C A MacDonald Limited v South Australian Railways Commissioner [1911] HCA 14

High Court of Australia|1911-07-01|Before: Gordon J

_ ON APPEAL FROM THE SUPREME COURT OF : SOUTH AUSTRALIA.

of High Court - Appeal from Supreme Court of State - Judgment of H.C. ov A. ing as persona desiynata - Lands Clauses Consolidation Amendment 1911, S.A.) (44 ct 45 Vict., No. 202), secs. 5, 6,7, 8,9, 10 - Compensa- token - Special ataptability of tand - Intention of owner to use ADELAIDE,

ial purpose. May 16, 17, 18, 19. s Clauses Conaolidation Act 1881 (8.A.) it is provided that,

sequent thereon, have the same operation and be entitled to the same effec if that verdict and jadgment had been the verdict of a jury und the

ment a judgment of a Judge, commissioner or sheriff upon an inquiry o ducted upon a warrant to the sheriff issued by the promoters of the w taking under the Lands Clauses Consclidution Act."

Tleld, that jurisdiction is by these sections conferred, not upon 1 Supreme Court, but upon a Judge of the Supreme Court as a persona desig nata with a right of appeal to the Full Court of the Supreme Court therefore, that a decision of a Judge exercising the jurisdiction so conferr is not a judgment of the Supreme Court within sec. 73 of the Constitution from which an appeal will lie as of right to the High Court. q

value by reason of its special adaptability to such use-

Held, that the evidence supported the finding of the Judge that the la taken had not a special value by reason of its special adaptability to a special use, and that, even if it was specially adaptable to that use, the p

The South Australian Railways Commissioner, being entitl under the Adelaide Loopline Railway Acts 1908 and 1909 purchase or take a block of land about 23 acres in area at End, near the City of Adelaide, of which C. A. MacDonald, were the owners, gave that company notice pursuant to

required to purchase or take the land. The company thereup gave notice to the Commissioner that they claimed the sw £13,400 in respect of the value of their interest in the land, a the Commissioner offered £210 per acre, amounting to £4,9 On an originating summons issued by the company, Way made an order that the trial of the question of compensatic should be had in the Supreme Court before a Judge without jury, and the matter was heard by Gordon J.

ried on the business of freezing lambs and sheep for export premises at Light Square in the City of Adelaide, from which Mile-End land was about a mile distant. The company was

onald was the Managing Director of the company and MaoDoNann d about one-half of the shares, and he and his son held all but v.

of the shares. MacDonald had slaughtered the animals oes

reated at the Light Square works at Knoxville, distant about Hamers and one half miles, and the company continued to do so. stonzR.

dence was given that MacDonald had intended to erect abat- m portion of the Mile-End land and to do the slaughtering and that that was also the intention of the company, dence was also given that the Mile-End land was suitable for toirs and that there was no other suitable land within the e distance of Light Square as Knoxville. The amount of the as made up as follows : - It was alleged that by slaughter- Mile-End instead of at Knoxville a saving of £540 a year d be made, which capitalized at 6 per cent. would amount to

; that there would be 15 acres of land left which was

on J. awarded the company £5,995 as compensation. In his reasons he stated that the land was undoubtedly suit- abattoirs, but had no special adaptability as a site there-

did not think the intentions of MacDonald before he sold ompany had any relevancy to the case ; that he found that pany when it bought the land from MacDonald must have own that the land was essential to a Government scheme, was already begun, and was bound to be compulsorily d very soon; and he continued : - " But quite apart from , 1 am of opinion that the company would never have lowed to erect abattoirs on the land. When in the year ie Adelaide Corporation promoted a Bill in Parliament to to erect abattoirs on the park lands, the measure aroused £ opposition on two grounds, namely, (1) objection to the

H.C. or A. use of the park lands for an offensive trade, and (2) objection t ee offensive trade of this kind so near the city. In that ease c.A. proposed site was further away from any houses than the

MacDonatp jn this case, and no houses could, of course, have been built on

Lp. v. park lands surrounding it. When the Bill came before Parli aa ment, notwithstanding official corporation reports that abat

