Hawkins v Minister for Lands

[1949] HCA 21

High Court of Australia|1949-07-01|Before: Webb JJ, Sugerman J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1949-07-01

Before

Webb JJ, Sugerman J

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

The application of s. 29 is denied on other grounds. First it is said that lands comprised in a Crown lease in perpetuity are no longer Crown lands. That depends on the definition of the expression in s. 5. Section 5 provides that unless the context necessarily requires a different meaning the expression "Crown lands" means lands vested in His Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee simple under the Crown Lands Acts. Of this definition the Privy Council spoke as follows: - "The interpretation section is one that has given rise to much of the argument, and no doubt it is open to the criticism that the legislature has occasionally throughout the Act used the defined expressions in a sense different from that provided by the section. But that section expressly guards the interpretation by declaring that the defined meaning is to be adopted "unless the context necessarily requires a different meaning," and their Lordships are bound to follow in that respect the mandate of the statute. The Act deals with Crown lands only, and one of its great objects was to bring all Crown lands within the provisions of one statute and under the control of the executive" (Tearle v. Edols [1] ). I think that it is impossible to exclude the operation of the definition from s. 29. But it is said for the lease-holder that the existence and the incidents of the Crown lease are inconsistent with the land falling within the definition of "Crown Lands." Because it is a Crown lease in perpetuity the land, it is claimed, is no longer vested in His Majesty within the meaning of the definition. No doubt the reversionary interest in the Crown is slight and it may be said to be technical. But a rent is reserved, there are special conditions, the interest is capable of surrender and, for non-payment of survey fees, of forfeiture. It is difficult to find any ground for giving to the word "vested" anything but its legal meaning. It can hardly be confined to "vested in possession." The reference in the exclusionary part of the definition to land granted in fee simple tends strongly against the view that after the grant of a limited interest in possession land is no longer "vested" in the Crown for the purposes of the definition. In my opinion land subject to a Crown lease in perpetuity may still be "vested in His Majesty." But it is argued for the holder of the Crown lease that by virtue of the grant of the lease the land has been "lawfully contracted to be granted in fee simple under the Crown Lands Acts" within the meaning of the definition. The foundation for this contention is the right annexed by s. 184 to a Crown lease to apply for conversion to a conditional purchase. It may be conceded that a conditional purchase itself involves a contract on the part of the Crown to grant a fee simple. But the statutory convertibility of a Crown lease to a conditional purchase does not itself amount to a contractual obligation on the part of the Crown to grant a fee simple. It is a right given by statute to the issue of another instrument having a contractual force with reference to the grant of a fee simple. That is all. It follows in my opinion that the land subject to the Crown lease formed Crown lands for the purpose of s. 29. But the question remains whether the power conferred by s. 29 is exercisable after the grant of a Crown lease has been made. It seems the better construction of the ambiguously expressed provision to treat the power of the Minister as enabling him to reserve land from sale, or to reserve it from leasing, or to reserve it from licensing, or to reserve it from all or any two of these forms of dealing. But if a lease has been granted a reservation subsequently made from leasing could not derogate from the existing lease. It could apply only after the expiration or sooner determination of the existing lease.

[18]

The appellant has now appealed to this Court and claims that all these questions should have been answered in the negative. In my opinion the Supreme Court was right in answering questions (a), (b) and (e) in the affirmative but should have answered questions (c), (d) and (f) in the negative. My reasons for this conclusion may be shortly stated as follows. Section 6 of the Crown Lands Consolidation Act provides that Crown lands shall not be sold, leased, dedicated, reserved or dealt with except under and subject to the provisions of the Act. Section 5 defines Crown lands to mean lands vested in His Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee simple under the Crown Lands Acts. Section 184, so far as material, provides that upon application as prescribed the holder or the owner of any Crown lease which is not liable to forfeiture may convert such lease into a conditional purchase upon confirmation by the Local Land Board the conversion shall be deemed to have taken effect as from the date of application for conversion. On such confirmation the Crown land shall be deemed to have been surrendered to the Crown as from the date of application for conversion with such application for conversion a provisional deposit shall be paid at the rate of 1s. per acre of the area proposed to be converted into a conditional purchase as payment or part payment of a deposit to be made of five per centum of the capital value of the land. The cost of any necessary survey or sub-division and any balance of the deposit shall be paid by the applicant within one month after he has been called upon to do so; and upon default the application may be declared to have lapsed and any moneys paid therewith shall thereupon be forfeited. Section 29 of the Act is in the following terms: "The Minister may by notification in the Gazette reserve any Crown lands therein described from being sold or let upon lease or license in such particular manner as may be specified in such notification; and the lands shall thereupon be temporarily reserved from sale or lease or license accordingly, and, unless the contrary is expressly declared, shall not be reserved from sale or lease generally."

[26]

Sugerman J., in his judgment in the Land and Valuation Court of New South Wales, said that before him no argument was directed to the question whether the first paragraph of s. 188 applied to a reservation made during the currency of a Crown Lease as distinct from one made prior to its commencement. He added that it might be that s. 29 would not, of its own force, have the effect of preventing conversion under s. 184 where the reservation was made during the currency of the lease; but that once the position was reached that there might be a valid reservation during the term of the lease the language of s. 188 seemed wide enough to have that effect. Earlier in his judgment he observed that s. 23 permitted the withdrawal of lands from existing leases and that s. 34 authorized the setting aside of stock routes through lands under lease; but he did not find it necessary to point out that under these two sections compensation was provided for such interference. A reservation under s. 29 of lands already comprised in a Crown lease would not prevent the lessee from using the land as before but it would postpone the time when, by purchasing it, he might add to the use to which he might put it. There is no reason that I can suggest which would warrant compensation under ss. 23 and 34 and not under s. 188 if s. 29 authorizes a reservation after the Crown lease has been granted. In view of the policy of the legislation to provide compensation when the legislation authorizes an interference with a lessee's rights which is not expressly authorized by the lease itself, if the section which is claimed to authorize such interference with or postponement of a lessee's rights is silent as to compensation, it should not, in my opinion, be held to authorize such interference or postponement, unless the Court is satisfied that the words relied upon to warrant such interference or postponement permit of no other conclusion. Further, as Mr. Badham submitted for the appellant, any denial of the right of conditional purchase is a derogation from the grant, and, although the legislature has the undoubted power to derogate from a grant or to authorize the Executive so to do, the statute should not be considered to have that effect unless the wording thereof is plain and unambiguous. Now I think that both s. 29 and s. 188 are ambiguous. As to s. 188 the words "land which is reserved from sale" may, in my opinion, be taken to refer only to lands so reserved at the time the lease is granted and, as to s. 29, I think it may be taken to refer only to Crown lands of which it can be predicated that they have been neither sold nor let, thus necessarily excluding the definition of Crown lands in s. 5.