transferor ‘as effectually and to all intents and purposes as if a conveyance or assignment under seal’ had been duly executed, but only on the condition that such transfer had been made, executed, and lodged in accordance with the regulations.

It is clear, therefore, that unless the transfer is executed with the formalities required by the regulations it does not act as a conveyance or assignment, and does not pass the legal estate of the transferor.

That case is readily distinguishable, and does not establish that the presumption can never apply to cure a formal defect. As Owen J pointed out, it was a condition of the efficacy of the transfer that it be executed in a particular way. That is not the case with the regulations and legislation relating to the creation of reserves. The requirement of Gazettal is not a condition of the exercise of the power to create reserves. It is a formality to be carried out after a reserve has been created.

222    In Neowarra, there were two defects in the evidence. The first was an absence of Gazettals for a number of Crown reserves that had been declared. The second was an absence of relevant detail in the cases where the Gazette had been produced. His Honour found that the observations of Wigmore apply to those cases in which no Gazettes were produced, but not for those which had. He noted that the missing Gazettes related to events over 100 years ago. The publication of the relevant information in the Gazette was a formality or detail of an officer’s required procedure. It was not a condition of the power to create a reserve. His Honour concluded at [567] that not to apply the presumption would affect the security of apparently vested rights and that applying it would avoid uncertainty as to tenure.

223    The reasoning in Neowarra demonstrates the caution that must be applied when considering the presumption. It is important to identify the exercise of power in respect to which it is said to apply. Here, it is the exercise by the King or his Secretary of the Colonies of a specific power to approve an act which is otherwise unauthorised. It is not analogous to the publication in a Gazette of events that the evidence otherwise points to have occurred. In the present case, it may not be said that the approbation by the King was a formality, all other requirements having been fulfilled. It was of course open to the King to approve or not approve the grant. There is no presumption that approval would (or was) necessarily forthcoming.

224    The fact is that the Instructions and the 1823 Deed called for such approbation and there is no presumption available that it would necessarily have been given. Nor is there evidence that enables me to assume that it would have been given. Indeed, the evidence does not even support the inference that the relevant decision makers in Britain were aware of the grant such that an inference might be available from their silence after the grant. As I have noted, and the Attorney General accepts, factual enquiries have disclosed that returns were not received by the Colonial Department in London in respect of grants made in 1823. Given that the evidence discloses that returns were made, for example, for 1821 and 1826, I am not prepared to infer that such returns existed and are lost to time.

225    Nor do I consider that the registration of the 1823 Deed, the correspondence concerning Mr Phillips’ requests for additional land, the instructions to the Surveyor General or the detail included in the census to be of assistance to Dungog Shire Council. None of those matters concern acts of the relevant decisions makers in Britain. Although it is apparent that officials in New South Wales considered the grant to have been completed, it was not within their power to approve the grant.

226    In this regard, I am sensible to the fact that those commonsense matters to which Wigmore refers provide a temptation to apply the presumption of regularity in favour of sustaining the force of the 1823 Deed. The events with which the present case is concerned took place some 200 years in the past and it is apparent that those concerned with the grant conducted themselves on the basis that it had been perfected. Indeed, part or the whole of the land was mortgaged and sold several times before the 1880 Deed was entered. However, it is clear from the authorities to which I have referred that the presumption of regularity is not a panacea for all evidentiary absences. In the circumstances that I have described above, it is not the appropriate solution.

227    Furthermore, although the events took place some 200 years ago, it is evident from the sterling historical research efforts undertaken by those involved in this case that there exists a significant body of documentary evidence concerning the grant of the land in question still available. That evidence provides no basis to conclude that the Colonial Office in Britain, and more particularly the King or one of his Secretaries of State, gave approval for the grant, at least insofar as it exceeded the Allotment.

228    The second issue concerns the letter from Lord Glenelg. In my view, the analysis of this letter and the 1836 Act are linked and yield the same result. I address them in the section below.

5.3.4    As a result of the 1836 Act and the letter from Lord Glenelg

229    On 2 June 1836, the 1836 Act was passed. Its recitals, consistent with Lord Glenelg’s dispatch, note that while persons administering the Government of New South Wales (being Governors and Administrators and the like) have been authorised by commission under seal to grant and dispose of the waste lands of New South Wales, and grants of land have been made, those grants have been made in the names of those persons and not in the name of his Majesty or his predecessors and that doubts have been raised about whether those grants are valid. In order “to remove such doubts and quiet the titles of His Majesty’s subjects” the Act was passed.

230    The operative provision of the 1836 Act provides that:

…all grants, deeds or conveyances at any time heretofore made and issued by or in the name of any Governor…of any lands situated in the said Colony, and notwithstanding such grants, deeds or conveyances shall not be in the name of His Majesty or of either of his Majesty’s two last Royal predecessors …shall be and be deemed taken and held to be and to have been from the respective dates thereof as valid and effectual in the law to grant and convey such lands, and shall be as binding upon His Majesty, His Heirs and Successors to all intents and purposes as if such grants… had been made an issued in the name of His Majesty or of either of his Majesty’s two last Royal predecessors and had passed and been executed under the Public Seal of the Colony and had been recorded in the most regular form of law…

231    It is submitted that the language of the 1836 Act serves to overcome, should it be necessary to do so, any defect in the 1823 Deed, by virtue of this clause. The Attorney General submits that the requirement set up by the words “subject to the approbation of His Majesty” in the 1823 Deed can no longer be read as though the validity of the grant remained an outstanding question to be settled only upon the giving of Royal approbation.

