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[2004] HCA 4
appellant. Appeal allowed with costs. The New South Wales Court of Appeal orders were set aside. The question whether the permissive occupancy was revoked by reason of the declaration was answered “No”, and...
15 cited instruments linked from this judgment.
The Commonwealth's interest in the Mt Sugarloaf permissive occupancy was an “asset” within the broad definition in the Commonwealth Act. The declaration could vest that asset in the appellant by law without using the private-transfer process described in the occupancy condition. If New South Wales law prevented that statutory vesting, the conflicting State-law restriction could not defeat the Commonwealth law to that extent. The High Court therefore answered “No” to the specific question whether the declaration revoked the occupancy. It did not decide whether the occupancy ended for some other reason or settle the appellant's ultimate right to remain on the land.
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2,185 words · generated 05/10/2026
The dispute concerned a permissive occupancy over New South Wales Crown land at Mt Sugarloaf, near Newcastle. The Commonwealth received approval in 1961 to occupy the parcel to construct and operate a national television transmitting station. The occupancy was granted under s 136K(1) of the Crown Lands Consolidation Act 1913 (NSW), and the parties accepted that the grant was valid and its conditions were authorised by that provision (paras 5, 12).
One condition became central. Condition 6 said the tenant “shall not sublet or part with possession” of the premises, or “sell or transfer the Permissive Occupancy” without the State Minister's prior consent. The judgment also records that the Minister could terminate the occupancy at will, and that on termination the tenant had to deliver up possession (paras 6, 4).
The Commonwealth later enacted the National Transmission Network Sale Act 1998 (Cth). Section 3 defined “asset” broadly to include an estate or interest in property and “any right, privilege or immunity”, including contingent or prospective ones. Section 9 allowed the responsible Commonwealth Minister to declare that a specified Commonwealth asset vested in a named company at a specified time, “without any conveyance, transfer or assignment”; it also allowed a company to become the Commonwealth's successor in law in relation to the asset (para 9).
On 29 April 1999, the Commonwealth Minister made a declaration covering specified assets associated with listed sites, including Mt Sugarloaf. It provided that those assets vested in the appellant at 30 April 1999 (paras 9-10). The appellant was subsequently substituted for the Commonwealth in the Land and Environment Court proceeding concerning a rent redetermination (para 11).
The State Minister then sought an answer to whether the permissive occupancy was revoked by reason of the declaration. The Land and Environment Court answered “No”. A majority of the New South Wales Court of Appeal answered “Yes”. The High Court allowed the appellant's appeal, set aside the Court of Appeal orders, and answered the preliminary question “No” (paras 11, 23).
That disposition was deliberately limited. The High Court explained that questions about whether the Commonwealth's departure from the site ended the occupancy, and whether the appellant held the benefit of the same or a new occupancy, were different questions from the one put to the courts (paras 20-22).
The joint reasons treated the statutory text as decisive. The Court described the operation of s 9, read with the definition of “asset” in s 3, as “clear and wide” (para 16). It also noted s 12(c), which provided that the Act's operation was not to be regarded as placing a person in breach of a contractual provision prohibiting, restricting or regulating assignment or transfer of an asset (para 16).
The State Minister accepted two important premises: first, that the Commonwealth Act was valid; and second, that immediately before the declaration the Commonwealth had an asset within the Act's definition. The latter premise held even if the permissive occupancy did no more than give the Commonwealth an immunity from being sued for trespass (para 17). The Court did not need to settle the common-law label for the occupancy to answer the statutory question.
The State Minister's principal argument was that the interest created by New South Wales legislation was, by its nature, incapable of being transferred by operation of law under the Commonwealth Act (para 18). The Court answered that argument through two alternatives. If the interest was capable of statutory vesting, there was no State-law impediment to the Commonwealth Act and declaration operating. If State law made the interest incapable of vesting, that State-law rule would prevent or impair the Commonwealth law's operation. On that premise, it would be inconsistent with the Commonwealth law and invalid to that extent under s 109 of the Constitution (para 18).
