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					‘CARTHAGO DELENDA EST!’ SIR ROBERT RICHARD TORRENS AND HIS ATTACK ON THE EVILS OF CONVEYANCING AND DEPENDENT LAND TITLES — A REFLECTION ON THE SESQUICENTENARY OF THE INTRODUCTION OF HIS GREAT LAW REFORMING INITIATIVE Professor Rosalind F Croucher1 ‘Carthage must be destroyed!’ exclaimed Robert Richard Torrens in concluding his First Reading Speech in introducing his Bill to amend the law of real property in South Australia. Who or what was the Carthage that must be destroyed? Anyone or anything that got in the way of speedy, efficient, and reliable conveyancing of land titles. Torrens attacked his metaphorical Carthage by propelling the introduction of a system of title registration that cut proof of ownership free from the shackles of prior uncertainties or muddiness. This became known as ‘the Torrens System’. In this sesquicentenary year of its introduction, Professor Croucher reflects upon Torrens, the man and his ‘Carthaginian’ campaign. I FOREWORD II THE TORRENS MEN A Torrens the father B Torrens the son C Ship-chasing and customs duties III TORRENS AND LAND LAW A Torrens’ horror stories B The Phoenicians C A democratic (and capitalist) proposal D South Australia—a land job E The ‘Torrens system’? IV INDEFEASIBILITY A Independent titles B The paramountcy principle C Identifying the margins—deferred v immediate indefeasibility V BUILDING THE TORRENS SYSTEM A The jigsaw B The shifting boundaries of indefeasibility VII A REFLECTION ON TORRENS THE MAN AND THE SYSTEM I FOREWORD Chancellor, your Honours, Madam Executive Dean, Dean Bamford, colleagues, ladies and gentlemen, Torrens-lovers, Torrens-detractors, I am absolutely thrilled to have the honour of presenting the Alex Castles lecture tonight. He is such a warm and enduring presence for all those interested in legal history and Australian legal history in particular, of which he was a great champion and in many respects a great pioneer. I met Alex through the Australia and New Zealand Law and History Association and, like all those who met him, was touched by his genuine interest in people in such a lovely down-to-earth, unpretentious manner. When I took up my current appointment as Commissioner at the Australian Law Reform Commission Alex was there too—he had been one of the founding Commissioners of the ALRC. In true Alex-style, he wrote what has been described as ‗a seminal article‘ tracing the historical
1 BA (Hons) LLB PhD AMusA FRSA FACLM (Hon) FAAL STEP, Commissioner, Australian Law Reform Commission; Professor of Law, Macquarie University, on leave for the term of the appointment to the ALRC. I am grateful to the Legal History Reading Group of the Forbes Society for acting as a sounding board in the development of this paper; and to Ms Prue McDonald (SLSA) and Dr Catherine Douglas for their assistance in tracking down some sources in the last stages of editing.

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development of law reform agencies in Australia leading up to the establishment, by federal statute, of the ALRC in 1975.2 In the Boardroom there is a photo of the original group of intrepid Commissioners—that ‗small, determined band‘ as described by their first Chairman, Justice Michael Kirby.3 I will feel Alex‘s presence with us all tonight—as indeed I am sure many of you will too. (He should be here. Had he still been with us he would only be 75). I think he would have approved of my looking at my topic through the lens of law reform. II THE TORRENS MEN

The State Library of South Australia has a formal photographic portrait of the two Torrens men— Colonel Robert Torrens and Sir Robert Richard Torrens, father and son—in its Mortlock Pictorial Collection, now easily available through the wonders of digitised images. 4 It was taken some time between 1862 and May 1864,5 when Torrens the son was in his late 40s, and just a few years after the introduction of the first Real Property Act. Torrens the father was in his early 80s and in his last years, passing away on 27 May 1864. To the extent that one can muse about things from a portrait, it is interesting. It is in the style of the mannered portraits of the period, where the subjects were ‗clamped in place to ensure rigid immobility during lengthy exposures‘, 6 but even given the conventions of these things, and the times, there are aspects that are noteworthy. Torrens the son is standing and looking squarely at the camera. Torrens senior is sitting looking downwards. Torrens the son has his hand firmly on his father‘s shoulder—keeping him down, in place, as it were. Torrens the father holds a book in his hand—perhaps one of his own many publications.7 Torrens the son holds a folded paper—a more active, present thing than a book, perhaps. One would like to know more about them—and particularly the subject of my musings tonight, Robert Richard Torrens. It is a pity that there is no extended biography of him.8 We are left to grab at snatches here and there—and their story is not without controversy. It seems that both he and his father had a fiery streak. A Torrens the father

Of his father we learn that he was a military man and later political economist with ambition and some pretension to grandeur. Having married into gentry in Ireland and had three children by his first wife, Charity, he set his sights on an heiress whose untimely death ‗robbed‘ him of a supposed fortune. Instead, he managed—‗uncharitably‘—to nullify his Irish marriage to marry another ‗minor‘ English heiress (as she is described in Col Torrens‘ biographical dictionary entry), Esther Serle.9 He saved the legitimacy of his children—including his son Robert Richard—by having them rebaptised in 1819.10 Opportunistic and enterprising in marriage, Torrens senior showed a rather
2 3 4 5 6 7 D Weisbrot and B Opeskin (eds), The Promise of Law Reform (2005), 378. M Kirby, ‗Alex Castles, Australian Legal History and the Courts‘ (2005) 9(1) Australian Journal of Legal History 1, 4. <http://images.slsa.sa.gov.au/mpcimg/07750/B7557.htm> at 30 July 2008. The date given on the State Library of South Australia‘s record is ‗ca 1860‘, but it would have been taken after Torrens the son returned to England in late 1862. A Davies and P Stanbury, The Mechanical Eye in Australia—Photography in Australia 1841–1900 (1985), 1. He is said to have written ‗about ninety books and pamphlets on economics, politics, and social questions‘: P Moore, Torrens, Robert (1780?-1864), (2004) Oxford Dictionary of National Biography, online edition <http://oxforddnb.com/view/article/27565> at 9 July 2008. The biographical details of Torrens senior are taken from this entry. Summary biographical information is given in two somewhat conflicting accounts: D Whalan, Torrens, Sir Robert Richard (1814-1884), Australian Dictionary of Biography - Online Edition <http://www.adb.online.anu.edu.au/biogs/A060313b.htm> at 4 June 2008 and P Howell, Torrens, Sir Robert Richard Chute (1812-1884), (2004) Oxford Dictionary of National Biography, online edition <http://oxforddnb.bom/view/article/27566> at 6 June 2008. Other examples are the typewritten manuscript by George Aubrey Jessup, the Registrar General of Deeds: G Jessup, Torrens of the Torrens System (1950) State Library of South Australia and G Jessup, ‗The History of the Torrens Land Title‘ (1950) 51 Proceedings of the Royal Geographical Society of Australasia, South Australian Branch 39; the early Dictionary of National Biography entry by A Harris, vol LVII; and A Norman Jeffares, ‗Robert Richard Torrens (1814–1884)‘, Reprinted from the Proceedings of the Leeds Philosophical and Literary Society, Literary and Historical Section, vol viii, pt iv, 275–300, (1959). P Moore, Torrens, Robert (1780?-1864), (2004) Oxford Dictionary of National Biography, online edition <http://oxforddnb.com/view/article/27565> at 9 July 2008. The details of Torrens senior are drawn principally from this entry. Interestingly, it seems that Col Torrens never actually visited South Australia: K Preiss and P Oborn, The Torrens Park Estate—A Social & Architectural History (1991), 4. At St Mary Magdalene, Woolwich, Kent. The baptismal details of the Torrens children are given at <www.ancestry.com.au> at 2 September 2008, linked under the entry for ‗Robert Richard Chute Torrens‘. The source is the International Genealogical Index without particulars as to repository.

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difficult strain of temperament in his military career. At one time relieved of duties for insubordination as his ‗duties collided with his aspirations‘, he eventually came into his own with his work promoting the idea of ‗commercial colonisation‘ and into parliament for a time. A wellknown political economist, he was the driving force behind the establishment of the South Australia Land Company and the Chairman of the Commission to sell land and dispatch emigrants established under the South Australia Act.11 When South Australia got into financial difficulties in early 1841 Torrens agreed to stand down from the Commission (as he had apparently engaged in a bit of land speculation by purchasing land in the colony himself—contrary to a ruling in 1835 against this). Pompous, grandiloquent and affected in public, as well as tenacious and combative, his family remembers him as ‗tender and generous‘.12 At the time of the portrait with his son he was living in London so was probably taken during a visit of Torrens the son to London. Some of the father‘s traits seemed to have rubbed off on his son. B Torrens the son Robert Richard Chute Torrens was born in Cork, County Kerry, on 31 May 1812.13 He had an older brother, John Skeffington Torrens, an older sister, Jane Austen Torrens, and a younger sister, Cherry Herbert Torrens.14 He was only 8 years old when his father married his step-mother Esther. He remained in Ireland and continued his education in Cork,15 eventually obtaining his BA16 from Trinity College Dublin in 1836. During his university days he earned the nickname ‗Radical Torrens‘.17 As a boy, we learn, he was ‗more interested in sport than in his lessons, and his happiest times were spent in following the hounds, even on foot, and generally revelling in sport and in the scenery of County Kerry‘.18 After graduation he moved to England to take up a position as a customs officer, in the Port of London, in the role of ‗landing waiter‘.19 Then on 19 February 1839, at the age of 26 at St James‘ Church, Westminster, he married the widowed Barbara Ainslie,20 some
11 Col Torrens published his own work promoting the idea of the colony, Colonization of South Australia (London: Longman et al, 1835). His newspaper, the Traveller, was regarded as ‗one of the most important newspaper organs of Liberal politics‘: JS Mill, The Measure of Value 1822, ed JH Hollander (Baltimore: Johns Hopkins Press, 1936), introduction. Robert Torrens considered that he and his father could ‗almost be styled the founders of the Colony‘, a comment he made in a letter he wrote to George Fife Angas in 1875 H Gawler, Report on Letter from Sir RR Torrens re Amendment of Real Property Act, Parliamentary Paper No 42, South Australia (1875). P Moore, Torrens, Robert (1780?-1864), (2004) Oxford Dictionary of National Biography, online edition <http://oxforddnb.com/view/article/27565> at 9 July 2008. The year of his birth is given as 1812 by Howell (P Howell, Torrens, Sir Robert Richard Chute (1812-1884), (2004) Oxford Dictionary of National Biography, online edition <http://oxforddnb.bom/view/article/27566> at 6 June 2008) and the International Genealogical Index. 1814 is the date listed in the Dictionary of National Biography entry by Alexander Harris, vol LVII. Torrens‘ gravestone puts him at 70 in 1884: St John the Baptist. Leusdon: Photo of gravestone of RR Torrens <http://trees.ancestry.com.au/pt/ViewPhoto.aspx?tid=4657409&pid=-1569739368&oid=da5a1aa8-7b8f-4d97-ae44518e416fe5bd&pg=0&idx=1> at 2 September 2008. Peter Moore attests that the date of 1812 is correct, based on the baptismal register entry: private correspondence. Family details are found at <www.ancestry.com.au> at 2 September 2008. One obituary records him as having passed his childhood principally at Chute Hall, the seat of his maternal ancestors in County Kerry: ‗Death of Sir Robert Richard Torrens, GCMG‘, Express and Telegraph, 3 September 1884, 3, col g. One obituary cites him as having received an MA: ‗Death of Sr RR Torrens, GCMG‘, South Australian Register (Adelaide), 6; another as a BA: ‗Death of Sir Robert Richard Torrens, GCMG‘, Express and Telegraph, 3 September 1884, 3, col g. A Norman Jeffares, however, cites alumni records for its being a BA: ‗Robert Richard Torrens (1814–1884)‘, Reprinted from the Proceedings of the Leeds Philosophical and Literary Society, Literary and Historical Section, vol viii, pt iv, 275–300, (1959), fn 3. J Brown and B Mullins, Town Life in Pioneer South Australia (1980), 174. See also K Preiss and P Oborn, The Torrens Park Estate—A Social & Architectural History (1991), 9. G Jessup, Torrens of the Torrens System (1950) State Library of South Australia, 3; and see ‗Death of Sir Robert Richard Torrens, GCMG‘, Express and Telegraph, 3 September 1884, 3, col g; and A Norman Jeffares, ‗Robert Richard Torrens (1814–1884)‘, Reprinted from the Proceedings of the Leeds Philosophical and Literary Society, Literary and Historical Section, vol viii, pt iv, 275–300, (1959). His interest in sport was an enduring one. Preiss and Oborn note that he was a founding member of the United Royal Yacht Club, an ‗overt symbol of status‘, and a keen cricketer, playing for the Adelaide Club: K Preiss and P Oborn, The Torrens Park Estate—A Social & Architectural History (1991), 12. One obituary also said that he took ‗a great deal of physical exercise‘, notwithstanding that his constitution was weakened by an illness in 1880, four years before his death. It mentioned that two years before his death he rowed from Oxford to London and kept up his hobby of fish breeding until close to the end: ‗Sir RR Torrens. His Death and Burial. [By our Anglo-Colonial Correspondent]‘, South Australian Register, 13 October 1884, 6. Which, according to Howell, was through the influence of his father: P Howell, ‗A hundred years after: reassessing lives for the New Dictionary of National Biography‘ in I McCalman (ed) National Biographies and National Identity (1997) 135, 141; and see K Preiss and P Oborn, The Torrens Park Estate—A Social & Architectural History (1991), 9. Col Torrens, however, wanted him to go to South Australia from the outset: K Preiss and P Oborn, The Torrens Park Estate—A Social & Architectural History (1991), 9. The details are cited in <www.ancestry.com.au> at 2 September 2008.

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ten years his senior and niece of the famous African adventurer, Mungo Park.21 On 15 August 1840 they sailed for South Australia on the Brightman, a three-masted sailing ship. They were among the few to have an assigned cabin. Sailing with them were many family groups, including the Cornish family—Thomas and Grace and their two daughters and five sons; the Smallacombes—Thomas and Mary and their daughter and two sons; and the Doneys—Samuel and Johanna, their daughter and two sons.22 At least one child, Fanny Elizabeth Brightman Hill, was born en route. (Another was a plasterer whom he befriended and whose subsequent story he referred to in a public speech later.) 23 All of them were thrown together for a journey of two days shy of four months, finally sailing up the Gulf of St Vincent arriving at Holdfast Bay, now Glenelg, in South Australia on Sunday 13 December 1840. What hopes, aspirations—and nervousness—must have accompanied these adventurous families, consigning their collective and individual fates to the great adventure (or perhaps folly) of the South Australian colony. How relieved and yet overwhelmed they must have felt arriving in the dry heat of an Adelaide December. Torrens was to take up the position of Collector of Customs. From that moment on his fate and reputation would be inextricably linked with the future of South Australia. The colony was going through a difficult period when Torrens arrived and was even on the verge of bankruptcy. The Brightman was the last emigrant ship to arrive before emigration was suspended due to the grave financial crisis facing the colony. The raising of customs duties was thought to be part of the answer to raise much needed revenue.24 Torrens threw himself into the task, but, as David Day wrote in his study of the Customs history of Australia, he ‗failed his first test as collector‘.25 He tried to catch a ship. C Ship-chasing and customs duties26

On 29 January 1841 the Ville de Bordeaux, a ship originally built for the French navy but now sailing as a merchant ship, arrived at Holdfast Bay to load livestock supposedly for Reunion, the island south of Mauritius. Torrens suspected something was amiss. He believed that the cargo was intended for Fremantle—in direct contravention of the Navigation Act, which prohibited local cargoes from being carried in foreign ships.
Provoked into action by a public meeting of citizens concerned to preserve their local trading monopoly during a time of economic depression, Torrens determined to investigate, conscious no doubt it could lead to the seizure of the former whaling vessel, worth £8–10,000, and a hefty share of the proceeds for himself.27

The plot then, as they say, thickened, and, after a number of intervening cameo scenes, led to the enraged captain taking off with two Customs officers still on board, Torrens seizing the sheep and galloping to the Port in pursuit. With a posse of police he took the paddle steamer Courier and continued the chase at sea. Steam on this occasion did not win the day and having exhausted all usable fuel Torrens was forced back to the Port. It was later called the ‗Shingle Expedition‘ as all combustible material was thrown on board before it took off in pursuit, including shingles, palings
21 22 His story may also be found in the DNB: C Fyfe, Park, Mungo (1771-1806) (2004) Oxford Dictionary of National Biography, online edition <http://www.oxforddnb.com/view/article/21278> at 9 July 2008. The passenger list of the Brightman is available in the State Library of South Australia and on-line at <www.slsa.sa.gov.au/fh/passengerlists/1840Brightman.htm> at 30 July 2008. The others in cabins, according to this list, were: BJ Selby, Esq; George Morphett, Esq, Barrister, SA Supreme Court; and JC Slewman, Surgeon Superintendent. ‗Mr Torrens Lecture at Kapunda on the South Australian Real Property Act‘, Observer (Adelaide), 21 May 1859, 2 in R Stein, ‗Sir Robert Richard Torrens 1814-1884: Select Documents‘ (1984) 23(25) South Australiana 1, 20 at 21. D Day, Smugglers and Sailors—The Customs History of Australia 1788-1901 (1992), 364–365. Ibid, 365. Details of the incident were reported widely in the press and summarised in Ibid, 365–367; and E Hodder, The History of South Australia from its foundation to the year of its jubilee (1893), vol 1, 169–170; R Stein, ‗Sir Robert Richard Torrens and the Introduction of the Torrens System‘ (1981) 67(2) Journal of the Royal Australian Historical Society 119, 120–121; A Norman Jeffares, however, cites alumni records for its being a BA: ‗Robert Richard Torrens (1814–1884)‘, Reprinted from the Proceedings of the Leeds Philosophical and Literary Society, Literary and Historical Section, vol viii, pt iv, 275–300, (1959). D Day, Smugglers and Sailors—The Customs History of Australia 1788-1901 (1992), 365.

