New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act & Ors

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act & Ors - [2009] NSWLEC 46 - NSWLEC 2009 case summary — Zoe

[14]

Amcor Ltd v CFMEU (2005) 222 CLR 241 Attorney-General v Wyndham (1862) 32 LJ Ex 1; 158 ER 1008 Australian Mortgage Land and Finance Co Ltd v Vinecombe (1890) 1 LCC 70 Bond Corporation Pty Ltd v The Western Australian Planning Commission (1999) 108 LGERA 235; [1999] WASC 157 Bycon Pty Ltd v Moira Shire Council [1998] VSC 25 (unreported, 11 August 1998) Clissold v Perry (Minister for Public Instruction) (1904) 1 CLR 363 Coco v R (1994) 179 CLR 427 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Cudgen Rutile (No 2) Pty Ltd v Chalk (1974) 4 ALR 438 El Cheikh v Hurstville City Council (2002) 121 LGERA 293 Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215 Fletcher v Manton (1940) 64 CLR 37 Garms v Birnzwejg [1990] 2 Qd R 336 Glass v Ralph [1966] WAR 91; (1966) 13 LGRA 90 Joel v Barlow (1903) 22 NZLR 900 Landall Construction & Development Co Pty Ltd v Bogaers [1980] WAR 33; 45 LGRA 105 Mabo v Queensland (No. 2) (1992) 175 CLR 1 CASES CITED: Milner v Staffordshire Congregational Union (Incorporated) [1956] Ch 275 Minister for Lands v Bolton (1896) 17 NSWR 389 Minister for Lands v Harrington [1899] AC 408 Mogo Local Aboriginal Land Council v Eurobodalla Shire Council (2001) 54 NSWLR 15 New South Wales v Scharer (2003) 131 LGERA 208 New South Wales Land and Housing Corporation v Sydneywide Real Estate Co Pty Ltd [1998] NSWSC 270; (1998) 9 BPR 16,565 Octra Nominees Pty Ltd v Chipper [2007] FCAFC 92; (2007) ANZ ConvR 455 O'Neil v O'Connell (1946) 72 CLR 101 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 Perry v Clissold (1906) 4 CLR 374 Potter v Minahan (1908) 7 CLR 277 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Reid Murray Developments (WA) Pty Ltd v Hall [1968] WAR 3; (1967) 21 LGRA 126 Rosenbaum v Belson [1900] 2 Ch 267 Shaw v Commissioner of Police of the Metropolis [1987] 1 WLR 1332 Tasker v Fullwood [1978] 1 NSWLR 20 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Watson's Bay and South Shore Ferry Company Ltd v Whitfield (1919) 27 CLR 268

[21]

JUDGMENT 1 HIS HONOUR: On 27 September 2008, the Minister for Lands sold at auction land known as lot 256 in deposited plan 1127299, Parish of Kinchela, Country of Macquarie, near Kempsey, and having an area of 8,253 square metres. It was sold to Mr Anderson and Ms Adams as joint tenants for $87,500 and on the same day the contract was signed and the deposit of $8,750 was paid. 2 The land was Crown land and was reserved for a public purpose under the Crown Lands Act 1989, as Reserve 754423 for "future public requirements". 3 Section 34(1) of the Crown Lands Act enables the Minister to sell Crown land. Section 34(6), however, states: This section does not authorise the sale of Crown land which is reserved for a public purpose. 4 On 3 October 2008, the Minister revoked the reservation of the subject land by notification in the Gazette, purportedly in accordance with the requirements of s 90 of the Act, which allows the Minister to do so. 5 On 13 October 2008, the New South Wales Aboriginal Land Council made a claim for the land under s 36 of the Aboriginal Land Rights Act 1983. That section enables a claim to be made for "lands vested in Her Majesty - that, when the claim is made for the lands" are "able to be lawfully sold or leased": sub-s 36(1)(a). The Land Council claims that the contract for sale to Mr Anderson and Ms Adams is unlawful as it was prohibited by s 34(6) of the Crown Lands Act, so that the land could not thus be lawfully sold or leased. 6 On 5 November 2008, the Minister refused the claim on the ground that the land was not claimable Crown land since it was lawfully contracted to be sold when the claim was made. 7 The Land Council has brought two proceedings in this court. In proceedings No. 31121 of 2008, the Land Council appeals under s 36(6) of the Aboriginal Land Rights Act against the refusal of the land claim. In proceedings No. 41112 of 2008, the Land Council seeks a declaration that the contract for sale between the Minister and the second respondents, Mr Anderson and Ms Adams, is unlawful, void and of no effect, and consequential relief including a declaration that the Land Council has a right to have its land claim determined according to law. 8 The Minister has given an undertaking not to complete the contract for sale until determination of the proceedings. Mr Anderson and Ms Adams have entered a submitting appearance. Both actions were heard together and an order was made by consent that the evidence in one be evidence in the other. 9 The proceedings raise six issues: -

