Commonwealth v New South Wales

Cons

M truon

Com

Aportments V

gasov^ ^ C A L

Aim for Urban

ComptniUr o f

Affairs (2000)

m 'L u .

107 LGERA

c t j Cottun

?6?

^1W 51 FCR

I lK l'n ir i'S OK

CASKS

DETERMINED IN THE

HIGH COURT OF

A U 8 T R A U A

1923-1924.

[HIGH COURT OF AUSTRALIA.]

THE COMMONWEALTH OF AUSTRALIA

P laintiff

THE STATE OF NEW SOUTH IVALES ]

D e f e n d a n t s .

AND

A N O T H E R ................................... )

Coiutitulional Law—Land vested in Commonwealth on transfer of Departments— H C OF A

Land acquired by Commonwealth for public purposes— IF^al passes to Common-

1 9 9 3

wealth—Royal metals—Other mitierals—Powers of Commonwealth Parliament—

v~'

Acquisition of Property—"Land ”— “Crown land ”—“Fee simple ”—Notification

Sy d n e y ,

of acquisition — Registration of title of Commonwealth — Right to certificate of ̂ 19?0‘ title— Ultra vires—Commonwealth of Australia Constitution Act 1900 (63 & 3 /ar. 21-29' 64 Ticf. c. 12), sec. V.— The Constitution, secs. 51 (xxxi.), (xxxix.), 52, 85, 109, 10-2 ; Aug. 9,

125—Lands Acquisition Act 1906 {No. 13 of 1906), secs. 5, 13-17, 20, 27,

1923.

62—Lands Acquisition Act 1912 (No. 39 of 1912), sec. 2—Real Property Act 1900 Knox C J ,

(A'.N.ir.) (lYo. 25 of 1900), secs. 13, 14, 32, 35, 39, i 6 — New South IFalw

Constitution Act 1855 (18 & 19 FicL c. .54), sec. 2.

and Starke J j:

Certain lands in New South Wales were (a) lands which became vested in the Commonwealth by virtue of sec. 85 of the Constitution; (b) lands acquired by the Commonwealth by compulsory process under the Lands Acquisition Act 1906 which had not at the date of acquisition been alienated by tlic Crown ; and (c) lands acquired by the Commonwealth by compulsory

HIGH COURT

[1920-1923.

H. C. OF A.

process under that Act which before the date of acquisition had been alienated

1920-1923.in fee by the Crown. The Crown grants of the lands in class (c) contained certain reservations : as to one parcel, of all mines of gold, silver and coal, T h eof power to resume any part for public purposes, of power to make drains

Com m on

w e a l t hand sewers through the land, and of a certain annual quit rent for ever;

V. and, as to the (jther parcel, of timber for naval purposes and of part or parts

N e w South

for highways.

One of those parcels had been brought under the prordsions

W a l e .s.

of the Real Property Act 1900 (N.S.W.) and the other had not. All the lands

in the several classes contained royal metals or other minerals.

Held, by Knox C.J., Isaacs and Starke JJ. and (save that he dissented a.s to the inclusion of royal metals) by Higgins J., that all the lands in the several classes, including the royal metals and other )uinerals therein, vested in the Commonwealth freed and discharged from all reservations, rights, royalties, conditions and obhgations of any kind whatsoever to the State of New South Wales, subject to compensation prordded pursuant to sec. 85 of the Constitu tion and by the Lands Acquisition Act respectively.

Per Higgins J. :— Where land is granted by the Crown, or by a .State under the Crown's authority, or under an Act which relates to land and interests in land only, royal metals in the land do not pass. The title to the land and the title to the royal minerals are quite distinct. The principle applies even where the grant or transfer of title is made from one agency of the Crown (e.g., a State) to another (e.g., the Commonwealth). The title to the royal mines is not an estate or interest in land.

Held, also, by Knox C. J., Isaacs, Gavan Duffy and Starke JJ. and (save that he dissented as to the parcel of land in class (c) which had been brought under the Real Property Act 1900) by Higgins J., that the Commonwealth was not entitled to a certificate of title under that Act to any of the lands in the several classes.

Held, by Knox C.J., Isaacs, Gavan Duffy and Starke JJ. {Higgins J. dissent ing), that sec. 20 of the Lands Acquisition Act 1906 is ultra vires the Common wealth Parliament.

Woolley V. Attorney-General of Victoria, (1877) 2 App. Cas., 163, and Attorney- General of British Columbia v. Attorney-General of Canada, (1888-89) 14 App. Cas., 295, distinguished.

Per Isaacs J. : “ Fee simple ” indicates the quantum of estate, and not

feudal tenure.

Special Case.

An action was brought in the High Court by the Coiumomvealth against the State of New South Wales and the Registrar-General of the State of New South Wales, in wliich the claim indorsed upon the writ was as follows ;—

:w C.L.H.I

OF AUSTKALIA.

The ])laintift’s claim is for a declaration that the Commonwealth tt. C. of A.

is and was from the respective times of the acquisition thereof by

1920-1023.

the Commonwealth entitled as of right to the legal estate in the

T h e

Common

whole of the several ])arcels of land hereinafter described and to the

w e a l t h

royal and other metals and minerals therein contained, freed and

X ew South

discharged from any reservation to the State of New South Wales

W.4LE.S.

of any right to royalty in respect of the said metals or minerals, or of any right to enter upon any portion of the said lands, or to search for, mine, dig, and remove the said metals or minerals, or of ingress, egress, or regress for any of the purposes aforesaid, or to <leal with the said lands under the Crown Lands Acts or the Mining Acts of the said State in force at or after the time of the respective accjuisitions; and freed and discharged from any exception or reservation to the said State or so much or any part of the said lands as might after the acquisition thereof by the Commonwealth be required by the said State for any public way, canal, or railroad, and freed and discharged from any exception or reservation to the said State of any sand, clay, stone, gravel, or indigenous timber or other material, being the natural produce of the said lands which might after the acquisition of such lands by the Commonwealth be required at any time by the said State for any purpose or from any right in the said State to take or remove the same, or from any right in the said State of ingress, egress, or regress in, out of, or upon the said lands or any part thereof for any purpose and from any other exception or reservation, and freed and discharged from quit rent if any payable by the grantee of the said lands.

Conimomvealth oj Australia Gazette of 4th April 1912, at p. 458, and so acquired by compulsory process imder and in accordance with the provisions of the iMnds Acquisition Act 1906 for the follovfing pubHc purpose, namely, for defence purposes

" The said parcels of land are as follows, viz. ;— being the land acquired by the Commonwealth by notification published in the

“ (1) All that piece or parcel of land containing 71 acres 38^

perches in the parish of Stockton, county of Gloucester, State of

a t

Stockton.

“ (2) All that piece or parcel of land containing 1 rood 6̂ - perches

HIGH COURT

[1920-1923.

H. C. OF A. iiiore or less, being allotment 3 of section 9, village of Woodstock,

1920-1923. q £ Kenilworth, county of Bathurst, State of New South Wales,

T h e Commonwealth of Australia : commencing,” &c., “ being the land acquired by the Commonwealth by notification of acquisition published in the Gazette aforesaid on 3rd September 1910, at p.

N e w South W a l es . 1453, and SO acquired by compulsory process under and in accord

ance with the provision of the Act aforesaid for the following pubhc purpose, namely, as a site for a po.st office at M oodstock. New South Wales.

“ (3) All that piece or parcel of land containing 1 rood 14 perches, being lots 5 and 6 of the subdivision of allotment 5, section 2, town of Richmond, parish of Ham Common, county of Cumberland, State of New South Wales, Commonwealth of Australia, contained within the following boundaries : commencing,” &c., “ being the land acquired by the Commonwealth by notification of acquisition

published in the

aforesaid of 13th August 1910, pp. 1382-1383,

and so acquired by compulsory process imder and in accordance with the provisions of the Act aforesaid for the following pubhc purpose, namely, for a field ambulance depot.

“ (4) (a) All that piece or parcel of laud containing 30 acres 3 roods 17'9 perches more or less in the parish of Field of Mars, county of Cumberland, State of New South Wales, Commonwealth of Australia, commencing,” &c., “ being the land acquired by the Commonwealth on 15th September 1910, by notification of acquisition published in the Gazette aforesaid at pp. 1539-1540, and so acquired by compulsory process under and in accordance with the provisions of the Act aforesaid for the following pubhc purpose, namely, as a site for a wireless telegraphic station at Pennant Hills, New South Wales.

“ (-1) {b) All that piece or parcel of land containing 9 acres 3 roods 27-8 perches more or less, being part of Crown portion 48 in the parish of Field of Mars, county of Cumberland, State of New South Wales, Commonwealth of Australia, commencing,” &c., “ being the land acquired by the Commonwealth on 24th December 1910, bv notification of acquisition published in the Gazette aforesaid at p. 1911, and so acquired by compulsory process under and in accord ance with the provisions of the Act aforesaid for the following

33 C.L.R.]

OF AUSTRALIA.

H. C. OP A. 1920-1923.

public purpose, namely, as an addition to the AVireless Telegrajdi

Station at Pennant Hills, New South Wales.

'—.—'

“ (5) All that piece or parcel of land containing 3 acres more or less in the parish of Wollongong, county of Camden, State of New

T h e

COMMON-

\VEALTH

South AVales, Commonwealth of Australia; commencing,” Ac.,

N ew South

“ being certain land which became vested in the Commonwealth

W a l es .

under and by virtue of sec. 85 (i.) of the Constitution of the Common wealth of Australia upon the transfer to the Commonwealth of the Department of Naval and Military Defence of the Public Service of the State of New South AAnles on 1st March 1901.

“ (6) All that piece or parcel of land containing 1 rood ± perches more or less in the City of Newcastle, parish of Newcastle, county of Noj'thumberland, State of New South AÂ ales, Commonwealth of Australia.; being portion 103, commencing,” &c., “ being certain land which became vested in the Commonwealth under and by virtue of sec. 85 (r.) of the Constitution of the Commonwealth of Australia upon the transfer to the Commonwealth of the Depart ment of Posts, Telegraphs and Telephones of the Public Service of the State of New South AAmles on 1st March 1901.

“ And for a declaration that the Commonwealth is and was entitled to a certificate of title to each of the several parcels of land accordingly so freed and discharged as aforesaid.

“ And for an order directing the defendant Registrar-General to deal with and give effect to the notifications of acquisition in respect of the parcels of land respectively numbered hereinbefore 1, 2, 3, 4 (aj and 4 (b) as if the same were grants or conveyances or memor anda or instruments of transfer of the res])ective lands to the Com- monwealtli accordingly so freed and discharged as aforesaid duly executed under the laws in force in the State of New South AVales.

“ And for an order or orders directing the defendant Registrar- General to issue to the Commonwealth a certificate of title in respect of each of the parcels hereinbefore mentioned without noting thereon any reservation or exception as aforesaid to the State of New South AVales.”

The parties thereupon stated a special case, which was substan tially as follows, for the ojunion of the Full Court:—

HIGH COURT

[1920-1923.

H. C. OF A. 2. On 4th April 1912 the plaintiff, by notification of acquisition

1920-1923.

published in the Commonwealth of Australia Gazette of that date,

.—'

T h e

at p. 458, acquired by compulsory process under and in accordance

COMMOK-

WEALTH

with the provisions of the Lands Acquisition Act 1906 certain land

N ew South containing 71 acres 38^ perches to the sea coast, in the parish of

W a l e s .Stockton, county of Gloucester, in the State of New South Wales,

which said land is more particularly described in par. 1 of the indorsement to the writ in this action, for the following public pur pose, namely, for defence purposes at Stockton.

3. At the time of the publication of the said notification of acquisi tion the land therein described was unahenated Crown lands of the defendant State.

4. On 3rd September 1910 the plaintiff, by notification of acquisi tion published in the said Gazette of the last mentioned date, at p. 1453, acquired by compulsory process under and in accordance with the provisions of the said Act certain land containing 1 rood 6|- perches or thereabouts, being allotment 3 of section 9, ^ullage of Woodstock, parish of Kenilworth, county of Bathurst in the said State, which said land is more particularly described in par. 2 of the indorsement to the writ in this action, for the following public purpose, namely, as a site for a post office at Woodstock, Xew South Wales.

5. At the time of the publication of the notification of acqiusition in the last preceding paragiaph referred to the land described therein was unalienated Crown lands of the defendant State.

