Commissioner of Railways (WA) v Davis Brothers

Davis Brothers brought an action in the Supreme Court of Western Australia against the Commissioner of Railways seeking damages for the loss of their horses. The horses had died after eating wheat that had been derailed from a railway truck and thrown onto the plaintiffs' land. The Commissioner of Railways contended that the land on which the wheat was deposited was vested in the Crown as from an earlier date, pursuant to section 97 of the Public Works Act 1902 (W.A.), thereby potentially relieving him of responsibility. The Supreme Court and the Full Court of Western Australia both found in favour of the plaintiffs.

The legal issue before the High Court on application for special leave to appeal was whether the Commissioner of Railways was relieved of responsibility for the damage caused to the plaintiffs' horses, notwithstanding the finding of liability by the lower courts. This question hinged on the interpretation and effect of section 97 of the Public Works Act 1902 (W.A.), which provided for the retrospective vesting of land in the Crown upon publication of a notice in the Government Gazette. The Commissioner argued that the notice of resumption, dated 6th November 1914, which declared the land vested in the Crown as from 16th February 1911, meant the land was Crown property at the time of the incident, and that this vesting discharged the land from all claims.

The High Court, in refusing special leave to appeal, did not express any opinion on the legal question raised. However, the Court indicated that the circumstances of the case were unlikely to recur, suggesting that the specific factual matrix and the application of section 97 in this context were peculiar. The refusal of special leave meant that the decision of the Full Court of Western Australia, which had affirmed the judgment for the plaintiffs, remained undisturbed.