[31]

The Crown Lands Act 1989 17 Section 3 of the Act provides that "Crown land" means land that is vested in the Crown, but not being: (a) land dedicated for a public purpose, or (b) land that has been sold or lawfully contracted to be sold and in respect of which the purchase price or other consideration for the sale has been received by the Crown. 18 Section 6 contains a general prohibition against selling or dealing with Crown land: Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the occupation, use, sale, lease, licence, reservation or dedication or other dealing is authorised by this Act or the Crown Lands (Continued Tenures) Act 1989. 19 Section 34, however, gives the Minister power to sell Crown land if certain conditions are satisfied: (1) The Minister may, in such manner and subject to such terms and conditions as the Minister determines: (a) sell, lease, exchange or otherwise dispose of or deal with Crown land, or (b) grant easements or rights-of-way over, or licences or permits in respect of, Crown land, on behalf of the Crown. (2) (Repealed) (3) The Minister may not, under subsection (1): (a) sell or exchange Crown land, (b) lease Crown land for a term exceeding 5 years, or (c) lease Crown land for a term that, by the exercise of an option, could exceed 5 years, unless the relevant date for the sale, exchange or lease is at least 14 days after notice of intention to sell, exchange or lease the land has been published in a newspaper circulating in the locality in which the land is situated or in a newspaper circulating generally in the State. (4) For the purposes of subsection (3) the relevant date: (a) for a sale or exchange by private treaty is the date on which the Minister enters into a contract to sell or exchange the land, (b) for a sale by auction is the date of the auction, (c) for a sale by tender is the closing date for tenders, (d) for a sale by ballot is the closing date for nominations for the ballot, and (e) for a lease is the date on which the lease is granted.

[44]

(d) The notice is defective because it suggests that the land would be sold if the reservation is revoked. In fact, the land was dealt with in the opposite order. That is, the contract was made before the process of revocation. 29 In my opinion, the notice is both effective and valid. A public notice required by such statutory provisions as s 34(3) and s 90(2) is invalid if it is misleading: El Cheikh v Hurstville City Council (2002) 121 LGERA 293 per Sheller JA at [2] and per Ipp AJA at [12]. The notice in the present case is, however, neither misleading, nor does it fail to achieve its intended purpose. 30 The purpose of such a public notice is to allow members of the public to make submissions to the Minister about the intended action - in this case the proposal to revoke the reservation and to sell the land. The notice in the present case clearly achieves that purpose. The use of the phrases "proposes to consider" the revocation and "proposed to sell" demonstrate that the Minister did not have a closed mind in relation to the public consultation process. That is, a final decision would only be made after taking into account any submissions received following the period of public notification. 31 The reference in the notice to a proposed sale "pursuant to section 34(3) of the Crown Lands Act" rather than s 34(1), is an immaterial error. No one would be misled as to the proposed course of action. What is important is that the statutory requirement of a public notice of an intention to sell was complied with. 32 Neither do I regard the notice as being confusing as to how and when the land would be sold. The notice required by s 34(3) is not intended to be an advertisement promoting the sale, but rather is notice of the Minister's intention to sell. There is no requirement for the notice to state when or how the sale is to take place. 33 Finally, the notice cannot be defective because it suggests that the land would be sold if the reservation is revoked. That is not contrary to the Act. It is of no relevance to the validity of the notice that, in the events that happened, the sale occurred before the reservation was revoked.