6. On 13th August 1910 the plaintiff, by notification of acquisi tion published in the said Gazette of the last mentioned date, at pp. 1382-1383, acquired by compulsory process under and in accordance with the provisions of the said Act certain land containing 1 rood 14 perches, being lots 5 and 6 of the sub-di^fision of allotment 5, section 2, town of Richmond, parish of Ham Common, county of Cumberland, in the said State, which said land is more particularly described in par. 3 of the indorsement to the writ in this action, for the following public purpose, namely, for a field ambulance depot. 7. By grant dated 1st May 1849 the land in the last paragraph herein referred to rvas alienated in fee from the Crown subject to the reservations and conditions in the said grant mentioned. The

33 C.L.R.]

OF AUSTRALIA.

said land was later on brought under the provisions of the Real H. C. o f a .

I Q20.1 Q2‘?

Proferty Act 1900 of the said State and at the time of the com-

’

pulsory acquisition of the said land, as in par. 5 herein mentioned,

T h e Common

one Harms worth Robert Way was registered under the said last-

w e a l t h

mentioned Act as the proprietor of an estate in fee simple in the

N e w South

said land subject to the reservations and conditions contained in

W a l es .

the said grant and subject to a certain registered mortgage not

material for the purposes of this special case.

8. The reservations contained in the said grant were shortly as follows : (a) All mines of gold, of silver, and of coals ; (b) power to resume any part of the said land for public purposes ; (c) power to make and conduct through the said land drains and sewers deemed expedient; (d) A quit rent of £2 16s. 6d. per annum for ever.

9. On 15th September 1910 the plaintiff, by notification of acquisition published in the said Gazette of the last-mentioned date, at pp. 1539-1540, acquired by compulsory process under and in accord ance with the provisions of the Lands Acquisition Act 1906 certain land containing 30 acres 3 roods 17'9 perches or thereabouts, in the parish of Field of Mars, county of Cumberland, in the said State, which said land is more particularly described in par. 4 (a) of the indorsement to the writ in this action, for the following public pur pose, namely, as a site for a wireless telegraphic station at Pennant Hills, New South Wales. And on 24th December 1910 the plain tiff by notification of acquisition, published in the said Gazette of the last-mentioned date, at p. 1911, acquired by compulsory process in manner aforesaid certain other land containing 8 acres 3 roods 27'8 perches or thereabouts in the said last-mentioned parish, county, and State, which said land is more particularly described in par. 4 (&) of the indorsement to the writ in this action, for the following public purpose, namely, as an addition to the wireless telegraph station at Pennant Hills, New South Wales.

10. By grant dated 30th June 1823 the lands in the last paragraph herein referred to were alienated in fee from the Crown subject to the reservations and conditions in the said grant mentioned. At the time of the compulsory acquisition of the said lands, as in j)ar. 9 herein mentioned, one Charles Edward Robertson Murray and others were alienees of certain portions of the said land (which together

8 HIGH COURT

[1920-1923.

H. C. o f a . aggregated th e w hole of th e lands acquired as aforesaid) under

1920-1923 deeds of conveyances duly registered under th e provi.sions

T h e

of the Registration of Deeds Act 1897 (N.S.W.).

Common

w e a l t h

11. The reservations contained in the said grant were shortly

N ew South

as follows : (a) timber for naval purposes ; (b) part or parts of

W a l e s .the said land for highway or highways.

12. On 1st March 1901, pursuant to proclamation by His Excel lency the Governor-General, the Department of Naval and ^Military Defence of the State of New South Wales became transferred to the Commonwealth.

13. At the time of the transfer to the Commonwealth of the Department of Naval and Military Defence of the Public Ser\dce of the said State as aforesaid, certain property of the said State, to wit, the land described in par. 5 in the indorsement to the writ in this action, was being used exclusively in connection with the said Department for the purposes of a fort at M'ollongong, in the said State, which said property became vested in the Commonwealth pursuant to the provisions of sec. 85 of the Constitution of the Commonwealth.

14. On 1st March 1901, pursuant to proclamation by His Excel lency the Governor-General, the Department of Posts, Telegraphs and Telephones of the State of New South IVales became trans ferred to the Commonwealth.

15. At the time of the transfer to the Commonwealth of the said last-mentioned Department of the Public Serwce of the said State as aforesaid certain property of the said State, to wit, the land described in par. 6 in the indorsement to the writ in this action, was being used exclusively in connection with the said Department for the purposes of a post office at Newcastle, in the said State, which said property became vested in the Commonwealth pursuant to the provisions of the said sec. 85.

16. All the said parcels of land contain royal metals or other minerals.

17. The plaintiff contends that, pursuant to the provisions of the Comnwnwealth of Australia Constitution Act (63 k 64 Viet. c. 12) and of the Lands Acquisition Acts 1906 and 1912, the lands men tioned in pars. 2, 4, 6 and 9 of this special case, and described in

33 C.L.R.J

OF Al’STRALIA.

H. C. OF .A. 1920-1923.

the respective notifications of acquisition, became, upon the publi

cation thereof in the said Gazette, vested in the Commonwealth,

-----'

freed and discharged from all trusts, obligations, estates, interests,

T h e Common

contracts, licences, charges, rates and easements to the intent that

w e a l t h

the legal estate therein, together with all rights and powers incident

N ew South

thereto or conferred by either of the said Acts, vested in the Com

W a l es .

monwealth, and so vested freed and discharged from all reserva tions, rights, royalties, conditions or obligation of any kind what soever whether imposed by statute law of New South Wales or otherwise in respect of the alienation of the fee by grant or other wise of such or any lands within the said State. The plaintiff fur ther contends that, pursuant to the provisions of the said Acts, the lands mentioned in pars. 13 and 15 of this special case became, upon the transfer of the respective Departments mentioned, vested in the Commonwealth for the same estate as aforesaid and so freed and discharged as aforesaid as if the said lands had been acquired by compulsory process under the Lands Acquisition Acts 1906 and 1912.

18. The defendants contend that the acquisition and /or transfer of the said lands do not entitle the plaintiff to the legal estate of the said lands freed and discharged as aforesaid, and the defendant Registrar-General has refused and still refuses, on application made on behalf of the Commonwealth, to register or give effect to the acquisitions or the transfers of the said lands or any of them except subject to the reservations, conditions and obligations contained in the Crown grant and /or imposed by the law of the State in respect of the alienation by grant or otherwise of Crown lands within the said State.

19. The questions for the opinion of fhe Full Court are as follows:— (1) Did the lands herein mentioned, or any and which of them, at the times of the transfer of the Department or the publication of the notifications of acquisition hereinbefore mentioned vest in the Commonwealth for an absolute and unconditional estate in fee simple and freed and discharged from all reservations, lights, royalties, conditions and obligations of any kind whatsoever to the State of New South Wales ?

HIGH COURT

[1920-1923.

H. C. or A.(2) Is the defendant Registrar-General bound to deal with and

1920-1923.give effect to the notifications of acquisition in respect of

T h e

the parcels of land in the writ numbered 1, 2, 3, 4 (a) and

COMMON-

HTEALTH

4 (b), as if the same were grants or conveyances or memor

N e w South anda or instruments of transfer of the respective lands to

W a l e s .the Commonwealth freed and discharged from all reserva

tions, rights, royalties, conditions and obligations, and duly executed under the laws in force in the State of New South Wales ?

(3) Is the defendant Registrar-General bound to issue to the Commonwealth a certificate of title in respect of each of the parcels of land in the writ numbered 1, 2, 3, 4 (a), 4 (b), 5 and 6, without noting thereon any reservations or exceptions of any kind whatsoever to the State of New South Wales ?

20. The Court shall be at liberty to refer to the writ herein and to the published notification of any acquisition in the Gazette.

21. It is agreed between the parties that the Court shall enter judgment for the plaintiff or defendant and with or without costs of this special case and of the action, and make such order and pronounce such declaration and give such relief as to the Court ma)'' seem propei'.

During the argument upon the special case the following ques tions were added alternatively to question 1 :—

(1) (a) Have (i.) the royal metals, (ii.) other minerals, in the lands mentioned in pars. 13 and 15 of the special case become vested in the Commonwealth ?

(1) (b) Were (i.) the royal metals, (ii.) other minerals, in the lands mentioned in pars. 2 and 4 of the special case acquired by the Commonwealth ?

(1) (c) In the case of the lands mentioned in pars. 6 and 9 of the special case did the Commonwealth, upon the publica tion of the notifications in the said paragraphs mentioned respectively, acquire the said lands freed and discharged from the reservations or conditions mentioned in pars. 8 and 11, or from any and which of them ?

33 C.L.R.]

OF AUSTRALIA.

The special case was first argued before Knox C.J., Isaacs, Higgins, Gavan Dujfy, Rich and Starle JJ., on 1st, 2nd and 3rd December 1920.

T h e

Common

w ealth

Flannery K.C. (with him Barton), for the plaintiff. The effect of

r 1 /-i • ■1 1 -

J'EW South

sec. 85 (i.) of the Constitution in respect of land exclusively used m

W a l es .

connection with a Department transferred to the Commonwealth was to give the Commonwealth whatever the State had, namely, the whole control and management of the land and everything in it (Williams v. Attorney-General for New South Wales (1) ). See New South Wales Constitution Act 1855 (18 & 19 Viet. c. 54), sec. 2. The vesting imder sec. 85 (i.) of the Constitution, being a vesting by a high political act, must be distinguished from a conveyance or grant to the Commonwealth. In the case of a Crown grant the royal metals would not pass unless they were expressly mentioned {Case of Mines (2); Attorney-General v. Morgan (3) ; and see Attcmiey-General of British Columbia v. Attormy-General of Canada (4); Esquimau and Nanaimo Raihvay Co. v. Bainbridge (5) ).

[Rich J. referred to Woolley v. Attorney-General of Victoria (6).]

But where the vesting is a high political act, the intention is that the property and the governmental functions theretofore discharged by the State should be transferred to the Commonwealth. There is nothing to cut down the rights given to the Commonwealth. The words “ used exclusively in connection with the Department ” in sec. 85(i.)are indicative only of the subject matter, and do not in any way restrict the full proprietary rights included in the word “ property.” Once the material thing which is so used is ascertained, it passes to the Commonwealth out and out. As to the land acquired under the Lands Acquisition Act 1906, the royal metals and other metals are vested in the Commonwealth either under sec. 16 (1) (a) as being included in the term “ land ” as defined in sec. 5, or under sec. 16 (1) (6). Under sec. 20 of the Lands Acquisition Act the Registrar- General is bound to register the notification in the manner there prescribed. [Counsel also referred to Lyddall v. Weston (7) ; R. v.

(1) (1913) 16 C.L.R., 404.

p. 302.

(2) (1568) 1 Plowd., 310.(5) (1896) A.C.. 561, at p. 566.

(3) (1891) 1 Ch., 432.(6) (1877) 2 App. Cas., 163.

(4) (1888-89) 14 App. Cas., 295. at

(7) (1739) 2 Atk., 19.

HIGH COURT

[1920-1923.

H. C. OF A. Registrar of Titles for Victoria-, Ex parte the Commonwealth (1);

1920-192;{.

Comnwmvealth v. Registrar of Titles for Victoria (2).]

T h e Common

w e a l t h

Leverrier K.C. (with him Bavin), for the defendants. The only

N ew South

property acquired under sec. 85 (i.) is property “ used exclusively

W a l es .in connection with the Department.” I t could not be said that the royal metals were so used, for they are distinct from the land in which they are (see Woolleg v. Attorney-General of I ictoria (3) ). The royal rights to minerals are not even incidents of land {JMorney- General of British Colwnbia v. Attorney-General of Canada (I) ). General words, such as “ land ” or “ property ” are not sufficient to pass the royal metals (Esquimalt and Eanaimo Railway Co. v. Bainbridge (5) ). Independently of the royal metals no more of the land is transferred under sec. 85 (i.) than is actually used. 'What ever passes under sec. 85 (i.) must be compensated for by reason of sec. 64 of the Lands Acquisition Act, and, as to the property which passes, every power of the State has gone, including the power to mine. But the property in the royal metals is still in the State, and if gold is ever recovered it belongs to the State. The power given by sec. 51 (xxxi.) is limited. I t is commensurate with the power of the Parliament to make laws. It must be sufficient to effectuate its purpose. But in any particular case of acquisition of land the power will be limited by the purpose for which the land is acquired (see Coverdale v. Charlton (6) ).

