DECISION
62 Dealing first with the nature of the Commonwealth's rights under the permissive occupancy, these were statutory rights, whose nature and incidents depend upon the provisions of the relevant statutes rather than the nature and incidents of general law categories such as leases and licences, except to the extent that the statutory provisions and the terms of instruments authorised by them disclose an intention to incorporate general law categories.
63 The words "permissions to occupy" in s.136K of the Crown Lands Consolidation Act are perhaps more suggestive of licence than lease, but these "permissions" may be "on such terms and conditions as to [the Minister] seem fit"; and there is no suggestion that the conditions of the Commonwealth's permissive occupancy are not authorised by those words. Those conditions, in my opinion, despite the contrary view tentatively expressed in Barrow v. Brooksby at 17 and adopted by McHugh JA in Minister for Natural Resources v. NSW Aboriginal Land Council at 161, are suggestive more of tenancy than of licence.
64 The word "occupy" suggests possession, and this is confirmed by Condition 6 referring inter alia to sub-letting and parting with possession. It is not necessary to decide whether the permissive occupancy grants exclusive possession: it is in any event terminable at the will of the Minister. It is not clear whether or how it is terminable by the tenant. If a tenant goes out of occupation or does not pay rent, it is likely that the Minister would terminate it; but if the Minister does not do this, it is not clear that the tenant could escape continuing liability, including liability to pay rent for subsequent years or liability under Condition 7.
65 In my opinion, although licences and tenancies at will are not assignable at general law, Condition 6 makes it clear that the rights under the permissive occupancy can be transferred, so long as the prior consent of the Minister is obtained. If this happens, the result is not a new permissive occupancy, but a continuation of the existing permissive occupancy with a new tenant. In my opinion, that remained possible even after the commencement of the Crown Lands Act 1989, which precluded the grant of new permissive occupancies.
66 Associated with the permissive occupancy are whatever consequences may come from paying rent annually in advance. In my opinion, payment of a year's rent in advance cannot prevent the Minister terminating the permissive occupancy at will during that year: this is made clear both by the Continued Tenures Act and Condition 3 of the permissive occupancy. However, it may be that if the Minister did do this, the tenant would have a claim for a pro tanto refund of rent. There might possibly be a claim for damages if the termination was without justification: it must be taken into account that the Crown Lands Consolidation Act authorised the grant of permissive occupancies for purposes such as mining, so it may be that the provision that a permissive occupancy is terminable at will would not protect the Crown in right of the State of New South Wales from being subject to a damages claim if the permissive occupancy was terminated without any justification, particularly during a year for which rent had been paid.
67 Turning to the effect of the Network Sale Act, there is no doubt that "asset" is defined widely enough in s.3 to include the rights (including privileges and immunities) under the permissive occupancy. The word "vest" in s.9 is apt to provide for the effect that the Commonwealth assets specified in a declaration become assets of the relevant company. The circumstance that this process is referred to as a transfer in the words "transfer time" and in the reference to "transferred assets" does not mean that the process whereby the Commonwealth assets become assets of the company must be considered as having all the limitations and restrictions that may attach to the legal concept of transfer. Paragraphs (b) and (c) of s.9(1) make it clear that the Act has the purpose and intention that the company in question be able to do anything that the Commonwealth could previously have done in reliance on the asset in question.
68 A transfer by the Commonwealth of the permissive occupancy without the prior consent of the Minister would be a breach by the Commonwealth of Condition 6 of the permissive occupancy; but s.12 of the Network Sale Act provides that the process whereby the asset of the Commonwealth becomes an asset of the company is not to be considered as placing the Commonwealth in breach of any contractual provision. In my opinion, the words "contractual provision" in s.12 should not be construed narrowly, and are wide enough to include terms of a permissive occupancy such as Condition 6.
69 Mr. Coles submitted that that did not make something transferable which was not transferable. The Linden Gardens case showed that, where a contract prohibits a transfer of contractual rights, an attempted transfer of those rights is not merely a breach of contract, but is wholly ineffectual. Mr. Coles submitted that s.12 might overcome the former, the matter of breach, but not the latter, the inherent non-transferability
70 In my opinion, the plain intention of the Network Sale Act, and in particular ss.9 and 12 of that Act, is to put the company in question in a position to enjoy all rights which the Commonwealth enjoyed under assets like this permissive occupancy; so that the vesting of such an asset is to be as effective as if it did not involve any breach of the terms of the permissive occupancy, that is, as effective as if it was a transfer with the prior consent of the Minister.
71 Having regard to that view, it is not necessary to decide whether or not the Act would apply if the permissive occupancy had not been made assignable with the consent of the Minister. I am inclined to think that it still would have been effectual. The intention that in all respects the company should be in precisely the same position as the Commonwealth had been is made very clear; and is further confirmed by the provision referring to liabilities. Liabilities are not assignable at general law at all, yet the substitution of the company for the Commonwealth in respect of liabilities is plainly provided by s.9.
72 I accept that this means that, in some sense at least, new rights are created in the company by the Network Sale Act: they are rights that would not have existed but for the Act, in that, but for the Act, they could not have arisen without the prior consent of the Minister. However, in so far as they are new rights, they nevertheless have precisely the same incidents as the permissive occupancy, and they are the same as if the permissive occupancy had been transferred to the company with the prior consent of the Minister. If this should be regarded as being an acquisition of property by the Commonwealth, then s.28 of the Network Sale Act provides for just terms; although it is unlikely that any compensation would be appropriate, in circumstances where the Minister can terminate the permissive occupancy at will anyway.
73 In so far as the Network Sale Act in effect deems rights which it creates to be the same as rights under the permissive occupancy itself, and thus to be rights in respect of which the Land & Environment Court has jurisdiction, it can be said that the Network Sale Act is in substance conferring jurisdiction on the Land & Environment Court. I see no problem with this, so long as the legislation is within Commonwealth power. In my opinion, the legislation clearly is within the "post and telegraphs" power in s.52(v) of the Constitution: cf. Jones v. The Commonwealth (No.2) (1965) 112 CLR 206.
74 I do not need to decide the question raised by the Notice of Contention. However, I do not think the letters referred to could amount to a prior consent by the Minister to a transfer of the permissive occupancy. The Points of Defence themselves could not be a prior consent. NTL has not attempted to rely on the Points of Defence as a binding and irrevocable admission, and NTL has applied to amend in order to remove the admission. In those circumstances, I do not think the Notice of Contention could have succeeded.
75 I also note that there is no need to decide the question of the jurisdiction of the Land & Environment Court to decide the question. However, I would make the following comments. The redetermination appealed from related to rent payable from 1st July 1999, and the Continued Tenures Act provided that the Court may substitute its own redetermination of rent, that such substituted redetermination had effect instead of that for which it was substituted, and that the Court should take into account inter alia the terms to which the permissive occupancy was subject and the duration of time for which the rent would be payable. In those circumstances, it seems clear that it was necessary for the Land & Environment Court to decide whether or not the permissive occupancy was still in existence on 1st July 1999, in order to determine the appeal; and thus that it had jurisdiction to determine whether or not the permissive occupancy had terminated on 29th April 1999.
76 For the reasons I have given, in my opinion the appeal should be dismissed with costs.
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