This is not a finding that every State-law condition attached to an asset disappears whenever Commonwealth legislation applies. The reasoning turns on the accepted validity of the Commonwealth Act, the breadth of its definition of asset and the terms of s 9. The judgment also records that the Act was expressed to bind the States and that the parties accepted its constitutional validity, including under the relevant Commonwealth legislative powers (paras 9, 12).
The Court separated statutory vesting from questions about private dealings. It said it was immaterial whether a private attempt by the Commonwealth to assign the occupancy, without the State Minister's consent, would give the appellant rights against the State. It was also unnecessary to decide whether condition 6 consent could be withheld unreasonably, whether breach automatically terminated the occupancy, or whether the occupancy was best described as a tenancy or a personal licence (para 15). Those issues concerned possible consequences of private arrangements or legal characterisation, whereas s 9 operated by statutory declaration.
The answer was therefore confined to the question asked. The declaration did not revoke the occupancy by reason of the declaration. The Court did not decide whether the occupancy ended because the Commonwealth left the site, or whether the appellant's rights after the declaration were identical to the Commonwealth's former rights (paras 20-23).
Before the High Court's decision, the dispute arose against a statutory history in which New South Wales permissive occupancies had long been granted, although the legal basis for the practice had been questioned. The judgment recounts that, before 1958, the Lands Department granted such occupancies for various purposes. Challenges to their validity prompted legislation inserting s 136K into the 1913 Act, which authorised the Minister to grant permissions to occupy Crown lands on specified terms and conditions, terminable at will (paras 2-4).
The particular 1961 occupancy continued after the 1913 Act was repealed because the Crown Lands (Continued Tenures) Act 1989 (NSW) preserved relevant tenures (para 7). Condition 6 of this occupancy restricted private transfer without prior consent (para 6). The central question was how that State statutory arrangement interacted with later Commonwealth legislation providing for vesting by declaration.
After the High Court's decision, the legal answer to the question actually submitted was that the Commonwealth Ministerial declaration did not revoke the permissive occupancy. The Court's reasoning also establishes the approach it applied to the claimed State-law obstacle: either the State-law interest could be vested under the Commonwealth Act, or a State-law rule preventing that result would be inconsistent with the Commonwealth law to that extent under s 109 (para 18).
The decision did not resolve every consequence of the statutory vesting. It did not determine whether the occupancy was a tenancy, a personal licence or another kind of statutory interest. It did not decide if the occupancy could be terminated because the Commonwealth left, nor whether the appellant had an ongoing right of occupation under the same or a new permission (paras 15, 21-22). Those limits matter when describing the “after” position: the result was a negative answer to a specific revocation question, not a comprehensive determination of all rights concerning the land.
At paragraph 16, the Court said: “The operation of s 9 of the Commonwealth Act, read in the light of the definition of ‘asset’ in s 3, is clear and wide.” In plain English, the Court read the vesting provision together with a definition that covered not only conventional property interests but also rights, privileges and immunities. That breadth made it unnecessary to decide that the Commonwealth held a conventional estate in land.
At paragraph 17, the Court observed that the State Minister accepted that the Commonwealth had an asset as defined by the Act, even if the occupancy provided only an immunity against a trespass action. In plain English, the State's argument was not that there was no asset at all. The contested point was whether that asset could be vested under the Commonwealth statute.
Paragraph 18 contains the central reasoning. The Court explained that if State law permitted vesting, “there is no reason in State law why the Commonwealth Act and the Commonwealth Ministerial declaration could not take effect.” If State law prevented vesting, it would have altered, impaired or detracted from the Commonwealth law. The conclusion was: “Hence, on neither view of the proposition advanced by the State Minister, do the Commonwealth Act and the Commonwealth Ministerial declaration fail to take effect according to their terms.” In plain English, the State Minister's proposed obstacle did not defeat the statutory declaration under either version of the argument.