[Isaacs J. referred to d/fl^or <&c. of Tunbridge Wells v. Baird {!}.] Whatever the power of the Commonwealth imder sec. 51 (xxxr.) may be, in view of the provisions of the Lands Acquisition Act and of the terms of the several notifications the quantum of land acquired is limited. As regards Crown land acquired neither the provisions of the Act nor the terms of the notification are apt to cover the royal metals. The word “ land ” is not a proper word to include the royal metals. As to private lands compulsorily acquired under the Act, the Commonwealth can get no more than the owner has.

(1) (1915) 20 C.L.R., 379.(5) (1896) A.O., 561.

(2) (1918) 24 C.L.R., 348.(6) (1878) 4 Q.B.D., 104.

(3) (1877) 2 App. Cas., 163.(7) (1896) A.C., 434.

(4) (1888-89) 14 App. Cas., at p. 302.

33 C.L.E.]

OF AUSTKALIA.

H. C. or A.

Latham, for the State of Victoria (which had obtained leave to intervene).

1920-192.3.

The first and second questions in this case are

as to the prerogative of the Crown in right of the States. The

T h e

Common

power to acquire land conferred by sec. 51 (xxxi.) of the Con

w e a l t h

stitution is a power to acquire an estate in land. The alternative

N ew South

is that the Commonwealth has the whole dominion over land

W a l e .s .

acquired by it under the Lands Acquisition Act, and, if “ places ” in sec. 52 (i.) of the Constitution means “ land,” the Commonwealth has exclusive power to legislate as to land acquired by it, and the laws of the State will not run there. The royal metals are owned by the State and are not required by the Commonwealth for its purposes. The power to acquire land given by the Lands Acquisition Act does not include power to acquire the royal metals. The law that in a grant of land royal metals do not pass unless expressly mentioned applies to statutes. If the more precise words “ land,” “ mines ” and “ minerals ” are not sufficient to pass the royal metals, the more general word “ property ” is not. The power conferred by sec. 51 (xxxi.) is a power to make laws for the acquisition of “ property,” that is, for acquiring something which was property at the time the Constitution was passed. The Common wealth Parliament cannot legislate so as to make something property which otherwise would not be property. What is property does not depend on the will of the ParUament. Under that power the Com monwealth has legislated for the acquisition of “ land ” as defined in sec. 5 of the Lands Acquisition Act. Unless the thing purported to be acquired comes both within “ property ” and “ land ” as there defined, it is not within the Act. Sec. 51 (xxxi.) enables the Com monwealth to become the “ owner ” of land ; secs. 122 and 125 enable the Commonwealth to acquire the territorial sovereignty over areas of territory. The word “ acquired ” in sec. 122 does not refer to an acquisition under sec. 51 (xxxi.), because in each case in sec. 122 it is a territory which is acquired and political representation is provided for. The wmrd “ places ” in sec. 52 (i.) has a political signification and does not refer to land acquired under sec. 51 (xxxi.). When the Commonwealth acquires an estate or interest in land under the Lands Acquisition Act it becomes the holder *of an estate or interest; and, if it is an estate in fee simple which is acquired.

HIGH COURT

[1920-1923.

H. C. OF A. Commonwealth becomes a tenant in fee simple. As to Crown

1920-1923. what the Commonwealth acquires is property and not dominion.

T h e

In sec. 16 (1) of the Lands Acquisition Act the word “ vested ” is an

Common -

WEALTH

appropriate word for the passing of an estate and not for a change

of dominion.

Sec. 16 (1) (6) is invalid, for it is not incidental to the

N ew South

W a l e s .acquisition of land. If sec. 17, as to the title of the State being

converted into a claim for compensation, means anything else than that the Commonwealth is to hold something from the King in right of the State, the section is invahd. Sec. 62 is also invahd, for the Commonwealth Parliament has no power to legislate as to mining. The provision in sec. 16 (2) as to the cancellation of dedication is invalid. Rights as to highways are not rights that are included in the power conferred by sec. 51 (xxxi.) of the Constitution.

Flannery K.C., in reply, referred to Chief Commissioner for Rail ways and Tramways (N.S.W.) v. Attorney-General for New South M'oles (1).

The special case was, by direction of the Court, further argued before Knox C.J., Isaacs, Higgins, Gavan Duffy and Starke JJ., on 27th, 28th and 29th March, 1922.

Flannery K.C. and Barton, for the plaintiff. In respect of land vested in the Commonwealth under sec. 85 (i.) of the Constitution and land compulsorily acquired under the Lands Acquisition Act. the Commonwealth gets the whole proprietary interest which the State had in the land, including the royal metals and other minerals. That being so, there is included in that interest the fee simple, and the land is “ alienated in fee,” within the meaning of the Real Property Act 1900 (N.S.W.), sec. 13 (1), and is subject to the pro^^.sions of that Act. The Registrar-General is then under a duty to register the particular transaction by virtue of sec. 20 of the Lands Acquisition Act, and he can do so under the provisions of the Real Property Act. Land vested in the Commonwealth under sec. 85 (i.) of the Constitu tion is put in the same position as land compulsorily acquired under the iMnds Acquisition Act by sec. 64 of that Act, and sec. 16 con templates th^ whole of the land with everything it contains; and

(1) (1909) 9 C.L.R., 547.

33 C.L.R.]

OF AUSTRALIA.

that is what the Commonwealth gets when it acquires land describing

C. of A.

it only by metes and bounds. The

Lands Acquisition Act, by secs.

" ’

17, 26-28 and 32, provides for “ just terms,” within the meaning of

T h e Common

sec. 51 (x x x i .) of the Constitution, in respect of every valuable right,

w e a l t h

such as the rights to royal metals and other minerals, which the State

N ew South

loses when land is compulsorily acquired by the Commonwealth.

W a l es .

The words “ Crown land ” must be read as including everything which comes within the definition of “ land” ; with the result that Crown land would include the royal metals and other minerals in the land, and in respect of them the State is entitled to compensation under sec. 17. If the expression “ Crown land ” is to be construed as unaffected by the definition of “ land,” then sec. 26 is wide enough to entitle the State to compensation in respect of royal metals and other minerals; for the word “ owmer ” is apt to describe the State in that respect.

[Higgins J. referred to Attorney-General v. Trustees of the British

Museum (1).]

Leverrier K.C. and Bavin, for the defendants. The Registrar- General is not bound to register any of the titles in question here. The Commonwealth Parhament might, under sec. 51 (xxxi.) of the Constitution, have enacted that a transfer or conveyance should be given of land acquired by i t ; but has not done so. The notification provided for by the Lands Acquisition Act is the very reverse of a Crown grant, which is an essential for registration under the Real Property Act, and, therefore, the notification cannot be registered. Sec. 20 of the Lands Acquisition Act is invalid, for it purports to amend the Real Property Act. If the contention that the dominion over the land passes to the Commonwealth is correct, that is another ground for saying that the title is not registrable under the Real Property Act. The notification is neither a transfer nor a grant nor a conveyance; and is, therefore, not registrable. The power to alter the duties of the Registrar-General is not ancillary to the power to make laws for acquiring land. The word “ property ” in sec. 85 (i.) of the Constitution does not include a right such as a right to make roads in the future, or any of the other rights reserved by the

(1) (1903) 2 Ch. 598.

HIGH COURT

[1920-1923.

H. C. o f a. Crown in some of the grants in que.stion here; and the word “ pro ' ■ perty ” in sec. 51 (xxxi.) only includes those rights which are com

T h e

prehended in that word as legally used, and the Lands Acquisition

Common -

Aci only intends to deal with those rights.

The Lands Acquisi

WEALTH

X ew South

tion Act makes no provision for compensation in respect of any of

W a l es .the reservations made in the Crown grants. In the case of an acquisi tion by agreement from an individual of land granted to him subject to certain reservations, the Commonwealth would only get the fee simple and the reservations would remain. If the Commonwealth desired afterwards to acquire the rights which were reserved, sup posing that there were power under the Lands Acquisition Act to acquire them, there is no provision for compensation in respect of them, for the right in respect of which imder sec. 27 compensation can be given is something in respect of which there can be an estate in fee simple. The only matters in respect of which compensation is provided are corporeal or incorporeal hereditaments in land. In determining what is the meaning of “ Crown land ” in the Lands Acquisition Act the definition of “ land ” cannot be looked at, although the definition of “ Crown land ” may be looked at for the purpose of determining the meaning of “ land.” The Lands Acquisition Act 1912 has no effect upon the questions to be con sidered here. If it would have the effect of conferring upon the Commonwealth the rights reserved in the several Crown grants, it is invalid. The words “ legal estate ” in sec. 16 of the Lands Acquisition Act 1906 are not apt to express the interest which the Crown has in Crown lands, and sec. 57 constitutes the Commonwealth a corporation for the purpose of holding legal estates in land, showing that the Act is not intended to vest anything more than legal estates in the Commonwealth.

Latham K.C. (with him Herring), for the intervener. There is no provision enabling the Commonwealth to become registered in respect of either land passing under sec. 85 (i.) of the Constitution or land compulsorily acquired. As to laud passing under sec. 85 (i.), that section is in itself a vesting provision, and there is no descrip

tion of the land by metes and bounds.

^Moreover, although sec. 64

of the Lands Acquisition Act brings land vesting under sec. 85 (r.)

33 C.L.R.]

OF AUSTRALIA.

of the Constitution within the Act, sec. 20 is inapplicable because H . C. op A.

1920-1923.

there is no notification.

The contention that the intention of the

Lands Acquisition Act is only to enable the Commonwealth to get

T h e

COMMON-

estates in land is strongly borne out by sec. 6. The Commonwealth

WTEALTH

asks by this action for registration of itself as owner in fee simple

N ew South

free from reservations where there are any ; that is to say, it only

W a l es .

seeks to obtain something which under a State law a private person could obtain. The governing words in sec. 13 of the Lands Acquisi tion Act are “ may acquire any land,” and just as when the Com monwealth acquires land by agreement with the owner it acquires an estate in land, so when it acquires land compulsorily whether from the owner or from the State it acquires an estate in land. Otherwise those words would have different meanings in secs. 13 and 14. The whole object of the Act will be given effect to by inter preting it as enabling the Commonwealth to acquire only estates in land. The “ legal estate ” which the Commonwealth is given by sec. 16 must depend on the law of the States, and means an interest in land held by tenure from the Crown in right of a State. The pro visions for registration in the Real Proferty Act apply to the par ticular things directed by it to be registered ; and, in order to obtain the benefits provided by the Act, anyone desiring to get on the register must comply with the conditions subject to which only registration can be granted, and there is no provision under which such

a document as a notification of acquisition can be registered.

Sec. 85

of the Constitution deals only with rights in tangible things and not with tangible things themselves. For instance, if the Commonwealth used leased premises for a post office, it could not be contended that under sec. 85 the freehold of the premises passed to the Common wealth. Those rights must be rights under some system of law, and the only system of law under which they can exist is that of the particular State in which the land is. Sec. 85 transfers to the Commonwealth rights in the surface of the land, for that is all that is used for the departmental purposes. The word “ vest ” in that section should be construed according to the purposes of the Act. The royal metals are not part of the land in which they lie, and the title to the land is distinct from the title to the royal metals. The royal metals in the land cannot be said to be used for departmental

VOL.

X X X III .

HIGH COURT

[1920-1923.

H. C. OF A.purposes. If it can be said that the royal metals are used for sup

1920-1923.

port, the Commonwealth would be entitled to that support hut not

T h eto mine for those metals. That applies also to other minerals (see

C ommon

w ealth

Halshury's Laws of England, vol. xvi., pp. 56-58 ; Lumley on Public

V.Health,

7th ed., vol. i., p. 277).

[Counsel also referred to R. v.

N e w South

W a l es .Bamford (1); Attorney-General of Ontario v. Mercer (2).]

[Isaacs J. referred to Vigers v. Dean of St. PauVs (3).]

Cur. adv. mlt.

Aug. 9,1923.

The following written judgments were delivered :—

Knox C.J. and Starke J. The several parcels of land to which

the questions raised by this special case relate, fall into three classes,

namely, (a) lands which became vested in the Commonwealth by

virtue of sec. 85 of the Constitution—being the parcels described in

pars. 5 and 6 of the indorsement on the w rit; (b) lands acquired by

compulsory process under the Lands Acquisition Act which had not

at the date of acquisition been ahenated by the Crown—being the

parcels described in pars. 1 and 2 of the indorsement on the writ;

and (c) lands acquired by compulsory process under that Act which

had before the date of acquisition been alienated by the Crown—being

the parcels described in pars. 3, 4 (a) and 4 (b) of the indorsement on

the writ. I t will be convenient to refer to the parcels comprised in

class (b) as “ unalienated Crovm lands.” I t is stated in the special

case that all the said parcels of land contain royal metals or other

minerals, i.e., minerals other than gold or silver. The lands com

prised in class (c) passed from the Crown (1) by Crown grant dated

1st May 1849 containing the following reservations, namely, (i.) all

mines of gold, of silver, and of coals ; (ii.) power to resume any part

of the said land for public purposes ; (iii.) power to make and con

duct through the said land drains and sewers deemed expedient:

(iv.) a quit rent of £2 16s. 6d. for ever : and (2) bĵ Crown Grant dated

30th June 1823 containing the following reservations, namely, (i.)

timber for naval purposes ; (ii.) part or parts of the said land for

highway or highways.