[57]

(l) The expressio unius principle suggests that the word "sale" in s 34(6) does not have the same concept as in sub-ss 34(4) or (5). 36 Despite Mr Kirk's thorough and carefully formulated submissions, I find that the sale of Crown land referred to in s 34(6) is a reference to a binding contract for sale, which occurs upon the signing of the contract and not at the time of transfer or conveyance of title to the purchaser. I have come to this view for the following reasons. 37 The dictionary definitions of "sale" and "sell" relied upon by the Minister are equivocal and broad enough to include both events. Other dictionaries clearly suggest that a "sale" includes an agreement to sell. The Butterworths Australia Legal Dictionary (1997 edition) defines "sale" as "the transfer, or agreement to transfer property to a buyer for a price". The New Shorter Oxford English Dictionary (1993 edition) relevantly defines "sale" as "1. the action or an act of giving or agreeing to give something to a person in exchange for money ... 2. … a public auction". Osborn's Concise Law Dictionary (5th Edition, (1964) London, Sweet & Maxwell) defines "sale" as "a transfer of a right or property in consideration of a sum of money". In the context of sale of good legislation, "sale" includes a bargain and sale as well as a sale and delivery: s 5(1) of the Sale of Goods Act 1923. 38 As noted in par 35 above, the Minister contends that his submission that the word "sale" means a completed sale is supported by a number of authorities. I find, however, that the cited authorities do not support the Minister's submission. 39 The Minister relies, firstly, on Attorney-General v Wyndham (1862) 32 LJ Ex 1; 158 ER 1008, in which Bramwell B said: "A sale supposes a seller, and also, I think, a conveyance". This statement was made, however, in the context of a dispute as to whether death duty was payable to the Crown out of real estate or personal estate. In that context the finding is not surprising. 40 The Minister next relies on Rosenbaum v Belson [1900] 2 Ch 267 at 269, in which Buckley LJ said: "A sale prima facia means the sale effectual in point of law, including the execution of a contract where the law requires a contract in writing". I have noted the submission that for a sale to be "effectual in point of law" it must be completed. The question in that case, however, was whether an agent had authority to enter into a contract to sell a property. Buckley LJ held on the facts of that case that the agent did have such authority and made an order for specific performance. Buckley LJ went on to find, however, that the word "sell" meant to conclude a binding agreement for sale (at 271). 41 I have also noted in par 35 above the Minister's reliance on Shaw v Commissioner of Police of the Metropolis. This case concerned the question of whether s 21(1) of the Sales of Goods Act 1979 applied to an agreement for the sale of a car, and is of no relevance to the sale of land. 42 Importantly, in this case the sale referred to in s 34(6) is the sale of land. That is the present context in this case. The importance of context was colourfully illustrated by Spigelman CJ in a speech delivered to the Government Lawyers' Convention in Sydney on 7 August 2001: Context is always important. Let me give you one example of the flexibility of our language. How should one construe the sentence "The chicken is ready to eat?". This can refer either to a cooked chicken, or to a hungry chicken. Only the context will identify the meaning. I accept that when Lord Simon of Glaisdale spoke of the richness of the English language as a resource for poets, he may not have had this example in mind [see Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 236 per Simon LJ].

[59]