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and anything else to hand.28 And, adding insult to injury, even the superstructure of the steamer had to be burnt to provide fuel for the return journey.29 At the end even this was not enough and ‗amid the jeers and laughter of a crowd, the men stood on the paddles and worked them with their feet‘.30 (It was, as one later commentator remarked, ‗nothing short of Gilbertian‘!) 31 Momentary vindication of a sort was Torrens‘ though, when the crew of the Bordeaux mutinied and forced the captain back into the Port where Torrens promptly seized the vessel and prosecuted the captain for his effective kidnapping of the Customs officers. Rather than being a triumph, it turned into a public relations nightmare. War with France was considered imminent and the seizure of a French vessel was hardly discrete.32 The local press had a field day, attacking Torrens‘ actions as an ‗unaccountable folly‘,33 a ‗daring and unwarranted violation of the rights of private property‘,34 even ‗an outrage upon the law of nations‘.35 And so it began—the war between Torrens and the press that, in Hindley Street at around noon on 12 March 1849, led Torrens to strike George Stevenson, the Editor of the South Australian Gazette and Mining Journal, in the face with his walking stick.36 ‗I have an account to settle with you‘, he said to his tall and imposing nemesis some thirteen years his senior.37 He then inflicted upon him ‗a very severe gash‘ almost breaking the bridge of his nose, followed by ‗several very hard punches in the ribs with the end of his stick‘.38 The attack was only stopped when a bystander hauled Torrens away and then ‗took up a large stone and threatened to knock him down if he attempted again to assault Stevenson‘.39 Stevenson meanwhile was taken to a chemist shop to have his wounds treated. Stevenson sued Torrens for assault; Torrens sued Stevenson for libel.40 On 2 July 1849 Torrens was found guilty of common assault and liable to damages of £250. On 11 August Stevenson was found guilty of libel and damages of one farthing were awarded.41 And the scandal—which it clearly was—was ‗on everyone‘s tongue‘.42 It was also not easily forgotten.43

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E Hodder, The History of South Australia from its foundation to the year of its jubilee (1893), 170. R Stein, ‗Sir Robert Richard Torrens and the Introduction of the Torrens System‘ (1981) 67(2) Journal of the Royal Australian Historical Society 119, 120. G Jessup, Torrens of the Torrens System (1950) State Library of South Australia, 5. The account of using their feet was still recalled years later in ‗Reminiscences of the Past. The Seizure of the Ville de Bordeaux’, by ‗Mainbrace‘, The Adelaide Observer, 20 September 1884, 42, cols b–d, at col c. G Jessup, ‗The History of the Torrens Land Title‘ (1950) 51 Proceedings of the Royal Geographical Society of Australasia, South Australian Branch 39, 43. To avoid further embarrassment about the whole episode the Lords of the Treasury paid £4,000 to the owner after he complained to the French Ambassador in London: A Norman Jeffares, ‗Robert Richard Torrens (1814–1884)‘, Reprinted from the Proceedings of the Leeds Philosophical and Literary Society, Literary and Historical Section, vol viii, pt iv, 275–300, (1959), 277. The matter is recorded in ‗The ―Ville de Bordeaux‖‘, South Australian Register, 26 July 1845, 2 col c and the fact that the compensation was to be reimbursed from the Colonial Treasury. See also ‗Letters of Fiat Justitia—No 6, ‗To RR Torrens, Esq, Collector of Customs‘ on 30 July 1845, 3, col d. ‗Seizure of the Ville de Bordeaux‘, South Australian Register, 10 April 1841, 4, col b. ‗Seizure of French Vessel‘, South Australian News, 15 July 1841, 15, col b. ‗The Collector of Customs‘, South Australian Register, 17 April 1841, 3, col b, at col c. George Stevenson‘s role with the press in South Australia and his editorship of the paper during this time is detailed in G Pitt, The Press in South Australia, 1836–1850 (1946). The period concerning the assault is considered in ch xii. The articles that prompted the attack are included in R Stein, ‗Torrens, His Chief Clerk of Customs, and the Press—Documents on a Dispute‘ (1982) 21(1) South Australiana 7: South Australian Gazette and Mining Journal, 3 March 1849, 2, included at 38–40; 8 March 1849, 23, included at 42–45; and the final catalyst, the ‗Scenes at the Port‘ by ‗Punch‘ on 8 March 1849, 3, included at 45–47; 10 March 1849, 2, included at 48–50. Other accounts are included eg in J Brown and B Mullins, Town Life in Pioneer South Australia (1980), 174–175; and A Norman Jeffares, ‗Robert Richard Torrens (1814– 1884)‘, Reprinted from the Proceedings of the Leeds Philosophical and Literary Society, Literary and Historical Section, vol viii, pt iv, 275– 300, (1959), 279–282. The South Australian, 13 March 1849, 2, extracted in R Stein, ‗Torrens, His Chief Clerk of Customs, and the Press—Documents on a Dispute‘ (1982) 21(1) South Australiana 7, 51, at 52. South Australian Register, 13 March 1849, 2 as extracted in Ibid, at 51-52. He was reportedly 6ft 3in in height and of imposing physique: G Pitt, The Press in South Australia, 1836–1850 (1946), 2, 52. Stevenson provided a strong published defence of his publications on 15 March 1849: South Australian Gazette and Mining Journal, 2, included in Stein at 52–54. Other press commentary on the episode and its antecedents is included in Stein. The South Australian, 13 March 1849, 2, extracted in R Stein, ‗Torrens, His Chief Clerk of Customs, and the Press—Documents on a Dispute‘ (1982) 21(1) South Australiana 7, 51 at 52. Stevenson published his own account of the attack on 15 March: ‗The Collector of Customs‘, South Australian Gazette and Mining Journal, cols c–d. Torrens was not alone in suing for libel. Hodder described this period as ‗the Libel Era of South Australia‘, referring to the many actions against Stevenson and other newspaper editors: E Hodder, The History of South Australia from its foundation to the year of its jubilee (1893), 179. Various extracts and documents relating to the cases are included in R Stein, ‗Torrens, His Chief Clerk of Customs, and the Press— Documents on a Dispute‘ (1982) 21(1) South Australiana 7: South Australian Register, 16 June 1849, 2, at 69–70; South Australian Register,

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The ship meanwhile disappeared into obscurity. No-one coming forward to claim her she remained in the charge of Customs until she was finally broken up in 1865, leaving behind only her figurehead, of a sailor with harpoon raised.44 These early episodes give us some clues as to his character. He was evidently a man of ambition, like his father, and keen to make his mark—and certainly out to ‗make a buck‘.45 He was also clearly impetuous,46 pugnacious,47 and, a man ‗with a fierce belief in the virtue of frank speech‘,48 able to rile people sorely. Did he feel for his mother the abandonment by his father the Colonel? Did he feel in his shadow as his father advanced his own ambitions? Did his father encourage him? From Torrens‘ perspective there was certainly an aspect of his endeavouring to contribute to his father‘s legacy—or perhaps compete with him. In June 1857, just three months after his election to the House of Assembly and before he introduced the first of the Real Property Acts, he remarked that:
His father might be called the founder of the colony, for it mainly owing to his exertions in the House of Commons and elsewhere that it had been established. His name was stamped upon the great features of the country—upon its islands, its rivers, its lakes, and its mountains, and he felt that he should worthily supplement the work which his father had accomplished if he could reform the law, and make the houses and the lands of the colonists secure.49

Was an Irish accent a handicap to his ambitions when he went to London to work?50 Were the ‗high posts‘ to which he was appointed in South Australia really ‗through the influence of his father‘,51 or on his own merit? Was it also only through his father‘s influence that he was able to retain such positions, despite being, by all accounts, a woeful administrator?52 Was he trying to position himself in the new Colony? Was it a case of a well-educated man, and the son of the ‗father of the colony‘—the ‗virtual prince‘ as Professor Murray Raff described him 53— hitting up against local resentments and wanting to put him in his place? He was known to entertain ‗lavishly‘,54 have a taste for grandeur and for arrogance, with reportedly ‗an enormous opinion of
20 June 1849, 2, at 70–71; South Australian Register, 23 June 1849, 3–4, at 71–74; Supreme Court, Record of Judgment, August 1849, at 74–76. G Pitt, The Press in South Australia, 1836–1850 (1946), 42. When a pension for Torrens was proposed in 1880 and then when news arrived of his death in 1884, the episode was recalled with derision: see eg, ‗Reminiscences of the Past. The Seizure of the Ville de Bordeaux’, by ‗Mainbrace‘, Adelaide Observer, 20 September 1884, 42, cols b–d; and South Australia, Parliamentary Debates, 20 July 1880, [420]–[428], on the occasion of discussion of a pension for Torrens. E Hodder, The History of South Australia from its foundation to the year of its jubilee (1893), 170; D Day, Smugglers and Sailors—The Customs History of Australia 1788-1901 (1992), 367. The records of the Lands Department—Registrar General‘s Office reveals many dealings by RR Torrens: in GRG 59 Series 19, the ‗Index to applications 1864–1870‘, there are five applications. In the period 1858–1864 in Series 20, there are many listings concerning his estate at Mitcham (‗Torrens Park‘) and land in the Hundreds of Adelaide, Yatala, Port Adelaide, Goolwa and Yatala. A description that was also used by the Chief Secretary, the Hon W Morgan, in moving the second reading of the Real Property Bill in 1875: South Australia, Parliamentary Debates, L Council, 638 (The Hon W Morgan). 639. Dr R Stein adopts this label for Torrens as well in his detailed work on Torrens: R Stein, ‗Sir Robert Richard Torrens and the Introduction of the Torrens System‘ (1981) 67(2) Journal of the Royal Australian Historical Society 119, 120. Henry Gawler in a letter to the Editor, South Australian Register, 6 September 1884, referred to his ‗well-known pugnacity‘. A Norman Jeffares, ‗Robert Richard Torrens (1814–1884)‘, Reprinted from the Proceedings of the Leeds Philosophical and Literary Society, Literary and Historical Section, vol viii, pt iv, 275–300, (1959), 276. ‗Public Dinner at Salisbury‘, South Australian Register (Adelaide), 1 June 1857, in R Torrens, Speeches of Robert R Torrens, Esq explanatory of his measure for Reform of the Law of Real Property: to which is appended copy of the bill passed by the House of Assembly of South Australia (1857), 6 at 8. Colonel Torrens biographical dictionary entry by Moore refers to him as having an ‗unmusical‘ voice, which he attributes, with a question mark, to ‗his Ulster burr‘: P Moore, Torrens, Robert (1780?-1864), (2004) Oxford Dictionary of National Biography, online edition <http://oxforddnb.com/view/article/27565> at 9 July 2008. Whether he had an Irish accent is pure conjecture, based in part upon his spending his childhood and early education—the period in which an accent is developed—in Cork, County Kerry. P Howell, ‗Constitutional and Political Development, 1857–1890‘ in D Jaensch (ed) The Flinders History of South Australia—Political History (1986) 95, 159. One writer said the appointment ‗reeked of nepotism‘, while acknowledging that Torrens ‗did have some claim to the post‘ due to his qualifications: D Day, Smugglers and Sailors—The Customs History of Australia 1788-1901 (1992), 365. P Howell, ‗Constitutional and Political Development, 1857–1890‘ in D Jaensch (ed) The Flinders History of South Australia—Political History (1986) 95, 159. Even one of his obituaries commented that ‗[a]s Collector of Customs he was not specially distinguished for judgment or administrative capacity‘: ‗Sir RR Torrens, CGMG‘, South Australian Register (Adelaide), 4. M Raff, Private Property and Environmental Responsibility: A Comparative Study of German Real Property Law (2003), 31. J Brown and B Mullins, Town Life in Pioneer South Australia (1980), 175. See also K Preiss and P Oborn, The Torrens Park Estate—A Social & Architectural History (1991), 11–12.

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himself‘.55 How dare he come and laud it over them? George Aubrey Jessup, Registrar-General of Deeds in South Australia, hinted at this in his own study of Torrens in 1950, when he commented:
He was inclined to be impulsive and authoritative. These characteristics did not meet with approval in a young country pioneered by men and women whose daily outlook was that of hard work and frugality. Furthermore, the type of person and life met with at a seaport in those days had little patience with the cold hand of educated authority, particularly where such leadership was divorced from tact. It was inevitable therefore that Mr Torrens was unpopular not only with those whom he controlled but also with his higher executives.56

