Wheeler v War Veterans' Home

[5]

Before discussing the effect of the provisions to which I have referred, it is convenient, briefly, to refer to some of the relevant facts, including the events leading up to the notification of resumption which was published in the New South Wales Government Gazette on 29th April 1949, a date which, it will be observed, was some eight months after the expiration of the period of protection referred to. The resumption, however, was contemplated, and several steps in connection with the proposal to resume the land were taken before the expiration of this period. On 27th August 1946, the defendant Minister, acting pursuant to s. 197 of the Crown Lands Consolidation Act 1913-1945, referred to a local land board for its determination the question whether or not the public interest warranted the resumption of the land in question for the purposes of the extension of the War Veterans' Home, an institution which was maintained and controlled by the first named defendant, a company incorporated under the Companies Act 1936-1940 N.S.W. as a company limited by guarantee. Thereafter the Minister, on 24th January 1947, by notification in the Government Gazette of the said State, declared that the "War Veterans' Home" was a public purpose within the meaning of s. 197 of the Crown Lands Consolidation Act and on 3rd February 1947 the local land board found and reported that the public interest warranted the resumption of the land in question. In pursuance of their right so to do, the plaintiffs on 28th February 1947 appealed to the Judge of the Land and Valuation Court and on 9th September 1947 the judge of that court also reported that the public interest warranted the resumption of the said land. After an interval of some eighteen months, on 29th April 1949, a notification of the resumption of the land was duly published in the Gazette pursuant to s. 197, and subsequently on 23rd December 1949, the first named defendant was, pursuant to the provisions of the Public Trusts Act 1897-1944 N.S.W., duly appointed trustee of the resumed land which, in the notification of appointment, was referred to as the War Veterans' Home (Extension) at Narrabeen.

[15]

Upon the views which I have formed on the matters which I have already discussed it may perhaps be unnecessary to deal with the question whether the discretion conferred by s. 130 should, if all other difficulties in the way of the plaintiffs were removed, be exercised. But I feel that before parting with the case it is proper to say that upon a consideration of the whole of the facts I am firmly of the opinion that, if I were required to decide the contest between the parties on this point, I should resolve it against the plaintiffs. The resumed land is adjacent to land at present owned and used by the War Veterans' Home. In the main it is unimproved, though at the southern end a substantial portion of it has been cleared of timber and in the south-western corner, at the most remote point from the existing War Veterans' Home, there stands a cottage in which since December last the male plaintiff has resided. The evidence shows that neither the plaintiffs nor their predecessor in title have made any substantial use of the land and that it is, and, for some time has been, the desire of the plaintiffs to subdivide the land and sell it. On the other hand, the War Veterans' Home is carrying out a useful and important work of great value to ex-servicemen and, although some criticism was made by counsel for the plaintiffs concerning the need of the War Veterans' Home for this land, as distinct from other land in the vicinity which it previously owned and parted with, I am by no means prepared to say that the resumed land is not reasonably required for the purpose for which it was resumed. Nor am I prepared in any way to dissent from the finding made on two previous occasions that the public interest warranted the resumption of the land for that purpose. As a consequence of the resumption the plaintiffs in their representative capacity will receive a sum of money by way of compensation. As I have already said, it was their intention to convert the land by subdivision and sale and the only matter which can be of real concern to them is whether the moneys payable to them by way of compensation will be less than that which they may obtain if left free to carry out this intention. There is nothing before me to indicate that the plaintiffs will suffer any real detriment in this respect and if there were no other facts for my consideration I would be unwilling to make an order invalidating any of the steps leading up to the resumption whatever effect such an order may have had upon the resumption itself. But when I add to the circumstances already briefly referred to the fact that the male plaintiff's interest in the land is an interest in the rents and profits for his life expectant upon his mother's death, the fact that the will itself authorizes and, probably, contemplates, a sale of the land for the purpose of the distribution therein directed, and the fact that the resumption itself did not take place until some eight months after the expiration of the period of protection appropriate in the case of the male plaintiff, it is inevitable that the suit must be dismissed. For the reasons given the suit is dismissed with costs.

[18]