Paragraph 15 identifies matters the Court did not decide. It said the classification of the occupancy, the effect of a private transfer, the scope of the consent condition and the consequences of breaching it were immaterial to the question before the Court. This is an important interpretive boundary: the reasoning should not be extended into answers on those unexamined matters.
Finally, paragraphs 21 and 22 explain why the result does not decide whether the appellant could continue occupying the site. The State Minister raised possible questions about the Commonwealth's departure and the purpose of the permission, but those questions differed from the question submitted. The Court declined to reformulate it.
The decision is relevant to a fact pattern where a valid Commonwealth statute authorises a declaration that a specified Commonwealth asset vests in another entity, and the asset includes a State-law interest subject to restrictions on transfer. The relevant statutory features here were the broad definition of “asset”, the vesting “without any conveyance, transfer or assignment”, and the provision that the declaration had effect according to its terms (paras 9, 16).
It is particularly pertinent where the asserted State-law restriction is said to make a statutory vesting impossible. The Court's s 109 analysis addresses that claimed obstacle: if the State law prevents the Commonwealth law operating as enacted, the State law is inconsistent to that extent (para 18).
The facts should not be treated as interchangeable with every private assignment dispute. This case concerned a vesting by operation of a Commonwealth statute and ministerial declaration, not an ordinary assignment made by contract. The Court expressly left private-assignment consequences and the classification of the permission unresolved (para 15).
Nor does the decision answer whether a particular permission has ended for reasons other than the declaration. A dispute about a grantee's departure from land, an at-will termination clause, or a later State decision would raise questions that the High Court identified as outside the preliminary issue (paras 4, 21-22).
The supplied judgment contains no discussion of decisions made after 10 February 2004, so it does not establish how later courts treated or applied this precedent. No post-decision cases or subsequent statutory developments are provided in the material analysed here.
The judgment does describe the proceedings below. The Land and Environment Court answered the preliminary question “No”, while a majority of the New South Wales Court of Appeal answered “Yes”. The High Court set aside the Court of Appeal's orders and restored the negative answer to the specific question (paras 11, 23). Those are procedural steps leading to the High Court decision, not later treatment of it.
The joint reasons cite authorities on s 109 inconsistency, including Stock Motor Ploughs Ltd v Forsyth, Victoria v The Commonwealth, Botany Municipal Council v Federal Airports Corporation and Telstra Corporation Ltd v Worthing (para 18 and footnote 19). The supplied judgment uses those authorities in support of its statement of the inconsistency principle. It does not describe how any court later applied Broadcast Australia itself.
The most important unresolved question is the appellant's ultimate right to occupy the Mt Sugarloaf site. The Court expressly distinguished the preliminary revocation question from whether the occupancy ended when the Commonwealth left, and from whether the appellant held the benefit of the same permission or a new permission (paras 20-22).
The legal character of this particular occupancy was also left open. The Court did not decide whether it was a tenancy, a personal licence or an interest best understood by reference to the statutory scheme rather than common-law categories (para 15). That issue could matter in a dispute whose legal question depended on the classification, but it did not need to be resolved here.
The decision also did not determine the effect of condition 6 in a private transaction. It did not decide whether consent could be withheld unreasonably, whether a private transfer without consent would create rights against the State, or whether breach would automatically terminate the occupancy (para 15). Those questions were expressly treated as immaterial to the statutory vesting issue.
Finally, the judgment's reasoning depends on the terms and accepted validity of the Commonwealth Act before it. The decision does not, on the supplied text, state a general rule that any Commonwealth declaration overrides any State condition affecting land. Its conclusion follows from the particular statutory language and its s 109 analysis (paras 12, 16-18).