(1) (1901) 1 S.R. (N.S.W.) (L.), 337.

(2) (18.13) 8 App. Cas., 767, at p. 771

(3) (18-t7-49) 14 Q.B.. 909.

33 C.L.R.]

OF AUSTRALIA.

H. C. O F A. 1920-1923.

The substantial question at issue is whether the parcels of laud in all or any of the classes above mentioned, including the royal metals

and minerals therein, are vested in the Commonwealth absolutely

T h e Common

freed and discharged from all reservations, rights, royalties, conditions

w e a l t h

and obligations of any kind whatsoever to the State of New South

N ew South

Wales.

W a l es .

As to the parcels of land comprised in class (a)—i.e., lands vesting in the Commonwealth under sec. 85 of the Constitution—we are of opinion that the effect of sec. 85 is to vest in the Commonwealth the whole title of the State of New South Wales to these lands, and w^hat- ever minerals or metals they may contain. That section provides that “ all property of the State, of any kind, used exclusively in con nection w ith” a transferred Department, “ shall become vested in the Commonwealth.” “ Property ” of course includes land. The section requires in the case of land that it shall be (i.) the property of the State and (ii.) at the relevant date used exclusively in connection with such a Department. The first question is whether the lands in class (a) are within the description “ property of the State.” The expres sion “ property of the State ” is popular rather than legal. It has always been recognized that the waste lands of Australia and royal metals wherever found in Australia are vested in the King {Attorney- General V. Brown (1) ; Woolley v. Attorney-General of Victoria (2) ); the management and control of Avaste lands and royal metals have, however, by various Imperial Acts been conferred upon the legis lative organs of the several States of Australia. In addition, the States have often acquired lands from private owmers for public purposes. All these lands (including royal metals) may not inaptly be described as the “ property of the State ” and consequently potentially within the operation of sec. 85. I t is said, however, that a rule of construction prevents the royal metals from passing under general Avords such as the land or property of the King or of a State (see Woolley v. Attorney-General of Victoria). But here we have not to deal Avith the construction of a Crown grant, the words of which must be taken most strongly against the grantee and most favourably for the King, but with a Constitution distributing property and powers betAveen different organs of the King’s Government.

Kuox C..J. Starke J.

(1) (1847) 2 N.S.W. S.C.R. (App.), 30.

(2) (1877) 2 App. Cas., 163.

HIGH COUKT

[1920-1923.

H. C. o f a . Moreover, the rule must give way to the expressed intention of the 1920-1923. })g construed; and here the Constitution is explicit—

T h e

“ all property of the State, of any kind, used exclusively in

Com m on

w e a l t h

connection with ” a transferred Department is to vest in the

Commonwealth.

If the property used includes royal metals, those

N e w South

W a l e s .metals must pass with the property. The statements in the books

Knox C.J. that the royal metals are not regarded as

-partes soli does not mean

Starke J.

that they are not physically part of the soil, but that for the purpose of title a Crown grant of the land will not as a rule pass the royal metals found in that land. But if the context be sufficiently clear, the royal metals will pass under a Croum grant of the land.

The question remains whether the royal metals in these lands were used exclusively in connection r\ith the Department. It is stated in the special case that the land comprised in these parcels respectively was at the time of the transfer to the Commonwealth of the Department of Naval and Military Defence and of the Department of Post, Telegraph and Telephones used exclusively in connection with the said Departments respectively. This statement, read literally, imports that every portion of the soil in each parcel from the surface to the centre of the earth was used in connection with the transferred Departments and for no other purpose. But it was com tended that the statement did not admit that the royal metals in the subjacent strata were used in connection with the Departments. It is true that the royal metals were not worked for the purpose of the Department but, on the other hand, the strata in which they are alleged to exist were not segregated from the rest of the land. There is no allegation that any of the subjacent strata was being used for any other purpose, and we think it follows that the land usque ad coelum et ad mferos was used exclusively in connection with the Departments.

The next question to be determined is as to the parcels of iinahen' ated Crown land (class (b) ).

We feel no doubt that under sec. 51

(x x x i .) of the Constitution the Commonwealth Parliament has power

to make laws providing for the acquisition of land belonging to any State with all the minerals or metals that may be contained in such land. The power is given to make laws with respect to “ the acquisition of property . . . from any State ” ; and property is

33 C.L.R.]

OF AUSTRALIA.

the most comprehensive term that can be used,

No limitation is R- C. of A.

placed by the Constitution on the property in respect of which

1920-1923.

Parhament may legislate.

How far the Parliament has exercised

T h e Common

this power depends on the true construction of the Lattds Acquisition

w e a l t h

Act 1906. By that Act “ land ” includes any estate or interest in

N e w South

land (legal or equitable), and any easement, right, power, or privilege W a l es .

over or in connection with land and also Crown land. “ Crowm

Knox C.J.

Starke J.

land ” means “ any land the property of a State, whether reserved or dedicated for any public purpose or not, but does not include any estate or interest granted by the State to any person.” “ Owner ” includes, with respect to Crown land, the State to which the land belongs. By sec. 13 power is conferred on the Commonwealth to acquire any land for public purposes by agreement with the owner or by compulsory process. Sec. 15 provides for the publication of a notification of acquisition ; and sec. 16 provides that upon such publi cation the land described shall by force of the Act be vested in the Commonwealth freed and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal estate therein together with all rights and powers incident thereto or conferred by this Act shall be vested in the Commonwealth. Sub-sec. 2 of sec. 16 provides that where the land described is Crown land of a State the notification shall also have the effect of cancelling any dedication or reservation to which the land was subject at the date of publication. Sec. 17 provides that upon publication of the notification the estate and interest of every person entitled to the land and the title of the State to any Crown land specified in the notification shall be taken to have been con verted into a claim for compensation. By sec. 27 (1) it is provided that where any Crown land is acquired by compulsory process the State shall be entitled to compensation, to be estimated as if the State were the proprietor of an estate in fee simple, but by sub-sec. 3 the State is not to be entitled to compensation in res]>ect to the loss of any rights of dominion, taxation or revenue. By sec. 62 (1) the Governor-General is empowered to authorize the grant of a lease or licence to any person to mine for any metals or minerals on any land the property of the Commonwealth.

HIGH COURT

[1920-1923,

H. C. O F A.

The Act thus empowers the Commonwealth to acquire by com

1920-1923.

pulsory process any land the property of a State. The sole que.stion

T h e

is what meaning is to be given to the phrase “ land the property of

COJVIMON-a State ” ? The Act contains no limitation on the meaning of the

WEAITH

phrase.

It does not distinguish between the title which the King

N e w South

W a l e s .has in the land as the Lord Paramount

(Co. Lit., 65a) and the title

Knox C.J. wliicli he has in royal metals by virtue of his prerogative. So far as

Starke J.

the States of Australia are concerned, constitutional power has been conferred upon the legislative organs of the States to make laws for regulating the sale and disposal of the waste lands of the Cro\vn and all mines and minerals therein. And lands which fall within this power are rightly described, in our opinion, as land the property of a State. If so. “ land the property of a State ” covers the whole soil from the surface to the centre and everything which is physically incorporated in it including the royal metals. I t was said that the royal metals were not partes soli and therefore were not subject to a power to acquire “ land” ; and the words of Lord Watson in Attorney-General oj British Columbia v. Attorney-General of Canada (1) were rehed on. So far as the argument rests on the proposition that the royal metals are not partes soli, it has been already considered. And so far as it rests upon the authority of that case, the question there arose on the construction of statutes and grants verv different from the statutes we have to construe. According to Lord Watson, the claim in ques tion in that case did not profess to deal with jura regia ; it merely embodied the term of a commercial transaction by which the one Government undertook to make a railway and the other to give a subsidy by assigning part of its territorial revenues. The onlv conveyance contemplated was a transfer to the Dominion of Canada of the Provincial right to manage and settle the lands and to appro priate their revenues (2). For these reasons we are of opinion that the royal metals contained in unalienated Crown lairds passed to the Commonwealth upon the acquisition of such lands by compulsory process under the Lands Acquisition Act.

Lands alienated by the Crown remain to be considered. The con tention on the part of the State was that the taking of such lands

(1) (1888-89) 14 App. Cas., at p. (2) (1888-89) 14 App. Cas., at pp.

302.300-302.

33 C.L.R.]

OF AUSTRALIA.

under the Act did not operate to vest in the Commonwealth the

H. C. O F A.

paramount or prerogative rights of the King in the land or affect the

1920-1923.

reservations in the respective Crown grants.

The power given by

T h e Common

sec. 13 is to acquire “ land,” and prima facie that means to acquire

w e a l t h

the soil from the surface to the centre. The notification in each case

N e w South

purports to take certain land described therein by metes and bounds, W a l es .

and upon publication thereof sec. 16 vests such land in the Common

Knox C.J. Starke .T.

wealth. There is nothing in the Act which suggests that the Com monwealth may not acquire by one notification a parcel of land part of which belongs to a subject and part to the Crown. We see no reason to doubt that the Parliament might pass laws enabling the Commonwealth to acquire land divided either vertically or hori zontally ; and the Lands Acquisition Act, by its definition of the wmrd “ land,” enables the Commonwealth to acquire interests in, or rights, j:)Owers or privileges over, land as well as land in its ordinary meaning, namely, “ that in respect of which you have a right from the centre of the earth to the heaven above ” (see In re Metropolitan District Railway Co. and Cosh (1) ). The determination of the question rests, we think, upon the interpretation to be given to the word “ land ” in secs. 13 and 15. These sections may empower the Governor-General to acquire the estates or interests or rights of persons or of States in or over land, or to take some defined portion of the terrestrial globe. In our opinion they do both. The Governor- General may direct that some estate or interest in or right over land be acquired or that a definite portion of the terrestrial globe be acquired, in which case the rights of every owner, whether the State or a subject, are converted into claims for compensation.

The effect of the Act is that if a notification under sec. 15 contains a description of a piece of land, without more, then that piece of land usque ad coelum et ad inferos and all its constituent parts and all interests in and rights over it, whether in the ownership of the Crown or a subject, vest in the Commonwealth. In the present case each notification covers simply a piece of land described by metes and bounds. This is a description of a defined portion of the terrestrial globe. The effect of the notification, therefore, is that the land described and all its constituent parts, including metals and minerals,

(1) (1879-80) 13 Ch. D., 607, at p. 612.

HIGH COURT

[1920-1923.

H. C. of a . and all estates and interests in and rights over that land vest in the

1920-1923. Cojjijjionwealth by force of the Act.

T h e

Questions 2 and 3 of the special case involve the consideration of

Common

w ealth

the duty of the Registrar-General in respect of (a) registration of

N ew South V.notification of acquisition, and (b) issue of certificates of title to W a l es .the Commonwealth, and incidentally of the power of the Common

Knox C.J. wealth Parliament to enact sec. 20 of the Lmids Acquisition Act.

Starke J.

That section runs as follows : “ If a copy of the notification in the Gazette, certified under the hand of the Attorney-General, is lodged with the Registrar-General or Registrar of Titles or other proper officer of the State or part of the Commonwealth in which the land is situated, he shall register it in the register and in the manner as nearly as may be in which dealings with land are registered, and shall deal with and give effect to the notification as if it were a grant or conveyance or memorandum or instrument of transfer of the land to the Commonwealth duly executed under the laws in force in that State or part of the Commonwealth.” The registration of land and of dealings therewith under what is commonly IcnovTi as the Torrens System is regulated in New South Wales by the Real Property Act

1900. In relation to the operation of that Act the several parcels of land described in the writ considered as at the dates of the respective notifications fall into three classes, namely, (i.) land which had not been alienated in fee by the Crown—being the land described in pars. ], 2, 5 and 6 of the indorsement to the w rit; (ii.) land which had been alienated in fee by the Crown and had been brought under the pro visions of the Real Property Act—being the land described in par. 3 of the indorsement to the w rit; (iii.) land which had been ahenated by the Crown before 1863, but had not been brought under the pro visions of the Real Property Act—being the land described in pars. 4 (a) and 4 (6) of the indorsement to the writ.

