Commissioner of Highways v Public Trustee - [2019] SASC 38

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
COMMISSIONER OF HIGHWAYS v PUBLIC TRUSTEE & ANOR
[2019] SASC 38
Judgment of Judge Dart a Master of the Supreme Court
19 March 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - CASE MANAGEMENT
Land acquisition - monies paid into suitors fund - unclaimed monies.
Held:
1. Monies paid into the suitors fund for the Public Trustee to be paid out to her.
2. Monies paid into the suitors fund for the second claimant are unclaimed monies and are to be paid to the Treasurer.
Land Acquisition Act 1969 (SA) s 23A, s 26; Supreme Court Act 1935 (SA) s 128, s 129, referred to.
Goodwin v Phillips (1908) 7 CLR 1, applied.

COMMISSIONER OF HIGHWAYS v PUBLIC TRUSTEE & ANOR
[2019] SASC 38
JUDGE DART:

These reasons deal with monies held in the suitors fund. The monies were paid in in 2001 by the Commissioner of Highways (“the Authority”) pursuant to the requirements of the Land Acquisition Act 1969. Two separate sums of money were paid into Court in respect of the acquisition of land at Blinman. One amount was paid in for the Public Trustee in respect of the deceased estate of George Champion Collison, who owned a number of allotments at Blinman. The Public Trustee has been administering his deceased estate since 1894. The other amount was paid in for the second claimant, Mr Donald McFarlane, who purchased an allotment at Blinman at a public auction conducted by the Public Trustee on 18 April 1895 but never settled on the contract.
The Court has a considerable number of land acquisition files going back to the year 2000 in respect of which monies are held in the suitors fund. This is one of those matters. The money in the suitors fund needs to be dealt with. The Supreme Court Act 1935 deals with unclaimed monies held in the suitors fund. Relevantly, it provides:
128—Payment to the Treasurer of unclaimed suitors' funds
(1)In the month of July in every year the registrar shall pay to the Treasurer, as part of the general revenue of the State, all suitors' funds which, on the first day of that month, have been unclaimed for the period of six years next preceding.
(2)Such moneys shall not be afterwards claimable from the Treasurer unless the court otherwise orders.
129—Party subsequently claiming may petition the Supreme Court etc
(1)If at any time after any such money has been so paid to the Treasurer, any person applies to the court, by summons, for the payment to him of that money or any part thereof, and the court is satisfied upon affidavit or other sufficient evidence adduced that the applicant is entitled to the whole or any part of the money claimed by him, the court shall make an order for payment of the sum to which the applicant is entitled, with or without such additional amount as would have accrued (whether as interest or otherwise) had that sum been retained by the court from the time when it was paid to the Treasurer to the time of the court order.
(2)On any such order being served on the Treasurer he shall issue and pay the money mentioned in the order to the persons to whom it is payable by virtue of the order, and the receipt of any person to whom any such money is so paid shall be a full and valid discharge for the sum stated in the receipt to have been received.
The Public Trustee was notified that monies were held in Court and has attended. The relevant monies are now the subject of an order for payment out to the Public Trustee. The balance of the monies held for the second claimant are funds that have been unclaimed for a period of more than six years.
Counsel who appeared for the Authority submitted that the Court might need to reconcile the provisions of ss 128 and 129 of the Supreme Court Act 1935 with the provisions of the Land Acquisition Act. The first relevant provision is:
23A—Offer of compensation and payment into court
(1)When the Authority gives notice of the acquisition of land, it must make an offer to the person or persons whom it believes to be entitled to compensation for the acquisition, stating the amount of compensation the Authority is prepared to pay.
(2)The offer must (where appropriate) differentiate between, and quantify, the component of compensation representing the value of the acquired land and the component referable to disturbance or other compensable matters.
(3)The Authority must, within seven days after making an offer of compensation, pay the amount offered into the Court.
(3a)However, if the Authority has already paid an amount into the ERD Court under Division 1 in relation to the proposed acquisition, the Authority is required only to pay into the Court the amount (if any) by which the amount of the offer exceeds the amount already paid into the ERD Court.
(4)Until compensation paid into Court under this section is applied by order of the Court, the money must be invested by the proper officer of the Court in an authorised trustee investment (bearing interest that compounds at intervals of one month or less) and the interest and other accretions accruing on the investment—
(a)must be paid to—
(i)the person who would, but for the acquisition of the land, have been entitled to the rents and profits of the land; or
(ii)a body constituted under the law of the State or the Commonwealth as trustee for the claimants to whom the compensation is offered; or
(b)must be dealt with in some other manner specified by the Court
Section 23A(4)(a) deals with the question of interest and other accretions accruing on the monies paid into the suitors fund and invested by the Court. The provisions are disjunctive and s 23A(4)(b) allows the Court to deal with the accrued interest in a manner specified by the Court. That provides a discretion to deal with the interest in a manner that is appropriate in the circumstances of a matter. The second relevant provision is:
26—Application of compensation
The Court may by order direct that any moneys paid into Court, or compensation ordered, under this Act be applied—
(a)in the purchase, redemption or discharge of any tax, debt, mortgage or encumbrance affecting the subject land; or
(b)in the purchase of other land or securities to be conveyed or settled upon or towards the same uses, trusts or purposes as the subject land; or
(c)in removing or replacing any buildings or substituting others in their stead, in such manner as the Court may direct; or
(d)in payment to any persons absolutely entitled to the moneys, or in the case of incapacity or disability to their trustees or guardians; or
(e)in such other manner as the Court thinks fit.
I note that in s 26(e) the Court is given a discretion to make payment of the compensation monies as the Court thinks fit. That is a broad discretion to be exercised in the interest of justice.
Counsel for the Authority submitted that the two provisions of the Land Acquisition Act could possibly be regarded as amending, to the extent of any consistency, the provisions of s 128 of the Supreme Court Act. The argument is that the provisions of the Land Acquisition Act, being contained in an Act passed by parliament more recently than the Supreme Court Act may, to the extent that there is an inconsistency, impliedly repeal the provisions of s 128 of the Supreme Court Act.
There is considerable case law on the issue of implied repeal. It is sufficient for present purposes to consider early High Court authority.
In Goodwin v Phillips Griffiths CJ said: [1]
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 the 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.
[1] (1908) 7 CLR 1 at 7.
Likewise, in the same case Barton J said:[2]
Before coming to the conclusion that there is a repeal by implication “The Court must,” to use the words of Hardcastle in his work on the Interpretation of Statutes (Craies on Statute Law, 4^th ed., p. 303) “be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together, before they can from the language of the later imply the repeal of an express prior enactment, i.e., the repeal must, if not express, flow from necessary implication.” If, therefore, there is fairly open on the words of the later Act, a construction by adopting which the earlier Act may be saved from repeal, that construction is to be adopted.
[2] Goodwin v Phillips (1908) 7 CLR 1 at 10.
Adopting the approach of reading both pieces of legislation together, no inconsistency arises. If the Court is able to make payment pursuant to s 23A(4) or s 26(a)-(d) of the Land Acquisition Act, it would do so. If it is not in the position to do so, the general discretion provided for in each of those provisions arises for consideration. The operation of s 128 of the Land Acquisition Act is not inconsistent with the exercise of the general discretion provided in that Act. It only arises in the circumstances where it is established that the money in the suitors fund can properly be categorised as unclaimed.
The Court is not in a position to make a payment out of the monies in the suitors fund to the second claimant. The Court has no information about him or his descendants. The monies are unclaimed. It is appropriate to direct the Registrar to make payment of the money held in the suitors fund to the Treasurer.