Ramwaxs could be conducted without becoming a nuisance, Parliament o

stoner. gave the corporation permission to erect abattoirs on the conditio that they were erected at least three miles from the city bot aries. See Act No. 957 of 1908. The objection to abattoirs is

a question of internal cleanliness only. The spectacle of tl

while waiting for the knife, is highly objectionable. 1 MacDonald himself estimated that, if abattoirs were erected

these facts I am convinced that any request to be allowed to abattoirs (which fall within the statutory definition of an sive trade) on the land in question, which is situated witl district declared to be under the protection of the Health . 1898, and is almost within a stone's throw of the city bound ar and near the ends of some of the principal streets, would h been promptly refused by the authorities, whose permissi required by the Health Act 1898 before such an offensive is begun. The promise of the West Torrens District Coun 1901 to grant a slaughtering licence was quite irregular. Council had no authority to give any such permission except ject to section 83 of the Health Act 1898 which requires pi

notification in the Government Gazette, and in one daily . paper of the intention to apply for consent to commence | offensive trade; and gives every person a right of obje before the Local Board and a further right to state his objecti to the Central Board of Health. The land was therefore value to the claimant company for abattoirs, because it could have been used for that purpose. That being so, it is unnecessary to enter into the question of what future profits t company might have made, if it had erected abattoirs o land. What the claimant company could not have done wit

ot be made a ie of estimating profits for the purpose - C. oF A. nsation. On this point I refer to the case of City and Hau

and St. Mary Woolchurch Haw (1). The result is MACDOuAED

claimant company is only entitled to the market value v SoutH

land for building purposes as on 15th December 1908." ausrratran

e judgment of Gordon J. was drawn up as a judgment of PTEW AYE

sreme Court, and from it the company appealed to the stone. ourt.

ray K.C. and A. J. McLachlun, (P. E. Johnstone with for the appellants.

. Cleland, for the respondent. The appeal is incompetent. dgment sought to be appealed from is not a judgment of upreme Court, but is merely an assessment of compensation. dgment and verdict are in the same position as under the ons of Railways Act 1868 (31 & 32 Vict. ¢. 119), secs. upon which secs. 5, 6, 7,8 and 10 of the Lands Clauses dation Amendment Act 1881 are founded. Under the Act the remedy is by certiorari to quash the verdict for of jurisdiction : Cowper Essex v. Local Bourd for Acton (2), new trial cannot be granted: Birmingham and District d Co. vy. London and North Western Railway Co. (3); In ve London Railway Co.; Oliver's Claim (4). Whatever may meaning of sees. 7,8 and 9 of the Lund Clauses Consolida- mendment Act 1881, that of sec. 10 is clear, and it leaves dict and judgment in the same position as under the Clauses Consolidation Act 1847. Under the latter Act had only to decide the amount of compensation and ot decide who was entitled to it, nor could the person in of the proceedings make an order for payment of the He referred to Browne and Allan's Law of Compensa- ed.,p. 84; R. v. Eastern Counties Railway Co. (5); BR. v. and North Western Railway Co. (6). The Judge of the ie Court is a persona designata. Even if that be not so, 05) A.C., 1 (4) (1890) W.N., 24; 24 Q.B.D., 507.

Bp. Cae 158, at p. 160. (5) 3 Ry. Cas, 466 ; 12 L.J.Q.B., 271. 435, ; (6) 3 EL. & BL, 443, at p. 475.

lone. MacDonaLp Lrp. vw Soura AUSTRALIAN RarLways Commis- SIONER.

the utmost effect of secs. 7,8 and 9 is to make the jud enforceable, and give a right of appeal from it, as if it wi judgment of the Supreme Court. If this is a judgment of Supreme Court, it is not one from which an appeal will lie to Court under sec. 73 of the Constitution. Until the verdict aside the judgment is good: Musgrove v. McDonald (1). He: referred to Holmes v. Angwin (2); Moses v. Parker; Ex spi Moses (3).

Murray K.C. Turisdiction is by the Act of 1881 confer upon the Supreme Court as such. That Act was passed after Judicature system had been introduced into South Austra whereas the Regulation of Railways Act 1868 was passed be! that system was introduced into England. The provisions of 5 of the Act of 1881 therefore do not occur in the English 1868. The whole matter is dealt with under sees. 5 to 9 ordinary action, and the verdict and judgment spoken of i 10 refers to the final verdict and judgment after all the rig! appeal &., in the Supreme Court have been exhausted. jurisdiction is not a special one conferred upon a Judge of | Supreme Court, but it is an additional jurisdiction conferred yy the Supreme Court: Great Fingall Consolidated Ltd. v. Shi (4); Lawrence v. Comptroller-General of Patents (5); Sp v. The Commonwealth (6). The decision is within sec. 73 of the Constitution. r

Murray KC. and McLachlan. The Judge should have into consideration that the land was specially suitable for al toirs, that there was no other site equally fitted for that purp within the same radius of Adelaide as Knoxville, that the land 1 acquired by MacDonald and by the company for the purp erecting abattoirs on it, and that the company could have galt

(1) 3 C.L.R., 132, at p. 149. (4) 3 C.L.R., 176, at p. 182.