There are many questions we can speculate upon. At this remove what we witness in Torrens, the son, is a sense that he had something to prove—to himself, to his father, perhaps even to the world. There were many aspects of his background, family life, education and personality that fed into this. Stein considered that he developed ‗the aura of a crusader and he was acquiring the attributes of a public champion‘. Others, though, regarded him as ‗a swindler‘,57 a ‗land shark‘58 and as ‗a rogue and swindler of the first order‘.59 He certainly clashed with authority—and regularly. Without pronouncing any judgment on him at this stage, we can say, at least, that he attracted mixed reviews—even in his obituaries.60 But we do know that he championed a law reform that was to have a profound effect on land law from his day to this and that his character as fiery, impetuous and perhaps at times even charismatic, made him in many respects the man for the job. This leads us closer to his Phoenician campaign. III TORRENS AND LAND LAW There are several threads in Torrens‘ interest in land law reform. One is clearly self-interest. No matter how much one may seek to glorify Torrens, he was clearly out to make good in the new Colony—but, after all, who wasn‘t? Over time he certainly acquired considerable land holdings in South Australia,61 including the ostentatious ‗Torrens Park‘ on 134 acres in Mitcham. Another thread is that it provided him an issue to champion on the hustings when he was seeking election to the new House of Assembly in 1857. Land law reform was, in that sense, a truly popular issue. But there was also a philosophical dimension to this interest in his commitment to economic liberalism, influenced no doubt in part by his father, Colonel Torrens. The liberal commitment to the establishment of the free market in land propelled considerable interest in simplified conveyancing and influenced the great wave of law reform seen in the establishment and work of the British Real Property Commissions of the 1830s.62 Torrens (the son) expressed this in the description of his
55 J Brown and B Mullins, Town Life in Pioneer South Australia (1980). Raff describes their account of Torrens‘ participation in society ‗is probably the most damning in print‘: M Raff, Private Property and Environmental Responsibility: A Comparative Study of German Real Property Law (2003), 38 n 86. See also ‗Reminiscences of the Past. The Seizure of the Ville de Bordeaux’, by ‗Mainbrace‘, The Adelaide Observer, 20 September 1884, 42, cols b–d. G Jessup, ‗The History of the Torrens Land Title‘ (1950) 51 Proceedings of the Royal Geographical Society of Australasia, South Australian Branch 39, 42–43. R Jory, ‗Honored Torrens "a swindler" says MP‘, Advertiser (Adelaide), referring to a comment by John Trainer the previous day, suggesting that Torrens‘ portrait ‗should be removed from the walls of the House of Assembly‘. D Pike, ‗Early Adelaide with the Lid Off—No 10. Torrens was a land-shark‘. The News 8 July 1957, 15. P Howell, ‗A hundred years after: reassessing lives for the New Dictionary of National Biography‘ in I McCalman (ed) National Biographies and National Identity (1997) 135, 142. For example, ‗Sir RR Torrens, CGMG‘, South Australian Register (Adelaide), 4; ‗Death of Sir Robert Richard Torrens, GCMC‘, Express and Telegraph, 3 September 1884, 3, col g; and even the derisory recollection of the Ville de Bordeaux episode in ‗Reminiscences of the Past. The Seizure of the Ville de Bordeaux’, by ‗Mainbrace‘, The Adelaide Observer, 20 September 1884, 42, cols b–d which grudgingly conceded that Torrens‘ ‗persistent obstinacy and dogged stubbornness which would acknowledge no defeat‘ that were demonstrated in that incident also lay behind—and were possibly essential for—the passage of the Real Property Bill. The records of the Lands Department – Registrar General‘s Office reveals many dealings by RR Torrens: in GRG 59 Series 19, the ‗Index to applications 1864–1870‘, there are five applications. In the period 1858–1864 in Series 20, there are many listings concerning his estate at Mitcham (‗Torrens Park‘) and land in the Hundreds of Adelaide, Yatala, Port Adelaide, Goolwa and Yatala. See also K Preiss and P Oborn, The Torrens Park Estate—A Social & Architectural History (1991). He also evidently did well from his land dealings. Douglas Pike noted that though his salary as Customs Collector was a nominal £300, he ‗lived well and had a lavish home at Woodville, yet after 10 years his bank balance was £18,000‘: D Pike, ‗Early Adelaide with the Lid Off—No 10. Torrens was a land-shark‘. The News 8 July 1957, 15. There were four separate studies between 1829 and 1833, the second of 1830 considered a proposal to establish a general registry of deeds and instruments affecting land. A brief summary of the reform movement of the nineteenth century is found in AWB Simpson, A History of the Land Law (Oxford: Clarendon Press, 2nd ed, 1986), ch 11. The connection between this work and the reforms in South Australia is

56 57 58 59 60

61

62

7

proposed land title system as serving ‗a great economic principle‘ through the encouragement of investment of capital in land,63 which would work both to the benefit of purchasers and lenders.64 All of these threads came together when he pressed for reform of land law. But in spruiking the case he did not need to refer to problems of his own with respect to any land dealings, present or future, in which he may have been engaged. There were problems enough screaming out in all directions for attention and driving the case for land law reform. And Torrens was clearly a powerful speaker and used all the rhetoric at his command to reinforce land law reform as a truly popular cause. A Torrens’ Horror Stories

In his second reading speech delivered in the House of Assembly Torrens mentioned the case of a friend, an officer in the Indian army, who had built a mansion and plantations, and who, after a flaw was discovered in the title, lost not only the land but ‗upwards of 20,000 pounds expended on it in buildings and improvements and was entirely beggared by law expenses‘.65 Writing in 1859, in his written exposition of the ‗South Australian System of Conveyancing by Registration of Title‘ he recalled of twenty-two years prior the ‗grievous injury and injustice inflicted under the English Law of Real Property by the misery and ruin which fell upon a relation and dear friend who was drawn into the maelstrom of the Court of Chancery‘.66 This was his motivation and he ‗resolved to strike a blow at that iniquitous institution‘.67 Later in this exposition he gave a specific example from South Australia:
Certain lands in South Australia passed through the assignees of an insolvent in India to purchasers. Of this a block of 134 acres, value £150, was subsequently sold off in allotments as a township, and houses and improvements placed upon it by the purchasers to the value of £5,000. Upon other portions of the estate situated in the City of Adelaide, and worth from £1,200 to £1,500, a bishop‘s palace, a chapel, and schoolhouse, also dwelling-houses of superior class, were erected, to the value of £7,000 to £8,000, when a question was raised as to the validity of the title given by the Indian Insolvent Court, and the Supreme Court of South Australia declared the heir-at-law insolvent, then deceased, to be entitled to the entire property. Here the English law, as administered by the Supreme Court, in restoring to the rightful heir his patrimony, worth some sixteen hundred pounds, would bestow upon him therewith the patrimony of persons innocent of any fraudulent intention, amounting to at least twelve thousand pounds. Instances of this kind are more frequent than is generally imagined. They do not always obtain the notoriety attaching to proceedings in the courts of law, because the parties frequently surrender without litigation, aware that the expenses of a chancery suit would swallow up the entire property. Three such cases are at this moment pending in this colony within the knowledge of the writer. 68

More horror stories peppered his public speeches promoting his land law reforms. An example is his speech at Kapunda that was reported—with actions—as follows:
It was a farmer‘s and yeoman‘s question. He worked for the labouring men in introducing the Bill and it was for them he was publishing his book on the same subject. (Cheers). He had almost doubted once
considered to some extent in A Esposito, ‗A New Look at Anthony Forster's Contribution to the Development of the Torrens System‘ (2007) 33 University of Western Australia Law Review 251. R Torrens, Transfer of Land by ‘Registration of Title’ under the ‘Torrens System (1863), 9. Ibid, 17–18 (the value of land as a source of credit was raised by the facility and security offered by the system). R Torrens, Speeches of Robert R Torrens, Esq explanatory of his measure for Reform of the Law of Real Property: to which is appended copy of the bill passed by the House of Assembly of South Australia (1857), 14. Raff comments that the identify of the friend ‗remains a mystery‘: M Raff, Private Property and Environmental Responsibility: A Comparative Study of German Real Property Law (2003), 29 n 29. R Torrens, The South Australian System of Conveyancing by Registration of Title (1859), v-vi. He repeated this in Dublin: R Torrens, Transfer of Land by ‘Registration of Title’ under the ‘Torrens System (1863), a speech delivered to the Society for Promoting the Amendment of the Law, iii. Torrens gave more detail of the example of a friend in his second reading speech: ‗Speech delivered in the House of Assembly on Wed Nov 11—Order of the Day—Real Property Amendment Bill‘, R Torrens, Speeches of Robert R Torrens, Esq explanatory of his measure for Reform of the Law of Real Property: to which is appended copy of the bill passed by the House of Assembly of South Australia (1857), 12 at 14. (The Hansard account simply refers to Torrens having made a ‗voluminous‘ speech in support of the Bill but provides no detail). R Torrens, The South Australian System of Conveyancing by Registration of Title (1859), v-vi. Ibid, 26.

63 64 65

66

67 68

8

whether the facilities of obtaining land here were a benefit or not, owing to the iniquitous laws under which they had held it. He had again and again seen a man toiling for years and saving his money to buy a piece of land, when purchased found the title bad, and his all swept away. This injury was inflicted by the English law. He might quote one instance. A friend of his, a plasterer who came from England in the same ship with him 19 years ago, a most exemplary man, and for whom he had great esteem, told him he had been laying by money ever since his arrival to purchase land, and that he and his brother-in-law had bought some. They then found their title was bad and they lost it all; the brother-in-law became insane, and was put in the Lunatic Asylum, while the plasterer was supporting his wife and family. (Sensation). The harrowing tales of ―Bleak House‖ were realized here. It was time some one came forward with a remedy. He placed himself in the gap, as no better man came forward — (loud cheers) — not that he arrogated to himself any peculiar talent. 69

The tales were principally of undiscovered interests only revealed through the workings of suits in Chancery. He therefore thought that the Chancery court was an ‗iniquitous institution‘70 and that his friends had been dudded by it.71 At the forefront of Torrens‘ mind when working on his scheme were those who suffered from those evils—namely, purchasers and mortgagees (and, evidently, including himself). In introducing the first Real Property Bill on 4 June 1857 he sought:
to give confidence and security to purchasers and mortgagees through the certainty that nothing affecting the title can have existence beyond the transactions of which they have notice in the memoranda endorsed on the grant.72

B

The Phoenicians

Who or what was the metaphorical Carthage that must be destroyed? Anyone or anything that got in the way of speedy, efficient, and reliable conveyancing of land titles. Conveyancing was complicated. It was also derivative—and that, to Torrens, was ‗the source of the mischief‘.73 Starting first with a grant from the Crown land title wended its way through its successive owners, and at each step meeting the laws and procedures of real property. George Jessup described it usefully as follows:
Dealings with that land made it necessary for the owner to seek legal advice because the rules of the law of real property were most technical. The various deeds which were essential to any sale or mortgage or lease had to be drawn by skilled conveyancers. So with every transaction, whether it belonged to the usual commercial type or whether it was more involved such as a will or a settlement or an intestacy, made the specialised knowledge of the lawyer indispensible. It must be remembered, too, that the very words used in these deeds had to be carefully selected. A slip might cause much trouble. There were such things as void conditions, executory devises, shifting and springing uses, and all kinds of similar technical positions, all so dear to the heart of the lawyer, but so confusing, worrying, and expensive for the subject. It was costly because title had to be traced through all these various dispositions down to the grant from the Crown. The deeds had to be produced and examined each time a dealing took place. Not only did the number of deeds necessarily increase, but the risk of a defect in any part of the chain was a constant hazard. …

In other words, conveyancing involved, as Torrens described it simply, ‗a bagful of sheepskins‘.74 And that bag could be a very full one, indeed. George Jessup later recalled, from the vantage point of Registrar-General of Deeds, that there was ‗on file in Adelaide a packet of these deeds weighing 25 lb, which exhibits title to a country section!‘75

69 70 71

72 73 74 75

‗Mr Torrens Lecture at Kapunda on the South Australian Real Property Act‘, Observer (Adelaide), 21 May 1859, 2, transcribed and included in R Stein, ‗Sir Robert Richard Torrens 1814-1884: Select Documents‘ (1984) 23(25) South Australiana 1, 20. R Torrens, The South Australian System of Conveyancing by Registration of Title (1859), vi. R Torrens, Speeches of Robert R Torrens, Esq explanatory of his measure for Reform of the Law of Real Property: to which is appended copy of the bill passed by the House of Assembly of South Australia (1857); R Torrens, An Essay on the Transfer of Land by Registration under the duplicate method operative in British Colonies (1882) Cassell & Company, 14–15. South Australia, Parliamentary Debates, House of Assembly, 4 June 1857, 204. R Torrens, The South Australian System of Conveyancing by Registration of Title (1859), 8. ‗Mr Torrens Lecture at Kapunda on the South Australian Real Property Act‘, Observer (Adelaide), 21 May 1859, 2; R Stein, ‗Sir Robert Richard Torrens 1814-1884: Select Documents‘ (1984) 23(25) South Australiana 1, 20 at 23. G Jessup, ‗The History of the Torrens Land Title‘ (1950) 51 Proceedings of the Royal Geographical Society of Australasia, South Australian Branch 39, 39.

9

Derivative title meant that every transaction required proof of title—and here the conveyancers and professional searchers came into their own, especially given the great complexity of the devices of conveyancing that had to be developed over the centuries in response, for example, to the Statute of Uses. Here was, indeed, the ‗bagful of sheepskins‘. The searches were done again and again—over and over. Lord Cairns, the Lord Chancellor, speaking in the House of Commons during debate in 1859, drew attention graphically to the ‗evils attendant on the English system of conveyancing‘:
Suppose I buy an estate to-day, I spend a year, or two or three years, in ascertaining whether the title is a good one. I am at last satisfied. I pay the expense—the considerable expense—which is incurred, in addition to the price which I have paid for my estate, and I obtain a conveyance of my estate. About a year afterwards I desire to raise money upon mortgage of this estate. I find some one willing to lend me money, provided I have a good title to the land. The man says: ‗It is very true that you bought this estate, and that you investigated the title, but I cannot be bound by your investigation of the title, nor can I be satisfied by it.‘ Perhaps he is a trustee who is lending money which he holds upon trust. He says: ‗My solicitor must examine the title, and my counsel must advise upon it.‘ And then as between me, the owner of the estate, and the lender of the money, there is a repetition of the same process which took place upon my purchase of the estate, and, consequently, the same expense is incurred as when I bought it; and for the whole of that I, the owner of the estate and the borrower of the money, must pay.76

The repetition of the searching and examination of title was a principal source of attack. The derivative nature of title and the repetitive searching made the existing law of real property ‗complex and cumbrous in its nature, ruinously expensive in its working, uncertain and perplexing in its issues, and specially unsuited to the requirements of this community‘. 77 Torrens drew an analogy with assaying for the value of gold. ‗The case of land with a perfect marketable title‘, he argued, ‗is analogous to that of a nugget or ingot of gold‘:
It requires to be re-weighed and re-assayed on the occasion of each transfer, for which purpose a piece is chopped off. But, once passed through the Mint, the sovereign-stamp passes it freely from hand to hand without any reduction of delay. Registration of title affords the equivalent of that sovereign-stamp.78

Removing the repetition of the examination process would restore the land to ‗its natural value, relieved from technical objections and doubts induced by the present system of conveyancing‘.79 Even a system of registration of the deeds didn‘t really help, as it still depended upon the strength of the deeds themselves. As Douglas Pike remarked, ‗Registration was no more than a record that did not supersede deeds, make titles legal or define doubtful boundaries and locations‘.80 Lord Cairns asserted that it ‗would not simplify title in the least‘:
It only puts on a formal record the whole of that multitude of deeds and conveyances, of the extent and complexity of which he already have so much reason to complain. You have to investigate and search just as before; in addition to that you have to pay for searches in the register, and also to pay, in some shape or other, the expense of placing the deeds upon it.81

The repetitive searching meant not only expense to the purchaser, but fees for lawyers. In speaking in a public lecture in support of his Act the year after its introduction, Torrens appealed to popular sentiment in bagging the lawyer‘s role, both as to the expense of the conveyancing process, but also its language:

76 77

78 79 80 81

R Torrens, An Essay on the Transfer of Land by Registration under the duplicate method operative in British Colonies (1882) Cassell & Company, 13–14. South Australia, Parliamentary Debates, House of Assembly, 1857–58, [202]. As he was reputedly a considerable speculator in land, such matters would have affected him personally: PA Howell, ‗Sir Robert Richard Torrens‘, Oxford Dictionary of National Biography comments that ‗his land speculations throughout Australasia made him despised as a rogue and swindler‘ and that the ‗dubious validity‘ of many of his title deeds prompted him to join ‗a twenty-year-old crusade to simplify, cheapen, and expedite all dealing in land, by introducing the registration of titles‘. R Torrens, An Essay on the Transfer of Land by Registration under the duplicate method operative in British Colonies (1882) Cassell & Company, 35–36. Ibid, 35. D Pike, ‗Introduction of the Real Property Act in South Australia‘ (1960) 1 Adelaide Law Review 169, 176. Quoted by R Torrens, An Essay on the Transfer of Land by Registration under the duplicate method operative in British Colonies (1882) Cassell & Company, 12.

