Taylor v Minister for Lands (NSW) [1975] HCA 11

High Court of Australia Barwick C.J. McTiernan, Gibbs, Stephen and Mason JJ. Taylor v Minister for Lands (NSW) [1975] HCA 11

ORDER Appeal dismissed with costs.

The following written judgments were delivered:—

April 29 Barwick C.J.

In proceedings before the Land and Valuation Court of New South Wales to determine the compensation payable pursuant to a notification under the Public Works Act, 1912 (as amended) of the resumption for the purposes of the Forestry Commission of land comprised within two conditional purchases respectively numbered 51/3 and 51/2 of which the appellant was named in the notice as, and was in fact, the owner, a question arose as to whether the land should be valued under s. 124 or s. 125 of the Public Works Act. Upon the appellant as claimant before the Land and Valuation Court seeking to tender evidence to the Court of the value of the land in the market, it was objected that compensation in the case was restricted as provided by s. 125 of the Public Works Act. The basis of the objection was that the notification had been given within five years "from the time when such land was alienated in fee by the Crown, whether absolutely or conditionally". The Land and Valuation Court upheld the objection and rejected the evidence. The Land and Valuation Court stated a case for the opinion of the Supreme Court. The Supreme Court, (Court of Appeal Division), answered the questions asked in that stated case unfavourably to the appellant.

The appellant, being the holder by transfer of two Crown leases neither of which so far as appears was an additional Crown lease upon or with respect to the other, made an application on 18th December 1950 pursuant to s. 184 of the Crown Lands Consolidation Act, 1913-1951 upon a form for which reg. 244 made under the Crown Lands Consolidation Act provides and known as form 97, to convert the two Crown leases which he held into a conditional purchase. It was observed by the Crown land agent at Scone, who received this application, that it was an application to convert two Crown leases into one conditional purchase and apparently he called the attention of the appellant to that fact and to the view held by the officer that it was not competent under the statute to convert the two holdings into one conditional purchase.

Section 184 (1) of the Crown Lands Consolidation Act provides that, upon application as prescribed, "the holder of a Crown lease may convert such lease into a conditional purchase subject to the provisions of paragraph (b) of the sub-section " Section 184 (2) provides that the expression "Crown lease" in the section means an original Crown lease or any additional Crown lease and it provides that an application shall include the original Crown lease and any additional Crown lease in virtue thereof held by the applicant at the date of the application.

The applicant, after the intervention of the local Crown land agent and at his request, signed on 19th April 1951 two forms of application under s. 184 of the Crown Lands Consolidation Act, each seeking a conversion of a Crown lease into a conditional purchase.

According to the correspondence which passed between the appellant and the District Surveyor and which is included in the case stated, the applicant on 15th May 1951 was informed that his original application to convert two Crown leases into one conditional purchase was invalid. He was further told that the application would be submitted to the Land Board for disallowance but that it was proposed to recommend the confirmation of the two applications which he subsequently made.

He was told that the disallowance of the application made on 18th December 1950 would need to take place in open court unless the appellant was prepared to withdraw it in writing, in which event the three applications could be dealt with by the chairman of the Land Board in chambers at the one time. On 21st May, the appellant in writing to the chairman of the Land Board said that he would feel happier if he might withdraw his original application with the proviso that consideration be given to his new application, such assurance to be in writing. This, he said, was in order to prevent indefinite delays in obtaining a decision. This letter of 21st May did not reach the chairman of the Land Board until 12th June 1951. Meantime, on 22nd May 1951, the chairman of the Land Board had disallowed the appellant's application of 18th December 1950 and directed that moneys paid in respect of it should be credited to his subsequent applications. This was done in chambers and not in open court.

On the same day, namely 22nd May, the chairman of the Land Board confirmed the application made in respect of one Crown lease, being portion 51 comprising 2,700 acres, finding the conditions of the Crown lease had been fulfilled. He also by a separate writing confirmed the application to convert the other Crown lease which was for portion 49 comprising about 2,640 acres and found that its conditions had been fulfilled.

Section 184 (1) (f) is in the following terms:

(f) Upon confirmation by the local land board, whether before or after the commencement of the Crown Lands, Closer Settlement and Returned Soldiers Settlement (Amendment) Act, 1935, the conversion shall be deemed to have taken effect as from the date of application for conversion. On such confirmation the settlement lease or Crown-lease shall be deemed to have been surrendered to the Crown as from the date of application for conversion unless such application is withdrawn pursuant to paragraph (d) of this subsection.