(2) 4 C.L.R., 297. (5) (1910) Sess. Cas., 633. (8) (1896) A.C., 245, (@5CLR, 48,

and would probably have been granted a licence for H.C. oF A.

tering sheep and lambs for export there. The value to be Ree sed is the value to the owner and not to a purchaser: ©, a. ing v. Metropolitan Board of Works (1). The value to the peso R oR aey ner is to be taken independently of whether the land has been eae

b to its potential use: Trent-Stoughton v. Barbudos Water ausrrattan ply Oo. Ltd. (2); R. v. Brown (8); Spencer vy. The Cominon- ee : h (4); In re Gough and Aspatria, Silloth and District stoner. int Water Board (5); Ossalinsky v. Corporation of Manchester ); In re Lucas and Chesterfield Gas and Water Board (7); : and South London Railway v. United Parishes of St. Mary Woolnoth und St. Mary Woolchurch Haw (8); Ripley v. Great Northern Railway Co. (9). The intention of the owner is ant as to the special adaptability of the land: Bailey v. Isle Thanet Light Railways Co. (10); White v. Commissioners of Majesty's Board of Works und Public Buildings (11). The ypensation to be paid is the value to the claimant whether diminished or increased by any circumstances peculiar to him, hether the claim is for land taken or for land injuriously ected. And the question for the jury is - what price would a ing purchaser at the date in question have had to pay a ndor in the same position as the claimant who was willing but t anxious to sell ? Parliament, in the Metropolitan Abattoirs 1910, sees. 54, 55, expressly reserved the power to grant ices for slaughtering sheep, &e., for export within the metro- politan area, and it was probable under the circumstances that a licence would have been granted. [They also referred to Adelaide opline Railway Acts 1908 and 1909; Lands Clauses Consoli- do ion Act 1847, sec. 21; Lunds Clauses Consolidation Amend- ment Act 1881, sec. 13; Slaughtering Act 1840, sec. 3; District uncils Act 1887, secs. 239, 258; Health Act 1898, sec. 23; sewell on Statutes, 3rd ed., p. 172.]

Cleland. There is neglaim here for land injuriously affected,

!) LR. 6Q.B , 37. Allan on Compensation, 2nd ed., p. 718. (1893) A.C., 502. (7) (1909) 1 K.B., 16. .R. 2.Q.B., 630. (8) (1903) 2 K.B., 728 ; (1905) A.C., 1. 5C.LR., 418. (9) L.R. 10 Ch., 435, (5) (1904) 1 K.B., 417. (10) (1900) 1 Q.B., 722,

CA. MacDonatp Lrp. wv Sour AUSTRALIAN Rarnways Commas- SIONER,

but solely for land taken. As to the claim for the land adapted for building purposes too much has been awarded, the actual realized value has been given and not the value of possibility which should have been given. The claimant entitled to put to the assessor every argument he could put to purchaser. If the assessor thinks them sound he will give tl weight. Special adaptability is a quality which is inherent the land itself and has nothing to do with the intention of owner. The intention is only relevant to show that the po' tiality of the land may soon be taken advantage of. The Judg mind has been directed to all the probabilities, and he has fou that they come to nothing. Murray K.C., in reply. : é Cur. adv. vult.

Grirrira C.J. The judgment appealed from as drawn up in form a judgment of the Supreme Court, but the objection taken that it is not in law such a judgment. By the Land Clauses Consolidation Act 1847, which is substantially a t1 cript of the English Act of 1845, the purchase money and con pensation in respect of land taken or injuriously affected was 1 be assessed by a jury summoned by the sheriff under a warra issued by the promoter of the undertaking and presided over by a Judge or commissioner of the Supreme Court or by the she himself. The presiding officer was required to give judgm for the amount assessed by the jury. The verdict and judgme were to be signed by him and kept by the proper officer amon the records of the Supreme Court, and were to be deemed record but it was not said that they were to be regarded as records the Supreme Court (sec. 50). If costs were awarded against promoter they were not recoverable by proceedings issued the Supreme Court, but by distress under a justice's warr: It is clear that those proceedings were extra curiam.