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
McHUGH J, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ
BROADCAST AUSTRALIA PTY LTD APPELLANT
AND
MINISTER ASSISTING THE MINISTER FOR
NATURAL RESOURCES (LANDS) RESPONDENT
Broadcast Australia Pty Ltd v Minister Assisting the Minister for Natural Resources (Lands)
[2004] HCA 4
10 February 2004
S161/2003
ORDER
1. Appeal allowed with costs.
2. The orders of the Court of Appeal of New South Wales dated 24 May 2002 are set aside, and in lieu thereof, it is ordered that:
(a) the question raised by the Notice of Motion filed by the respondent in the Land and Environment Court of New South Wales dated 16 May 2000, namely:
"Whether the permissive occupancy granted by the Minister was revoked by reason of the declaration made by the Minister for Finance and Administration on 29 April 1999?"
be answered: "No";
(b) the appeal to the Court of Appeal be dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation:
D F Jackson QC with A E Galasso for the appellant (instructed by Minter Ellison)
B A J Coles QC with N Perram for the respondent (instructed by Crown Solicitor for the State of New South Wales)
S J Gageler SC with K M Richardson intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Broadcast Australia Pty Ltd v Minister Assisting the Minister for Natural Resources (Lands)
Real property – Permissive occupancy – Commonwealth was granted permissive occupancy over a parcel of New South Wales Crown land – Condition of permissive occupancy that it not be transferred or sold without the prior consent of the respondent – Commonwealth law declaring that the permissive occupancy would vest in the appellant as its successor – Respondent's prior consent not obtained – Whether permissive occupancy an asset capable of being vested in another by statute – Whether permissive occupancy revoked by reason of the Commonwealth declaration.
Constitution, s 109.
National Transmission Network Sale Act 1998 (Cth), ss 3, 9, 12.
Crown Lands Consolidation Act 1913 (NSW), ss 6, 136K.
Crown Lands (Continued Tenures) Act 1989 (NSW), ss 5, 11, Sched 2 Pt 6, Sched 5 cl 11.
McHUGH, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ.
Background
This appeal turns upon the interrelation between federal "privatisation" legislation, the National Transmission Network Sale Act 1998 (Cth) ("the Commonwealth Act") and New South Wales legislation providing for "permissive occupancies" of Crown lands in that State. The appellant contends that there has been vested in it by operation of law such an interest previously held by the Commonwealth in respect of land where a television transmitting station was erected and operated. Though the point at the heart of this appeal is a short one, it is desirable to set out the background in some detail.
In New South Wales for many years before 1958 it had been the practice of the Lands Department to grant "permissive occupancies" of Crown lands for various purposes, including grazing, boatsheds, jetties, slipways and the extraction of sand and gravel. The Department assumed that it had the power to do this, and that assumption was shared by Parliament in various pieces of legislation, but there was thought to be no express legislative authority for it, and in particular not in the Crown Lands Consolidation Act 1913 (NSW) ("the 1913 Act")1. In 1958 challenges to the validity of two permissive occupancies were brought respectively in the Equity Court and the Land and Valuation Court of New South Wales. The government thereupon introduced a Bill on 22 October 1958 in order to place beyond doubt the "title" which it was intended to create by those and all other permissive occupancies, which numbered 16,500, and the right of the relevant Minister to continue the practice of granting them2.
Further, though the matter was not referred to in the course of debate in the Legislative Assembly, less than eight months earlier, on 4 March 1958, Sugerman J had pointed out that there was no reference in the 1913 Act or its precursor to a permissive occupancy, despite the fact that the practice of granting them was a "well recognised practice which has gone on for a very great number of years and has led to a very large number of such occupancies being granted".3 He found it necessary to analyse the jurisdiction of the Land and Valuation Court of New South Wales to entertain appeals by persons who were unsuccessful or partially unsuccessful in their applications for permissive occupancies to the Local Land Board at Nyngan on alternative hypotheses. One hypothesis was that grants of permissive occupancies contravened the prohibition contained in s 6 of the 1913 Act against dealings in Crown lands outside that Act. The other was that grants of permissive occupancies were not dealings because they conferred no more than "a mere personal licence". Sugerman J did not have to decide between these hypotheses, but on either of them, permissive occupancies were not supported by the 1913 Act. In consequence Sugerman J's judgment has been described as expressing, or causing the expression of, doubts on the practice of granting permissive occupancies.