As to class (i.) the Real Property Act 1900 provides, by sec. 13, as follows :—“ (1) All waste lands and all lands set apart for public purposes remaining unalienated from the Crown at the passing of this Act shall, when alienated in fee, be subject to the provisions of this Act. (2) The grants of such land shall be in duplicate, and every such grant, in addition to proper words of description, shall contain a diagram of the land thereby granted on such scale as the

33 C.L.R.]

OF AUSTRALIA.

Governor directs, and shall be delivered to the Registrar-General,

H. C. O F A.

who shall register the same in manner hereinafter directed.” It

1920-1923.

will be observed that it is only when land in this class is “ alienated

Th e Common

in fee ” by the Crown that it becomes subject to the provisions of

w ealth

the Act, and the terms of sub-sec. 2 show that the Crown grant, i.e.,

N ew South

a grant in fee from the Crown, is to be the root of the title under the W a l es .

Act. Unless there has been an alienation by Crown grant of an

Knox C.J. Starke J.

estate in fee simple, the Registrar-General is not authorized by the Real Propertif Act to take any step in the direction of registration or bringing the land under the Act, or issuing a certificate of title thereto. In the present case there has in respect of the class of land under consideration been (a) no alienation by Crown grant, (b) no creation by the Crown of an estate in fee simple. The method of registration of Crown grants which fall within the scope of sec. 13 is prescribed by sec. 32 of the Act, which provides (i.) that the Registrar-General shall keep a book to be called the register-book and shall bind up therein the duplicates of all grants and certificates of title, and (ii.) that each grant and certificate of title shall constitute a separate folium of such book and the Registrar-General shall record thereon particulars of all instruments, dealings and other matters required by the Act to be registered or entered on the register-book affecting the land included in each such grant or certificate of title distinct and apart. Until a Crown grant or certificate of title of land described therein has been delivered to the Registrar-General to be bound up in the register-book and marked by him in accordance with sec. 35, there is nothing which the Act authorizes the Registrar-General to enter in the register-book and against Avhich he can record any instrument, dealing, or matter affecting such land (see Richards v. Caiman (1) ). By sec. 39 read with sec. 35 it is provided that the Registrar-General shall not register any instru ment purporting to transfer or otherwise to deal with or affect any estate or interest in land under the provisions of the Act except by entering the same in the register-book upon the folium constituted by the existing grant or certificate of title of such land. It is clear therefore that as to the parcels of land comprised in class (i.) the Registrar-General has under the State Act no power or authority to

(1) (1891)17V.L.R.,203; 12A.L.T., 194.

HIGH COURT

[1920-1923.

H. C. OF A.

make any entry in the register-book or to issue any certificate of

1920-1923.

title.

With regard to the parcel of land comprised in class (ii.) the con clusion is the same.

T h e

Common

By sec. 39 of the Real Property Act the Regis

w e a l t h N e w South trar-General is expressly forbidden to register any instrument pur

W ades.porting to transfer or otherwise to deal with or affect any estate or

Knox C.J. interest in land under the provisions of the Act, unless such instru

Starke J.

ment be in accordance with the provisions thereof. By sec. 46 transfer of land under the Act is to be in the form of the 5th, 6th or 7th Schedule, and to contain certain particulars specified in the section. I t is clear—it was indeed not disputed—that the notifica tion of acquisition of this land is not an instrument in accordance with the provisions of this Act, and until registration of some deahng no fresh certificate of title can be issued.

The parcels of land comprised in class (iii.) were aUenated in fee by the Crown before 1863 and had never been brought under the provisions of the Act. There is no entry in the register-book in respect of this land; and no such entry can lawfully be made by the Registrar-General under the State Act unless the land be brought under the provisions of the Act in the manner prescribed by sec. 14 and following sections. I t follows that as to this land also the Registrar-General is not authorized by the State Act to make any entry in the register or to issue a certificate of title. The question remains whether the Registrar-General is authorized or bound by the provisions of sec. 20 of the Lands Acquisition Act to register notifications or to issue certificates of title in respect of these parcels of land or any of them.

We have already pointed out that under the Real Property Act the right to registration of any title or deahng is dependent on the per formance of conditions prescribed by the Act, and that the Common wealth has not complied with the statutory conditions in respect of the lands of w'hich it claims to be registered as proprietor. But it is argued that the Commonwealth is entitled by force of sec. 20 of the Lands Acquisition Act to insist upon registration of its title without complying with the conditions imposed by the statute. Assuming sec. 20 to be witliin the power of the Commonwealth Parhament, we think this would be so as to all the parcels except two. That section

33 C.L.R.]

OF AUSTRALIA.

provides that, if a copy of a notification in the Gazette be lodged

H . C. OF A ,

1920-1923.

with the Registrar-General, he shall register in the register and shall '—.—'

deal with and give effect to it as if it were a grant or conveyance or

T h e

Common

memorandum or instrument of transfer of the land duly executed

w e a l t h

under the laws in force in the State. In the present case a copy of

N e w South

the notification of acquisition of each parcel of land described in the W a l es .

writ, except those which passed under sec. 85 of the Constitution,

Knox C J. Starke J.

has been lodged with the Registrar-General; and it follows that the section purports to impose upon him the obligation to make such entries in the register as he would have made if the land had been granted by the Crown or conveyed or transferred to the Common wealth. In respect of all the parcels except those described in pars. 4 (a) and 4 (6) of the writ, the section plainly requires the Registrar- General to enter the name of the Commonwealth in the register as grantee or transferee of the respective parcels ; and it therefore becomes necessary to consider whether this provision is within the power of the Commonwealth Parliament.

The power conferred by sec. 51 (xxxi.) and (xxxix.) of the Con stitution is to make laws with respect to the acquisition by the Com monwealth of property, including land, and with respect to matters incidental thereto; and the question is whether a provision entitling the Commonwealth to insist on the registration under the Real Property Act of its title to land acquired under the Lands Acquisition Act, without complying with the conditions imposed by State law on such registration, is incidental to the complete exercise of the power of acquisition. Effective acquisition of (inter alia) land by the Com monwealth is the object to be attained, and the power is completely exercised by enabhng the Commonwealth to vest absolutely in itself the land which it desires to acquire. The object is attained by the method provided by sec. 16 of the Act, namely, that upon the pub lication of a notification of acquisition the land described therein shall “ by force of this Act be vested in the Commonwealth.” This section, the validity of which is not, and cannot be, disputed, confers on the Commonwealth a statutory title to the land rec^uired which must, by force of sec. 109 of the Constitution and of sec. V. of the covering Act, be paramount to any title dependent on a law of the State. The Commonwealth acquires the land and a statutory title to

HIGH COURT

[1920-1923.

H. C. OF A. it under a law of the Commonwealth independently of any State law.

1920-1923. follow that the Commonwealth Parliament is entitled

T h e

to insist upon the State registration of its title to the land acquired

Common

w e a l t h

unless upon compliance by the Commonwealth w th the conditions

N e w South imposed by State law. The provisions of the Real Propertu Act

W a l e s .1900 which stand in the way of the Commonwealth in this case in no

Knox C.J. way prevent or interfere with the acquisition by the Commonwealth

Starke J.

of any land in New South Wales : they do no more than prescribe the conditions on which the State will permit the registration of title to land; and in our opinion the Commonwealth, if it desires to obtain registration of its title under the Real Property Act, must comply with the conditions imposed by that Act. As our brothers Isaar-s and Rich said, in Commonwealth v. New South Wales (1), “ if it ” (i.e., the Commonwealth) “ seeks to obtain the registration provided by the statute, it must take it on the terms of the Act which it invokes.” No substantial reason was suggested in argument, and we can find none, for holding that the exemption of the Commonwealth from compliance with these conditions is a necessary step in the acquisition of land. The title of the Commonwealth to the land in question exists indejDendently of registration under the Act, and is not and cannot be affected by the refusal of the Registrar-General to register. Our brother Gavan Daffy desires us to say that he agrees with the conclusion at which we have arrived on questions 2 and 3. In the circumstances of the case, and more especially as it is not stated in the special case that any royal metals are contained in the lands in question, he does not tliink it necessary or desirable to answer any other question.

Isaacs J. This is a special case stated bv the parties for the opinion of the Court. The material facts are that the Common wealth has acquired various parcels of lands in New South Wales. Some of those lands were unalienated Crown lands, acquired solely by virtue of sec. 85 of the Constitution operating directly as a self executing provision. The other portions of land were acquired bv compulsory process under the provisions of sec. 15 of the Lands Acquisition Act 1906. Of these last mentioned lands two portions

(1) (1918) 25 C.L.R., 325, at p. .340.

33 C.L.R,] OF AUSTRALIA.

29̂

were unalienated Crown lands, and two had been alienated in fee

H. C. OF A.

simple in 1823 and 1849 respectively before any Crown Lands Act

1920-1923.

was passed (1861) ; and in the grants reservations had been made,

Th e

Common

in the one case, of gold, silver, coal and powers of resumption, and,

w e a l t h

in the other, of timber and power to make highways. As to both N ew

So u th .

groups of land three questions are asked. The first question is W a l e s .

whether the lands have vested in the Commonwealth for an absolute

Isaacs J.

and unconditional estate in fee simple freed and discharged from all reservations, rights, royalties, conditions and obligations of any kind whatsoever to the State of New South Wales. The second question has reference to the lands acquired by the second method of acquisi tion. and, in effect, inquires whether the notification of acquisition by the Governor-Gleneral has the same effect in law as if the State had granted the land to the Commonwealth freed and discharged from all reservations, rights, royalties, conditions and obligations. The third question has reference to both classes of land, and asks whether the Registrar-General of New South Wales is bound to issue to the Commonwealth a clean certificate of title, without noting any reservations or exceptions to the State of New South Wales, as if there had been a grant under the law of New South Wales.

As to the first class of lands, sec. 85 of the Constitution says :: “ (1) All property of the State, of any kind, used exclusively in con nection with the Department, shall become vested in the Common wealth.” These lands were, as the case states, used exclusively in connection with two Departments respectively, namely. Defence and the Post Office. They were acquired in 1901, upon the transfer of the Defence and Post Office Departments from the State to the Commonwealth. It follows from the terms of the Constitution quoted, which as to those Departments are unqualified as to interest, that “ the lands ” passed in fee simple. The word “ property ” in sec. 85 is large enough to include, and does as there used, include, not only real but also personal property “ of any kind.” The reserva tions, &c., which the State claims still to possess are unquestionably “ property.” The only ground on which the argument for the State is maintained is that some special words indicating a transfer of prerogative rights of the Crown to royal metals are always necessary to ])ass the title to those metals to the Commonwealth. This is a

HIGH COURT

[1920-1923.

H. C. OF A. proposition wMcJi applies to both branches of this case; and, there-

1920-1923.

££g consideration for the moment.

T h e

The second class of lands consists of various allotments acquired,

Common

w e a l t h

not by operation of sec. 85 of the Constitution, but imder the

N ew South

power contained in sec. 51 (xxxi.) as exercised by the Lands

W a l es .Acquisition Act 1906. They were acquired in various years, namely,

Isaacs J.1910 and 1912, the last relevant date being 4th April 1912. By

Act No. 39 of 1912, passed on 24th December 1912, it is provided as follows :—Sec. 2. “ Any notification by the Governor-General made before the commencement of this Act, and purporting to be in pursuance of the Lands Acquisition Act 1906, and pubhshed ia the Gazette, and declaring that any land therein mentioned has been acquired by the Commonwealth for Commonwealth purposes, shall be deemed to be sufficient for the purposes of that Act, and the lands specified therein shall be deemed to have been vested in the Commonwealth in accordance with section sixteen of that Act as from the date of the publication of the notification in the Gazette.” We thus reach this standing ground: that the lands comprised in the second branch of this case—whatever they include—must be deemed to have been vested in the Common wealth in 1912 in accordance with sec. 16 of the Lands Acquisition Act 1906. The language of that is plain and decisive, and its legal effect unmistakable. The occasion which led to its enactment is

immaterial {McCawley v. The King (1) ).