By the Lands Clauses Consolidation Amendment Act 188! which was based upon, but did not in all respects follow, th English Regulation of Railways Act 1868 (31 & 32 Viet. ¢. 1 it was provided by sec. 5 that whenever any question of compen-

e case of lands purchased otherwise than by agree- H. ©. or A. 'in respect of lands injuriously affected, is to be settled ees rdict of a jury, either party may apply to a Judge of a. eme Court for an order for trial of the question "in the MscDonap

Lr. e Court" in one of the modes of trial prescribed by the v

e Court Act 1878 - generally called the Judicature Act Feat before a Judge alone or a Judge with assessors. The cor- RATWAYS ling provision of sec. 41 of the English Act uses the words - stoyzr. ne of the superior Courts." Gritith 0.3. (0 of the Act of 1881, corresponding to sec. 43 of the

Act, provides that "the verdict and judgment upon any

'ied under the provisions of this Act shall, as regards costs

very other matter incident to or consequent thereon, have

ie operation and be entitled to the same effect as if that

and judgment had been the verdict of a jury and the

nent of a Judge, commissioner, or sheriff upon an inquiry

ed upon a warrant to the sheriff issued by the pro-

of the undertaking under the Lands Clauses Consolidation

Now on this section it has been held in England that the

lings are still extra cwriam and that an application for a

'ial could not be made: Birmingham und District Land

London and North Western Railway Co. (1), approved of in

East London Railway Co.; Oliver's Claim (2). But the ustralian Act, as I have already said, is not a mere tran-

of the English Act. Sec. 6 provides that, when a Judge

a question of compensation to be tried " before the Court,"

uestion shall be stated in the form of an issue. When the

lature speaks of a trial "before the Court" it is not a great

infer that they regarded the judgment which is to be the

f the trial before the Court as a judgment of the Court.

wovides that the verdict and judgment shall be "under

aject to the control and jurisdiction of the Supreme Court

inary actions therein " - a provision not contained in the

Act. I think that it is clear that under that provision

dict and judgment may be reviewed by the Full Court

)any other judgment given in the Supreme Court after

C. A. MacDonatp Lr. v Sourm AUSTRALIAN Ramways Comis- SIONER.

Sec. 9 provides that "in any such issue the party clai compensation shall be deemed to be the plaintiff, and the moters of the undertaking, the defendants, and shall be so cribed in all proceedings, and each party shall have all the ri and privileges of a plaintiff or defendant respectively as case of an ordinary action tried under the provisions of Supreme Court Act 1878."

But the Act contains no provision for enforcing the judgn as a judgment of the Court, and under see. 10, already quo would appear that an order for costs must: still be enforced justice's warrant - a provision which is, primd facie at inconsistent with the notion that the judgment is a judgmen the Court. i

On the whole I come to the conclusion that the words " the Court" in see.6, when read in conjunction with the of

the jurisdiction to assess compensation is intended to be cont! upon the Supreme Court as the Supreme Court. I think ¢ jurisdiction is conferred upon a Judge of the Supreme Court persona designate with a right of appeal to the Full Cour I think that the jurisdiction of the Supreme Court only after the judgment has been given.

The case is, therefore, not within the rule laid down in Pi

of a State may be, and is, exercised by a single Judge, an ap lies direct to this Court. Whether an appeal would lie by sp leave is a question we left open in the case of Kamarooka Mining Co., No Liability v. Kerr (2). Whether it would or this is not a case for giving such leave. In my opinion, fore, the appeal is incompetent, but, as the case was fully ai on the merits, it may be desirable, and it is not inconsistent the practice of the Judicial Committee, to express _briefl opinion upon them.