10

… by the old system lawyers are paid by the number of words, and so they cram in an immense number of repetitious and useless words, and the devil knows what – (cheers) – and to use a word made Parliamentary by Bentham Neales, ‗Bosh‘. … It was his aim to make everything so that all might understand it, while all lawyers‘ work was hidden under a jargon of dog Latin and bad Norman, that does not belong to any language living or dead. 82

The only ones that would disagree with his assessment of the ‗evils‘ of the existing law, he said, were ‗those who live by their perpetuation‘.83 Lawyers got ‗the oyster‘, while the litigants got ‗the shell‘.84 To solve this, simpler forms were needed, as under the law as it stood ‗no man may venture to deal with his own land‘.85 C A democratic (and capitalist) proposal ‗The people‘, he declared, ‗must have a law suited to the requirements of modern times‘. The response was immediate: loud cheers.86 Under Torrens‘ proposed new system, ‗abstracts and costly retrospective investigations are effectually and in perpetuity got rid of, and a purchaser or mortgagee can see at a glance the precise state of the title, without having to search a register or to call in professional aid‘.87 But Torrens aimed to go further than just simplify conveyancing; he sought to make it accessible to the ordinary man:
As the old conveyancer, the stage-coachman along the turnpike road, regarded the locomotive and the rail, so must the legal conveyancer regard a system which would cut down his emoluments from pounds to shillings, and enable every man of ordinary education to transact his own transfers and other ordinary business.88

And by making land purchase attainable, it was also making it democratic, extending the possibility of land ownership to every man. Radical reform in conveyancing was ‗an indispensable condition for creating a peasant proprietary‘.89 What had to be removed was ‗the incubus of a costly and dilatory system of conveyancing‘:
A ready and inexpensive mode of selling is indispensable to meet the exigencies of a farming proprietary who require to augment, or diminish, or transfer their small properties as occasion may necessitate or suggest.90

It was also a capitalist vision, allowing every man to become a member of ‗the farming proprietary‘, in which ‗the great mass of the people [in Australia] are, or confidently look to become, landed proprietors‘.91 (How prescient on his part!) And it was the interests of capitalists he saw as so outraged when one such as ‗the rightful heir‘ could pop up to deprive the investor of his spoils. This was also something which Torrens saw as peculiarly a feature of land development in a new Colony:

82

83 84

85 86 87 88 89 90 91

‗Mr Torrens Lecture at Kapunda on the South Australian Real Property Act‘, Observer (Adelaide), 21 May 1859, 2 in R Stein, ‗Sir Robert Richard Torrens 1814-1884: Select Documents‘ (1984) 23(25) South Australiana 1, 20 at 24, 25. John Bentham Neales was one of the six Members of the House of Assembly (which also included Torrens) for the City of Adelaide: Statistical Record of the Legislature 1836–2007, Parliament of South Australia, 49. South Australia, Parliamentary Debates, House of Assembly, 1857–58, [202]. After dinner speech at the Public Dinner at Salisbury for the South Australian Register, 1 June 1857, in R Torrens, Speeches of Robert R Torrens, Esq explanatory of his measure for Reform of the Law of Real Property: to which is appended copy of the bill passed by the House of Assembly of South Australia (1857), 7. R Torrens, The South Australian System of Conveyancing by Registration of Title (1859), 9. ‗Mr Torrens Lecture at Kapunda on the South Australian Real Property Act‘, Observer (Adelaide), 21 May 1859, 2 in R Stein, ‗Sir Robert Richard Torrens 1814-1884: Select Documents‘ (1984) 23(25) South Australiana 1, 20 at 27. R Torrens, The South Australian System of Conveyancing by Registration of Title (1859), 34. R Torrens, An Essay on the Transfer of Land by Registration under the duplicate method operative in British Colonies (1882) Cassell & Company, 44. Ibid, 50. Ibid, 52. R Torrens, The South Australian System of Conveyancing by Registration of Title (1859), 7.

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In England, in ninety-nine cases out of one hundred, the property is in a highly improved state when possession is taken, and its value far exceeds the sum expended in improvements by the existing occupier. In the colonies, all this is reversed; the improvements are in nine cases out of ten effected with capital of the party in possession, or with capital advanced upon the security of the property by others equally unconscious of wrong, and the land itself is of little value compared with the sum invested on it in improvements. Hence a rule of law sufficiently grievous in the old country inflicts an amount of wrong positively outrageous when applied to countries still in the course of settlement, and is in itself sufficient to justify the preamble to the South Australian Act in denouncing the English property law as ‗unsuited to our requirements‘.92

The curing of defects in title that would assure the capitalist ‗against deprivation of the wealth expended upon the land‘ was ‗a most important aspect‘ of ‗general policy‘.93 In short, the old law was ‗a noxious fungus‘ that swelled ‗by absorbing into itself vital elements essential to the production of wealth‘.94 Where in England the grievances of which he spoke, ‗affected a class‘, in Australia they affected ‗the people‘.95 So even if there were a strong measure of self-interest, Torrens proclaimed thorough land law reform as, indeed, ‗the people‘s question‘.96 (And, in such case, what a brilliant political move—to transform your own problems into those of your countrymen). D South Australia—a land job

‗In its beginnings‘, Professor Douglas Pike stated very aptly, ‗South Australia was a land job‘.97 The colony had been developed on the principle of land purchase and buying and selling land was its very raison d’être. The colony was only 20 years old when Torrens introduced his Real Property Bill into its very first Parliament in June 1857; but since its foundation on 28 December 1836 there had been much activity in land dealing. By 28 December 1857 the population of the colony had reached 109,917 and 1,557,740 acres of land had been alienated from the Crown, 98 comprised in some 70,000 land titles.99 Land speculation was rife;100 and land titles were in serious disarray. Pike estimated that it was probable that the documents for three-quarters of the titles had been lost.101 There had been a number of fires in public offices;102 land sales raced ahead of surveying;103 and many titles were in the hands of people who were not resident in South Australia.104

92 93 94 95 96 97 98 99 100 101

102

103

104

Ibid, 25. Ibid, 26. Ibid. Ibid, 6. Ibid, 7. D Pike, ‗Introduction of the Real Property Act in South Australia‘ (1960) 1 Adelaide Law Review 169, 169. E Hodder, The History of South Australia from its foundation to the year of its jubilee (1893), vol 1, 313. F Rogers, Commissioner for Lands and Emigration, to Herman Merivale, Permanent Under Secretary of State for the Colonies, 29 April 1858, Document No 15, in R Stein, ‗Sir Robert Richard Torrens 1814-1884: Select Documents‘ (1984) 23(25) South Australiana 1, 29, 30. The ‗mania‘ in land speculation is described in RM Hague, ‗History of the Law in South Australia 1836-67‘, MA thesis, pre-1837 (the date of donation to the State Library of South Australia), 1420. D Pike, ‗Introduction of the Real Property Act in South Australia‘ (1960) 1 Adelaide Law Review 169, 172, relying on South Australian Register, 8, vii, 1856; 23, vii, 1856 and Report of the Real Property Law Commission, with Minutes of Evidence and Appendix, Parliamentary Paper No 192, South Australia (1861) [102]. Pike‘s estimation that there should have been something like 40,000 separate titles by the mid-1850s is considerably under that of Rogers. Two fires are noted in E Hodder, The History of South Australia from its foundation to the year of its jubilee (1893) chronology at the end of vol 2: 22 January 1838—the Land and Survey Office was destroyed by fire destroying many public documents; January 1841 - fire at Government House destroyed many important public documents. It is not clear whether land title documents were affected by either fire, but they are indicative of the fragility of paper records in the early days of the colony. D Pike, ‗Introduction of the Real Property Act in South Australia‘ (1960) 1 Adelaide Law Review 169, 173, refers to a fire in 1839 which completely destroyed the then survey record and surveyors‘ field books. In the Minutes of Evidence presented to the Real Property Commission in 1861, there is also reference to a ‗great fire at the Port‘ in which the deeds belonging to the building society were all burnt: Report of the Real Property Law Commission, with Minutes of Evidence and Appendix, Parliamentary Paper No 192, South Australia (1861), Minutes of Evidence, Question 10, 2-3, Registrar-General (Torrens). See for example D Pike, ‗Introduction of the Real Property Act in South Australia‘ (1960) 1 Adelaide Law Review 169, 173; S Robinson, Transfer of Land in Victoria (1979), 2; and the Minutes of Evidence of the 1861 Commission: Report of the Real Property Law Commission, with Minutes of Evidence and Appendix, Parliamentary Paper No 192, South Australia (1861). A Castles and M Harris, Lawmakers and Wayward Whigs: Government and Law in South Australia 1836–1986 (1987), 175. Pike cites an estimate that ‗almost a third‘ of titles were held by people outside the colony, mainly in Britain: D Pike, ‗Introduction of the Real Property Act in South Australia‘ (1960) 1 Adelaide Law Review 169, 172.

12

In consequence, the validity of many titles was in serious doubt. Torrens considered that the number of faulty titles was ‗enormous‘,105 including, it seems, some of his own,106 and that up to one third in value of the land in the Australian colonies were held under titles ‗more or less imperfect‘. 107 Castles and Harris concluded, in fitting terms, that the situation was ‗like a time bomb—threatening to destroy what for many was their main source of wealth and status in the community‘.108 Peter Howell—though not a Torrens fan—also conceded the ‗dire necessity‘ for a solution to the land titles problem.
Constant trading in land and, as a result of carelessness, the destruction in 1839 of the government surveyors‘ field books and district maps, had made conveyancing much more difficult, slow and expensive than it should have been in a new colony. … Those who had prepared the original deeds had not only employed the absurdly small scale of forty chains to the inch (almost 317 metres to the centimetre); they had also used paper that was fragile and highly susceptible to shrinkage. Thus it soon became impossible to tell ‗within a chain‘ (20.1m) just where boundaries lay. Private subdivision had compounded the difficulties. ‗Developers‘ were not obliged to surrender their original deeds, nor were they obliged to employ licensed surveyors. Some suburban and country township maps gave no indication of a scale, nor did they specify the area, the angles or the linear dimensions of the lots depicted. …. [T]he palm belongs to the subdivider of Gambier Town (now called Mount Gambier) for he sold the allotments from a map which actually showed north pointing due south. 109

And according to Ralph Hague, ‗perhaps the only subject upon which the press of South Australia in those days was unanimous was the importance of a registration system‘.110 South Australia in the 1850s needed a land title system that was sure and reliable for those who wished to invest their capital in land and would not cost a fortune in searching fees. Torrens provided it—motivated by his work as Controller of Customs (and hence experience with ship ownership), as the Registrar of Deeds, and the bad luck of friends and acquaintances. He was elected to the first House of Assembly in South Australia after it became self-governing in 1856,111 on the strength of his platform of land law reform. ‗The hour for action seemed to have arrived‘, he said.112 Action indeed was his aim: he introduced the Real Property Act in the first session of the House of Assembly on 4 June 1857. At the conclusion of moving the first reading, having railed against the ills of land law, lawyers, conveyancing, search fees, and the problems of derivative title, he declared that ‗Delenda est Carthago‘ must be their motto.113 The second reading took place in the early heat of an Adelaide summer114 on Wednesday 11 November 1857 and on its third reading it was passed 19 to seven. 115 On January 6 it had its second
105 106 107 108 109 ‗Mr Torrens‘ Lecture at Kapunda on the South Australian Real Property Act‘, Observer, 21 May 1859, document 13 in R Stein, ‗Sir Robert Richard Torrens 1814-1884: Select Documents‘ (1984) 23(25) South Australiana 1. PA Howell, ‗Sir Robert Richard Torrens‘, Oxford Dictionary of National Biography. R Torrens, The South Australian System of Conveyancing by Registration of Title (1859), 32. A Castles and M Harris, Lawmakers and Wayward Whigs: Government and Law in South Australia 1836–1986 (1987), 175. P Howell, ‗Constitutional and Political Development, 1857–1890‘ in D Jaensch (ed) The Flinders History of South Australia—Political History (1986) 95, 158. Howell attributed the necessity to ‗the speculators‘ greed for gain, plus bureaucratic bungling‘ and concluded that there was ‗nothing altruistic‘ about it. The evidence to which Howell refers in the Report of the Real Property Law Commission, with Minutes of Evidence and Appendix, Parliamentary Paper No 192, South Australia (1861) is particularly revealing. Mr Henry Denton was the draftsman whose job it was to look after the diagrams on the Certificates of Title. He was interviewed over two days, 15 and 17 April 1861 and the Minutes of Evidence cover eight pages in total (10–18). R Hague, History of the Law in South Australia 1836–1867 (pre-1937) MA Thesis, ch 12, [1419], citing Register 14 Sept 1839, 9 Nov 1839, Adelaide Chronicle 19 August 1840. Statistical Record of the Legislature 1836–2007, Parliament of South Australia, 49. R Torrens, The South Australian System of Conveyancing by Registration of Title (1859), vi. ‗Carthage must be destroyed!‘: South Australia, Parliamentary Debates, House of Assembly, 1857–58, 4 June 1857, [206]. ‗Carthago delenda est!‘ was a a phrase used by the Elder Cato in every speech he made around 150 BC. He had fought in the 2nd Punic War against Hannibal and was convinced Rome must fight a third Punic War to obliterate Carthage. The story goes that the site was sown with salt so nothing would ever grow again. To persuade the Romans to go to war he finished every speech, not matter what it was on, with the phrase ‗Carthago delenda est‘. It became his catchcry. (With thanks to Professor Alanna Nobbs, Department of Ancient History, Macquarie University). Some interesting background of the phrase is given in CE Little, ‗The Authenticity and Form of Cato‘s Saying ―Carthago delenda est‖‘ (1934) 29(6) The Classical Journal 429. The heat of Adelaide summers at this time is recalled in R Harrison, Colonial Sketches: or, Five Years in South Australia, with Hints to Capitalists and Emigrants (1862), chapter ii and 125. For example, for November 1860, 5 days exceeded 90 F. South Australia, Parliamentary Debates, House of Assembly, 1857–58, [706].

110 111 112 113

114 115

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reading in the Legislative Council, led by Anthony Forster. In support of the Bill he had in hand a ‗monster petition‘ with ‗sixty feet of signatures‘,116 signed by 2,700 persons ‗praying the House to pass the Bill before the close of the session‘.117 Debate proceeded apace—reportedly only taking one hour and seven minutes to work through ‗four score clauses‘.118 On 26 January, with a majority of five, and the summer heat unbearable—the mercury reaching over 100° Fahrenheit every day from 22 January till the 30th119—the Bill was passed and on 27 January 1858 the Real Property Bill received the Royal Assent and Parliament was prorogued.120 On the passage of the Bill the South Australian Register of 16 December 1857 claimed that ninetenths of the population were agreed that root and branch reform was urgently required if freeholders were to be liberated from vulnerability to charges of fraud and the risk of being evicted from their homes. The measure was clearly popular. Many celebrations were held in Torrens‘ honour. Two years after the introduction of the first Act a commemoration banquet for 300 people, including the Governor, was held in his honour. It was ‗a merry and enthusiastic gathering‘ and when Torrens concluded his speech in acknowledgment of the occasion, he was met with continued applause.121 Of another fete given in his honour in 1862:
It was a grand affair. Carriages met the train at Gawler, and Torrens had a triumphant procession through that town. Bands played, banners were displayed and slogans eulogistic of Torrens were common. … It was a complete triumph, and brought much pride and pleasure to it recipient. 122

Writing some thirty years later, Anthony Forster said that when Torrens took charge of the Bill in the House of Assembly, and he in the Legislative Council, they ‗had the whole Colony at our back‘.123 So much so that before Torrens‘ departure for England in 1862 he was given ‗a handsome address signed by many thousand persons, and </cgratulating him on the great work which he had accomplished in reforming the system of land transfer‘.124 E The ‘Torrens system’? This was the beginning, then, of the Torrens system. Much ink and energy has been spilled on whether the Act was truly ‗his‘, and whether it is fair to call it the ‗Torrens system‘. Without revisiting any of that debate here,125 what is without doubt is that Robert Richard Torrens was clearly the instigator or sponsor in the Parliamentary arena. It is also evident that he had his own ideas in the drafting, although he also had precedents and helpers—all of which he acknowledged (to a greater or lesser extent).126 There was also the felicity of his name—the ease with which it
116 117 118 119 ‗Mr Torrens‘s Bill‘, South Australian Register, 6 January 1858, 2, col e. South Australia, Parliamentary Debates, Legislative Council, 1857–58, [725] South Australia, Parliamentary Debates, House of Assembly, 1857–58, Mr Morphett, [385]. The battle for reform of property law had largely been waged in the public arena and propelled Torrens into Parliament, so it was almost a fait accompli by this time. R Harrison, Colonial Sketches: or, Five Years in South Australia, with Hints to Capitalists and Emigrants (1862), 13. 22 January: 103.0; 23 January: 110.0; 24 January: 109.0; 25 January: 113.0; 26 January: 116.3; 27 January: 112.2; 28 January: 107.8; 29 January: 109.0; 30 January: 107.1. While Harrison dubbed temperatures over 90° as ‗intensely hot‘, those over 100° he described as ‗a struggle for life‘: 12. South Australia, Parliamentary Debates, House of Assembly, 1860, [794]. G Jessup, Torrens of the Torrens System (1950) State Library of South Australia, 26, citing Chronicle, 7 July 1860. Ibid, 26, citing Observer 1 November 1862. A Forster to Miss Ridley, 15 May 1892, State Library of South Australia, Mortlock Library, A792. ‗Death of Sir RR Torrens, GCMG‘, South Australian Register, 3 September 1884, 6. Later it gives the figure as ‗about 10,000‘. At the time the population of South Australia was approximately 127,000. For example: A Esposito, ‗Ulrich Hübbe's Role in the Creation of the 'Torrens' System of Land Registration in South Australia‘ (24 Adelaide Law Review 264, and refer to n 1 which lists many of the preceding works on the subject; A Esposito, ‗A New Look at Anthony Forster's Contribution to the Development of the Torrens System‘ (2007) 33 University of Western Australia Law Review 251; H Lücke, ‗Ulrich Hübbe or Robert R Torrens? The Germans in Early South Australia‘ (2005) 26 Adelaide Law Review 212; G Taylor, 'A Great and Glorious Reformation'—Six Early South Australian Legal Innovations (2005); M Raff, Private Property and Environmental Responsibility: A Comparative Study of German Real Property Law (2003), ch 1; and S Robinson, Transfer of Land in Victoria (1979), ch 1. Periodically the matter is revisited in the press: eg, ‗Torrens confirmed as author of property Act‘ and ‗Honored Torrens ―a swindler‖ says MP‘ Adelaide Advertiser, 13 April 1992. The Lands Titles Office holds a file of material on the authorship of the Act, including correspondence from Dr Hübbe‘s daughter, Mrs JC May; the State Records office has a folder of newscuttings on the topic; and Mortlock Library has a pamphlet by EAD Opie on the Real Property Act. For example, his speech in introducing the first reading of the bill: South Australia, Parliamentary Debates, House of Assembly, 1857–58, [201] ff.