"The Minister may grant permissions to occupy Crown lands, whether above or below or beyond high water mark, or whether reserved from lease or license or not, for such purposes and, subject to this section, upon such terms and conditions as to him may seem fit."
Sub-section (5) relevantly provides:
"… [A] permission to occupy Crown lands granted under subsection (1) shall be terminable at will by the Minister."
In 1961 approval was given to the Commonwealth to occupy a parcel of Crown land at Mt Sugarloaf, near Newcastle, for the purpose of constructing and operating a national television transmitting station ("the 1961 permissive occupancy"). The station was constructed and began to operate.
Among the conditions of the 1961 permissive occupancy were the following:
"1. The rent for each year shall be paid in advance to the Under Secretary for Lands, Sydney.
The Minister, upon giving at least three (3) months notice to the tenant, may review and alter the amount of the rental.
The Permissive Occupancy is terminable at will by the Minister.
…
The tenant shall not sublet or part with possession of the premises, or any part thereof, or sell or transfer the Permissive Occupancy herein referred to, without the consent of the Minister for Lands having first been obtained. On termination of the Permissive Occupancy the tenant shall deliver up quiet and peaceable possession of the premises."
Although the 1913 Act was repealed by the Crown Lands Act 1989 (NSW), the tenures in force under the 1913 Act immediately before its repeal remained in force pursuant to ss 5 and 11 and Sched 2 Pt 6 of the Crown Lands (Continued Tenures) Act 1989 (NSW) ("the Continued Tenures Act").
On 29 June 1998 a notice of redetermination of the rent was given under Sched 5 cl 11 of the Continued Tenures Act. On 21 September 1998 the Commonwealth lodged an objection pursuant to cl 11(2). On 2 March 1999 the rent was redetermined in the sum of $74,000 per annum. On 12 April 1999 the Commonwealth appealed to the Land and Environment Court of New South Wales pursuant to Sched 5 cl 11(3)(b) of the Continued Tenures Act.
On 29 April 1999 an event took place which triggered the present controversy. The Minister for Finance and Administration published a declaration ("the Commonwealth Ministerial declaration") pursuant to s 9 of the Commonwealth Act. That Act was expressed to bind the States (s 4(1)). It provided, by s 9(1):
"(1) The Minister for Finance and Administration may, by notice in the Gazette, declare all or any of the following, in relation to a company specified in the notice:
(a) a specified Commonwealth asset vests in the company at a time specified in the notice (the transfer time), without any conveyance, transfer or assignment;
(b) at the transfer time, the company becomes the Commonwealth's successor in law in relation to the transferred asset;
(c) a specified instrument relating to the transferred asset continues to have effect after the transfer time as if a reference in the instrument to the Commonwealth … were a reference to the company."
Section 3 defined "Commonwealth asset" as meaning "an asset of the Commonwealth". Section 3 also defined "asset" as meaning:
"(a) any legal or equitable estate or interest in real or personal property, including a contingent or prospective one; and
(b) any right, privilege or immunity, including a contingent or prospective one."
Section 9(2) made similar provision for Commonwealth liabilities as that made in s 9(1) for Commonwealth assets. Section 9 continued:
"(3) Declarations in relation to both assets and liabilities may be included in the same notice. The same notice may include declarations in relation to more than one asset or liability.
(4) A declaration under this section has effect according to its terms."
The Commonwealth Ministerial declaration defined as a "Specified Asset" an asset in Pt 1 of Sched A, which included "any legal or equitable estate or interest or right or entitlement which the Commonwealth has in, or in relation to" numerous specified sites. One of these sites was the Mt Sugarloaf site the subject of the 1961 permissive occupancy. The Commonwealth Ministerial declaration proceeded to declare, pursuant to s 9(1) of the Commonwealth Act, that at 30 April 1999 "Each Specified Asset vests in the [appellant] without any conveyance, transfer or assignment".
