Commonwealth v Hazeldell Limited - [1921] UKPCHCA 3

{PRIVY COUNCIL.]

THE COMMONWEALTH

DEFENDANTS,

HAZELDELL LIMITED

ON APPEAL FROM THE HIGH COURT. Land-Acquisition by Commonwealth-Compensation-Minerals-Reservation of all

minerals in Crown grant-Right of public to mine for all minerals " -Sub- stance proclaimed a mineral-LimestoneLands Acquisition Act 1906 (No. 13 of 1906), secs. 26, 37-Crown Lands Alienation Act 1861 (N.S.W.) (25 Vict. July 25.

No. 1), secs. 13, 18-Crown Lands Act 1884 (N.S.W.) (48 Vict. No. 18), secs. 2, 4, 5, 6, 7--Mining Act 1906 (N.S.W.) (No. 49 of 1906). secs. 3, 45, 46, 70.

Sec. 13 of the Crown Lands Alienation Act of 1861 (N.S.W.) provided that certain Crown lands should be open for conditional sale; and sec. 18 provided that, at the expiration of three years from the conditional sale and after pay- ment of the purchase money and compliance with certain other conditions, a grant in fee simple should be issued to the purchaser - with reservation of any minerals which the land may contain. Sec. 2 of the Crown Lands Act of 1884 (N.S.W.) repealed certain Acts, including the Crown Lands Alienation Act of 1861, but enacted that the repeal should not (iii.) Prejudice or affect any proceeding matter or thing lawfully done or commenced or contracted to be done under the authority of any enactment or regulation hereby repealed," and provided that (b) All rights accrued and obligations incurred or imposed under or by virtue of any of the said repealed enactments shall subject to any express provisions of this Act in relation thereto remain unaffected by such repeal." By see. 4 the word "minerals," unless the context necessarily required a different meaning, was defined to mean and include coal, kerosene

Present-Viscount Cave, Lord Dunedin, Lord Atkinson, Lord Shaw and Lord Phillimore.

29 CLR 449

shale and any of certain named metals or any ore containing the same, * and any other substance which may from time to time be declared a mineral within the meaning of this Act by proclamation of the Governor published in the Gazette." Sec. 5 provided that "Crown lands shall not be sold leased dedicated reserved or dealt with except under and subject to the provisions of this Act and nothing in this Act shall affect the provisions of any Act regulating mining on Crown lands &. Sec. 6 provided that The Governor on behalf of Her Majesty may grant dedicate reserve lease or make any other disposition of Crown lands but only for some estate interest or purpose author- ized by this Act and subject in every case to its provisions." Sec. 7 provided that All grants of land issued under the authority of this Act shall contain a reservation of all minerals in such land and shall contain such other reservations and exceptions as may by the Governor be deemed expedient in the public interest." No proclamation under sec. 4 had ever been made. By sec. 3 of the Mining Act 1906 (N.S.W.) the word 'minerals' is defined to mean, unless the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Commonwealth v Hazeldell Limited

Details

AGLC: Commonwealth v Hazeldell Limited [1921] UKPCHCA 3
Case: [1921] UKPCHCA 3
Decision Date: 25 July 1921

CaseChat Overview and Summary

The Privy Council was asked to determine whether the Commonwealth was entitled to compensation for the value of limestone under the land it acquired. The case arose from the Commonwealth's compulsory acquisition of land under the Lands Acquisition Act 1906 for the purpose of obtaining material for use in connection with buildings to be erected for the Commonwealth. The land contained a valuable bed of limestone, and the respondents claimed compensation for its value. The Commonwealth argued that the reservation of minerals in the Crown grant did not include limestone and that the Mining Act 1906 rendered the limestone open to mining by the public, making it of no value to the grantee. The primary issues before the Privy Council were whether the reservation of minerals in the Crown grant included limestone and whether the Mining Act 1906 rendered the limestone open to public mining.

The Privy Council held that the reservation of minerals in the Crown grant should be construed in accordance with the definition of "minerals" in the Crown Lands Act 1884, which did not include limestone. Consequently, the limestone was not reserved by the grant and passed to the grantee. Furthermore, the Privy Council found that the Mining Act 1906 did not apply to minerals not reserved by a grant. Therefore, the limestone was not rendered open to public mining by the Act, and the respondents were entitled to compensation for its value.

In light of the Privy Council's decision, the appeal by the Commonwealth was dismissed, and the respondents were entitled to compensation for the value of the limestone under the land. The Privy Council also ordered that the Commonwealth should pay the respondents' costs of the appeal, including those caused by the intervention. The Attorney-General for New South Wales, who intervened and supported the appellants' contention, would bear his own costs.

Orders