120 121 122 123 124 125

126

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could become a noun, a verb and an adjective.127 Whether Torrens was ‗the‘ author, or one of many, matters on some levels; on others, not. Ultimately it was ‗the Torrens factor‘ that won the day—his name, his energy and his application. And he was regarded publicly as a hero, a giant, a very Goliath, for taking on land titles and lawyers, as Robert Harrison saw matters in 1862:
It is not improbable that the days of the majority of colonial lawyers are numbered. About four years ago [1858] they were advancing swimmingly in the plundering line, that a legal millennium in South Australia might be supposed to have arrived, when unfortunately for their peace of mind a Goliah [sic] appeared in the shape of a civilian of no legal training whatever, who undertook to bring their mysteries to the scrutiny of common sense, and produced a Bill entirely upsetting the old system of conveyancing, and by a public registration of title made the transfer of land as cheap and expeditious as any other commercial transaction, and in fact sounded the death knell of slow conveyancing in the colony of South Australia. A discordant wail broke forth from the despairing hair-splitters, who first smiled </ctentedly at the folly of an ignoramus attempting to understand and explode their favourite amusements </cnected with their profession; but when the people almost unanimously determined to have the reformation, they exhibited, in many cases, an illustration of the external appearance of the knight with a sorrowful couctenance, and tried humility as an interesting change from their former pretensions.128

The Act came into force on 2 July 1858 and Torrens himself was appointed Registrar, leaving parliament to take up the paid office. Peter Howell observed, however, that ‗the scale of his own land jobbing did not diminish in the slightest degree‘ after this appointment—‗a singularly inappropriate activity for the civil servant who now wielded the power of definitively determining all disputes about land ownership‘.129 Now let‘s get to the heart of his system—the principle of indefeasibility of title. IV A INDEFEASIBILITY Independent titles

For Torrens, ‗indefeasibility‘ was a corollary of independent titles.130 Independence was the ‗first principle‘ of the Real Property Act, cutting off retrospective investigation—and killing off the devil of derivative title. This was ‗the grievous yoke of the English Property Law‘ he sought to throw off. It was, in essence, conveyancing reform—process-driven and process-focused—to facilitate ‗the modern principle of convertability.131 Out went the bundle of deeds, in came the Certificate of Title. The system was based on duplicate certificates of title. The registered owner would be given a duplicate copy of the page in the register book—Volume and Folio—with respect to the title. The ‗original‘ was always with the Registry and the recordings of changes to the title were always undertaken there. If mistakes were made then anyone affected could seek compensation through a fund, the assurance fund, established with the legislation as one of its key planks. All land alienated after 1 July 1858 was to be registered under the new regime. Land that was not under the new system could be converted by application to the Lands Titles Office where it was examined. As Douglas Pike remarked,
The act did not </ctemplate turning bad titles into good ones, for many applications were rejected; but it did give certainty to ‗holding‘ titles that were blistered or otherwise imperfect, making them marketable and preventing the recurrence of technical defects. 132

127

128 129 130

131 132

S Rowton Simpson commented that the word ‗torrens‘ has ‗passed into the American version of the English language‘ and where Torrens title had been introduced ‗the process of original registration is frequently designated as ―torrensing the title‖‘: S Simpson, Land Law and Registration (1976), 68. The ‗Hübbe‘ or ‗hanseatic‘ system just doesn‘t have the same impact, although it may lend itself to catchy titles, like that of Dr Greg Taylor‘s chapter title, ‗Hamburger to go!‘: G Taylor, 'A Great and Glorious Reformation'—Six Early South Australian Legal Innovations (2005), ch 3. R Harrison, Colonial Sketches: or, Five Years in South Australia, with Hints to Capitalists and Emigrants (1862), 114–115. P Howell, ‗Constitutional and Political Development, 1857–1890‘ in D Jaensch (ed) The Flinders History of South Australia—Political History (1986) 95, 162. Such an appointment may lead one to say that this was like ‗putting Dracula in charge of the Blood Bank‘! R Torrens, The South Australian System of Conveyancing by Registration of Title (1859). 9. This was Torrens‘ own book on the Real Property Act 1858 (SA). The term ‗indefeasibility of title‘ was included in the heading to the paramouctcy provision in the Real Property Law Amendment Act 1858 s 20. The term has now been included in the following Australian legislation: Land Title Act 1994 (Qld) ss 38, 169, 170; Real Property Act 1886 (SA) ss 10, 69; Land Titles Act 1980 (Tas) s 40. Ibid, 42. D Pike, ‗Introduction of the Real Property Act in South Australia‘ (1960) 1 Adelaide Law Review 169, 182.

15

The enduring issue in Torrens title jurisprudence and analysis has been the meaning, extent and limits of indefeasibility. In this part of my paper I wish to interrogate the idea as Torrens understood it and then to explore the tensions underlying its <entral ideas. B The paramouctcy principle The notion of indefeasibility was contained in the 1858 Act as follows: 33. Every certificate of title or entry in the register book shall be conclusive, and vest the estate and interests in the land therein mentioned in such manner and to such effect as shall be expressed in such certificate or entry valid to all ictents, save and except as in hereinafter provided in the case of fraud or error. This is known as the ‗paramouctcy‘ provision.133 It remains as the key provision in the present legislation.134 Interests which were not on the Register were not ignored, however, and beneficiaries of trusts, for example, could be protected ‗at a trifling cost‘ through the mechanism of a caveat forbidding dealing with the property without their concurrence.135 So the system included a place for recognising equitable interests of the old law, but, consistent with the idea of eliminating retrospectivity, they could be shown through the caveat for all to see. Indefeasibility was never an absolute concept. The first paramouctcy provision set out above included ‗fraud or error‘ as specific exceptions. These have been refined and extended both by statutory amendment to include, for example, wrong description of land, the omission of easements and certain unregistered leases; and, by judicial interpretation, the expansion of in personam exceptions, where the registered proprietor‘s own conduct has given rise to the interest or is seen to justify judicial intervention.136 Further, the indefeasibility of title of the registered proprietor under the Real Property Act, by application of ordinary principles of statutory interpretation, has also been held to be subject to later overriding statutes.137 However, the question ‗which has transcended all others‘, according to Professor Douglas Whalan, was as to when ‗the magical protective armour of indefeasibility‘ was ‗donned‘ by a title.138 That it was ‗magical‘ was its key sales pitch. How magical, however, was—and is—the question. C Identifying the margins—deferred v immediate indefeasibility Some of the question about when the ‗magical armour‘ is donned is reflected in the to-ing and froing between ‗deferred‘ and ‗immediate‘ indefeasibility—as much a practical as a philosophical problem. ‗Immediate indefeasibility‘ emphasises the paramouctcy provision in the legislation.139 Cases concerning forgeries as well as those involving transferees who take other than as purchasers (‗volunteers‘) sit on the fault line of indefeasibility and illustrate the theoretical and practical differences between deferred and immediate indefeasibility.

133 134

135

136 137

138 139

The indefeasibility provision in Real Property Act 1860 (SA) s 41 and Real Property Act 1861 (SA), s 40, use this term in a marginal note: ‗Estate of registered proprietor paramouct‘. Real Property Act 1900 (NSW) s 42(1); Land Title Act 1994 (Qld) s 38; Real Property Act 1886 (SA) s 69; Land Titles Act 1980 (Tas) s 40; Transfer of Land Act 1958 (Vic) s 42(1); Transfer of Land Act 1893 (WA) s 68; Land Titles Act 1925 (ACT) s 58; Real Property Act (NT) s 69. A comparison of the various provisions is found in A Bradbrook, S MacCallum and A Moore, Australian Real Property Law (3rd ed, 2002) [4.21]. R Torrens, The South Australian System of Conveyancing by Registration of Title (1859), 39. Chapter ix concerns ‗encumbrances, settlements, and entails‘. See for example the discussion in A Bradbrook, S MacCallum and A Moore, Australian Real Property Law (3rd ed, 2002) [4.81]ff. Frazer v Walker [1967] 1 AC 569; Bahr v Nicolay (No2) (1988) 164 CLR 604. See the discussion in A Bradbrook, S MacCallum and A Moore, Australian Real Property Law (3rd ed, 2002), [4.36] ff. South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603; Miller v Minister of Mines [1963] AC 484 (PC); Pratten v Warringah Shire Council (1969) 90 WN (Pt 1) (NSW) 134. See for example the discussion in A Bradbrook, S MacCallum and A Moore, Australian Real Property Law (3rd ed, 2002), [4.65]-[4.67]. D Whalan, The Torrens System in Australia (1982), 297. ‗… As registered proprietor, and while he remains such, no adverse claim (except as specifically admitted) may be brought against him‘: [1967] AC 569 at 581 per Ld Wilberforce.

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That indefeasibility should be immediate upon registration was endorsed as the reigning interpretation by the Privy Council in 1967 in Frazer v Walker,140 an appeal from New Zealand. In this case the Frazers, Alan and Flora, were registered proprietors of a farm outside Auckland on the North Island. Mrs Frazer borrowed money on the security of the land from Edward and Nellie Radomski, having forged her husband‘s signature on the mortgage document. The mortgage was then registered. No payment was made and the mortgagees sold the property to Douglas Walker who then became registered. Walker then wanted to get possession of ‗his‘ new property. Poor Alan was shocked and—not surprisingly—didn‘t want to leave. He wanted to get all the transactions reversed and himself restored as owner. Not only did the Privy Council hold in favour of Walker— which they could have done on deferred indefeasibility anyway—but also stated that the Radomskis attained an immediately indefeasible title, notwithstanding the forgery of Flora. (Poor Alan not only lost his farm but also had to pay the costs of both the Radomskis and Walker. Lord knows what happened to Flora! Presumably Alan may have had some claim on the assurance fund, but this surely would not have extended to the full costs of the Privy Council appeal.) In Breskvar v Wall141 the High Court endorsed this approach in saying that ‗a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument in void.‘142 The earlier Privy Council case of Gibbs v Messer143 had emphasised other provisions over the paramouctcy provision. One such provision is what is now known as the ‗notice‘ provision, the common form of which was derived from s 114 of the Real Property Act 1861 (SA):
114 Except in the case of fraud, no person contracting or dealing with, or taking, or proposing to take a transfer from the registered proprietor of any registered estate or interest, shall be required, or in any manner concerned to inquire or ascertain the circumstances in, or the consideration for which such registered owner or any previous registered owner of the estate or interest in question is, or was registered, or to see to the application of the purchase money, or of any part thereof, or shall be affected by notice direct or constructive of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding, and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud. 144

The point of this provision was to reinforce the distancing of registered title from equitable doctrine, particularly that concerning purchasers with constructive notice. A purchaser who knew, or ought to have known, about existing equitable interests, would be bound by them. The goal of the notice provision was to say that purchasers could rely on the register, and not be concerned about things that they may possibly or potentially could know, if they relentlessly pursued the old, timeconsuming and costly methods of searching titles. It reinforced the importance of the register as the source of relevant information about title—and the irrelevance of the industry of title searching of prior times. But the language of notice was the language of the old law, and particularly ‗the bona fide purchaser for value without notice‘—the quintessential creation of equitable jurisprudence.145 This purchaser also surfaced in a number of other sections in which a distinction is made between purchasers for value and, by implication, volunteers.146 The first group of provisions that do so are collectively described as the ‗ejectment‘ provisions which say that the registered proprietor cannot
140 141 142 143 144 [1967] AC 569. For a detailed consideration of the case see G Hinde, ‗Indefeasibility of Title Since Frazer v Walker‘ in G Hinde (ed) The New Zealand Torrens System Cectennial Essays (1971) 33, 45–51. Breskvar v Wall (1971) 126 CLR 376. Ibid, 385–6. Gibbs v Messer [1891] AC 248. The original statute did not contain a notice provision. The first such provision was included in the 1860 Act. It was in rather different terms and applied to a transferee ‗whether voluntary or not‘: s 104. By the 1861 Act this was ‗entirely redrafted‘: JE Hogg, Registration of Title to Land Throughout the Empire (1920), 39. ‗Equity‘s darling‘, according to Maitland: FW Maitland, Collected Papers, ed HAL Fisher (Buffalo: WS Hein, 1981, first published Cambridge University Press, 1911), vol iii, 530. Notice: Real Property Act 1900 (NSW) s 43; Land Title Act 1994 (Qld) s 169(2); Real Property Act 1886 (SA) ss 186-7; Land Titles Act 1980 (Tas) s 41; Transfer of Land Act 1958 (Vic) s 43; Transfer of Land Act 1893 (WA) s 134; Land Titles Act 1925 (ACT) s 59; Real Property Act (NT) ss 186-7. Ejectment: Real Property Act 1900 (NSW) s 124; Land Title Act 1994 (Qld) s 123; Real Property Act 1886 (SA) ss 192, 207; Land Titles Act 1980 (Tas) s 149; Transfer of Land Act 1893 (WA) s 199; Land Titles Act 1925 (ACT) s 152; Real Property Act (NT) ss 192, 207. Protection: Real Property Act 1900 (NSW) s 135; Land Title Act 1994 (Qld) s 169(2)(b); Real Property Act 1886 (SA) s 207; Land Titles Act 1980 (Tas) s 42; Transfer of Land Act 1958 (Vic) s 44(2); Transfer of Land Act 1893 (WA) s 202; Land Titles Act 1925 (ACT) s 159; Real Property Act (NT) s 207.