The Supreme Court felt itself bound by authority, namely, Re Application by Borserio [1] ; Walsh v Minister for Lands (N.S.W.) [2] ; In re Hunt [3] (and see Hawkins v Minister for Lands (N.S.W.) [4] ) to hold that the effect of s. 184 (1) (f) was merely to deem the conversion to have taken effect at the date of application for the purpose of financial calculations under the Crown Lands Consolidation Act, and that that paragraph did not have the effect of dating back the conditional alienation from the Crown to the date of the application made by the appellant. The Court did not find it necessary to decide whether or not that date should be 18th December 1950 or 19th April 1951.

1. (1955) 55 S.R. (N.S.W.) 194. 2. (1960) 103 C.L.R. 240. 3. (1950) 29 L.vR. 9. 4. (1948) 49 S.R. 114; (1949) 78 C.L.R. 479.

The appellant's basic submission is that it was his application of 18th December 1950 which was confirmed and that s. 185 (1) (f) requires that that confirmation be regarded as having been made at 18th December 1950.

In my opinion, the application of 18th December 1950 was not an application which could competently be acceded to. Upon the proper construction of s. 184 of the Crown Lands Consolidation Act, an application may only be made to convert a holding, whether it be a settlement lease or a Crown lease, into a conditional purchase or into a conditional purchase and conditional lease (subject in the latter instance to the conditions laid down in the final words of the opening paragraph of s. 184 (1)). In my opinion, an application to convert two holdings into a single conditional purchase is not authorized by s. 184 (1). Regulation 244 of the regulations made under the Crown Lands Consolidation Act confirms this view and lends no colour to a submission that it is possible for an applicant to make and for the Land Board to grant an application to convert two holdings into a single conditional purchase.

The appellant put two submissions against this view: first, it was argued that the application of 18th December 1950 had by oversight failed to ask for a conversion of the two Crown leases into two separate conditional purchases; that the plural had been inadvertently omitted. But, in my opinion, the material of the stated case does not support such a view. It would seem that the application in the form it was made was deliberately made by the appellant.

The other submission was that, because of reg. 9, of the regulations made under the Crown Lands Consolidation Act, the original application should be regarded as having been "rectified" by the lodgment of the two further applications so that it became as at the date of its lodgment an application to convert each of the two Crown leases into a separate conditional purchase. In my opinion, this submission should not be accepted. Regulation 9 is in the following terms:

The Crown Land Agent shall not refuse to receive any application, however illegal or informal it may appear to be; but when an application is tendered which appears to be objectionable, he shall at once warn the person tendering the application of any apparent objection thereto, and if, practicable, it may be rectified by lodgment of another application, to which any moneys paid in respect of the former application may be applied. No application for a purchase, selection, or lease (other than a special lease or annual lease) shall be deemed to have been duly made for the purposes of the Crown Lands Consolidation Act, 1913, or any Act amending the same or any other Act or otherwise, if received by the Crown Land Agent before the land is available for the class of holding applied for. It seems to me not "practicable", to use the language of reg. 9, particularly having regard to the requirements of s. 184 (2), to convert the application of 18th December 1950 into two separate applications each in respect of a different Crown lease seeking conversion into a single conditional purchase.

I am further of opinion that the application of 18th December 1950 was never confirmed by the Land Board. Indeed, it was disallowed. Whether that disallowance was ineffective because not pronounced in open court is beside the point. The important point is that the application was never confirmed. On the contrary, two subsequent applications were each specifically confirmed.

It therefore seems to me that upon the facts the land covered by the notification of resumption had not been alienated in fee by the Crown more than five years from the date of that notification: in other words, that, upon its facts, whatever the effect of the confirmation of an application, the case falls within s. 125.

However, I am of opinion that s. 184 (1) (f) does not operate to treat the land the subject of the confirmation of an application as having been for the purposes of the Public Works Act alienated by the Crown at the date of the making of the application. The authorities to which we were referred by counsel for the appellant consistently take the view that the alienation of the land takes place at the date of the confirmation of the application and not before. I have seen no reason to differ from the view there expressed with respect to s. 184 (1) (f). An attempt was made by counsel, whilst not contesting what was said in these cases, to treat them and the reasons for judgment in them as inapplicable to the circumstances with which this case deals. I am unable to accept that submission. I think the Public Works Act requires the actual alienation by the Crown of the land to be the fact with respect to which the relevant time should be calculated and that s. 184 (1) (f) is not effective to require the time to be calculated for the purpose of s. 124 of the Public Works Act from any earlier date and, in particular, from the date of the making of an application for the conversion.

In my opinion, the appeal should be dismissed.

McTiernan J.

I agree.

Gibbs J.

I agree in the reasons and conclusions of the Chief Justice.

Stephen J.

I agree.

Mason J.

I also agree.