Goodwin v Phillips [1908] HCA 55;

Goodwin v Phillips [1908] HCA 55; - HCA 1908 case summary — Zoe

[5]

The present respondent was prosecuted and convicted for ringbarking trees without the permission of the Local Land Board, he being the holder of what is called an improvement lease. An improvement lease was a new tenure introduced by the Crown Lands Act 1895 (58 Vict. No. 18), sec. 26, which provided that the Governor might under it grant leases of Crown lands which by reason of inferior quality, heavy timber, scrub, noxious animals, undergrowth, or other cause, were not suitable for settlement until improved, and could only be rendered suitable by the expenditure of large sums in improvement. In a case of that sort the main purpose of the lease would be not the preservation of the timber, provided for by sec. 93 of the Act of 1884, but the destruction of timber, and therefore, there might easily be an inconsistency in a particular case between the provisions of the two sections, or at any rate an inconsistency between the general requirement of the protection of timber and the purpose of the new form of lease, which was the destruction of timber. The Act 58 Vict. No. 18 was by sec. 1 to be read with the Crown Lands Act of 1884 and the intermediate Acts, and to "form part of the said Acts and each and every of them, to the extent to which and so far as the provisions of any of the said Acts are unrepealed." The effect of that provision is this: so far as possible the Acts are to be read together and as forming one document, and so far as there is anything in a later Act inconsistent with the provisions of the earlier Acts the later Act must be read as a proviso or exception to the former, if possible, but if the provisions are quite inconsistent the later must necessarily operate as a repeal of the earlier. As I pointed out in the case of Mitchell v. Scales[1], a law may be repealed by necessary implication. I there said: - "I think that the cases of Michell v. Brown21 El. & E., 267; 28 L.J.M.C., 53.; Youle v. Mappin330 L.J.M.C., 234, at p. 237.; and Fortescue v. Vestry of St. Matthew, Bethnal Green4(1891) 2 Q.B., 170., establish this proposition, that when by a Statute the elements of an offence are re-stated, and a different punishment is indicated for it, that is a repeal by implication of the old law." That proposition is only an instance of a more general rule, that is, that where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act.

[6]

In the Act of 1895 the legislature made special provision with regard to improvement leases, and provided in sub-sec. iv. of sec. 26, that "the lease may contain such covenants and provisions as to the Governor may seem expedient according to the circumstances of each case, and all such covenants and provisions shall be notified in the Gazette and in a local newspaper before the lease is offered for sale or tenders called for. The lease shall contain covenants and provisions for the improvement of the land leased and for the expenditure of money thereon, for the payment of rent, and for the determination of the lease upon any breach by the lessee of the covenants and provisions thereof." It was faintly suggested, but I do not think seriously argued, that any covenants or provisions which the Governor could direct to be inserted in a lease must necessarily be such as were consistent with the provisions of the Act of 1884. But in respect of the provisions against ringbarking, the Act of 1884 was altogether inconsistent with the object of the legislature in providing for the case of lands to be let upon improvement lease conditions, that is to say, lands which by reason of heavy timber or other cause are unfitted for settlement until improved. I think that sec. 26 must be read as authorizing the Governor to insert in any lease any directions he may think fit with respect to the preservation or destruction of timber, including ringbarking, and the provisions so inserted become the law quoad that lease, just as much as if they had been expressly enumerated in the Act itself. If the provisions of the lease having that effect are found to be inconsistent with the provisions of the earlier Acts, the result is that the lease must be read as an exception from the earlier Acts as to that particular piece of land. There can be no doubt that that was the intention of the legislature. On the other hand, the lease may contain nothing inconsistent with the Act of 1884. If so, that Act operates upon it to its fullest extent. Or it may operate inconsistently with the lease only in some one or more particulars. If so, effect can be given to it accordingly. In each case the question is what are the obligations of the lessee under the particular improvement lease, and in the present case the question is whether the obligations contained in the lease are consistent with the obligations that would be imposed by sec. 93 of the Act of 1884 if it were applicable.

[7]

The lease was granted in pursuance of a notification in the Gazette setting out the conditions. The second condition was that "the lessee shall carefully preserve clumps of timber for shade purposes of not less than 60 acres in extent at suitable intervals on the area the total area of such clumps to be not less than 685 acres and shall also carefully preserve all trees of four inches or over in diameter measured at three feet from the ground which are useful or likely to be useful for fencing or building purposes or for railway sleepers subject to the provision that the lessee may cut and use any timber for fencing or other improvements within the leased area. Subject to the above exceptions the lessee may at his own option ringbark and destroy all trees on the area." This lease therefore made quite a different provision from that contained in sec. 93 of the Act of 1884. It required the lessee to preserve certain trees according to their quality - which is a matter of opinion in many cases - and to the likelihood of their being useful for certain purposes, and with that exception authorized him to ringbark the rest of the trees as he pleased. Under that lease, if he had gone to the Local Land Board and asked for permission to ringbark trees which he was forbidden by the lease to ringbark, the Board would have been bound to refuse permission, but he was certainly not bound to ask the Board for permission to ringbark trees which he had permission to ringbark by the lease. The application to the Board, therefore, from either point of view would have been futile. That alone seems to me to show that the terms of this lease were quite inconsistent with the continuance of the obligations that would otherwise have been imposed upon the lessee by sec. 93. Again, the consequences of a breach were provided for under the Act of 1884. The consequence of ringbarking without lawful permission was a fine of not less than one shilling or more than ten shillings per tree, and for a second offence a similar fine and forfeiture of the lease. In the lease, however, it was provided, by condition 10 that the Minister for Lands should have the power to charge the lessee any sum not exceeding £25 as a fine for any breach of the conditions which he might consider not sufficiently grave to warrant forfeiture. It was also provided by condition 19 that any question of fine or forfeiture for breach of conditions might be referred by the Minister to the Local Land Board, whose decision after investigation in open Court should be final unless appealed from in the prescribed manner. So that not only was the obligation itself different, but the consequences of breach of the obligation were different. In the one case it was a fine imposed by justices, in the other a fine imposed by the Minister. In the one case there might be a forfeiture upon a second conviction, in the other case upon the first conviction at the option of the Minister. In the first case the tribunal appointed was the justices in a Court of Petty Sessions (subject to review in the manner prescribed by law) who had to decide merely the question of fact whether permission had been granted. In the second case, under the lease, the question might be referred to the Land Board, from which an appeal would lie to the Land Appeal Court, and from that to the Supreme Court, and from that to other tribunals. It seems to me, therefore, that the scheme of the lease for the destruction of timber is entirely inconsistent with the condition as to ringbarking in sec. 93 of the Act of 1884, and, therefore, that by necessary implication this lease is excepted from the operation of that section.

At a glance

Court

Decision date

Before

Source

Judgment (33 paragraphs)

Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 (3 September 1908)

Parties

Legislation Cited (5)

Cases Cited (1)