(The judgment of Latham CJ was subsequently reversed on other grounds, but the principle quoted above was undisturbed.) 46 In Glass v Ralph [1966] WAR 91; (1966) 13 LGRA 90, D'Arcy J held (at 96) that the word "sale" in the relevant statute extends to an agreement to sell land, that is, the formation of an agreement - the word is not limited so as to mean only to convey or transfer. In that case there was an agreement to sell land which was part of a larger holding, and since the agreement was made prior to the required subdivision approval, it was illegal and thus not enforceable. Moreover, the fact that the contract was expressed to be conditional upon compliance with the statute did not save it from illegality. 47 In Reid Murray Developments (WA) Pty Ltd v Hall [1968] WAR 3; (1967) 21 LGRA 126, Virtue J followed Glass v Ralph in holding (at 7) that the word "sell" in the relevant statute includes an agreement to sell. As in Glass v Ralph, s 20 of the Town Planning and Development Act 1928 (WA) stated that a person shall not sell land except as a lot or lots approved by the Town Planning Board. Again, as in Glass v Ralph, Virtue J held that an agreement to sell is not saved from being an infringement of the Act by reason of the fact that it is expressed as being subject to compliance with the statutory requirements. (This case and the case of Glass v Ralph was subsequently overruled by the Full Court in Landall Construction & Development Co Pty Ltd v Bogaers [1980] WAR 33; 45 LGRA 105, the Full Court holding that an agreement to sell land which is not at the date of the agreement in lots is not an infringement of the Act. In so holding, however, the Full Court did not disturb the finding as to the meaning of the word "sell".) 48 In Garms v Birnzwejg [1990] 2 Qd R 336, Macrossan CJ held (at 340) that although the words "sell" and "sale" can, in context, be taken as a reference to completing or settling a contract of sale, the more usual meaning which will be attributed is an entry into an agreement for sale of the item concerned. 49 In New South Wales Land and Housing Corporation v Sydneywide Real Estate Co Pty Ltd [1998] NSWSC 270; (1998) 9 BPR 16,565, Young J said (at 16,567): Prima facie the word "sold" seems to indicate that the parties have entered into a contract for sale which is specifically enforceable; see for instance Blue Mountains City Council v Wincastle Pty Ltd (1961) 8 LGRA 359; 80 WN (NSW) 283. 50 In Bond Corporation Pty Ltd v The Western Australian Planning Commission (1999) 108 LGERA 235; [1999] WASC 157, Miller J referred (at [28]) to a list of cases including Glass v Ralph, Landall Construction & Development Co Pty Ltd and Garms v Birnzwejg and noted that running through them is the general proposition that the meaning of the word "sell" generally means "entry into contract" rather than "settlement of a contract" of sale", but this may not be the meaning in a particular context. 51 In Octra Nominees Pty Ltd v Chipper [2007] FCAFC 92; (2007) ANZ ConvR 455, Tamberlin, Gyles and Gilmour JJ said (at [50]): According to common understanding in the context of and in relation to the sale of land, the expression 'sale of land' is commonly taken as referring to the making of a binding contract for sale of land.

[60]

The Court then referred, by way of illustration, to Milner v Staffordshire Congregational Union (Incorporated) [1956] Ch 275. In that case, Danckwerts J held (at 281-282) that a sale is made when a contract is entered into by the owners of the property in question for the sale of the property to some purchaser. Importantly for the purposes of that case, the contract had not been previously approved by the charity commissioners in accordance with s 29 of the Charitable Trusts Amendment Act 1855 . Danckwerts J held that since the contract to sell was a breach of the section, it was not lawful and thus not enforceable. 52 In New Zealand, in Joel v Barlow (1903) 22 NZLR 900, an action for possession of land, Stout CJ held (at 901-902) that the word "sell", as ordinarily used, does not mean "convey": The word "sell" means only a binding bargain to convey on the part of the vendor, and to take a conveyance and complete on the part of the purchaser ... The word "sell" therefore does not, either in ordinary language or as a term of art, mean a completed transaction by conveyance. 53 The conclusion to be drawn from these authorities is, as noted in par [43] above, that the word "sale" in the context of the sale of land, ordinarily refers to the making of a binding contract of sale. This being the prima facie meaning of the word, it then becomes necessary to consider whether the contextual indicators relied upon by the Minister require a different conclusion. I have summarized in par 35-(l) above the Minister's submissions, which rely on a number of provisions of the Crown Lands Act which are said to distinguish between a contract for sale and a disposition of or other dealing with land. 54 The difficulty I have with the Minister's submission is that there is an inconsistency and looseness of expression in the use of language throughout the Act. Moreover, some of the textual indicators relied upon by the Minister are equivocal. Section 34(4) merely clarifies the period for which the notice referred to in sub-s (3) is required, being 14 days before the date of auction or entry into the contract to sell. The reference in s 34(5) to "sold at the auction" clearly suggests that a sale occurs upon entry into a binding contract at the auction rather than upon completion and transfer of title. Section 56, not referred to by the Minister, allows the creation of easements for public access "over Crown land proposed to be sold under this Act - by the Minister at any time before the sale". The "sale" thus referred to must be understood as entering into a contract for sale, otherwise the Minister could create an easement in the period between an auction and settlement. Section 104, also not referred to by the Minister, uses the term "sold and conveyed", the concluding words of which would be otiose if "sold" meant "conveyed", as submitted by the Minister. Finally, the Minister's reliance on the expressio unius principle - that is, the absence in s 34(6) of the extended definition of sale as in s 34(4) - is, in my opinion, of no assistance to the Minister. There was simply no need to do so when the ordinary meaning of the phrase "the sale of Crown land" is well understood. I find, therefore, that there is nothing in the Act by way of contextual indicators which displace the ordinary and well-understood meaning of the phrase, namely that a "sale of Crown land" occurs when a binding contract for sale is made. 55 I conclude, therefore, that a sale within the meaning of s 34(6) in the present case occurred on 27 September 2008, when the land was sold at the auction and the contract was signed and the deposit was paid.

