Privy Council Mistaken – But Does It Matter ?

13 Sep

Reading up on the famous (by Land Law standards…) case of Southern Centre for Theosophy v South Australia [1982] (PC), I am intrigued to discover that the Privy Council seem to have misapprehended substantially the facts about Lake George’s behaviour. The PC recite that in getting on for a century the Lake had decreased in size by 20 acres (out of about 155 of its former total). This was presumably factually correct, and the PC allude to the possibility that the change in size was not even, but the facts are far more interesting – and must presumably have been so within the knowledge of the litigants, if not of their lawyers.

This article from a decade ago in the Sydney Morning Herald hints at the true position – that Lake George is sometimes full and sometimes dry and often somewhere in between. This – applying the judgement – gives the Southern Centre (or their successors in title around the lake) an extraordinarily mobile title, barring any statutory solution. In 2002 their boundary would presumably have been the middle of the Lake: now it has presumably retreated to the shore as the Lake has refilled, although as you can see the Lake is still very shallow:

Lake George South Australia

See Google Maps for the latest …

The question is – does any of this matter ?

In two possible ways:

(1) It seems unlikely that the PC appreciated Lake George’s true nature – they treated the case as one of UK-style coastal drift / variation of a river course;

(2) Nowadays Judges could just as easily GoogleMaps or check online to find out about the Lake – they would only be as dependent on the information from Counsel as they wished to be.

Possibly none of this would have changed the outcome, but it might have changed how they got there. Progress, progress ….


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