On 25 May 1999 the National Transmission Company Pty Ltd, which was later called NTL Australia Pty Ltd before becoming Broadcast Australia Pty Ltd, the appellant in these proceedings, was substituted for the Commonwealth in the Land and Environment Court proceedings. The State Minister, who was the respondent in those proceedings and is the respondent in this Court, filed a Notice of Motion in the Land and Environment Court which led to the formulation of a preliminary question as to whether the 1961 permissive occupancy was "revoked" by reason of the Commonwealth Ministerial declaration. The Land and Environment Court (Pearlman J) answered that question in the negative7. A majority of the New South Wales Court of Appeal (Mason P and Sheller JA; Hodgson JA dissenting) were of the contrary view8.
It was common ground that the grant of the 1961 permissive occupancy was a valid exercise of the power given by s 136K(1) of the 1913 Act, and that the conditions imposed did not go beyond what s 136K(1) permits; that the Commonwealth Act was a valid exercise of the legislative powers conferred by s 51(v) and (xxxix) of the Constitution; that there was no problem under s 51(xxxi) of the Constitution; and that s 52 of the Constitution had no application. While agreements of these kinds are not binding on this Court, on various grounds there is no reason not to accept them for present purposes.
The State Minister's argument
To some degree the issues as presented to this Court are different from those considered by the courts below. An effort was made in the submissions for the State Minister in the Court of Appeal to locate analogues in the general law to the statutory regime of "permissive occupancies" and then to treat the most forensically convenient analogue as a substitute for fuller statutory analysis. For example, attention was invited to the analysis of tenancies at will by Jordan CJ in Commonwealth Life (Amalgamated) Assurance Ltd v Anderson9 and to the early nineteenth century English authorities to which Jordan CJ referred. On the other hand, despite one or two passing references, the courts below were not invited to analyse the matter in the light of s 109 of the Constitution.
The argument put by the State Minister in this Court was that while the 1961 permissive occupancy was in a sense an asset in the hands of the Commonwealth, it was not an asset capable of being vested by statute in some other person's hands. While the Commonwealth Act was capable of transferring any rights which the Commonwealth had immediately before a Commonwealth Ministerial declaration was made to the fullest and most ample extent of their transmissibility, the 1961 permissive occupancy was not transmissible. The State Minister again attempted to draw analogies between the 1961 permissive occupancy and tenancies at will; between the results that would flow if the Commonwealth had attempted by contract to transfer the benefit of the 1961 permissive occupancy to the appellant without the State Minister's consent, and the results of the Commonwealth Ministerial declaration; and between the Commonwealth Act and the operation of the Bankruptcy Act 1966 (Cth), s 58 or the Wills, Probate and Administration Act 1898 (NSW), s 44.
Immaterial issues
Conclusion
"The operation of this Part is not to be regarded as:
…
(c) placing a person in breach of any contractual provision prohibiting, restricting or regulating:
(i) the assignment or transfer of any asset or liability …"
The State Minister accepted that the Commonwealth Act was valid. It follows that effect must be given to it according to its terms. The State Minister also accepted that just before the Commonwealth Ministerial declaration the Commonwealth had an asset as defined in the Commonwealth Act, for even if the 1961 permissive occupancy did no more than create an immunity in the Commonwealth against being sued for trespass, it fell within par (b) of the definition of "asset" contained in s 3 of the Commonwealth Act.
The State Minister's argument rested on one basic proposition: that the 1961 permissive occupancy was in its nature as the creation of particular statute law of the State, incapable of being the subject of a transfer by operation of law of the type purportedly effected by the Commonwealth Ministerial declaration under the Commonwealth Act. If this proposition is false, and the 1961 permissive occupancy was susceptible to such a transfer, there is no reason in State law why the Commonwealth Act and the Commonwealth Ministerial declaration could not take effect. There would be no contrariety between the two laws and no occasion for the operation of s 109 of the Constitution. But if the proposition is true, it can be true only because there is some provision of State law − some term of the 1961 permissive occupancy created under s 136K(1) of the 1913 Act and preserved by the Continued Tenures Act − preventing the Commonwealth law from taking effect according to its terms and insulating the 1961 permissive occupancy from the Commonwealth law. If a provision of State law did have that effect, it would have altered, impaired or detracted from the operation of the Commonwealth law. It would thus be invalid under s 109 of the Constitution to the extent of the inconsistency18. Hence, on neither view of the proposition advanced by the State Minister, do the Commonwealth Act and the Commonwealth Ministerial declaration fail to take effect according to their terms.
