South Australian Land Mortgage and Agency Company Limited v Taylor [1922] HCA 17

South Australian Land Mortgage and Agency Company Limited v Taylor [1922] HCA 17 - HCA 1922 case summary — Zoe

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" (1) In section forty-three of the Prin- declare that the annual rent of certain cipal Act, the following words are holdings mentioned in such notifica- repealed (Then followed the words tion is a sufficient rent for the period 'commencing with 'Provided that" for which it has been so determined, and ending with "as hereinafter pro- in which case the Court shall not vided," above set out, and the section determine afresh such rent; (b) In continued : - ) " (2) In the fifth column all cases except those referred to in 'of the Second Schedule of the Principal paragraph (a) hereof, it shall be the 'Act, the words "The limitation as to duty of the Court to consider whether jinerease of rent so as not to exceed by __ the annual rent of each holding for the 'more than one-half the rent for the period for which it has been deter- _ next preceding period does not apply,' mined is less than a sufficient rent, 'wherever the same occur, are repealed. and if the Court considers that such (3) The amendments of the said section _ rent is less than a sufficient rent the forty-three and Schedule II. hereby Court shall determine afresh such made shall have effect with respect to annual rent; and the annual rent so every pastoral holding, whether the determined afresh shall be the annual 'annual rent thereof has or has not been - _rent for the period for which the rent factually determined by the Court is to be determined. The pastoral under the said section forty-three at tenant shall forthwith pay the arrears the passing of this Act, and to this - of rent due by reason of any increase in extent this enactment shall have rent under such fresh determination retrospective operation : Provided that 80 as to adjust the balance due to the with respect to pastoral holdings the Crown: Provided that in any case annual rent whereof has been actually - where the Minister is satisfied that the so determined at the passing of this immediate payment of the whole of 'Act, whether any appeal is pending such arrears would be a hardship he _ from any such determination or not - - may accept payment thereof in such _ (a) The Governor in Council may, by instalments as the Minister thinks 'notification in the Gazette, direct and just."

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was made on 3rd August 1917, when the law in regard to the valua- _ tion of pastoral holdings was not as clearly defined as at the present time. On account of the more definite bases of assessment since Jaid down by the Court in rental matters, this Department considers the Assessing Commissioner's valuations to be too low on Hamilton Downs and other pastoral holdings in the vicinity. I have therefore _ given notices of appeal from the decisions of the Land Court, and the matters have been set down for hearing at a sittings of the Land Appeal Court to be held at Hughenden on 18th October next. Asan appeal to the Land Appeal Court isin the nature of arehearing, both the Crown and the lessees will have the same opportunity of _ presenting any evidence deemed necessary to support their respec- tive views as to the fair rental value of the holdings concerned." 18. The said solicitors replied thereto on 3rd September 1920, _ saying : - "' The arrangement with regard to the rental at the rate _ of 63s, per square mile was not made, as you suggest, on 3rd August 1917, but was made since the new Act and was confirmed by the Court which sat at Hughenden on 14th May last; and in this connec- tion we would refer you to the notification which we received from _ the Registrar of the Land Court on or about 22nd May last. We trust that you will further investigate this matter, as it is apparent there is some departmental misconception regarding the facts of this particular case. We feel sure that the Department does not _ wish to have its own agreement, made since the new Act, reopened, _ and that the appeal is taken in error." 19. On 8th September 1920 the Minister for Lands wrote again to the solicitors for the appellant, substantially as follows : - ' I have your letter of the 3rd instant, having further reference to the matter of the appeal by the Crown from the Land Court's decision the rent of Hamilton Downs holding, Burke District, and in reply to state that the valuation of 63s. per square mile was made by the Assessing Commissioner on 3rd August 1917 as advised in my former letter. This valuation was accepted by the lessees, adopted by the Land Court at Hughenden on 14th May last ; it, as already advised, such valuation is, for the reasons previously en, considered by the Department to be too low. With a view

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had already been determined in the same position as those whose s had not been determined, and to impose upon the former Tessees the liability to have their rents reassessed from the beginning of the period and free from the existing restriction on the amount of increase. The words "to this extent" in sec. 2 (3) mean for the purpose of putting both classes of leases on the same footing. The Act of 1910 contemplates that the rent for each year of the period "shall be the same (see secs. 40, 41, 43, 128). The decision in Aws- 'tralian Pastoral Co. v. The King (1) that the valuation made by the Crown is not a maximum by which the Land Court is bound is correct. [Counsel was stopped on this point.| The objection as to _ the admissibility of evidence goes only to the weight of the evidence. | Counsel was stopped on this point also.] Even if there were an greement between the Crown and the lessee, the Crown could still appeal under sec. 31. It is not necessary under that section that the Crown should be aggrieved by the decision. The Minister cannot bind the Crown by promising not to exercise a discretion vested in The word "appeal " is wide enough to cover a right of the Crown to resort to the Land Appeal Court wherever it is thought that a mistake has been made by the Land Court, even where the decision of the Land Court gave everything which the Crown then asked for. The Act of 1910 imposes on the Land Court the duty of itself determining rent, and if by a mistake the Crown asked for Jess than should have been determined the Land Court is not bound by that mistake. If the Land Court determines in accordance with the mistake, the Crown may appeal. [Counsel referred to Rederiak- "tiebolage Amphitrite v. The King (2); Watson's Bay and South Shore Ferry Co. v. Whitjeld (3); Ex parte Poulton & Son (4); In re Marshall Hall's Copyright (5); Ross v. Smith, Timms & Co. (6); rows Case (9); United Grocers, Tea and Dairy Produce Em- ployees' Union of Victoria v. Linaker (10).] (1) (1920) S.R. (Qa. i" 73. (6) (1909) S.A.L.R,