Sec. 16 of the Act of 1906

is as follows ;—“ (1) Upon the publication of the notification in the Gazette, the land described therein shall, by force of this Act, (a) be vested in the Commonwealth ; and (b) be freed and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal estate therein, together with all rights and powers incident thereto or conferred by this Act, shall be vested in the Conuuonwealth. (2) Where the land described in the notification is Crown land of a State, or is by \drtue of any law of a State vested in any person on behalf of the Crown or for any public purpose, the notification shall also have the effect of cancelling any dedication or reservation to which the land was sub ject at the date of the publication of the notification.”

(1) (1920) A.C., 691, at p. 709; 28 C.L.R., 106, at p. 120.

33 C.L.R.]

OF AUSTRALIA.

H. C. OP A.

It is contended for the State, as in the case of the first branch, that the word “ property ” in sec. 51 (xxxi.) is not sufficient in itself

1920-1923.

to enable Parhament to authorize the transfer of the prerogative rights

T h e

Common

of the State in the royal metals ; and that, even supposing it were suffi

w e a l t h

ciently large for that purpose, Parliament has limited itself to the word

N e w South

“ land,” which either by itself or as defined in the Act is not sufficient W a l es .

in law to include gold and silver. The Commonwealth maintains

Isaacs J.

that both classes of lands acquired under the statutory provisions respectively applying to them, include whatever royal metals may exist in them. The contention of the Commonwealth is correct. The determination as to both branches of this case rests primarily on considerations that apply to one as much as to the other, and, once those considerations are stated, the result follows in each case with equal certainty. The word “ property ” is undoubtedly capable of including the prerogative right referred to ; and the first question is whether there exists some rule of law, as suggested by the defendants, that notwithstanding the generality of the term, the prerogative is not affected wdthout express words. The word “ land ” is, as has been said, nomen generalissimum, and it has been defined by sec. 5 of the Lands Acquisition Act as including “ any estate or interest ” in land—legal or equitable—and any easement, right, fower or 'privilege over, in, or in connection 'with land, and also as including “ Crown land.” One point of distinction between the two branches of this case should be here adverted to. The property that passed to the Commonwealth under sec. 85 of the Constitution was property that was “ used ” in connection with the Department while in the hands of the State. Under the Act prior use is immaterial. It was argued on behalf of the State that only the surface was “ used,” or at all events only so much of the land below the surface as at the time of transfer was necessary in the circumstances then existing. The practical futility of such a limitation, both with regard to the future use to which the land might be jnit and with regard to ascer taining the extent of right that passed, drove the defendants to the further contention that, at all events, the Court could indicate the extreme limits of depth which the Commonwealth could possibly require at any time under any conceivable circumstances, and so exclude the precious metals. This is plainly unsustainable. In

HIGH COURT

[1920-1923.

H. C. or A. the first place, the Court i.s not the constitutional organ to determine 1920-1923. m atters; next, it has no materials for performing such a function ;

and, lastly, it is impossible for any one either to say what depth is

T h e Common -

WEALTHor will be sufficient for Commonwealth purposes, or, if that were

V.possible, to say that the precious metals would thereby be excluded,

N e w South

W a l e s .for they are found at all depths, in all situations, and at times per Isaacs J.meate the soil. That single point of difference between the Con

stitution and the Act being disposed of, there is now to be considered the principle upon which the first and second questions should be answered.

Reliance was placed by the defendants on three cases decided by the Privy Council, namely, Woolley v. Attorney-General of Victoria (1), Attorney-General of British Columbia v. Attorney-General of Canada (2) and EsquimaU and Nanaimo Railway Co. v. Bainbridqe (3). In all of those cases it was held that the general words used did not pass from the Crown o^vning the land to the transferee, to use a general term, the rights possessed by the transferor in the gold and silver contained in the land. No decision given upon the words of another instrument can in itself constitute an authority which will govern this case. Everything depends upon the principle upon which the cases referred to were decided, because whatever that principle was we are bound by it. Perhaps the most convenient course will be to refer at once to the case of Attorney-General of British Columbia v. Attorney-General of Canada. The passage most strongly rehed on by the defendant is found at pp. 302-303, where Lord Watson says ;—•“ According to the law of England, gold and silver mines, until they have been aptly severed from the title of the Crown, and vested in a subject, are not regarded as yartes soli, or as incidents of the laud in which they are found. Not only so, but the right of the Crown to land, and the baser metals which it contains, stands upon a different title from that to which its right to the precious metals must be ascribed. In the Mines Case (4) all the Justices and Barons agreed that, in the case of the baser metals, no prerogative is given to the Crown ; whereas ‘ all mines of gold and silver within the realm, whether they be in the lands of the Queen,

(1) (1877) 2 App. Cas., 163.

(4) (1568) 1 Plowd., 310, at pp. 336,

(2) (1888-89) 14 App. Cas., 295.oooa.

(3) (1896) A.C., 561.

33 C.L.R.I

OF ACSTRALIA.

or of subjects, belong to the Queen by prerogative, with liberty to H. C. oe A.

dig and carry away the ores thereof, and with other such incidents

thereto as are necessary to be used for the getting of the ore.’

T h e Common

British Columbia the right to public lands, and the right to precious

w e a l t h

metals in all Provincial lands, whether public or private, still rest upon

N ew South

titles as distinct as if the Crown had never parted with its beneficial W a l es .

interests ; and the Crown assigned these beneficial interests to the

Isaacs J.

Government of the Province, in order that they might be appro priated to the same State purposes to which they would have been applicable if they had remained in the possession of the Crown. Although the Provincial Government has now the disposal of all revenues derived from prerogative rights connected with land or minerals in British Columbia, these revenues differ in legal quality from the ordinary territorial revenue of the Crown. I t therefore appears to their Lordships that a conveyance by the Province of ‘ public lands,’ which is, in substance, an assignment of its right to appropriate the territorial revenues arising from such lands, does not imply any transfer of its interest in revenues arising from the prerogative rights of the Crown.” That case depended upon the meaning to be given to the words “ public lands,” in sec. 2 of a British Columbia Act. The defendants have read the words quoted as laying down (1) that gold and silver are no part of the soil or incidents to the land in which they are found ; (2) that for these reasons and because the Crown’s title to them rests on prerogative as distinct from ordinary territorial rights, special words are always necessary to transfer them. The passage and its relation to the rest of the judgment and to the general law have been altogether misunderstood.

As a natural fact, gold and silver, neither more nor less than copper or tin or platinum or clay or oil, are part of the concrete physical mass, commencing at the surface of the earth and extending down wards to the centre of the earth, which is called “ land.” In Thom son V. St. Catherine’s College, Cambridge (1), Lord Finlay said: “ The word ‘ soil ’ is apt to denote the surface and everything above and below it.” Naturally, nothing else is land ; for instance, a chattel is not land, but it may, in fact, be so dealt with as to become

(1) (J919) A.C., 468, at p. 480.

VOL. X X X I I I .

HIGH COURT

[1920-1923.

H. C. O F A.in law part of the land. “ Fixtures ” become, as Williams J. 1920-1923.expresses it in Lancaster v. Eve (1), “ incorporated with the soil.”

T h e

A wall is taken to be, as Fry J. says in Moody v. Stegyles (2), “ part

C O M M O N -

\V B A I.T H

of the soil.” In Bain v. Brand (3) Lord Cairns L.C. said:

N e w South

“ Whatever is fixed to the freehold of land becomes part of the free

W a l e s .hold or inheritance.” He refers (4) to the judgment of Lord

Gifford, who spoke of fixtures as “ partes soliF

Lord Chehnsford (5),

Isaacs J.

speaking of the word “ fixture,” says ; “ Whatever is so annexed becomes part of the realty.” Those cases must be read with Leigh V. Taylor (6), which lays down the principle that in determining whether chattels have by annexation become in law part of the reality—in other words, have come to be “ regarded as partes soli,” to use Lord Watson’s expression in Attorney-General of British Columbia V. Attorney-General of Canada (7)—no rule can be laid down which will in itself solve the question, but the circumstances of the particular case must be looked at. The issue is thus tersely stated by Lord Wrenbury (then Buckley J.) in In re Hulse; Beattie v. Hulse (8) : “ The question is, not what is the nature of the attach ment of the chattel to the soil, but what, having regard to all the facts of the case, must have been the intention.” We thus arrive at the position that a mere chattel may be so dealt with as to become in law pars soli, provided such is the intention. On the other hand, trees growing on land are, according to the received legal definition of “ land,” regarded as part of it. But if reserved in the grant of the land, “ the trees in property are divided from the land, though in fact they remain annexed to it ” {Herlakenden’s Case (9) ), quoted by Lord Atkinson for the Privy Council in Eastern Construction Co. v. Natioml Trust Co. (10). I t is precisely this principle that is embodied in the case of Attorney-General of British Columbia v. Attorney-General of Canada, although the difference of subject matter and the relevant rules of law require converse application, and a different result. The words that have been quoted from that case, it wall be observed, only say that gold and silver mines are not regarded as partes soli or

(1) (1859)5C.B. (N.S.),717,atp. 728.(6) (1902) A.C., 157.

(2) (1879) 12 Ch. D., 261, at p. 267.(7) (1888-89) 14 App. Cas., at p. 302.

(3) (1876) 1 App. Cas., 762, at p. 767.(8) (1905) 1 Ch., 406, at p.411.

(4) (1876) 1 App. Cas., at p. 769.(9) (1589) 4 Rep., 62a.

(5) (1876) 1 App. Cas., at p. 772.

(10) (1914) A.C., 197, at p. 208.

33 C.L.R.]

OF AUSTRALIA.

These Canadian cases show further that the rule as to prerogative H. C. o f A.

rights applies even where the grant or transfer of title is made

from one agency of the Crown to another — from the Provincial

T h e

Common

Government to the Canadian Government. I t applies to a statutory

w e a l t h

transfer from the Crown in right of the Province (or State) to the

N e w South

Crown in right of the Dominion of Canada (or Commonwealth of W a l es .

Australia). In a subsequent case before the Judicial Committee

Higgins J.

under the same statute, but relating to fisheries, the expressions of Lord Watson quoted above were restated and affirmed {Attorney- General for British Columbia v. Attorney-General for Canada (1) ).

The Esquimalt Case (2), moreover, throws light on another very important aspect of the position—the relation of the statutory grant to the mining laws of the province. It was held that the Mining Acts of British Columbia, enabling the Government to grant “ placers’ ” rights (equivalent to Australian “ miners’ ” rights) to men to mine for gold were still operative to confer on the holders of the placers’ rights the right to mine for gold under the land granted to the Dominion. It would be extremely awkward if the New South Wales laws as to gold mining were to be arrested abruptly at the boundary of land sold to or acquired by the Commonwealth. After all, the land acquired still remains part of New South Wales, politically, and subject to New South Wales laws ; though not to New South Wales taxation of property (sec. 114 of the Constitu tion). The numerous lands acquired from New South Wales by the Commonwealth as property do not constitute a series of Common wealth enclaves, in which New Soutli Wales writs cannot operate or New South Wales police perform their functions. It is only the property in the lands (at most) that passes to the Commonwealth ; the pieces of land acquired are not Alsatias for Jack Sheppards.

It is true that even this point has been contested.

Under sec. 122

of the Constitution the Parliament may make laws for the govern ment of any territory surrendered by any State and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent

(1) (1914) A.C., 163, a t p. 165.

(2) (1896) A.C., 561.

60 HIGH COURT

[1920-1923.

H. C. OF A. and on the terms which it thinks f i t ; and under sec. 52 of the Con- 1920-1923.stitution the Parliament shall, subject to this Constitution, have

exclusive power to make laws for the peace, order and good govern

T h e Common

w e a l t h

ment of the Commonwealth with respect to (1) the seat of govern

N ew South

ment of the Commonwealth and all places acquired by the Common

W a l es .wealth for public purposes. In my opinion, the words “ places ”

Higgins J.acquired by the Commonwealth in sec. 52 do not apply to lands

acquired as property under the Lands Acquisition A c t; they refer to “ places ” acquired in the sense of sec. 122, any territories acquired in a political sense. Sec. 122 actually refers to the parliamentary representation of the place acquired. The section of the Comstitu- tion relating to the seat of government confirms this opinion (sec. 125) ; for in that section not only is the territory to be granted to or acquired by the Commonwealth, but the property in the soil is to be vested also. My point is that the Lands Acquisition Act does not deal with the property in royal mines although it deals with the property in land. I do not say that under the Constitution the pro perty in royal mines could not be affected by an appropriate Act under sec. 51 (xxxi.) of the Constitution. Perhaps it may ; for in that section the word used is “ property ”—“ the acquisition of property ” ; but the question does not arise. The present Act has very wide definitions of the words “ land,” “ Crown land,” “ owner ” : but there is nothing in the definitions, or throughout the Act, expressly or necessarily referring to royal mines or to anything but land. It is true that under sec. 16 (1) the land acquired by notification vests in the Commonwealth “ freed and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal e.state therein, together with all rights and powers incident thereto or conferred by this Act, shall be vested in the Commonwealth ” ; but full effect can be given to these words by treating them as confined to land, as not including royal mines which are not part of the land or incident thereto. The distinct pre rogative right to the royal mines is not touched. It is true that under sec. 16 (2) the notification in the Gazette has the effect of cancelling any “ dedication or reservation ” to which the Crown land was sub ject at the date of the notification ; but this is not a case of “ dedica tion or re.servation.” These are technical terms. According to

33 C.L.R.]

OF AUSTRALIA.