Orders
"That the permissive occupancy granted by the Respondent was revoked by reason of the declaration made by the Minister for Finance and Administration on 29 April 1999."
The primary judge then formulated the following question19:
"Whether the permissive occupancy granted by the Minister was revoked by reason of the declaration made by the Minister for Finance and Administration on 29 April 1999?"
"The purported assignment by the Commonwealth pursuant to the Minister's declaration followed by the giving up of the site to the applicant terminated the right of occupation formerly residing in the Commonwealth by virtue of the permissive occupancy."
That argument does not match the terms of the question. In any event, the Land and Environment Court answered the question in the negative. The State Minister's Notice of Appeal in the Court of Appeal requested an affirmative answer to the question. The State Minister supported that request by repeating the argument advanced to the primary judge21. The majority reasoning in the Court of Appeal accepted the State Minister's argument22. It was for those reasons that the majority of the Court of Appeal ordered that the question should be answered affirmatively.
"It is interesting but not necessarily ultimately to the point to analyse how the right came to fall away. It is probably correct to say that once the Commonwealth went out of occupation then the purpose of the permission went away with it. In other words, the Commonwealth gave up the right, therefore, there was no either desire on the Commonwealth's part or intention on the Minister's part that the right should continue to subsist."
That raises different questions from the question which the State Minister asked the courts below to consider. One different question is: "Was the 1961 permissive occupancy terminated by the departure of the Commonwealth from occupation?" Another question is: "Does the appellant have the benefit of the 1961 permissive occupancy, or some permissive occupancy carrying the same rights?"
However, the parties did not seek to alter the question which the courts below were invited to answer. Each appeared content, for practical purposes, with the respective answers for which each contended. There is no point in reformulating the question now.
The following orders should be made.
The appeal is allowed.
The orders of the Court of Appeal of New South Wales are set aside.
The question raised by the Notice of Motion filed by the State Minister in the Land and Environment Court of New South Wales dated 16 May 2000, namely:
"Whether the permissive occupancy granted by the Minister was revoked by reason of the declaration made by the Minister for Finance and Administration on 29 April 1999?"
is answered: "No".
Second Reading Speech of the Minister for Lands relating to the Crown Lands (Permissive Occupancies) Amendment Bill 1958, New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 23 October 1958 at 1561. ↩
Second Reading Speech of the Minister for Lands relating to the Crown Lands (Permissive Occupancies) Amendment Bill 1958, New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 22 October 1958 at 1499. ↩
Barrow v Brooksby (1958) 37 LVR 14 at 18. The account in the Second Reading Speech of the challenge in the Land and Valuation Court does not in its details match the facts of Barrow v Brooksby. ↩
Barrow v Brooksby (1958) 37 LVR 14 at 18. ↩
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 159 per McHugh JA, 166-167 per Clarke AJA. ↩
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 156 per Kirby P. ↩
NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403. ↩
Minister for Land and Water Conservation v NTL Australia Pty Ltd (2002) 122 LGERA 53. ↩
(1945) 46 SR (NSW) 47 at 49-50. ↩
That is a proposition denied in the Court of Appeal ( (2002) 122 LGERA 53 at 56-57 [7]) on the authority of [1994] 1 AC 85 (and (1995) 17 ACSR 761, which followed it). But in at 104 Lord Browne-Wilkinson, with whom all other members of the House of Lords agreed, was prepared to accept that the issue was one of contractual construction, and that a possible construction, though cases of it were "very unlikely to occur", was that an assignment in breach of a covenant against assignment was not invalid as between obligor and assignee, though it gave the obligor a right to sue the assignor for damages. The same possibility, without any limitation as to likelihood, was identified in (1993) 113 ALR 225 at 236 per Northrop, Gummow and Hill JJ. (1916) 21 CLR 277 at 289 and Starke, , (1972) at 65-67 were also cited by the Court of Appeal majority; but those passages related to the special area of contracts having an element of personal skill or personal confidence in the assignor, and Starke's work at 66 is to the same effect as the case.