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was not one. Hence a party to a contract containing an arbitration clause might refuse to perform it, and the sole remedy of the other party was an action for damages for the breach. The bringing of an action in respect of a dispute under the contract is sucha breach, and the sole remedy under the common law was an action for damages, and it would still be so were it not for the provisions of sec. 4 of the Arbitration Act 1889, Tf for any reason the action is not stayed by the Court, the dispute must be decided by it. There were two competent tribunals, the Court and the arbitrator. The plaintiff contracted to choose the latter. He has in fact taken the former, and must pay the damages, if any, caused by his breach of contract. But that does not affect the fact that the dispute is before the Court and that it can and must decide it." Statutory provisions cited to us, to the effect that con- sent orders shall not be appealable without leave, do not weaken, but, on the contrary, strengthen what I have stated. When the dispute, however, comes before the Court, it may appear that the party appel- lant has nothing to appeal about. I do not mean that his contention with regard to the subject matter is erroneous, but that there exists no longer that subject matter to enter upon. A private individual, for instance, may ordinarily so deal with his rights as to abandon them or destroy them. For instance, a compromise of a private tight by counsel in the Court of first instance might be equivalent to the destruction of any claim to more; that is equivalent to a re- constitution of substantive rights. In In re West Devon Great Consols Mine (1) Cotton LJ. said: " Every compromise inyolyes an undertaking not to appeal, it therefore cannot be beyond the authority of counsel to undertake that his clients shall not appeal." Then the Lord Justice, as to the point raised whether after a decision had been given on the merits such a result could follow, observes : - "As to the other point the counsel in fact says: 'The Judge (1) (1888) 38 Ch. D., 51, at pp. 54-55,

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Land Court other than the member appealed against (secs. 31 and H.C. or A. 35), The Land Appeal Court hears the appeal as a rehearing ae (see. 35 (8)); and by the Act of 1916 a very large power is conferred - gouru on the Appeal Court, including what is in effect original incidental ee _ jurisdiction, and by sub-sec. 9 its mode of taking evidence and its Mortcacr general power for the purposes of the appeal are the same as those of the Land Court. It is manifest, therefore, that, if either party is dissatisfied with the fixation of rent by the one member constitut- ing for the purpose the Land Court, the Act places on the Land Appeal Court, more amply constituted, the very responsible duty of deter- mining the rent for itself. Now I apply the decisions quoted, and particularly the last, in this way. It was quite open to the Crown to agree that the evidence to be laid before the Land Court should be limited to certain statements; and the Land Court, if satisfied that reliable figures were placed before it, would be quite justified in accepting and acting upon it. But that would not in the least _ in point of law prevent the Land Appeal Court from hearing the _ Crown's appeal if lawfully presented. Nor, since the Land Appeal _ Court has to hear the case as a rehearing, could the evidence before the Land Court bind it. The question for the Land Appeal Court is whether the decision of the Land Court was right on the real facts of the case, not whether it was right on the facts as they appeared before the Land Court; and so the Land Appeal Court must discharge its statutory duty. But I wish to add this: though I am clear the way is quite open for the Land Appeal Court to decide notwithstanding what the _ Crown has said or done, yet what is said or done by either party may have a very important influence on the result. In Dent v. Moore (1) reference is made to a decision of the Privy Council there cited (Rani Chandra Kunwar v. Chaudhri Narpat Singh (2) ), where Lord Atkinson, referring to and approving of Slatterie v. Pooley (3), after saying that although admissions made by a party, if not an estoppel, may be rebutted so as to show the admission is not true, proceeds to add: "but unless and until that is satisfactorily done, the fact admitted must be taken to be established." Now, though

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provision for a fresh determination, and for increase of rent if it is not sufficient, and for payment of arrears for that part of the period which has expired, probably operates harshly in some cases - par- ticularly in cases where the lease was accepted by the lessee after the 1910 Act and before the 1920 Act - accepted on the faith of the proviso to sec. 43 which has been repealed by the 1920 Act; and Lukin J., who gave judgment for himself and for the Chief Justice _ of Queensland, was evidently deeply impressed by this harshness, and accordingly made some strong observations as to the duty of Courts not to treat Acts as retrospective if the words used can admit of any other construction. In my opinion, the words noted do not admit of any other construction than that the rent is to be determined afresh as for the whole period in question. Where the Legislature intends in the Act that increased rent, on a redeter- mination, shall be payable for the remainder of the term only, and not for the whole term, it uses appropriate words to that effect ; as in sec. 126: "If during the term of a pastoral holding any public works are executed, or extensive mineral developments 'occur, on or near the holding, and by reason thereof the value of the lease is, in the opinion of the Minister, enhanced, the Court

. . shall redetermine the rent . . . and the rent so deter- mined shall thereafter be payable for the remainder of the term." Moreover, the proviso to sec. 43, while it remained in force, was a mere limitation of the powers of the Land Court, and, when it was Tepealed, there was no longer any such limitation of the powers of that Court; and the presumption against retrospective operation does not apply to such case, even where the alteration made is disadvantageous to one of the parties, "When an Act alters the p ings which are to prevail in the administration of justice, and makes no provision that it shall not apply to suits then pending, it shall apply " (Wright v. Hale (1); Kimbray v. Draper (2); and Weldon v. Winslow (3); The Ydun (A) ). This Company - the South Australian Company - cannot, indeed, int to any harshness so far as regards an alteration in the terms of their contract after it was made; for the lease was accepted by

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Judgment (265 paragraphs)

H.C. or A. more than that contained in Lord Westbury's words in Attorney- 1922. General v, Sillem (1): "An appeal is the right of entering a superior

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