232    I am unable to agree with that submission. The purpose of the 1836 Act was to address the problem caused by past Governors and administrators of the Colony failing to use the Royal Seal and failing to make grants in the name of the Sovereign. No authority was cited to suggest that the narrow purpose of the 1836 Act was consistent with a construction that would overcome any failure to adhere to the requirements of a Deed of grant of land. Nor does the language of the 1836 Act indicate that this was so. The provision states that all grants in the name of the Governor, notwithstanding that they are not in the name of his Majesty shall be deemed to be valid. In other words, where a grant is expressed in the wrong name, that defect is overcome by operation of the Act. It does not appear to me to be a correct interpretation of the 1836 Act to construe that language to mean that where there is a further or additional substantive requirement in a deed that has been unmet, that requirement may also be considered to have been met such that the requirement of that Deed is satisfied.

233    Nor do I consider that the content of the letter from Lord Glenelg permits any different conclusion. That letter too is directed to the difficulty arising from potential invalidity of land grants that were not made in the name of the Sovereign.

5.4    Conclusion in relation to questions (2) and (3)

234    Question (2) is:

Were all native title rights and interests that might once have existed in respect of the land extinguished by the grant of 2090 acres of land by Governor Thomas Brisbane to James Phillips by the deed dated 30 June 1823?

235    Dungog Shire Council submits that by virtue of the grant of an estate in fee simple subject to the payment of a quit-rent and conditions as set out in the 1823 Deed, Mr Phillips received a grant of exclusive possession in accordance with Fejo at [36] [43], [47] with the consequence that native title was extinguished. For the reasons given in section 5 above, I am not satisfied that Dungog Shire Council has discharged its onus to establish that this is so. Accordingly, the answer to question (2) must be “no”.

236    Question (3) is:

Was the grant described in Question (2) a ‘previous exclusive possession act’ within the meaning of s 23B of the Native Title Act and s 20 of the Native Title (New South Wales) Act 1994 (NSW)?

237    Section 20 of the NSW Native Title Act is entitled “Confirmation of extinguishment of native title by previous exclusive possession acts of the State” and provides:

(1)    Acts other than public works If an act is a previous exclusive possession act under section 23B (2) (including because of section 23B (3)) of the Commonwealth Native Title Act and is attributable to the State—

(a)    the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned, and

(b)    the extinguishment is taken to have happened when the act was done.

(2)    Public works If an act is a previous exclusive possession act under section 23B (7) (which deals with public works) of the Commonwealth Native Title Act and is attributable to the State—

(a)    the act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated, and

(b)    the extinguishment is taken to have happened when the construction or establishment of the public work began.

(3)    Other extinguishment provisions do not apply If this section applies to the act, Divisions 2 and 2A of Part 2 do not apply to the act.

238    Section 23B(2)(a) of the Native Title Act provides:

(2)    An act is a previous exclusive possession act if:

(a)    it is valid (including because of Division 2 or 2A of Part 2); and

Note:    As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

239    Dungog Shire Council bases its case on the proposition that the 1823 Deed was valid to convey the grant of 2,090 acres to Mr Phillips, either because approbation was given on the several bases identified in section 5 above or alternatively because it was subsequently cured or rendered unactionable any invalidity that existed as at the date of grant. For the reasons set out in section 5, I am not satisfied that Dungog Shire Council has made out its case.

240    Accordingly, the answer to question (3) must be “no”.

6.    EXTINGUISHMENT BY THE 1880 DEED

6.1    Introduction

241    The operative provision of the 1880 Deed is set out in the chronology in section 3.4 above.

242    In its written submissions, Dungog Shire Council contends that all native title rights and interests that might have existed in the Land were extinguished by the conveyance of the Land by Stephen and Harriet Stanbridge to the Queen under the 1880 Deed. It submits that this vested an estate in fee simple in Queen Victoria that wholly extinguished any native title rights that may have existed. However, at the hearing it made clear that it did not press the 1880 Deed as a separate extinguishing act but relies on it only insofar as it might evidence the satisfaction of the Queen of the title of the vendors. That is consistent with the approach of the Attorney General, who submits that the 1880 Deed would not be regarded as effective to extinguish native title, accepting that a deed purporting to transfer title to land would not generally be understood to be effective to confer a title that the grantors did not already have, and that no case law could be found to support a contrary position. Mr Franks also takes the position that the 1880 Deed cannot convey greater title than it carries. I accept that position.

6.2    Conclusion in relation to questions (4) and (5)

243    In light of my finding that the 1823 Deed was not good to carry title to Mr Phillips, it follows that questions (4) and (5) must also be answered in the negative.

7.    DISPOSITION

244    For the reasons set out above, I have concluded that the Dungog Shire Council has power to make the present application pursuant to s 61 of the Native Title Act, but that it has not established on the balance of probabilities that all native title rights and interests that might exist in respect of the Land have been extinguished by either the 1823 Deed or the 1880 Deed. The consequence is that question (1) must be answered in the affirmative, but questions (2) – (5) inclusive must be answered in the negative. In those circumstances, the application for a determination under s 61(1) Native Title Act must be dismissed with costs. Against the prospect that there are additional matters that must be taken into account in finalising the proceedings, I shall direct that the parties supply short minutes of order giving effect to these reasons to my chambers within 21 days and marked up to indicate any points of disagreement. Unless they otherwise request a further case management hearing, those orders will be made in chambers.

Associate:

Dated:    1 March 2024