[61]

Issue 4: The construction of the contract 56 The contract describes the vendor in the following terms: The Honourable Anthony Kelly MLC, Minister for Lands (being the Minister for the time being administering the Crown Lands Act 1989) on behalf of the State of New South Wales pursuant to Section 34 of the said Act. 57 Mr Kirk submits that this indicated that the contract is subservient to the Act; that it was thus made abundantly clear that the land was sold pursuant to and subject to the Act, including in particular s 34; and that there was, therefore, an express recognition that the sale could not be completed unless any reservation on the land was validly revoked before then. 58 In my opinion, however, the contract must be read as a whole, including specific provisions which might suggest a contrary indication. A number of provisions fall into this category. Moreover, there is no specific provision which states that this is a contract which is conditional upon the revocation of the reservation. 59 The first matter which points against Mr Kirk's construction is on page 2 of the contract under the heading "Warnings". Under this heading attention is drawn to "various Acts of Parliament and other matters that can affect the rights of the parties to this contract". None of the matters listed include any reference to the Crown Lands Act or that some further step under that Act is required. Paragraph 4 under the same heading states that if a consent to transfer is required under legislation then that is dealt with by cl 27. Clause 27, however, is struck out, so that the contract is not conditional on a consent being obtained under legislation. Moreover, completion is 42 days from the date of the contract and is not made conditional upon revocation of the public reserve: cll 15 and 16. Clause 29, which applies where "this contract or completion is conditional on an event" is struck through, again an indication that the parties did not intend the contract to be subject to the subsequent revocation of the public reserve. 60 Clause 30.1 supports Mr Kirk's submission: 30.1 The Purchaser acknowledges that the land comprising the Property is Crown land within the meaning of the Crown Lands Act 1989 (or may be dealt with as Crown land) and the land is sold pursuant to and subject to the provisions of that Act. 61 In Mr Kirk's submission, this clause indicates that the contract was subservient to the Act - "the land is sold pursuant to and subject to the provisions of that Act"; that there was thus an express recognition that the sale could not be completed unless any reservation on the land was validly revoked before that time; that so construed, the clause manifests a condition subsequent to the formation of the contract but precedent to the obligation to complete; that performance of the Minister's duty to complete is necessarily subjugated to the Act; and that there should be such a condition is commonplace when any approval or other steps are involved. 62 The difficulty facing the submission is that cl 30.1 is immediately followed by cl 30.2: 30.2 The Minister warrants that all provisions of the Crown Lands Act 1989 that require or specify any matter or thing to be done before the land comprising the Property may be sold have been complied with and the Purchaser agrees that he will not make any requisition, objection or inquiry in respect of the Minister's authority or capacity to sell the Property or compliance by the Minister with any provisions of the Crown Lands Act 1989 or Regulations made hereunder. 63 Mr Kirk submits that the warranty contained in cl 30.2 relates to the time of conveyance and not the time of entry into the contract. That is, it is a condition precedent to performance, citing Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537. I cannot agree. The fact that the purchaser cannot make any relevant requisition, objection or inquiry means that the clause relates to the period upon entry into the contract and up to the time of completion. 64 Moreover, I accept the submission of Mr J T Gleeson SC, appearing with Mr M L Wright for the Land Council, that Perri v Coolangatta Investments is distinguishable because it was not a case concerning an absence of statutory power, but rather a case where the condition was that the purchasers were to sell their other property first. The present case is one where the statute simply says that the Minister has no power to sell and cannot enter into a sale in the first place. 65 Mr Kirk next submits that even if this be so, the only legal effect of the warranty is that the purchaser may have a right to the damages for breach of the warranty; and in the event that the clause is seen as being in tension with cl 30.1, the tension with cl 30.1 should be resolved in favour of upholding the contract and thus in favour of cl 30.1. The submission is developed by reliance also on the principle that regard may be had to the surrounding circumstances known to the parties: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40]; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22], Amcor Ltd v CFMEU (2005) 222 CLR 241 at [13] and [30], Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 351-352, and Perri v Coolangatta Investments Pty Ltd. 66 I accept Mr Kirk's submission that the court should strive to uphold the validity of the contract, and the presumption that a contract should be carried out without breaking the law: Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215 per Kirby J at 237. Despite Mr Kirk's careful and thorough submissions, however, I am not persuaded to uphold the validity of the contract. Whilst the surrounding circumstances may be considered, there is no evidence that the purchasers in this case were aware of the fact of the reservation for public purposes. A person reading cl 30.2 would have understood, wrongly, that any matter or thing to be done before the property may be sold had been complied with. 67 I conclude, therefore that the contract is not a conditional contract.