Davidson {Conveyancing, 4th ed., vol. i., p. 96), “ an exception H- C. o f a.

must be part of the thing granted, and of a thing in esse at the time

of the g rant; but a reservation must be of some new thing issuing

T h e

Common

out of the thing granted. Thus, an exception may be of a house, or

w e a l t h

close of land comprised in the property granted, or of trees generally,

N e w South

or specified trees ; while a reservation is of a rent or a right-of-way.”

W a l e s .

Sec. 17 provides that “ upon the publication of the notification in

Higgins J.

the Gazette, the estate and interest of every person entitled to the land specified in the notification, and the title of the State to any Crown land specified in the notification, shall be taken to have been con verted into a claim for compensation ” ; but the title to the royal mines is not an estate or interest in land, is not included in the title to Crown land. I t is true that sec. 62 of the Act enables the Governor- General to “ authorize ” the grant of a lease or licence to mine for any metals or minerals on any land the property of the Commonwealth. This power is not confined to lands acquired under the A ct; but, assuming it to be valid, it does not necessarily apply, and therefore does not apply at all, to royal mines. There are no express words, there is no necessary implication, that royal mines are to pass to the Commonwealth by the Gazette notification. Further, the provision for compensation for the land taken appears to me to be wholly inconsistent with the view that royal mines pass to the Common wealth as part of the land ; for the compensation is to be “ estimated as if the State were the profrietor of an estate in fee simple in the land, subject to any estate or interest which any person had in the land at the time of its acquisition by the Commonwealth ” (sec. 27 (2) ). Now, the proprietor of a mere estate in fee simple in the land would not be entitled to any royal mines in the land, and would not be entitled to compensation therefor. I t is the fair inference that the Commonwealth takes and pays for what the proprietor in fee simple could give, and no more. It would be the extraordinary result of the argument for the Commonwealth that if there were under the land acquired a gold mine as rich as Mount Morgan, to the parties' knowledge, and if the Commonwealth acquired it under the Act. the Commonwealth would have only to pay compensation for the value of the land as land held in fee simple, and be entitled to all

the gold without paying anything for it.

The provision in sec. 27

HIGH COURT

[1920-1923.

H. C. OF A.(3), that “ the State shall not be entitled to compensation in re.spect of

1920-192.3.the loss of any rights of dominion, taxation, or revenue,” does not

mean that the political rights over the land taken pass to the Com

T h e Common

w ea lth

monwealth ; it refers mainly, I think, to the provision of sec. 114

;Ne w South

of the Constitution, forbidding the State to tax property of the Com

W a l e s .monwealth. Under the Act the State is not to be paid compensa

;HiggiDs J.tion for its loss of taxation, revenue, &c.

The argument on both sides assumes—probably rightly—that the unalienated land in a State is “ land the property of a State ” within the meaning of the definition of “ Crown land ” in the Act (sec. 5). Indeed, unless Crown land over w^hich the Xew South Wales Parlia ment has power to sell and to appropriate the proceeds is to be treated as “ property of the State,” there is no other land to which the words “ property of the State ” can refer. But the exact legal position of the State of New South Wales, as well as of the Prownce of British Columbia, seems to be not that of owner but rather that of administrator (with power to appropriate the proceeds). For, under the New South Wales Constitution Act (18 & 19 Viet. c. -54, sec. 2), the State Legislature got “ the entire management and con trol of the waste land belonging to the Crown in the said Colony and also the appropriation of the gross proceeds of the sales of any such lands and of all other proceeds and revenues of the same from whatever source arising within the said Colony including aU royalties mines and minerals.” Having regard to the word “ royalties,” I do not say that the New South Wales Legislature had not power to sell or lease any subjacent royal mines ; but, whatever it sells or leases, it apparently acts as donee of a powder. The expressions used by Lord Watsoyi in the British Columbia Case (1) seem to be substantially applicable to New South Wales—that “ the title to the pubhc lands

. . . has all along been, and still is, vested in the Crown ; but the right to administer and to dispose of these lands to settlers, together with all royal and territorial revenues arising therefrom, had been transferred to the Province, before its admission into the federal union.” The word “ convey ” wus applied in the agreement and in the Act to the lands the subject thereof ; but, “ leaving the precious

(1) (1888-89) 14 -'tpp. Cas., a t p. 301.

33 C.L.R.]

OF AUSTRALIA.

metals out of view for the present, it seems clear that the only ‘ con

H. C. OF A.

veyance’ contemplated was a transfer to the Dominion of the

1920-1923.

Provincial right to manage and settle the lands, and to appropriate

T h e Common

their revenues. I t was neither intended that the lands should be

w e a l t h

taken out of the Province, nor that the Dominion Government

N e w South

should occupy the position of a freeholder within the Province ” (1). W a l e s .

But the draftsman of the Lands Acquisition Act seems not to have

Higgins J.

recognized any distinction between the vesting of State land in the Commonwealth and the vesting of private land in the Commonwealth (see sec. 16). This aspect of the subject, however, has not been argued.

For these reasons I am of opinion that the Commonwealth has not acquired the royal metals in the lands at Stockton or at Kenil worth (pars. 2 to 5) ; but that it has acquired any other minerals— the ordinary minerals—under these lands—whatever “ acquired ” means.

Question 1 (c) (pars. 6 to 11).—The Richmond land was alienated in fee simple from the Crown on 1st May 1849, and was compulsorily acquired by the Commonwealth from one Way, who was then regis tered as the proprietor of an estate in fee simple subject to the “ reservations ” [sic) of “ all mines of gold of silver and of coals,” of “ power to resume any part of the said land for public purposes,” of “ power to make and conduct through the said land drains and sewers deemed expedient,” of “ a quit rent of £2 16s. 6d. per annum for ever.”

The Pennant Hills land was alienated in fee simple from the Crown on 30th June 1823, and was compulsorily acquired by the Common wealth from Murray and others who held title under the old law of conveyancing. The grant in fee simple was subject to reservations in favour of the Crown—power to take timber for naval purposes and power to take part or parts of the land for highway or highways. For the reasons which I have stated in my answer to question 1 (b), I think that any royal metals contained in either of these lands did not pass to the grantees of the land, or through their successors in title to the Commonwealth ; but this question is not asked. The only question asked is as to the so-called “ reservations or conditions.”

(1) (1888-89) 14 App. Ca.s., a t pp. 301-302.

HIGH COURT

[1920-1923.

H. C. OF A.In my opinion, sec. 16 (1) of the Act applies; so that the land 1920-1923.described in the notifications became vested in the Commonw^ealth

T h e

“ freed and discharged from all trusts, obligations, estates, interests,

Common

w e a l t h

contracts, licences, charges, rates, and easements, to the intent that

N e w South the legal estate therein, together with all rights and powers incident

W a l e s .thereto or conferred by this Act, shall be vested in the Common Higgins J.wealth.” The Commonwealth takes the corporeal land notified

free from all interests held by the Crown (in right of New South Wales) or by others, in the land or over it or in connection with it. The Commonwealth, as to this land, is free from any outside con trol or restriction. I think that the words of sec. 16 (1), “ freed ” &c., should be taken in the widest sense. Sec. 17 provides that upon the publication of the notification in the Gazette “ the estate and interest of every person entitled to the land specified in the notification

. . shall be taken to have been converted into a claim for com pensation ” ; and in view of the wide definition of the word “ land ” in sec. 5 it is not doing violence to the words of the section to say that the word in sec. 17 includes not only the corporeal land but every interest therein, and any easement, right, power or pririlege over in or in connection with that land. “ Every person ” includes the King, as a body politic and a corporation sole ; and the interest of the Crown as owner of any easement over the land specified, or of any interest in or over or in connection with the land specified, is, in my opinion, converted into a claim for compensation. In brief, I regard sec. 17 as converting into a claim for compensation not only the interest of the owner of the land in the ordinary sense, but the interest of everyone who has an interest, right or prhdlege in or over the land specified. I t has been so held under the EngHsh Lands Clauses Consolidation Act, under similar words. A mere power to sink pits for coal in land (not demised) was held to be an interest in that land for the purpose of compensation {In re Masters and Great Western Railway (1); and see Duke of Bedford v. Dawson (2); R. v. St. Luke’s, Chelsea (3) ).

But it was suggested in the course of the argument that there is no provision for compensation to be paid to the owners of any outside

(1) (1901) 2 K.B., 84.

(3) (1871) L.R. 6 Q.B., 572; aff.

(2) (187.5) L.R. 20 Eq., 3,53.

(1871) L.E. 7 Q.B., 148.

33 C.L.R.I

OF AUSTRALIA.

interests in or over or in connection with the land; and that if there H- C. of a . is no provision for such compensation, the acquisition of the lands ^̂ 0̂-1923.

under the Act is not “ on just terms ” within the meaning of the

t h e C O M M O N -

Constitution (sec. 51 (xxxi.) ), and that therefore the Act is uncon

\\ 'E A L T H

stitutional, invalid — at all events so far as regards the outside

N ew

South

interests. No reference to the Constitution, or to the limits of the W a les .

powers of the Commonwealth Parliament, appears in the special

Higgins J.

case ; and I am strongly disposed to think that the case assumes the Act to be valid, and that it is our duty to answer the questions on that assumption. There is a wholesome rule adopted in the United States and followed here, that the Court should not pronounce on the validity of an Act of Parliament unless it becomes absolutely necessary to do so for the determination of the issues presented ; and it may be that a decision against the validity of this Act will cause dire confusion as to past transactions. But these considera tions as to our duty have not been argued.

If, however, we are to decide the matter, I am of opinion that the Act does, lamely but effectually, provide for compensation for these interests destroyed by the operation of the Act. Sec. 26 provides that “ where any land (other than Crown land) is acquired by com pulsory process, the owner of the land shall, if deprived of the land in whole or in part, be entitled to compensation under this Act.” “ Owner ” may be read as applying to “ owners ” under the familiar principle that the singular may be read as including the plural {Acts Interfretation Act 1901, sec. 23). Indeed, in sec. 18, where the dis tribution of copies of the notification makes the singular noun inappropriate, the expression “ owners of the land or such of them as can with reasonable diligence be ascertained ” is actually used; but in sub-sec. 2 the Act naturally reverts to the word “ owner.” Then under sec. 5, the interpretation section, the word “ owner ” includes, with respect to the land, “ any person who under this Act is enabled to sell or convey the land to the Commonwealth ” ; and “ land ” includes any estate or interest in land (legal or equitable) and any easement, right, power or privilege over, in or in connection with land. The owners of such outside interests appear to be entitled to all costs, charges and expenses of all conveyances and assurances of the interests (sec. 61 (1) {a) ) ; and this right would be anomalous if

VOL.

X X X [ U .

HIGH COURT

[1920-1923.

H. C. oE A. such owners were not also entitled to compensation. Then, although

1920-1923. -g uo express provision that lessees of land acquired are to be

T h e

compensated for their loss in addition to the person seised in fee

Common

w ea lth

simple, sec. 30, from its form of language, assumes that such lessees

N ew South are to be compensated : “ If any person having a greater interest than

W a l e s .as a tenant at will of any land acquired by compulsory process Higgins .1.makes a claim for compensation in respect of any unexpired term or

interest under any lease ” the Attorney-General may require pro duction of the lease. Sec. 32 is thus expressed : “ (1) Any State or person claiming to he entitled to compensation under this Act may make a claim for compensation.” If the only person who can claim for compensation is the “ owner ” in the popular sense—the man who has the fee simple—it is curious that the word “ owner ” as used in sec. 26 is not used here also. Again, there is the principle laid down in Commissioner of Public Works {Cape Colony) v. Logan (1) that the Courts, in interpreting such an Act, should presume, unless the con trary intention is expressed in unequivocal terms, that Parhament did not intend to taka away a man’s property without compensation. My opinion is that question 1 (c) should be answered in the

affirmative as to all the lands referred to therein.