The plaintiffs-appellants are mother and son, executrix and executor of the will of James Wheeler deceased. In that capacity they are the registered proprietors of fifty acres of land at Narrabeen. The son was a member of the forces within the meaning of s. 118 of the Re-establishment and Employment Act 1945. On 28th April 1949 the Governor-in-Council of the State of New South Wales, by a notification of resumption published in the Government Gazette , purported to resume such land pursuant to s. 197 of the Crown Lands Consolidation Act 1913-1948 N.S.W.. The notification stated the purpose of the resumption as "for extension of War Veterans' Home". Section 118 (1) provides: - "Where power is conferred upon any person by or under any law of the Commonwealth or of a State or Territory of the Commonwealth to acquire land compulsorily for any purpose, that person shall not, without the prior consent of the Attorney-General, exercise the power, in relation to the acquisition of land which is owned by a member of the Forces, for any purpose other than a purpose in connexion with the defence of the Commonwealth or the efficient prosecution of the war, or do or commence or continue to do any act, or commence or continue any proceeding, for the purpose of or with a view to any such acquisition or obtaining possession of the land in connexion with any such acquisition." By s. 120 the period of time during which a member of the forces is protected by this provision is limited and the male plaintiff had ceased to enjoy the protection of s. 118 not later than 22nd July 1948. But some of the antecedent steps leading up to the purported acquisition had taken place while he still enjoyed that protection. The two plaintiffs bring the action seeking an order under s. 130 (2) invalidating these antecedent steps and claiming that the consequences of that invalidation would be that the acquisition itself must become void. The reason why the male plaintiff ceased to enjoy the protection afforded by s. 118 (1) is to be found in sub-s. (1) of s. 120 as amended by statutory regulation pursuant to the power conferred by s. 137. Section 120 (1), before the amendment of the section, provided that the protection afforded by, among other sections, s. 118 should continue until the expiration of the period (a) immediately following the date on which the member of the forces ceased otherwise than by his death to be engaged on war service equal to the period during which he was so engaged; or (b) of twelve months immediately following that date, whichever is the shorter. His war service extended over 1,048 days and ended on 7th September 1945. A period of 1,048 days from that date expired not later than 22nd July 1948. Twelve months would therefore be the earlier period. It expired on 7th September 1946.

[20]

As has been said, the two plaintiffs hold the land as the legal personal representatives of James Wheeler deceased. The will of James Wheeler deceased, however, gives them beneficial interests in the land. The testator directed that his trustees, who are the plaintiffs, should divide his real estate into two equal parts and transfer one such part to his wife, the female plaintiff, absolutely. As to the other part, the will directed that the income thereof should be paid to his wife during her lifetime and on and after her death that the income be paid to his son, the male plaintiff, and on and after his death that the corpus should be divided amongst his children, with a gift over in the event of his dying without issue. It will be seen that in a representative capacity the male plaintiff holds an undivided share as joint tenant but that beneficially his interest is in a divided half share of the land and is a future equitable life interest expectant upon the death of his mother. It can hardly be supposed that s. 118, when it protects land which is owned by a member of the forces, refers to ownership in a representative capacity. The only thing that the plaintiff can be said to "own" beneficially is the future equitable life interest. As the land has not yet been divided in pursuance of the direction contained in the will, this future equitable interest is in an undivided half share. It may be questioned whether this is enough to bring his case within the expression "land which is owned by a member of the Forces". However, the word "land" is defined by s. 108 (1) to include any estate or interest in land (legal or equitable) and any easement, right, power or privilege over, in, or in connection with, land. Let it be assumed that the definition is applicable. It is then a grave question whether, if the plaintiffs succeeded in other respects, the protection given by s. 118 in respect of this interest would lead to the entire invalidation of the acquisition of the fee simple. But for reasons which will appear it is a question which it is unnecessary to decide.

[27]

From this decision the plaintiffs appeal. It is apparent from what has been already said that their case is full of difficulties. But the argument made on their behalf begins with the effect of State law as its very foundation. The basis of the argument is that as a matter of State law the continued validity of the steps taken to fulfil the conditions precedent which that law prescribes is essential to sustain the acquisition of the land. On that basis the plaintiffs say that under State law a declaration of purpose was essential to bring s. 197 into play and enable the Governor-in-Council to acquire the land for the purpose of the War Veterans' Home. As a further, but alternative, foundation for the argument the plaintiffs rely on the interpretation of s. 197 of the Crown Lands Consolidation Act, which makes an inquiry and report and a determination of value by a local land board an essential prerequisite to the exercise of the power of resumption. The argument then turns to s. 118 of the Federal Re-establishment and Employment Act and seeks to apply it to these two steps so as to make them contraventions of that provision. As to the first step, it is contended that the declaration of purpose was in fact made with a view to the acquisition. The contention treats it as immaterial that the declaration of purpose, if valid under State law, must have a general operation constituting the War Veterans' Home a purpose within s. 197 so that the section may be employed for the acquisition of land for the War Veterans' Home at any time, unless and until, the declaration of purpose is revoked. The argument insists that however that may be, the view with which the declaration of purpose was made was in fact the future acquisition of this precise piece of land. In the same way it is contended that although the reference by the Governor to the land board in pursuance of the Crown Lands Consolidation Act regulations was ostensibly a reference to inquire and report as to the application or proposal for the resumption of the land and in respect of the value of the land the result of which might have negatived acquisition, yet in truth it was a proceeding taken for the purpose of or with a view to the acquisition of the particular piece of land.

Wheeler v War Veterans' Home - [1953] HCA 29 - HCA 1953 case summary — Zoe

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Judgment (33 paragraphs)

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