[62]

Issue 5: Does the contravention of s 34(6), if any, lead to invalidity of the contract? 68 The conclusion that the contract is not a conditional contract means that there is a contravention of s 34(6) of the Crown Lands Act. 69 Mr Kirk nevertheless submits that the mere fact of a contravention of s 34(6) does not automatically lead to invalidity of the contract, relying upon Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. In his submission there is no reason to conclude that parliament would have intended that any conflict with s 34(6) would have that consequence. Mr Kirk submits that: (a) s 90(3) is a mechanical provision and hence a "mere formality", and no public or statutory purpose is served by invalidating contracts of sale where all that is necessary is a mere formality; (b) it is relevant to take into account the detrimental effect on innocent third party purchasers; (c) the Minister might reasonably decide to revoke a reservation only after a sale is assured, after a contract has been entered, because without a sale it will often be appropriate for the land to remain subject to a reservation; and (d) the Minister may well decide that it is "in the best interests of the State" (s 11) if the land were sold only if, for example, a certain minimum price was achieved, failing which the land should remain reserved for some public purpose. 70 Again, I have come to the view that Mr Kirk's submission should not be accepted. I have come to this view for the following reasons. 71 In Project Blue Sky, the joint judgment of McHugh, Gummow, Kirby and Hayne JJ, approved at [93] the criticism by the New South Wales Court of Appeal in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24, of the continued use of the "elusive distinction between directory or mandatory requirements". The joint judgment adopted as a test for determining the issue of whether an act done in breach of a statutory power is valid: "whether it was a purpose of the legislation that an act done in breach of the provision should be invalid". 72 In relation to Crown lands legislation, however, both before and after Project Blue Sky, the courts have insisted on strict conformity with the relevant statute. A failure to comply with the statutory process will invalidate any purported exercise of the power to grant an interest in Crown land. In Mabo v Queensland (No. 2) (1992) 175 CLR 1, Brennan J (Mason CJ and McHugh J concurring) said at 63: "The validity of a particular grant depends upon conformity with the relevant statute"; and at 72 his Honour added, "a purported lease granted without statutory authority is ineffective to dispose of any interest in land". I am inclined to the view that if strict conformity with the statute is required for a grant, then the same principle should apply to a sale of Crown lands. 73 In New South Wales v Scharer (2003) 131 LGERA 208, the New South Wales Court of Appeal (Tobias JA, with Sheller and Ipp JJA concurring) held at [59] - [60]: Furthermore, s 6 of the [Crown Lands Act] prohibits any dealing with Crown lands " except under and subject to the provisions of " that Act. ... Any purported dealing with Crown land other than in accordance with that prohibition is unlawful ... Authority extending for a century in this State supports the foregoing conclusions, that the Crown has no power to create interests in Crown lands except under the Crown lands legislation. 74 Other authorities are to the same effect. For example in Watson's Bay and South Shore Ferry Company Ltd v Whitfield (1919) 27 CLR 268, s 25 of the Crown Lands Consolidation Act 1913 empowered the Minister for Lands to publish in the Gazette a notice of his intention to revoke the dedication of Crown lands and, subject to Parliament not having dissented, to carry his intention into effect after a specified time. Section 63 provided that Crown lands may be sold by public auction at such times and places as the Minister shall direct. In respect of certain Crown land which had been resumed by the Crown and then dedicated as a public park, the Minister gave notice under s 25 of the Act to revoke the dedication and purported to enter into an agreement with the former owner that when the dedication was revoked, the land would be offered for sale by public auction and the purchase money would be accepted by the former owner in full satisfaction of its outstanding claim for compensation. The High Court held that the agreement was illegal and invalid on a number of grounds, but principally because it was an attempt to fetter in advance the discretion and public duty of the Minister - that is, the Minister was bound by the contract to exercise his statutory power as predetermined by the contract, but if unfettered the discretion might lead the Minister to retain the land as Crown land. 75 In Australian Mortgage Land and Finance Co Ltd v Vinecombe (1890) 1 LCC 70, the company had applied to purchase Crown land as a result of improvements made pursuant to s 2 of the Crown Lands Amendment Act 1875. The approval of the application had been published by notice in the Gazette and the purchase money had been lodged with Treasury. Vinecombe subsequently applied to purchase the land. Vinecombe's application to purchase was opposed by the company, which argued that the land was already lawfully contracted to be sold. The court held, however, that because the company's improvements were made before the reservation was revoked, there could be no lawful contract for sale in relation to the land. The subsequent Gazette notification could not cure the matter. The government had no power to sell the land or to lawfully contract to do so. 76 Other cases to a similar effect where conformity with the relevant statute has been insisted include, for example, Minister for Lands v Harrington [1899] AC 408 at 413 - 414, Minister for Lands v Bolton (1896) 17 NSWR 389 at 393, Roach v Bickle (1915) 20 CLR 663 at 669-671, Cudgen Rutile (No 2) Pty Ltd v Chalk (1974) 4 ALR 438 at 443-444 and Bycon Pty Ltd v Moira Shire Council [1998] VSC 25 (unreported, 11 August 1998) at [51], [55], [56] and [58]. In Roach v Bickle, Issacs and Gavan Duffy JJ said at 671: "Where a Statute prohibits a transaction either expressly or by implication, no such transaction can be validly created". 77 These cases confirm the historical prohibition that the sale of lands reserved from sale has been regarded as a nullity, the cases including those decided both before and after Project Blue Sky. In particular, I can do no other than to follow the Court of Appeal in New South Wales v Scharer, a decision which is binding upon me. It is the publication of the notification in the Gazette under s 90(3) which has legal operation and the sale occurred prior to that happening in breach of s 34(6). The contract for sale is thus unlawful. 78 As to Mr Kirk's submission noted in par 35 above, "the best interests of the State" can be protected by simply negotiating an appropriate sale price or, in the case of a sale at auction, by fixing an appropriate reserve price.

