A-G (Cth) v RT Co Pty Ltd

A-G (Cth) v RT Co Pty Ltd - [1957] HCA 29 - HCA 1957 case summary — Zoe

[38]

In the present case the possibility of a claim by one of Mr. Drysdale's companies as a tenant of the basement has been present to my mind throughout. I ought perhaps to say that up to the making of the order assessing compensation, and indeed until the present summons came on before me, I was not aware of the details of the position existing in the basement, or of the possible magnitude of a claim that might be made, although Mr. Voumard, on the day when the final order was made, referred to the fact that there was some printing machinery in the basement, and told me that his valuations were based on the view that that machinery was not a fixture. But, even if I had been fully aware of the details of the physical position, I do not think that any greater opportunity could have been given than has in fact been given to Mr. Drysdale and his companies to make a claim on the basis of an occupation of the premises for business purposes. Those companies, although a solicitor (Mr. Ness) appears to have been acting for them throughout, were not represented by counsel in the later stages of either the proceeding for possession or the proceeding for the assessment of compensation. Mr. Drysdale, however, was present on each occasion when either matter was before me, and was strongly urged to obtain, and act upon, the advice of counsel as to the position. I have had difficulty in understanding his attitude in the matter. It has not been in any way obstructive: he has simply declined (apart from the attempt to have the acquisition declared invalid, and apart from Action No. 1 of 1957, which is still pending) to take any active step whatever in the matter, maintaining that the acquisition was illegal and the proceedings "irregular". I am not, of course, expressing any opinion that he or any of his companies has any claim for compensation other than that which was awarded by my order of 12th December 1955. Technically speaking, any such claim may well, as I have said, have been barred long ago by s. 33 of the Act, and may be barred now by s. 39 (5) and by the terms of my order. But there does seem to be a possibility of such a claim, and - up to a stage at any rate - I think that the Commonwealth has been just as concerned as I have been to give an opportunity for the making of any claim that could justly be made.

[40]

The plant and machinery which has given rise to the problems now brought before me is described in the affidavit of Mr. H. S. Wynne, and I inspected it myself on the premises. The two most important items are two Goss Rotary Printing Machines with their electrical driving equipment. The rest consists of three flat bed printing presses, eight linotype machines, and the auxiliary equipment necessary for the production of a newspaper. The total value in situ at the date of acquisition was probably very substantial: Mr. E. M. Purdy has valued it on that basis at £15,500. Mr. Wynne, however, who is qualified as an expert in such matters, says that the two Goss machines are obsolete, that they would not interest the proprietor of any metropolitan newspaper, and that they would be unlikely to interest the proprietor of any provincial newspaper. If they are dismantled and removed to a store, they will never, he says, be sold as complete printing machines. Each weighs about forty-five tons, and, as appears from the photographs exhibited, their top-most part is very little below the ceiling of the basement. They are attached by nuts and bolts to a concrete foundation, the cost of which Mr. Wynne estimates as at least £500. The only practicable way to remove them would be to dismantle them completely, and Mr. Wynne estimates the cost of dismantling and removal of the two machines at about £1,000. After dismantling and removal they would, he thinks, have a scrap value only, which would probably be less than the cost of dismantling and removal. I should add here that Mr. Wynne, in answer to a question by me, said that the machines as they stand, although they are now in a dirty, dusty and neglected condition and unworkable, could be cleaned up and reconditioned and put into working order. He said "it would take quite a lot of work to do it, but it could be done". He thought that they had been "quite useful machines", but it was about eight years since they had been run. With regard to the articles other than the two presses and their electrical driving equipment, less difficulty would attend their removal, but I gather that this also would be quite an expensive business.

[45]

The only other matters with which I propose to deal now are the matters raised by questions (1) and (5) of the summons. Question (1) asks "Whether the Marshal or Deputy Marshal is under a duty to remove the machinery installed in the basement of the premises situate at 300 King Street Melbourne?". I have felt some doubt about this question, but I have formed the opinion, that whatever may be the position of a sheriff executing a writ of possession after judgment in an action, the Marshal is not under a duty to remove the plant and machinery in the basement. It is quite possible for him to "deliver possession of the land" to the Minister, or to "enforce the entry on the land" of the Minister, with the chattels as they stand. It is material, I think, to remember that the chattels were not originally placed wrongfully on the land and I am inclined to think that their presence on the land does not become wrongful unless and until the Minister actually enters into possession of the land. Whatever remedies, judicial or extra-judicial, are available in respect of chattels wrongfully on land are available generally speaking to the occupier and not to the owner as such. It would seem to me in the present case that any right to remove the chattels is not, so to speak, a concurrent right with the right to enter into possession, but that the former is consequential on the exercise of the latter. The presence of the chattels does not hinder the taking possession of the land: it only hinders the use that can be made of the land after possession has been taken of it. I am inclined to think that s. 59 of the Act, under which the warrant issued, was enacted only because, if it were simply left to the Commonwealth to take possession by virtue of its ownership, an officer of the Commonwealth, who had to use force to enter, might render himself liable under the Statute of Forcible Entries (in Victoria now s. 197 of the Crimes Act 1928). If that was the object of s. 59, that object is fully secured on the view which I take of the extent of the Marshal's authority. There is a curious lack of judicial authority on the subject, but I have come to the conclusion that that is the correct view, and that the chattels are no concern of the Marshal.

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Court

Decision date

Before

Source

Judgment (49 paragraphs)

Parties

Cited By (4)