145 146

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be ejected except if the person has become registered through their own fraud,147 or they are not a transferee bona fide for value. The second group are the complementary ‗protection‘ provisions which deal with claims for monetary compensation against registered proprietors, the latter being protected against such claims if they are purchasers bona fide for value. If indefeasibility were based on registration of title, what was the significance of these references to purchasers for value? And, in particular, what did this mean for a person who was registered, but was not a purchaser—a volunteer? Writing in 1920, in a masterly treatise on registration of title ‗throughout the Empire‘, James Edward Hogg anticipated that there would be problems in relation to volunteers, caused principally by the conflicting indications in the legislation itself:
In some jurisdictions the registration statutes themselves draw a clear distinction between purchasers for value and persons who become registered as owners otherwise than in consequence of a transaction for value, and proceed to except the volunteer from the conclusive effect of the register. In the majority of the jurisdictions this is not done, or is done in special cases only, the question of the conclusiveness of the register where volunteers are concerned being left to be dealt with for the most part by case law. Even in the statutes that draw the distinction most clearly between voluntary transactions and transactions for value, the ground is not completely covered by the enactments, so that the law must be settled largely by judicial decision in all jurisdictions.148

When judicial decisions were made, they have fallen into two distinct groups. The pre-Frazer position in relation to volunteers is epitomised in the Victorian case of King v Smail,149 in which Adam J considered that if volunteers gained no protection under the notice provision, they would be outside the indefeasibility provision:
The protection given by [the notice provision] to a registered proprietor, ie a legal owner of land, against the consequences of notice actual or constructive of trusts or equities affecting his transferor has point when the legal owner is a purchaser for value. A purchaser for value has by virtue of this section the immunity from prior equities of a bona fide purchaser of the legal estate without notice under the general law. On the other hand to confer on a mere volunteer immunity from the consequences of notice would be illusory, for as already stated the volunteer was, on well-settled rules of equity, subject to equities which affected his predecessor in title whether with or without notice of such equities.150

He held, therefore, that the holder of an unregistered prior interest could prevail over the registered title of the volunteer.151 This was an example of deferred indefeasibility, ‗deferred‘ until a purchaser for value, who had dealt with the (real, non-fictitious) registered proprietor had become registered. What if, in such a case, emphasis were placed on the paramouctcy provision, rather than the notice provision, as occurred later in Frazer v Walker?152 Adam J anticipated the response in this way in King v Smail:
[If the paramouctcy provision] ... is to be read as the key section of the Act and effect given to it regardless of other provisions and the implications to be drawn from them, the applicant‘s contention [that she gained an indefeasible title notwithstanding that she was a volunteer] would appear to be unanswerable ... In terms [the paramouctcy provision] itself draws no distinction between persons becoming registered proprietors for value and mere volunteers. What is relevant is that a person has become the registered proprietor. 153

Bogdanovic v Koteff held that a registered devisee had an immediately indefeasible title, thereby overreaching a prior unregistered interest under a constructive trust.154 This was based on Frazer v Walker.155 Following the deferred indefeasibility approach of King v Smail, however, was
147 And to that extent s 124 complements the paramouctcy provision, which lists ‗fraud‘ as an express exception to indefeasibility. Such fraud has to be sheeted home to the person who has become registered or his or her agents: Assets Co v Mere Roihi [1905] AC 176, 210; and, under s 124, proceedings for the recovery of land are not precluded. JE Hogg, Registration of Title to Land Throughout the Empire (1920), 106. To similar effect see W Harrison, ‗The Transformation of Torrens's System into the Torrens System‘ (1962) 4 University of Queensland Law Journal 125, 130, 131. King v Smail [1958] VR 273. Ibid, 277-8. The case involved a transfer from a husband to his wife of his interest in their jointly held property by way of gift, subject to a mortgage already registered on the title. A month later the husband went bankrupt. The issue was whether the registration of the transfer to the wife gave her indefeasibility or whether she took subject to other interests—in this case the interest of the trustee for the creditors. Frazer v Walker [1967] 1 AC 569. King v Smail [1958] VR 273, 275-6. Bogdanovic v Koteff (1988) 12 NSWLR 472. Frazer v Walker [1967] 1 AC 569.

148 149 150 151

152 153 154 155

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Rasmussen v Rasmussen.156 Coldrey J of the Supreme Court of Victoria pointed out that neither Frazer,157 nor Breskvar v Wall,158 were cases concerning volunteers and King v Smail159 was not considered by the court. Coldrey J commented:
Whilst granting the importance of what has become known as the ‗paramouctcy provisions‘ of the Torrens statutes … there is an overriding principle of fairness which ought to permit a person whose equity in land will be defeated by the actions of the penultimate registered proprietor in donating such land to a volunteer to enforce that equity in the land against such volunteer albeit that the volunteer has become the registered proprietor of it. A distinction in the application of the indefeasibility provisions to a bona fide purchaser for value and a mere volunteer is, in my view, both rational and principled. On the one hand it recognises the desirability of commercial certainty in property transactions and on the other allows full play to equitable precepts.160

In Conlan v Registrar of Titles161 in Western Australia, Owen J followed the Bogdanovic v Koteff162 apprpoach. He was particularly concerned about the use of the notion, suggested by Coldrey J in Rasmussen, that ‗general notions of fairness‘ might be used ‗as a means of implying further exceptions into the statutory scheme‘. This, he thought, ‗is apt to raise as many questions as it will answer‘.163 Owen J concluded that volunteers should acquire an indefeasible title; and that ‗if the registered interest is to be defeated it must be attacked according to one of the exceptions recognised by the [Act] or at law.‘164 Cases like Bogdanovic v Koteff165 and Conlan166 read the paramouctcy provision over the group of provisions that include references to purchasers. If the volunteer is to be regarded as acquiring an indefeasible title, the volunteer can defend proceedings to recover possession or damages by relying simply on indefeasibility of title under the paramouctcy provision. As the paramouctcy provision is ‗read up‘, the ejectment and protection provisions are ‗read down‘. In a system where the register is the focus of title and retrospective investigation is supposedly cut off, why are there such references at all? When and how did these provisions get into the legislation? Are they important to a consideration of the position of volunteers in regard to indefeasibility of title? Are they simply reinforcing provisions—or do they signify something else? To begin to answer these questions we need to see how ‗the system‘ was developed. V BUILDING THE TORRENS SYSTEM167 Building the Torrens system can be seen in two major legislative chapters: the first group from 1858 to 1861; the second, from 1873 to 1886. Torrens was directly involved in the first chapter; in the second he was only a correspondent. A The jigsaw The first Act, the Real Property Act 1857-58, assented to on 27 January 1858,168 was followed by a substantial amending Act in the next parliamentary session later that year in the Real Property Law Amendment Act 1858.169 The general wording of the first Act created problems in relation to trusts
156 157 158 159 160 161 162 163 164 165 166 167 168 169 Rasmussen v Rasmussen [1995] 1 VR 613. Frazer v Walker [1967] 1 AC 569. Breskvar v Wall (1971) 126 CLR 376. King v Smail [1958] VR 273. Rasmussen v Rasmussen [1995] 1 VR 613, 634. See also Valoutin Pty Ltd v Furst (1998) 154 ALR 119. Conlan v Registrar of Titles (2001) 24 WAR 299. Bogdanovic v Koteff (1988) 12 NSWLR 472. Conlan v Registrar of Titles (2001) 24 WAR 299, [194]. Ibid, [200]. Owen J cited with approval the article by P Radan, ‗Volunteers and Indefeasibility‘ (1999) 7 Australian Property Law Journal 197. Bogdanovic v Koteff (1988) 12 NSWLR 472. Conlan v Registrar of Titles (2001) 24 WAR 299. A detailed account of the development of the legislation is provided in JE Hogg, Registration of Title to Land Throughout the Empire (1920), chs 3–4 (this is available in digitised form through The Making of Modern Law). No 15 of 1857-58. No 16 of 1858, assented to on 24 December 1858.

19

and absentee owners that needed sorting out quickly.170 Pike notes that ‗[a]fter debates of little more than an hour, the Bill passed both houses and received the Governor‘s assent on Christmas eve, 1858‘.171 Then ‗the battleground moved to the Supreme Court‘.172 Pike narrates the story of how ‗the judicial tyrant‘ Justices Benjamin Boothby and EC Gwynne, both of whom ‗detested the Real Property Act because it attempted to oust the jurisdiction of the Supreme Court to decide questions of title‘, sought to derail the Act by undermining indefeasibility and even attacking the very constitutionality of the legislation itself.173 The issue of unconstitutionality was solved—but only through imperial intervention in the passing of the Colonial Laws Validity Act 1865—and getting rid of Boothby by his amoval from office on 29 July 1859. The issue of indefeasibility was tackled through amending statutes. Within two years both the first two Acts had been replaced by the Real Property Act 1860,174 largely a consolidating statute.175 This in turn was replaced completely by the Real Property Act 1861,176 following the report of the Commission established to examine the workings of the legislation, in large measure prompted by the stand-off between the Court and the legislation.177 Twelve years after the 1861 Act there was a further substantial review of the working of the Real Property Act together with other legislation concerning the abolition of primogeniture and the assimilation of the devolution of real property to that applying to intestate personalty. Further legislative amendments followed in 1869.178 Another Commission was established in 1872, reporting in 1873.179 The work of this second Commission provides further insights into the contemporary thoughts about the Torrens system. The legislation was amended in 1878 and 1881 and then replaced completely in 1886180—the foundation of the subsequent South Australian law. What is evident in all the discussion about the Real Property Act is confusion, or at least distinctly different understandings of its workings—of how it did, or should work—all of which had an impact on the idea of indefeasibility. The Reports of the Commissions, and the Minutes of Evidence taken in the course of it, sometimes reveal the extent to which the speaker feels tied to the old rules of priority, albeit in a new context, sometimes an adherence to an approach to land as a commodity in which land and money are equivalent. Torrens saw things in rather straightforward terms—the eye of the broad brush. As Jessup remarked, he had ‗the rough hand of the lay reformer‘ and where ‗Torrens tinkered with a subject which abounded with intricate problems, and the lawyers saw the possibilities‘.181 And it was those problems that led to amending Act after amending Act in the thirty years following the introduction of his first Bill.

170

171 172 173

174 175 176 177

178 179

180 181

D Pike, ‗Introduction of the Real Property Act in South Australia‘ (1960) 1 Adelaide Law Review 169, 183. South Australia, Parliamentary Debates, House of Assembly, 1857–58, [837]. As Hogg noted, the amending Act removed ‗the more glaring anomalies‘ of the first Act as well as filling ‗some obvious deficiencies‘: JE Hogg, Registration of Title to Land Throughout the Empire (1920), 30. D Pike, ‗Introduction of the Real Property Act in South Australia‘ (1960) 1 Adelaide Law Review 169, 183. Ibid, 184. Ibid, 184–185; D Whalan, The Torrens System in Australia (1982), 10–11, nn 50,52 and 55. In Hutchinson v Leeworthy the Court allowed a person with a prior right not on the register to assert that right: South Australian Register 29 April 1860: n 50. The Real Property Act 1860 fixed it in response to ‗a public outcry‘, but the Full Court upset the amending legislation in Payne v Detch: 10 and n 52. The constitutionality of the 1860 Act was attacked in McEllister v Fenn: n 55. PA Howell offers another view of Justice Boothby: P Howell, ‗Saints or Scoundrels? A Reappraisal of Some Notable South Australians, with Reflections on Related Issues‘ (1980) 7 Journal of the Historical Society of South Australia 3, 12ff. No 11 of 1860. JE Hogg, Registration of Title to Land Throughout the Empire (1920), 33–34. No 22 of 1861. Report of the Real Property Law Commission, with Minutes of Evidence and Appendix, Parliamentary Paper No 192, South Australia (1861). The Commission‘s fourteen-page report of November was accompanied by 127 pages of Minutes of Evidence and a draft Bill which was passed by early December of the same year. Real Property Amendment Act 1869, 33 Vic No 11. Report of Commission appointed to inquire into the Intestacy, Real Property, and Testamentary Causes Acts; together with Minutes of Evidence and Appendix, Parliamentary Paper No 30, South Australia (1873). The Report comprised 90 pages of Minutes of Evidence, together with an 11 page Report and several addenda. Real Property Act Amendment Act 1878, 41 & 42 Vic No 128; Rights of Way Act 1881, 44 & 45 Vic No 223; Real Proeprty Act 1886 , 49 & 50 Vic No 380. G Jessup, Torrens of the Torrens System (1950) State Library of South Australia, 23, 22.

20

In the meantime, Torrens himself left South Australia first on a lecturing tour of England, Scotland and Ireland, and then to return to the United Kingdom in 1863. He was then elected for the Borough of Cambridge to the House of Commons in 1868 (after a couple of goes), received a knighthood in the Queen‘s Birthday Honours in 1872, failed to get re-elected in 1874, and then retired to his country home, Hannaford, on the edge of Dartmoor in Devon with his wife Barbara, receiving a further honour in 1884. After summer holidays in the Scilly Isles in 1884 he came down with pneumonia and died on Sunday 31 August at Falmouth at the age of 72. He left his widow to survive him for fifteen years as well as a personal estate sworn for probate at £17,292. Lady Torrens died on 21 September 1899, aged 96. They are buried together in Leusdon churchyard.182 Torrens‘ last words were reported to be ‗I love the working man‘;183 the last letter he received was ‗from a Frenchman in Algiers, asking him to come over there and endeavour to initiate the Torrens Land Act in that French colony‘.184 And the large bell of the Adelaide Town Hall tolled in respect when news of his death reached South Australia.185 Two years after his death the South Australian legislature passed the Real Property Act 1886. B The shifting boundaries of indefeasibility In the South Australian legislation there is a clear shift in the boundaries of indefeasibility. This is seen at its simplest by contrasting the first paramountcy provision, set out above, with the one in the 1886 Act. Section 69 included a revised indefeasibility provision, following the work of the 1873 Commission. It stated that the title of the registered proprietor was to be absolute and indefeasible, ‗subject only to the following qualifications‘, including:
I In the case of fraud, in which case any person defrauded shall have all rights and remedies that he would have had if the land were not under the provisions of this Act: Provided that nothing included in this subsection shall affect the title of a registered proprietor who has taken bona fide for valuable consideration, or any person bona fide claiming through or under him: In the case of a certificate or other instrument of title obtained by forgery or by means of an insufficient power of attorney or from a person under some legal disability, in which case the certificate or other instrument of title shall be void: Provided that the title of a registered proprietor who has taken bona fide for valuable consideration shall not be affected by reason that a certificate other instrument of title was obtained by any person through whom he claims title from a person under disability, or by any of the means aforesaid: Where any portion of land has been erroneously included, by wrong description of parcels or boundaries, in the certificate or other instrument evidencing the title of the registered proprietor: In which case the rights of the person who but for such error would be entitled to such land shall prevail, except as against a registered proprietor taking such land bona fide for valuable consideration, or any person bona fide claiming through or under him: Where a right-of-way or other easement not barred or avoided by the provisions of the Rights-of-Way Act, 1881, or of this Act, has been omitted or misdescribed in any certificate, or other instrument of title: In which case such right-of-way or other easement shall prevail, but subject to the provisions of the said Rights-of-Way Act, 1881, and of this Act: Where two or more certificates shall be registered under any of the Real Property Acts in respect of the same land: In which case the title originally first in date of registration shall prevail: Any certificate issued upon the first bringing of land under the provisions of any of the Real Property Acts, and every certificate issued in respect of the said land, or any part thereof, to any person claiming or deriving title under or through the first registered proprietor, shall be void, as against the title of any person adversely in actual occupation of, and rightfully entitled to, such land, or any part thereof at the time when such land was so brought under the provisions of the said Acts, and continuing in such occupation at the time of any subsequent certificate being issued in respect of the said land:

II

III

IV

V VI

182 183 184 185

K Preiss and P Oborn, The Torrens Park Estate—A Social & Architectural History (1991), 16. A poetic account of Sir Robert‘s funeral is given in ‗Sir RR Torrens. His Death and Burial. [By our Anglo-Colonial Correspondent]‘, South Australian Register, 13 October 1884, 6. ‗Sir RR Torrens. His Death and Burial. [By our Anglo-Colonial Correspondent]‘, South Australian Register, 13 October 1884, 6. Ibid. Express and Telegraph, 3 September 1884, 3, col g, recording that the bell tolled ‗yesterday‘.

21

VII

Where a husband shall have been wrongly registered as co-proprietor of land belonging to his wife for her separate use or as her separate property, in which case the title of the wife shall prevail except as against a registered proprietor taking such land bona fide for valuable consideration, or any person bona fide claiming through or under him: Where at the time when the proprietor becomes registered a tenant shall be in actual possession of the land under an unregistered lease or an agreement for a lease or for letting for a term not exceeding one year: In which case the title of the tenant under such lease or agreement shall prevail: Where the succession duty payable in respect of the land has not been paid, and the certificate in subsection 5 of section 3 of Act No 225 of 1881 has not been obtained: In which case any charge by law imposed on the land in respect of such duty shall remain in force.