[63]

Issue 6: Discretionary considerations 79 The exercise of the court's discretion is limited to the claim for relief in the proceedings in Class 4 of the court's jurisdiction. The Minister submits that: (a) third party rights have intervened; (b) the purchasers are innocent parties; and (c) the Land Council could have readily avoided the dispute arising if it had put in its land claim before the auction taking place, following the public notification of intended sale. 80 The granting of the relief sought does not, however, leave the purchasers without any remedy at all. Although unable to complete the contract, they would appear to be able to recover their loss as a consequence of a total failure of consideration. I also accept the submission of the Land Council that it could not have lodged its claim until after the Minister had revoked the reservation, because it was unlikely that the land could have been said to be "able to be lawfully sold" and thus claimable. Moreover, land claims over land which is reserved for future public requirements commonly fail because they fall foul of s 36(1)(c) - the land being needed, or likely to be needed, for an essential public purpose. The chance of a land claim succeeding would be greater when a reservation is revoked, remembering that the determination of whether the land is claimable is the date upon which the claim is made. There is nothing in the nature of disentitling conduct on the part of the Land Council in making its claim at a time when it is more likely to succeed - that is, as soon as it knows that the reservation for the public purpose had been revoked. Finally, I accept the Land Council's submission that it would be otherwise irresponsible for it to simply fire off land claims over every piece of Crown land reserved for a public purpose. I conclude, therefore, that there are no discretionary considerations which should deny the Land Council the relief that it seeks. 81 Relief in the proceedings brought in Class 3 of the court's jurisdiction is not discretionary. The land claim must be determined at the date when the claim is made. If the Minister is satisfied that the land in question is claimable Crown land as defined in s 36(1) of the Aboriginal Land Rights Act, then the Minister "shall" grant the claim: s 36(5)(a). On appeal against a refusal to grant a claim, the onus remains on the Minister to satisfy the court that the land in question is not claimable: s 36(7). No question of discretion arises, a point which is conceded in the Minister's written submissions.

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