The appellants claim that compensation for the land should be assessed on the basis that Macdonald, from whom bought their business as a going concern, had contemplat intended, using the land as a site for a slaughter house in

with his freezing works at Light Square. It appeared H.C. or A. had at one time entertained such an intention, but the ee uken was vacant land and had never been actually used in ga. ection with those works. Assuming the appellants to be in BiDosse)

Lr. respect in the same position as MacDonald was, the real v

ion to be determined in this view is, not whether he in- ausswaax ded, or hoped to be able, to use this land as a site for a a hter house, but whether the land had a special value by stoner. m of its special adaptability for such use. MacDonald's grimno.s. ition, if relevant at all, was only an element to be taken into

deration in determining that question, which is one of fact.

ider the law of South Australia, the land could not be used

site for a slaughter house without a licence from the Local

dof Health. Gordon J. was of opinion that, by reason of 'situation of the land and its proximity to the City of

laide, the probability of such a licence being granted was so

ote as to be negligible, or, as he put it, the granting of a

was practically impossible. This was a pure question of lepending largely upon local conditions upon which the

ed Judge is more competent to form an opinion than we are.

ere was any evidence upon which he might come to that

vsion, a Court of Appeal cannot say that he was wrong. In

pinion there was ample evidence to justify his conclusion.

e cases relied upon by Mr. Murray were cases of compensa-

i respect of land injuriously affected by taking other land,

land injuriously affected being either a part of the same block

ing been actually dealt with for use with the land taken,

lo not govern such a case as the present, in which the claim

the value of the land taken, and in which the suggested

etween the two pieces of land was in contemplation only. judgment the learned Judge was justified on the evidence

ming to the conclusion that a purchaser of the land would

ave given a greater price by reason of any special adapt-

ty of the land for the purpose of a slaughter house: see

er v. Commonwealth (1). The doctrine that the compensa-

(0 be paid is the value to the owner has no application to a

ere the alleged enhanced value merely depends upon dis-

appointed hope. I am of opinion, therefore, that the appeal m a t be dismissed.

Barron J. I am of the same opinion. The appellants upon the provisions of secs. 5 to 9 of the Lands Clauses Cor dation Amendment Act 1881 and their effect upon the rele' sections of the Lands Clauses Consolidation Act 1847. respondent, besides contending that those sections have no} effect ascribed to them by the appellants, objects that, ev: they primd fucie have that effect, nevertheless sec. 10 of Amending Act of 1881, which must be read with them, s that they must be read in the limited sense for which he conte If the appellants' view is right this appeal is competent, the j ment sought to be appealed from being a judgment of the Sup Court. If the respondent's view is right, the appeal fails, be the verdict and judgment, as was admittedly the case before amendment, are merely an ascertainment of the value to wl the appellants are entitled as compensation for the taking, whiel indeed, is a matter of record, but which, as a matter of re cannot have the force of a judgment of the Supreme Court a successful action is brought upon it and the sum so assessed recovered, as the Act does not provide any specific means for recovery. a

The effect of the provisions of the Act of 1847 which are n repealed being admitted, it is only necessary to inquire what the effect upon them of the Amending Act of 1881. By a Judge of the Supreme Court, if applied to before the issue the promoters of a warrant to the sheriff for an assessment, ma order the trial of the question of compensation "in the Sup Court," in one of the " modes of trial" prescribed by the Sup Court Act 1878, such mode of trial to be in lieu of, and in sul stitution for, any other mode of settling that question. It be noted that in the absence of such an application the warrai the sheriff is to issue, and the whole of the proceedings, includi verdict and judgment, must be taken under the Act of 1847, that the claimant, in order to be entitled to payment, must for the sum assessed. The expressions most relied upon in address of counsel for the appellants - and Mr. Murray wi

h much force the considerations which support his view - are H. ©. or A. expressions "in the Supreme Court," referring to the trial, in te 5, " before the said Court," referring also to the trial,in sec. a. 6, and "at the Supreme Court," referring to the issues when M4cDonarp

Lr. up, in sec. 7, and the provision in see. 8 that the judgment ca

ell as the proceedings are to be "under and subject to the eee 'ol and jurisdiction of the Supreme Court as in ordinary pare actions therein." There is no doubt that those expressions, if s1oNER. separately, at least taken altogether, would cause difficulty parton g. for the provisions of sec. 10. I agree that the provision, that verdict and judgment are to be under and subject to the trol and jurisdiction of the Supreme Court as in ordinary ms therein, does not necessarily go further than to prescribe proceedings in relation to the verdict and judgment - as, for ance, proceedings by way of appeal or new trial - may be It with by the Supreme Court as they would be in ordinary But that, speaking for myself, is not sufficient, if the ing provisions are not sufficient, to convert what at the of the passing of these amendments was a proceeding not ing in a judgment of the Supreme Court, into one which hat result. It seems to me that Mr. Cleland's argument is t, namely, that the whole of these provisions, especially en in conjunction with sec. 10, are provisions for machinery to substituted, upon application to the Supreme Court provided in sec. 5, for the other mode of proceeding which in the e of such an application must still be resorted to, and that » substitution is not intended to have the effect upon the judg- nt of converting it into anything of different force from a inding by assessors, in which state it is left by the earlier Act. Now, see. 10 provides that the verdict and judgment, as regards and every other matter incidental to and consequent on, shall "have the same operation and be entitled to the effect as if that verdict and judgment had been the verdict | jury and the judgment of a Judge, commissioner, or sheriff an inquiry conducted upon a warrant to the sheriff issued the promoters of the undertaking under the Lands Clauses Vidation Act." Ido not think there is enough upon the