VIII

IX

Certain exceptions were introduced to deal with things ‗on the margins‘, largely because of problems in defining the land or practical things. Descriptions of boundaries and missing out easements and short-term leases were clearly cases of this nature. Surveying the land had been a headache from the outset and, given the significance of registration, something had to be said about it. The Commissioners in the 1861 Commission—Sir Charles Cooper, the Chief Justice, George Marsden Waterhouse, John Henry Barrow and Torrens—identified many of the difficulties with the working of the Act as having arisen ‗from the imperfect nature of the original Government surveys‘ and that these had been ‗aggravated by the imperfect descriptions adopted in subsequent conveyances, when the land has been subdivided‘.186 Protecting omitted rights of way and the title of those in possession at the time of bringing the land under the Act was also a clear and practical necessity in an area of new settlement. But there are two shifts that must be considered major: the first is the shift towards distinguishing purchasers from other transferees that becomes clear through the discussions in the second Commission of 1873; the second is the shift towards expressly exempting forgeries. 1 Volunteers v purchasers for value187 Although the principal stakeholders in mind with the introduction of the legislation were purchasers and mortgagees, the early legislation did distinguish between purchasers for value and other transferees in certain specific instances. Hence giving rise to some of the questions that have troubled later courts in the decisions on volunteers referred to above. The Real Property Law Amendment Act 1858 limited the occasions for actions for damages to actions against a person registered through fraud and volunteers claiming through such person.188 The Real Property Act 1860 extended the right of action to situations where the loss of the interest was in consequence of fraud, but also ‗in consequence of the issue of a certificate of title to any other person, or in consequence of any entry in the register book, or of any error or omission in any certificate of title, or in any entry in the register book‘. 189 The Real Property Act 1861 was in similar terms.190 Both the 1860 and 1861 Acts expressly stated that actions for damages could not be brought against purchasers for value.191 While the ejectment provisions only exposed the volunteer who took through a fraudulent registered proprietor to an action to recover the land, the damages provisions were not so tightly drawn. A registered proprietor could be liable in damages over the range of matters identified, although the title of the land was protected except in the listed instances. A volunteer may have been registered through an error or oversight for example (assuming a broad application of such terms), but not
186 187 188 189 190 191 Report of the Real Property Law Commission, with Minutes of Evidence and Appendix, Parliamentary Paper No 192, South Australia (1861), xiii. See also Question 545 and the exchange between Torrens and William Bartley. A detailed consideration of the development of the provisions in the context of volunteers is found in my article: R Atherton, ‗Donees, Devisees and Torrens Title: The problem of the volunteer under the Real Property Act‘ (1998) 4(2) Australian Journal of Legal History 1. Real Property Law Amendment Act 1858 (SA) s 78. But see also s 80. Real Property Act 1860 (SA) s 120. Real Property Act 1861 (SA) s 125. Real Property Act 1860 (SA) s 120; Real Property Act 1861 (SA) ss 125, 126.

22

through fraud on anyone‘s part. In such a case the title to the land was secure, even in the hands of a volunteer, but the registered proprietor would not be protected from a damages claim unless the proprietor was a purchaser for value. A volunteer‘s title was not indefeasible where the volunteer took through a fraudulent proprietor, but otherwise the title appeared secure. The notice provision, which first appeared the 1860 Act as s 104, also corroborated the significance of registration in saying that:
A transferee, whether voluntary or not, of land under the provisions of this Act, shall not be affected by actual or constructive notice of any claims, rights, titles or interest other than those which have been notified or protected by entry in the registry book, according to the provisions of this Act, any rule of law or equity to the contrary notwithstanding …192

However, it seemed that in other cases even volunteers took a title which was protected (in relation to recovery of possession), if they had become registered in the face of outstanding interests. They were not subject to direct attack in relation to title, except in the express cases mentioned in s 124 of the 1861 Act, but they could be personally subject to damages, monetary compensation. This was not as clear in the 1861 Act as in the earlier legislation, but reading the Acts and the surrounding discussion, this becomes clearer. Reading Torrens‘ comments in the 1861 Commission also confirm that this is what he thought as well. The distinction between title and personal liability is spelled out in the recommendation of the 1861 Commission in relation to the compensation provision:
It is a principle of the existing Act to substitute for ejectment, as the remedy in case of wrongful deprivation of land, an action for compensation in money against the person on whose application the certificate of title was wrongfully issued, or who acquired the estate or interest by wrongful registration, thus transferring the liability from the land (which under the old law it would follow, into the hands of third parties) to the person of the individual who derived benefit from the error, with an ultimate guarantee from the assurance fund. The Commission have decided on modifying this principle, to the extent of removing this liability from the applicant, or person registered as proprietor in error, to the assurance fund, upon transfer of the property to a purchaser bonâ fide, unless in such cases in which the error has been occasioned by misrepresentation on the part of such applicant or other person. The consideration that, under the provisions of the existing Act, a transferee bonâ fide is actually placed in a worse position, as regards liability, than that in which he would stand under the old law, has led to this conclusion. 193

The general thrust of this early legislation was to confer indefeasible title on volunteers with registration. Torrens‘ understanding is confirmed later in an essay published in 1882 two years before his death. It was, as he described it, a ‗compilation from papers read and addresses delivered on various occasions‘ over the previous 18 years194 and was written at the time of moves for the introduction of land reform legislation in the United Kingdom. One ground of Torrens‘ criticism of the legislation being considered was that indefeasible title ‗is given to purchasers only‘ which, he commented,
affords no inducement to holders to register, as they would not get their titles freed from technical defects and doubts, but would continue, as regards future dealings, such as leases, mortgages, encumbrances, &c., under the present law, subject to all its cost, uncertainties, and delays. 195

But by the 1873 Commission, the ground had shifted entirely. The Commissioners—Rupert Ingleby, William Charles Belt, Leonard W Thrupp, William J Brind and Friedrich E Krichauff—understood that the principle of indefeasibility applied both to
192 Emphasis added. The notice provision was also considerably redrafted in the 1861 Act, where it appeared as s 114 and the reference to transfers ‗whether voluntary or not‘ was removed. The definition of ‗transfer‘ in s 3, however, included transfers ‗whether for valuable consideration or otherwise‘ Report of the Real Property Law Commission, with Minutes of Evidence and Appendix, Parliamentary Paper No 192, South Australia (1861), 3 (‗Compensation to persons deprived of land‘). R Torrens, An Essay on the Transfer of Land by Registration under the duplicate method operative in British Colonies (1882) Cassell & Company, v. Ibid, 41. The context may suggest that Torrens was not distinguishing purchasers from volunteers, but rather new acquirers of title from existing holders of title, but the gist of the comment is consistent with his views expressed elsewhere on volunteers.

193 194 195

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purchasers and volunteers,196 but Henry Gawler, one of the key participants in the review process, disagreed.197 He considered that the references to purchasers in the notice, ejectment and protection provisions of the 1861 Act,198 made a clear distinction between purchasers and volunteers.199 The Commissioners decided to clear up the confusion by making ‗a material alteration‘ in limiting indefeasibility expressly to a purchaser for valuable consideration. 200 Further, in order to ‗afford complete protection to bona fide purchasers for value, and to remove the slightest doubt‘ as to the intention of the legislation, the Report recommended spelling out that the protection was aimed at purchasers for value in the notice provision.201 The use of the expression ‗bona fide‘ was also deliberate:
We have used the expression, ‗who have bonâ fide acquired it,‘ to point to the material alteration we have introduced, namely, that of securing to honest purchasers only the possession of their land, whilst the present Act protects alike the honest purchaser and one who is endeavoring to place his property beyond the reach of his creditors, or to retain the possession of that which, in consequence of his own prudence or misfortune, ought to belong to them.202

The intention of the legislature, they construed, ‗was only passing a law to simplify the mode of transferring property, but not to alter or to defeat the rights of property‘:203
We may tersely describe the effect of the [proposed amendments to the paramountcy clause] to be this—That it clears the title on the occasion of any transfer for valuable consideration. A person, therefore, has only to ask himself, ‗Have I honestly acquired this land by purchase?‘ so as to assure himself of the indefeasibility of his title, and that he is the absolute and unqualified proprietor of the land mentioned in his certificate.204

The deliberations of the Commission (three of the five members being solicitors) led to several Bills and considerable discussion before the Real Property Act 1878 was finally passed. Consonant with their recommendations, the distinction between volunteers and purchasers was made very clear in the 1874 Bill, and the paramountcy, ejectment and notice provisions were expressly drawn in favour of purchasers for value.205 It was, indeed, ‗a material alteration‘ and in debate on this in the House of Assembly John Howard Angas sought to strike out the words ‗being a purchaser for valuable consideration‘:
He believed that the retention of these words would be productive of injury. It was very undesirable that persons should be obliged to provide that they had acquired property for valuable consideration. There were deeds of gift without valuable consideration. 206

But the Attorney-General, the Hon Sir Samuel James Way, ‗trusted‘ that he would not press the amendment:
… the matter had already been carefully discussed in Committee. The voluntary alienee of property ought to stand in the same position as the original holder.207

196 197

198 199

200 201 202 203 204 205

206

Report of Commission appointed to inquire into the Intestacy, Real Property, and Testamentary Causes Acts; together with Minutes of Evidence and Appendix, Parliamentary Paper No 30, South Australia (1873), [17]-[19]. Gawler considered that the Commission‘s view as to the applicability of indefeasibility to volunteers was ‗not borne out by the facts‘: South Australia, Report on Real Property Amendment Bill, Report by Mr Gawler, accompanying Bill to Amend the Real Property Act, No 22, 1861, Parl Paper No 47 (1874), 5; and see Ibid, [17]. Gawler was asked to draft the Bill which was eventually submitted to Parliament in 1874: South Australia, Parliamentary Debates, 1874, 169; 1874, 795. Real Property Act 1861 ss 114, 124, 126. While he thought that perhaps the indefeasibility section did not of itself lead to this conclusion, taken in connection with these other provisions ‗there can be no doubt that the present Act makes a broad distinction between a purchaser and a volunteer - protecting the former, but not the latter‘: H Gawler, Report on Real Property Amendment Bill, Parliamentary Paper No 47, South Australia (1874), 5. What Gawler failed to pick up was how the distinction was drawn in the earlier Acts. There was a distinction, but not in relation to indefeasibility insofar as this concerned the vulnerability of the title to be set aside. It was only in designated instances that the title could be impeached. Report of Commission appointed to inquire into the Intestacy, Real Property, and Testamentary Causes Acts; together with Minutes of Evidence and Appendix, Parliamentary Paper No 30, South Australia (1873), [18]. Ibid, [34](emphasis added). Ibid, [19]. Ibid. Ibid. Using Real Property Bill No 6 of 1874 as the example: cl 54 (evidence), 55 (paramountcy), 56 (notice); 144 (protection). The two notable alterations of the prior law were in cl 55 and 56. Clause 55 began: ‗Every proprietor, being a purchaser for valuable consideration...‘; clause 56 began: ‗Except in the case of fraud, wherein he shall participate or collude, no person contracting or dealing with, or taking, or proposing to take a transfer for valuable consideration from the proprietor of any estate or interest....‘. South Australia, Parliamentary Debates, House of Assembly, 20 July 1875, [452].

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But Arthur Fydell Lindsay, like Angas, identified this as ‗an innovation upon the original Real Property Act‘:
In the Act of 1861 a transfer was defined as the passing of an estate or interest in land, whether for valuable consideration or otherwise. In the Bill that definition had been left out, and the words for valuable consideration continually introduced. If it could be shown that fraud had taken place under the existing law there might be some reason for the alteration, but he had never heard of a case of fraud where there was no valuable consideration.208

The amendment that Angas proposed was not carried. In the Legislative Council, on 1 September 1875, the Hon William Storrie also wanted these words struck out. ‗That would strike at the root of the system, and he saw no reason for the innovation‘.209 But he, too, was defeated at the time. What the discussions revealed, however, were diametrically opposed understandings of indefeasibility and ‗the intention of the legislature‘.210 Similar issues arose with respect to forgeries. 2 Forgeries ‗The question of the mode of dealing with titles obtained by means of forgery is one of very great difficulty‘, announced the Commissioners of the 1873 Commission.
[We] have by a majority decided that even where the purchaser was at the time of the purchase ignorant of the forgery, the transfer should be voidable so far as he and volunteers under him are concerned; but a subsequent purchaser for value should retain the land, and the defrauded proprietor should receive compensation of the Assurance Fund.211

They were advocating deferred indefeasibility, relying on evidence of Gawler:
We say that the first person who takes under a fraud, knowingly or unknowingly, is liable to be deprived of his interest; the second person, not a volunteer is not. The principle being that a purchaser or mortgagee for value is not subject to the liabilities of his predecessor, and therefore not bound to inquire into his title. Indefeasibility is merely the getting rid of the necessity of investigating the prior title, but you are not relieved from the consequences of your own acts, or of any defect in the instrument under which you yourself immediately take, so long as the land or security remains in your hands. But if we also render the first and every other transferee of a mortgage, or the second transferee of the fee simple liable, we knock indefeasibility on the head. 212

Following the 1873 Commission‘s Report the list of express exceptions to indefeasibility included forgery. In the Real Property Bill, No 6 of 1874, the indefeasibility section included exception VIII:
A certificate of title or other instrument obtained by forgery, although the proprietor at the time was ignorant of such forgery.

That indefeasibility was still to apply, but deferred, was made clear in the proviso:
Provided always, that the title of a purchaser for valuable consideration shall not be defeasible on the ground that a certificate of title was obtained by any person under whom he claims title by means of fraud or forgery, or that a certificate of title or other instrument was obtained by any person under whom he claims, by means of an insufficient power of attorney, or from an infant, married woman under disability, or insane person, or that he derives title to the land from or through a proprietor erroneously registered as such by wrong description of boundaries of such land.

