Commonwealth v Hazeldell Limited [1918] HCA 75

Commonwealth v Hazeldell Limited [1918] HCA 75 - HCA 1918 case summary — Zoe

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Sec. 13 of the Crown Lands Alienation Act of 1861 (N.S.W.) provided that certain Crown lands should be open for egnditional sale; and sec. 18 provided that, at the expiration of three years from the conditional sale and after payment of the purchase money and compliance with ain other con- ditions, a grant in fee simple should be issued to the purchaser '* with reserva- tion of any minerals which the land may contain." Sec. 2 of the Crown Lands Act of 1884 (N.S.W.) repealed certain Acts including the Crown Lands Aliena- tion Act of 1861, but enacted that the repeal should not " (iii.) Prejudice or affect any proceeding matter or thing lawfully done or commenced or con- tracted to be done under the authority of any enactment or regulation hereby repealed," and provided that "(b) All rights accrned and obligations incurred or imposed under or by virtue of any of the said repealed enactments shall subject to any express provisions of this Act in relation thereto remain un- affected by such repeal." By sec. 4 the word " minerals," unless the context necessarily required a different meaning, was defined to mean and include coal, kerosene shale and any of certain named metals or any ore containing the same, " and any other substance which may from time to time be declared a mineral within the meaning of this Act by Proclamation of the Governor published in the Gazette." Sec. 5 provided that " Crown lands shall not be sold leased dedicated reserved or dealt with except under and subject to the pro- visions of this Act," &c. Sec. 6 provided that " The Governor on behalf of Her Majesty may grant dedicate reserve lease or make any other disposition of Crown lands but only for some estate interest or purpose authorized by this Act and subject in every case to its provisions." Sec. 7 provided that " All grants of land issued under the anthority of this Act shall contain a reser- vation of all minerals in such land and shall contain such other reservations and exceptions as may by the Governor be deemed expedient in the public interest." No Proclamation under sec. 4 had ever been made.

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to time be authorized by Us Our heirs and successors or by the Gover- nor for the time being of Our said Colony to enter upon the said lands _ and to search for mine dig and remove the said minerals with full right of ingress egress and regress for the purposes aforesaid Pro- vided also and We do hereby further except and reserve unto Us Our heirs and successors all such parts and so much of the said land _as may hereafter be required for a public way or public ways canals or railroads in over and through the same to be set out by Our Governor for the time being of Our said Colony or some person by him authorized in that respect And also all sand clay stone gravel "and indigenous timber and all other materials the natural produce of the said land which may be required at any time or times here- after by the Government of Our said Colony for the construction and repair of any public ways bridges or canals or for naval purposes or railroads or any fences embankments dams sewers or drains necessary for the same together with the right of taking and removing all such materials And also the right of full and free ingress egress and regress into out of and upon the said land for the several pur- ' poses aforesaid or any of them." On 21st August 1907 a Proclama- tion was published in the New South Wales Government Gazette declaring limestone, shale, marble, mica, pitchblende and fire-clay to be "minerals" within the meaning of the Mining Act 1906. On 20th January 1914, after certain mesne transfers, the land was transferred to a company called Hazeldell Ltd. By notification inthe Commonwealth Gazette, published on 10th April 1915, the Com- monwealth acquired 56 acres of the land under the Lands Acquisition Act 1906, and by a writ issued on 27th June 1916 Hazeldell Ltd. "instituted an action for compensation against the Commonwealth 'in the Supreme Court of New South Wales claiming £100,000 as compensation, alleging that the land contained rich and extensive posits of limestone and shale. The Commonwealth, by their defence, alleged that the sum which they had offered, namely, 200, exceeded or was equal to the compensation to which the plaintifis were entitled. The action came on for hearing before on J. Evidence was tendered on behalf of the plaintiffs as to the extent and value of the limestone, but the evidence was sjected, and thereupon by consent the amount of compensation was

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provided that all grants issued under the authority of the Act should contain a reservation of "all minerals" in the land. _ The term " minerals" when used in the Act was, by sec. 4, to _ mean and include coal and kerosene shale and any of certain specified 'metals, and any other substance which might from time to time be declared a mineral within the meaning of the Act by Proclamation ofthe Governor. No such Proclamation has ever been issued. The Act of 1861 had required (sec. 18) that a grant skould contain the "reservation of any minerals which the land may contain." It has been suggested that the grant of 1886, although made under the Act of 1884, must be taken to have been made under the Act of 1861, and must be construed accordingly. It is also suggested that the reservation prescribed by the Act of 1861 was larger than that prescribed by the Act of 1884. If this is so, it may be that in a suit between the Crown and the grantee the grant might be rectified, or it may be that the Act of 1884 would be construed as a partial telinquishment of possibly larger powers of reservation conferred _ by the Act of 1861. But we are of opinion that in a suit between _ strangers to which the Crown, in right of New South Wales, is not a party, no question can be raised as to the propriety of the words ed, and that the Court is bound to construe the grant as it finds it, so that the rights of the parties of which the Court must take cog- izance are those which are ascertained by construing the language 'of the grant actually issued. It was so held by the Judicial Com- mittee in the case of Osborne v. Morgan (1). It appears from the provisions already quoted that the Crown had no power either to i t land or make any reservation from a grant, except in accor- with the law. The reservation, and the only reservation, thorized was of "all minerals in such land," and the meaning of the word " minerals " was defined, as already stated, in words hich obviously did not include limestone. If there were room for bt, sec. 90 of the Act of 1884, in which the substance limestone 'specifically dealt with by that name, puts the matter beyond 'question. Any further reservation would therefore have been "unauthorized by law, and cannot be presumed to have been intended. If, in a Statute authorizing a grant of any subject matter, the ; (2) 13 App. Cas., 227.

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Judgment (86 paragraphs)