£ these sections to show that the intention was that, where

a Supreme Court Judge was applied to for the order referred in sec. 5, the judgment was to have the effect of a judgment of t Supreme Court instead of being left as it would be in the of the alternative proceedings being taken. In the latter case, action would have to be brought in a Court of competent j r diction as upon a matter of record. In fact the provisions o 10 seem to me to go far to put the matter beyond doubt, becat the Act of 1847 provides sufficiently clearly what would be t effect of a verdict and judgment upon an inquiry conducted up a warrant to the sheriff. We know that there is no judgment | the Supreme Court consequent thereupon, and, when sec. 10 vides that the effect of its operation is to be the same, it seems

inconsistent with that section which might possibly have drawn from the previous sections. Without sec, 10 secs. 5 to" would probably have raised an ambiguity. But see. 10 seems me to prevent the ambiguity and to bring the several sectio into harmony. I am therefore of opinion that the appeal is competent. P

With regard to the other question which is raised in the it is not absolutely necessary, in view of this opinion, to exp one's view of the correctness or otherwise of the judgment of t Judge who tried the case. But I think that it is only fair to t parties that one should express an opinion upon the merits, am clearly of opinion that this matter was one so entirely for determination of the learned Judge as a Judge and jury that, the absence of anything in the nature of a misdirection, it wot be extremely difficult for this Court, acting upon the principl which guide a Court of Appeal in dealing with the finding: fact of a Court below, to say that this finding of Gordon should be interfered with. So far as one who did not hear evidence given can pronounce an opinion, I add that in my vi that finding was clearly right. The matters which have referred to as amounting to misdirection, or as showing that tl learned Judge as a Judge and jury has not properly applied # law to the facts, seem to me to be in effect trivial. His Hon has found upon the broad issue before him, and has foun

in consonance with reason and consistently with H.C. or A. 1911.

Jonnor J. read the following judgment : - The respondent v. ed a preliminary objection of some importance which in pe ion is fatal. Mr. Cleland put his point in two ways, owe that though the judgment might be attacked by way of stoner. pra issued out of the Supreme Court, there was not in the oconnors. eme Court jurisdiction to hear an appeal from the judgment

~ a new trial. On that part of the case he relied upon

mm Railway Co. (1), in which the Court held that, under Regulation of Railways Act 1868, it had no power to grant

trial of an issue to determine the right of compensation

ds taken for the purposes of a railway. The section there consideration no doubt is substantially to the same effect

5 to 8 of the South Australian Lands Clauses Consolida- mendment Act 1881. But there is one essential difference

, that sec. 8 of the South Australian Act places "the

ict and judgment thereon . . . under and subject to the

and jurisdiction of the Supreme Court as in ordinary

ms therein."" The English Regulation of Railways Act

3 has no such provision. If any meaning is to be given to

words, it appears to me we must hold that the Supreme

rt has jurisdiction to entertain an application for a new trial

h may be discussed and settled the principles upon which

nsation is to be allowed. hat is a very substantial differ-

'and one which makes the case to which I have referred

ble in the construction of the South Australian Act. I

| therefore of opinion that the Supreme Court was competent

rtain the motion now before this Court. 'That does not,

se, settle the question of the competency of the Court to

'is appeal. If the appellants had taken the preliminary

moving the Supreme Court in the first instance, then,

er that Court had jurisdiction or not, and whatever order

| made, there would have been an appeal to this Court.