Broadcast Australia
Minister Assisting the Minister for Natural Resources [2004] HCA 4; 221 CLR 178; 204 ALR 46; 78 ALJR 339
(1987) 9 NSWLR 154
(2001) 112 LGERA 403
(2002) 122 LGERA 53
(1993) 113 ALR 225
(1916) 21 CLR 277
(1932) 48 CLR 128
(1937) 58 CLR 618
(1992) 175 CLR 453
(1999) 197 CLR 61
Appeal allowed with costs. The New South Wales Court of Appeal orders were set aside. The question whether the permissive occupancy was revoked by reason of the declaration was answered “No”, and the respondent was ordered to pay the appellant's costs in the Court of Appeal and the High Court.
The matter proceeded with haste. On 22 October 1958 the Bill was read a first time in the Legislative Assembly; on 23 October 1958 it was read a second time, went into Committee and was read a third time; on 28 October 1958 it returned from the Legislative Council without amendment; and on 3 November 1958 royal assent was given. The effect was to amend the 1913 Act by the insertion of s 136K. Sub-section (1), in its current form, provides:
As the majority said (Minister for Land and Water Conservation v NTL Australia Pty Ltd (2002) 122 LGERA 53 at 58 [14], referring to McHugh JA's quotation in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 161 of the words of Sugerman J in Barrow v Brooksby (1958) 37 LVR 14 at 19); Hodgson JA spoke to the contrary at 71 [62]-[63]. The question would depend on a close analysis of the Conditions of the 1961 permissive occupancy, which may have been different from those applying to the permissive occupancies in Barrow v Brooksby. The question would also depend on whether it is appropriate to seek to refer the rights created by the 1961 permissive occupancy under s 136K of the 1913 Act to categories found in the common law. ↩
As the majority thought: Minister for Land and Water Conservation v NTL Australia Pty Ltd (2002) 122 LGERA 53 at 59-60 [21]. ↩
Hodgson JA favoured the latter view: Minister for Land and Water Conservation v NTL Australia Pty Ltd (2002) 122 LGERA 53 at 71 [64]. ↩
As Hodgson JA said: Minister for Land and Water Conservation v NTL Australia Pty Ltd (2002) 122 LGERA 53 at 72-73 [71]. ↩
Anderson v Toohey's Ltd (1937) 37 SR (NSW) 70 at 74; Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47 at 49-50. ↩
Minister for Land and Water Conservation v NTL Australia Pty Ltd (2002) 122 LGERA 53 at 58-59 [17]. ↩
Buckworth v Simpson (1835) 1 CM&R 834 [149 ER 1317]; Pinhorn v Souster (1853) 8 Ex 763 [155 ER 1560]. ↩
Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 at 136 per Dixon J; Victoria v The Commonwealth (1937) 58 CLR 618 at 630 per Dixon J; Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453 at 464 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Telstra Corporation Ltd v Worthing (1999) 197 CLR 61 at 76-77 [28] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. ↩
NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403 at 406-407 [3]. ↩
NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403 at 415 [38]. ↩
Minister for Land and Water Conservation v NTL Australia Pty Ltd (2002) 122 LGERA 53 at 70 [55]. ↩
Minister for Land and Water Conservation v NTL Australia Pty Ltd (2002) 122 LGERA 53 at 57 [8], 59-60 [21], 60 [25] and 60-61 [26]. ↩