207 208 209 210 211

212

Ibid, [452]–[453]. Ibid, [453]. South Australia, Parliamentary Debates, Legislative Council, 1875, [894]. Report of Commission appointed to inquire into the Intestacy, Real Property, and Testamentary Causes Acts; together with Minutes of Evidence and Appendix, Parliamentary Paper No 30, South Australia (1873), [19]. Ibid, [67]. By a majority it was decided that even where the purchaser was at the time of the purchase ignorant of the forgery, the transfer should be voidable so far as he or she and volunteers under him or her were concerned, but a subsequent purchaser for value should retain the land, and the defrauded proprietor should receive compensation out of the Assurance Fund. Volunteers were also in a different position from purchasers. While the position with respect to purchasers was itself to be qualified in the case of forgery, volunteers would continue to be excluded from indefeasibility when deriving title from the honest purchaser from a forger. Ibid, [1902]. Gawler‘s attitude is also seen in H Gawler, Report on Letter from Sir RR Torrens re Amendment of Real Property Act, Parliamentary Paper No 42, South Australia (1875) where he argued that ‗forgery ought to render a certificate of title defeasible in the hands of the person who takes immediately under the forged document, but … it should not be defeasible in the hands of a purchaser from him.‘

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The 1874 Bill was delayed by being sent into Committee in both Houses and was eventually ‗shelved‘.213 In 1875 Torrens wrote from England to George Fife Angas on the amendments proposed by the Commission (and which had been rejected by the Legislative Council in the prior session), saying that some of the proposed listed exceptions
are objectionable, as still further shaking the principle of indefeasibility of title, without which retrospective examinations of the title with abstracts, &c, &c, &c, the fruitful sources of uncertainty, delay, and expense, reappears.214

He particularly singled out the provision concerning forgery as ‗specifically objectionable on this ground‘; and that the proviso ‗seems to be ―a contradiction in terms‖ of the preceding portion of the section‘.215 3 The final piece The translation of the 1873 Commissioners‘ work into legislation was a long slog with a Bill worked through painstakingly in every intervening year after the presentation of the Report.216 Despite all the discussion, the 1878 Act as finally passed did not include an amended paramountcy provision; and the specific recommendations of the 1873 Commission concerning forged transfers and purchasers for valuable consideration had to wait until the passage of the Real Property Act 1886, where they were included in s 69. The 1878 Act did, however, include a provision to deal directly with the court cases that had sought to derail indefeasibility.217 The 1886 Act, assented to on 17 November 1886, replaced all prior Acts. It picked up some of the recommendations of the 1873 Commission, but carried them through in a piecemeal fashion. But the paramountcy provision now included a specific exception for forgery and drew a clear distinction between volunteers and persons taking bona fide for valuable consideration, although it did not include the blanket exemption that was suggested by the 1873 Commission. With respect to the forgery exception, the Attorney-General, the Hon Sir John William Downer explained when the 1886 Bill was before Parliament, that:
A man who obtained a title by means of forgery would have a title which could be defeated by the person whose name was forged. This was right, because the person whose signature was forged had no means of protecting himself, whilst the person who took the forged signature had the opportunity of satisfying himself of its genuineness. Any certificate under those circumstances would not convey the title. It was necessary to protect innocent persons who had no means of tracing deception, and therefore any one purchasing bona fide from the person who held a forged certificate would have his title upheld notwithstanding the forgery. Under this subsection there would be no certificate of title which might not be ultimately challenged either immediately or in the remote future, it if were transmitted by means of a forged instrument. Therefore he thought they had taken the proper course to protect any honest man who accepted a title having no reason to suppose there was any thing wrong with it. 218

However, the more there were exceptions—even discussion about exceptions—the idea of indefeasibility was clearly not inviolable. In summarising the development of the legislation WN Harrison commented that:
within a few years there was a notable transformation of the general conception behind the scheme of indefeasibility of title. Torrens began with the idea that retrospective investigation of title (the source of the defects to be remedied) must be cut off, and that to this end registration should operate as the granting of a new title. The only qualification to this principle was that the existence of fraud or error could be inquired into, and
Bill was ‗shelved in the LC: 1878 115. H Gawler, Report on Letter from Sir RR Torrens re Amendment of Real Property Act, Parliamentary Paper No 42, South Australia (1875). Ibid. Torrens also commented upon aspects of the amendments which seemed to ‗enlarge the jurisdiction of the Equity Court to an extent specially hazardous under existing circumstances‘. South Australia, Parliamentary Debates, 1874, 1875, 1876, 1877. Real Property Act 1878 (SA) s 68. South Australia, Parliamentary Debates, House of Assembly, 1886, [142], 9 June 1886.

213 214 215 216 217 218

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a registered title based on fraud or error set aside except as against a person taking, as the original Act put it, ‗for bona fide valuable consideration‘. 219

The ‗fraud or error‘ exception was expanded by the Commissions and the amending Acts until the paramountcy provision ended up with nine exceptions and in a form that Torrens himself would have found objectionable. Forgers, volunteers, and a range of other issues such as the width of the ‗in personam‘ exception and the impact of overriding statutes, are ongoing questions—and challenges—for Torrens‘ system. They puzzled many involved from the outset, and the divergence of opinions evident in the building of the Torrens system is still affecting the operation of the provisions and their construction in the courts and in academic literature. The 1873 Commission had a clear sense of materially altering the boundaries of indefeasibility but this clarity has been overshadowed by the push toward immediate indefeasibility reflected in Frazer v Walker.220 The wording of the forgery exception in South Australia—notwithstanding the clear intention of the Commissioners—has created a subset of indefeasibility challenges. If Torrens were here today to give his opinion he would probably agree with Professor Peter Butt in a comment in his regular column in the Australian Law Journal, that:
public confidence in the Torrens system requires registration to be ‗rock-solid‘. Any other approach diminishes the effect of registration and returns us to the uncertainties of old system title, for it compels an investigation into the history of transactions—an investigation that Sir Robert Torrens was at pains to abolish with his new system of title by registration.221

4

Elsewhere in Australia

In a study in 1962, WN Harrison traces the adoption of the various Real Property Act incarnations in the other Australian jurisdictions.222 Queensland was the first in its Real Property Act of 1861 ‗a close copy‘ of the South Australian 1860 Act. Tasmania, Victoria and New South Wales modelled their Acts on the 1861 Act. According to James E Hogg the New South Wales Act was based on the Victorian Act, ‗and so only indirectly on the 1861 South Australian Act‘. 223 Then in 1874 Western Australia copied the Victorian Transfer of Land Act of 1866, which had replaced the original Victorian Real Property Act. Meanwhile the work of the South Australian Commission of 1873 led, eventually, to the 1886 Act, which was in its key aspects quite different from the earlier versions on which the other States had based their models as illustrated above. VI A REFLECTION ON TORRENS THE MAN AND THE SYSTEM In 1865, speaking on the invitation of the former Speaker, Sir Charles Clifford, Torrens explained his system to the legislature of New Zealand:
Thus I have succeeded in establishing throughout the entire group of the eastern colonies a uniform system of conveyancing, which has effected a saving, in money as shillings are to pounds, and in time as weeks are to hours. The collateral advantages in facilitating the creation of and the dealing with landed securities, in removing many of the occasions of Chancery suits under the old law, and in other respects being far more important than the direct benefits in saving of conveyancers‘ charges. 224

It would be more accurate, however, to describe the legislation in Australia as the ‗Torrens systems‘, rather than ‗the Torrens system‘. And given the distance the legislation had travelled from the ‗Torrens original‘, using the ‗Torrens‘ tag is more a matter of convenience and linguistic ease than accuracy, and referable really only to the core concept of commitment to cutting off
219 220 221 222 223 224 W Harrison, ‗The Transformation of Torrens's System into the Torrens System‘ (1962) 4 University of Queensland Law Journal 125, 129. Frazer v Walker [1967] 1 AC 569. P Butt, ‗Indefeasibility of title and ―volunteers‖‘ (2001) 75 Australian Law Journal 219. W Harrison, ‗The Transformation of Torrens's System into the Torrens System‘ (1962) 4 University of Queensland Law Journal 125. JE Hogg, Registration of Title to Land Throughout the Empire (1920), 41, 45; W Harrison, ‗The Transformation of Torrens's System into the Torrens System‘ (1962) 4 University of Queensland Law Journal 125, 132. R Torrens to John Ridley, 9 May 1865, Ridley Papers, State Library of South Australia, Mortlock Library, V 1053/86.

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retrospective investigation of titles. In his chapter on the origins of the Torrens system, Douglas J Whalan concluded that:
Perhaps it would be too ungenerous to say that there was little left except the imprint of his enthusiasm and tenacity but for which there never would have been a ‗Torrens system‘ of registration of titles to land. Probably it would be a fair summary to say that throughout the period Torrens was Chairman of the Committee of Afterdinner Draftsmen who created the system; the Committee was a constantly changing one and occasionally it may have become that most efficient of all committees—a committee of several with all members absent except the Chairman.225

But Torrens was right in saying that he had succeeded in establishing ‗a uniform system of conveyancing‘, and this, after all, was his main aim. The adoption of the system throughout Australia and in many countries—not just in the former British Commonwealth but also in newly emerging nations like post-Soviet bloc countries—testifies to its utility. In that respect his name, as Jessup remarked, ‗is a perpetual memorial‘.226 The verdict on the man, however, is mixed. Pasted into the volume of his speeches is an open letter to Torrens dated 19 December 1857 in a column entitled ‗Mask‘s Letters‘. It referred to how low Torrens stood in public opinion. It was very critical of him as spasmodic, arrogant, presumptuous, impulsive, excitable, and self-confident.227 No-one has suggested that he did not have detractors, nor enemies—and even his supporters were guarded. For example, the Chief Secretary, the Hon W Morgan in his second reading speech on the Real Property Bill 1874, on 10 August 1875 remarked that:
He did not wish to comment upon Sir Robert Torrens‘s conduct—perhaps he was a little impetuous; he was when in the colony—but he maintained that if his faults were twenty times greater South Australia could well afford to forgive them on account of the good he had wrought for the Colony. (Hear, hear). 228

Peter Howell has also contributed greatly to pulling Torrens down from any pedestal he, or others, may have placed him on.
Throughout this period, he was the king of the land-jobbers, making use of inside knowledge—sometimes creating smokescreens of bogus inside knowledge—to speculate successfully on a vast scale. In his orgy of buying, selling and subdividing property, especially land held by widows and absentees, he acquired many titles of very dubious validity. The proposed Land Titles Board, for which colonists like Wilson, Hübbe and so on had long been campaigning, held the promise of four great advantages for Torrens: it would make conveyancing cheap; it would have power to issue certificates of title which no one could challenge; it would not have to serve interested parties with personal notice of its hearing of any dispute—advertisements published in the local press were to be deemed sufficient—so that anyone who was not diligent in reading those newspapers, or anyone who was absent from South Australia, could be deprive of his or her property without knowing that the title was being contested; and, best of all, in contrast to proceedings in the courts, which had always been conducted in public, the Land Titles Board would meet and settle disputes in secret. Any persons who could prove that they had been deprived their lawful title by the use of the new procedure would be able to claim monetary compensation from an insurance fund, to be financed by a levy on each real estate transaction.229

Howell also argues that Torrens‘ missionary tour for the legislation was motivated principally by self-interest:
Thus, when he afterwards journeyed from colony to colony, bludgeoning their Parliaments to enact similar legislation, he did so, not in any disinterested spirit, but primarily, as the members of the Adelaide
D Whalan, The Torrens System in Australia (1982), 12. Howell remarked that because of all of the revising ‗extensive revision and polishing‘ ‗his contribution to the ultimate achievement was a very modest one‘: P Howell, ‗Constitutional and Political Development, 1857– 1890‘ in D Jaensch (ed) The Flinders History of South Australia—Political History (1986) 95, 161. G Jessup, Torrens of the Torrens System (1950) State Library of South Australia, 29. R Torrens, Speeches of Robert R Torrens, Esq explanatory of his measure for Reform of the Law of Real Property: to which is appended copy of the bill passed by the House of Assembly of South Australia (1857). South Australia, Parliamentary Debates, House of Assembly, [639]. P Howell, ‗Constitutional and Political Development, 1857–1890‘ in D Jaensch (ed) The Flinders History of South Australia—Political History (1986) 95, 160–161. Pike was also highly critical: D Pike, ‗Early Adelaide with the Lid Off—No 10. Torrens was a land-shark‘. The News 8 July 1957, 15.

225

226 227 228 229

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Chamber of Commerce observed, to make his own titles indefeasible. His contemporaries clearly regarded him as a rogue and swindler of the first order.230

Finally, Howell finds as a damning piece of evidence against Torrens a private and confidential despatch from Sir Dominick Daly, Governor of South Australia, to the United Kingdom government, when Torrens sought some imperial honour for his part is securing enactment of the first Real Property Act. Governor Daly remarked that Torrens
has a kind of popularity here with the lower classes, but those of the upper classes who even laud his political exertions, speak of him more as an unscrupulous Charletan than as the real author of a beneficial measure of Law reform to the origination of which he is well known to have no pretension whatever. His absence is so beneficially felt … that even those most friendly to him consider that such a pension as would prevent his return to this colony would be well bestowed. Ever restless and unscrupulous, he has been the occasion of much mischief in this community and honors conferred upon him would certainly not give general satisfaction. 231

Howell reports that ‗Despite the complaints made about him by six governors in succession, Torrens received a knighthood in 1872; but by that stage he had been a member of the imperial Parliament for some years‘.232 So the law reform may have had a large dose of self-interest, and Torrens was not universally loved, but it was—and is—personally beneficial to many others and many nations. It is fair to say, as Howell also recognises, that:
The principle embodied in [the] statute—the registration of land titles, enabling the certificates of title which the courts could not set aside—was South Australia‘s most significant contribution to the cause of law reform in this part of the world.233

Let me end with a reflection on a photo, as I began. The Hon Justice Michael Kirby, the first Chairman of the ALRC, has a copy of that photo of the first Commissioners. He holds this photo dear and remarked of it:
I can see the character of those first Commissioners in their faces … Alex Castles, alone of the photographic subjects, presents himself standing, in effect, side-on. At that instant, when our images were caught by the exposure of film to light it was as if he was symbolising a desire to stand apart. On his face is a slightly querulous look—as if complaining about being lined up and photographed—or standing still, or standing at all, whilst others younger (like me) were sitting. Alex was first, and always, the scholar. He was a questioner; because that is what history had taught him to do. He did not necessarily go along with the approaches of us, his colleagues, Often he was listening to a different drum. The drum of history. 234

Robert Richard Torrens had his own drum, too. Not everyone liked its rhythm, volume or timbre. But it was very much his drum, at the front of the marching band, that led the Real Property Act into the statute book and at the forefront of a law reform that changed the world of land law. In Justice Kirby‘s tribute to Alex, he cites a passage quoted by Sir Victor Windeyer, which I find particularly resonant for me this evening. It was a comment from Professor Cecil HS Fifoot (of ‗Cheshire and Fifoot on Contracts‘ fame) in his Selden Society Lecture in 1956, entitled ‗Law and History in the Nineteenth Century‘:
Legal history, as has often been said, is the history of ideas. But ideas are not self-sown. They are coloured by environment and conditioned by the climate of opinion; but they are, after all, the creatures of men‘s minds and to isolate them from the pressure of personality, even if it were desirable, is impossible. 235

When one looks at legislation at many times removed, and with the benefit of over a century of caselaw, it may seem both self-evident and also how strange. How law changes, and particularly
230 231 232 233 234 235 P Howell, ‗A hundred years after: reassessing lives for the New Dictionary of National Biography‘ in I McCalman (ed) National Biographies and National Identity (1997) 135, 142. P Howell, ‗Saints or Scoundrels? A Reappraisal of Some Notable South Australians, with Reflections on Related Issues‘ (1980) 7 Journal of the Historical Society of South Australia 3, 12, citing Daly to Newcastle, private and confidential, 24 October 1863. GRG 2/14/1, pp 30-1. Ibid, 12. P Howell, ‗Constitutional and Political Development, 1857–1890‘ in D Jaensch (ed) The Flinders History of South Australia—Political History (1986) 95, 158. M Kirby, ‗Alex Castles, Australian Legal History and the Courts‘ (2005) 9(1) Australian Journal of Legal History 1, 4. Ibid; V Windeyer, ‗History in Law and Law in History‘ (1973) 11 Alberta Law Review 123, 137.

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how new legislation is born is very much a story of personalities. And where Thomas Carlyle described history as ‗the essence of innumerable biographies‘, Windeyer preferred to say that ‗it is the essence of the lives of innumerable men not all of whom have had biographies‘.236 The more you explore the hows and whys of the birth of law—and particularly enduring law reform—the more you are struck by adjectives: words like ‗accidental‘, ‗happenchance‘, ‗pragmatic‘, ‗serendipity‘ and, in the case of South Australia and the Real Property Act 1858, ‗hot‘—the overbearing unrelenting hot summer of 1857–58. Ideas become law through a confluence of timing, stories and often, as Fifoot noted, ‗the pressure of personality‘. In the case of the Real Property Act, the pressure of the personality—warts and all—of Sir Robert Richard Torrens is writ large. He is a ‗better or for worse‘ man. And to quote Windeyer again: ‗Men are not just froth and bubbles on the waves of time. Sometimes men have made the waves by throwing pebbles into the pool.‘237 That Torrens could exhort us to attack Phoenicians—delenda est Carthago!—is just what we would expect of him. He was a big thrower of pebbles into pools. Michael Kirby said that the best way we can remember Alex Castles is not only to speak sadly of his passing (as we do) but to continue the work that he began—‗to see and realise the peculiarities of Australian legal history and also to see it in its larger context: including today through the perspective of international law‘.238 So tonight‘s story is presented as a contribution to Alex‘s work in a reflection on a little Australian—South Australian—law reform that has, in many respects, conquered the world. And what about Carthage? Was it destroyed? Well, sort of, and almost. But the Phoenicians are regrouping!

236 237 238

T Carlyle, ‗On History‘, Critical and Miscellaneous Essays (1838) cited by Windeyer in V Windeyer, ‗History in Law and Law in History‘ (1973) 11 Alberta Law Review 123, 135. Ibid, 137. M Kirby, ‗Alex Castles, Australian Legal History and the Courts‘ (2005) 9(1) Australian Journal of Legal History 1, 6.

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