H.C. or A. But the appellants have not done that. They have brougl me appeal direct from the judgment of the learned Judge of c.a, Supreme Court to this Court, and the question is whether th

MacDoxarD judgment is a judgment of the Supreme Court within the m

v. ing of sec. 73 of the Constitution, as expounded by this Cou Sourn -

pare There is no doubt that the judgment of a single Judge may

stoner.. under certain circumstances, a judgment of the Supreme CO o'connor g. The question in this case is whether, in giving judgment, tl Judge exercised the jurisdiction of the Supreme Court or act simply as a persona designata in a matter outside the gen jurisdiction of the Supreme Court. In each case it is necessary to look at the Statute confer the jurisdiction. Mr. Murray very properly admitted that, ay from the provisions of the Lands Clauses Consolidation Ame ment Act 1881, it would be impossible to contend that the find by the Judge of the amount of compensation payable under circumstances of this case could be brought on appeal before Supreme Court, or before this Court, but he contends that Act has entirely altered the nature and effect of a ju assessing compensation, and that now, by virtue of the pro of that Act, it has become a judgment of the Supreme Court, all the incidents of such a judgment. The argument is foun entirely upon the construction of a number of sections of the J which have been already referred to by my learned brothers, a which I do not wish to mention in detail. The contention is th the operation of those sections, taken together, is to vest | jurisdiction of assessing the compensation in the Supreme Cot and not in a Judge of the Supreme Court as a persona designa There is no part of the sections to which we have been ref which, tomy mind, is capable of having that effect, unless it the words of sec. 6, which provide that " whenever a Judge of the Supreme Court shall, under the preceding section, order question of compensation to be tried before the said Court, question between the party claiming compensation and the pro- moters of the undertaking shall be stated in an issue to settled, in case of difference, by the Judge."

ubt the words "before the said Court" are capable of the H- C. or A. that the legislature contemplated that the proceedings Hay »e heard by the Supreme Court. But the section must be oa.

conjunction with other material sections. The most pay int of those is sec. 10, which provides that "the verdict ae SOUTH

d. judgment upon any issue tried under the provisions of this avsrrazay all, as regards costs and every other matter incident to or es . quent thereon, have the same operation and be entitled to stoner. ame effect as if that verdict and judgment had been the ovonnor a. ict of a jury and the judgment of a Judge, commissioner, or

upon an inquiry conducted upon a warrant to the sheriff

by the promoters of the undertaking under the Lands Consolidation Act."

ie effect of that section is broadly this. The judgment is not

le of enforcement in the ordinary way in which a judgment,

upreme Court may be enforced. The fruits of it can be

ed only by bringing an action upon it. Again, the costs of

idgment can be enforced only by a special proceeding before

wistrate. It does, indeed, seem a contradiction in terms to say completed judgment is a judgment of the Supreme Court,

is not to be enforced by the processes of that Court.

ing the case, sec. 10 indicates quite clearly to my mind

was the intention of the legislature, by the Act of 1881, to

| to litigants, in cases of compensation coming within the

of that Act, all the benefit of proceedings in the Supreme

-the benefit of the guidance of the Supreme Court in

'the issues, and in laying down the principles on which

ition should be assessed. Those are substantial benefits,

nd it seems to me that the legislature has expressed no inten-

to take the further step of altering the whole nature and

of the judgment from being a determination of a special

1 to becoming a judgment of the Supreme Court. Under circumstances it appears to me that the words to which I

ferred in sec. 6 cannot be interpreted in the way in which

rray contends, but must be given another meaning more

onance with the other provisions of the Act. The words

re the Supreme Court" are capable of being interpreted as

ing "in the Supreme Court." That is the only meaning VOL. XI, ie

which is consistent with the Act as a whole and with the na and purpose of the alterations in the procedure which the lature intended to effect by the Act of 1881.

For these reasons I am of opinion that the judgment 1 appealed from was a judgment of a Judge of the Sup Court, sitting as a persona designata appointed by the Lai Consolidation Amendment Act 1881 for the purpose of asses compensation, and that, although he determined the amount compensation under and in accordance with the procedure of #] Supreme Court, his judgment was not a judgment of the Sup: Court, and therefore not within the category of judgments fi which an appeal will lie to this Court.

As to the merits, they were very fully and clearly put bel the Court in the arguments of Mr. Murray and Mr. McLachi All I think it necessary to say on that part of the case is tl having listened to everything which was put forward on of the appellants, I found at the end of the argument that I come to the opinion that the learned Judge in the Court had arrived at a right conclusion. For these reasons I that the appeal should be dismissed.

Solicitor, for the appellants, J. M. Napier. Solicitor, for the respondent, C. 7'. Dashwood, Crown Sol for South Australia.

At a glance

Court

Decision date

Before

Source

Judgment (187 paragraphs)