Question 1 (a) (pars. 12 to 15).—The Crown land at Wollongong was, at the time that the Constitution came into force, used by the New South Wales Department of Naval and Mihtary Defence exclusively in connection with that Department—for a fort; this Department was transferred to the Comnion\yealth by proclamation of 1st March 1901 ; and, under sec. 85 of the Constitution, “ aU pro perty of the State, of any kind, used exclusively in connection with the Department,” became ipso facto vested in the Commonwealth. The word here used is “ property”—a wider term than “ land ” ; and I assume, as the parties assume, in favour of the Commonwealth, that any royal mines under the New South Wales Crown land as well as the Crown land itself may be treated as “ property of the State.” I shall assume also, in favour of the Commoiwealth, that if there leere no royal metals under the land, the whole land from the surface downwards to the centre, the whole conical figure, should be treated as “ used exclusively ” in connection with the Department; for tliere

(1) (1903) A.C., 355.

33 C.L.R.]

OF AUSTRALIA.

was no other use of any of the subjacent strata at the tim e (see H. 0. of A.

Hooper v. Bourne (1); Clark v. Elphinstone (2) ; Midland Railwai/

1920-1923.

Co. V. Wright (3) ). The use of the surface is probably, under such

T h e

C O JIM O N -

circumstances, to be held as use of the whole soil beneath. The

W E.4.LTH

word “ used ” implies more than “ possessed ” ; but it is clear that

N e w South

if a person having title to land is in possession of the surface he is W a l es .

to be treated as in possession of the land to the centre of the earth,

Hipgins J.

if no one else is in actual possession of subjacent strata. There is constructive possession of the whole because it is in accordance with the title. But constructive possession ends where the title ends ; and if the title ends at a mine reserved by grant or lease, the owner of the surface is not to be treated as being in constructive possession of the mine {Richard Cotton’s Case (4) ; Hodgkinson v. Fletcher (5) ; McDonnell v. McKinty (6) ; Smith v. Lloyd (7) ; Key sc v. Powell (8); Earl of Dartmouth v. Spittle (9) ; Low Moor Co. v. Stanley Coal Co. (10); Lord Advocate v. Wemyss (11); Glyn v. Howell (12) ). Therefore, if (as I have already suggested) the title to the land is distinct from the title to the royal mines, possession of the surface of the land cannot be treated as possession of the royal mine ; and, a fortiori, use of the surface cannot be treated as use of the royal mines ; the royal mine (if any) was not “ used exclusively ” in con nection with the State Department on 1st March 1901 ; and the property in the mines is not vested in the Commonwealth under sec. 85. The very words of the special case, indeed, limit the allega tion of exclusive possession to the “ land ”—“ certain property of the said State to wit the land described ” &c. (pars. 13, 15); and “ land ” does not include royal mines. The rule is very strict and applies to treasure trove (the King’s by prerogative) found embedded in land as well as to royal mines. In Attorney-General v. Trustees of the British Museum (13) it was held that treasure trove did not pass by a royal grant of land which included, in exhaustive enumeration, the whole ground or soil, . . . waived chattels, . . .

(1) (1880) 5 App. Cas., 1.(8) (1853) 2 E. & B., 132.

(2) (1880) 6 App. Cas., 164.(9) (1871) 24 L.T., 67.

(3) (1901) 1 Ch., 738.(10) (1876) 34 L.T., 186.

(4) (1590) Cro. Eliz., 189.(11) (1900) A.C., 48.

(5) (1781) 3 Doug., 31.(12) (1909) I Ch„ 666.

<6) (1847) 10 lr.L.R., 514. (13) (1903) 2 Ch., 598.

U) (1854) 23 L.J. Ex., 194.

HIGH COURT

[1920-1923.

H. C. OF A.rights, . . . franchises, . . . privileges, profits, commodities,

1920-1923.

advantages, emoluments, and hereditaments whatsoever, with all

their appurtenances.”

T h e Com m on

w e a l t h

The fact that the royal mines give, or may give, certain support to.

N e w South

the surface may give certain right to support against the King, or

W a l es .other owner of the royal metals ; but it does not alter the ownership.

My answer is No, to question 1 (a) as to royal metals.

The other

Higgins J.

minerals pass as of course as incidents of the land.

Question 2 is as to the duties of the Registrar-General—is he to give effect to the notifications under the Lands Acquisition Act̂ entering them in the register as if they were grants or transfers ?

So far as regards the lands already alienated from the Crown acquired from the registered proprietors under the Real Property Act 1900 (numbered 3 in writ, referred to in pars. 6 to 8 of special case). I feel little difficulty. The notification operates as a transfer of the fee simple from Way to the Commonwealth, and the transfer should be registered ; and the title should not be subject to any incum brances, easements, reservations or other interests (sec. 16 of the Lands Acquisition Act).

So far as regards the land already alienated, acquired from Murray and others as seised in fee simple under the old law of conveyancing (numbered 4 (a) and (h), in the writ, referred to in par. 9 of the special case), I cannot find anything in either Act obliging the Regis trar to treat a conveyance under the old law as if it were a transfer of land under the Real Property A c t; and the notification does not operate as anything more than such a conveyance. At present, the lands under the old law are not within the scope of the Real Propertŷ Act at all. Under the 13th section of that Act “ all waste lands and all lands set apart for public purposes remaining unalienated from the Crown at the passing of this Act ” (1900) “ shall, when alienated in fee, be subject to the provisions of this Act ” ; and ” the grants of such land shall be in duplicate, and every such grant . . . shall contain a diagram of the land thereby granted on such scale as the Governor directs, and shall be delivered to the Registrar-General, who shall register the same in manner hereinafter directed ” ; that is to say, by binding ujr the duplicate of the grant in the register, &c. (sec. 32). Under the 14th section of the same Act these lands.

33 C.L.R.] OF AUSTRALIA.

having been alienated before 1863, can be brought under the A ct; R- C. of A.

but they have not been .so brought as y e t ; and sec. 20 of the Lands

^̂ 0̂-1923.

Acquisition Act does not oblige the Registrar to deal with and give

T h e Common

effect to the notification as if it were more than a conveyance under

w e a l t h

the old law ; and if it were a conveyance under the old law, the

N e w South

Registrar should refuse to treat it as a transfer {Real Property Act,

W a l es .

sec. 39).

Higgins J.

In my opinion, the question is answered as to these lands by saying that the Registrar is not bound to deal with and give effect to the notification as if it were a transfer under the Act.

The question is more difficult as to lands not previously alienated from the Crown, but acquired from the Crown under the Lands Acquisition Act (numbered 1 and 2 in writ, referred to in pars. 2 and 4 of the special case). Sec. 13 of the Real Property Act provides (as set out above) that all grants shall be in duplicate containing a diagram on a prescribed scale ; and sec. 32 provides that the dupli cate shall be bound up in the register. These provisions do not fit

the case of a notification under the Lands Acquisition Act.

An effort

has been made to meet the difficulty by sec. 20 of the Act. This directs that the Registrar shall, if a certified copy of the notification in the Gazette be lodged with him, register it in the register and in the manner as nearly as may be in which dealings with land are registered, and shall deal with and give effect to the notification as if it were a grant duly executed. But a grant for what estate \ The Act does not say. Assuming that the intention is that the Crown in right of the Commonwealth is to take just the same kind of pro perty as the Crown in right of the State had at the time of the notifi cation—the Crown still retaining its allodial property, but subject henceforth to the administration of its Commonwealth agency instead of its State agency—the Crown in right of the Commonwealth could not, I think, convey the land to a purchaser except for an estate known to the law—and the highest estate known to the law is a fee simple. The Commonwealth may think well to dispose of the land as superfluous (sec. 63). It is not easy to see why the Federal Parliament should be so anxious to get the Commonwealth, or the Crown in right of the Commonwealth, registered itself as allodial owner, if it can get a grantee from the Crown registered for an estate

HIGH COURT

[1920-1923.

H . C. OF A.

in fee simple or other estate ; but, apparently, under sec. 20 the

1920-1923.

notification is to be registered as if it were a “ grant.”

T h e

But it has been suggested that sec. 20 is invalid—that it is an

Com m on

w ea lth

encroachment by the Federal Parhament on the reserved powers of

the States.

This point is not referred to in the questions asked, or

N e w South

W a l e s .in the contentions of the parties as stated ; though it might be

logically within the scope of any final answer to question 2. I am not at all satisfied that it is not our duty, for the purpose of this case, to assume, as the special case seems to assume, that the whole of the Lands Acquisition Act is valid. For aught that we know, any decision for invalidity may gravely affect titles heretofore obtained in good faith. But, assuming that the point of invalidity of the section is open, I am not convinced that it can be sustained. The Registrar is, in effect, told by the Commonwealth Act that, for the purposes of Commonwealth land acquired by the Commonwealth under the Constitution (sec. 51 (xxxi.)), he must open a new page in the register by entering the Gazette notification. There is really nothing alarming in such a process—no arrogant interference with the State’s system of registration. The process is confined to Commonwealth land so acquired ; and it may assist the Commonw'ealth, in selhng any superfluous land, to reassure purchasers as to their title. The con fidence which the public have in a title “ under the Act,” acquired from a vendor who has title “ under the Act,” is such as often to induce people to bid higher. If this question must be answered, I must say, in the absence of full argument on the subject, that at piresent I think sec. 20 is valid under the powers contained in sec. 51 of the Constitution—to make laws with respect to . . . the acquisition of jrropierty on just terms from anv State or person for any piurpiose in respect of which the Parliament has power to make laws” (pi. XXXI.), and “ with respect to . . . matters incidental’ to the piowers of the Federal Parliament to make laws under the placitum (pi. xxxix.).

Higgins J.

It would follow from this position, if mv opinion as to the effect of sec. 16 of the Lands Acquisition Act is right, that this land should appear in the register as belonging to the Crown in right of the Com monwealth, freed from all reservations, interests, &c.

Question 3.—In my opinion, under present circumstances and

33 G.L.R.]

OF AUSTRALIA.

on the facts as stated, the Registrar is not bound to issue to the Com

H. C. OF A.

monwealth a certificate of title as to any of the lands acquired under

1920-1923.

the Lmids Acquisition Act except the Richmond land (numbered 3

T he Common

in the writ, referred to in par. 6 of the case stated). That title is

w e a l t h

already under the Real Property Act. No question is asked as to

N ew South

the nature of the title which the certificate should show.

W a l e s .

As to the lands which vested in the Commonwealth under sec. 85 of the Constitution (numbered 5 and 6 in the writ, referred to in pars. 13 and 15 of the case stated), they vested in the Commonwealth by the operation of the Constitution—an Imperial Act—without anv deed of grant or other document. The Constitution does not say for what estate they vest; but having regard to the words used in sec. 85 and the difficulties of treating the Crown as tenant of itself, even in another capacity, I think that the Crown in right of the Com monwealth took just the same full property and rights as to the land, that the Crown in right of the State had before the transfer of the Department. The Crown remains the owner, but deals with the land under Commonwealth law' instead of under State law. Under sec. 64 of the Lands Acquisition Act any land that by virtue of sec. 85 of the Constitution become vested in the Commonwealth, shall for the purposes of the said Act be deemed to have been acquired thereunder, and to be vested in the Commonw'ealth as if acquired thereunder. Therefore, if sec. 20 is valid, as at present I think it is, the Commonw'ealth is entitled to have this land, vested under sec. 85 (lands only, not royal mines), entered in the register as vested in the Crow'n in right of the Commonwealth. This does not mean that it is entitled, on the facts stated, to demand a certificate of title.

Higgins J.

My answ'er to question 3 is that the Commonw'ealth is not entitled to demand a certificate of title to any of the lands except the Rich mond land ; and that it is entitled to a clean certificate of title to that land W'ithout any reservations or exceptions noted thereon.

Questions stated answered as follows :—(1) All the lands in the said question referred to including royal and other metals therein vest in the Commonwealth freed and dis charged from all reservations, rights, royalties, conditions

HIGH COURT

[1920-1923.

H. C. O F A.and oblic/atiom of any kind whatsoever to the State of 1920-1923.New South Wales, subject to compensation provided pur

suant to the Constitution, sec. 85, and by the Lands

T h e C ommon

Acquisition Act respectively. Alternative questions (1)

w e a l t h N e w South (a), (6) and (c)— The Court in view of the artswer to 1

W a l e s .does not deem it necessary to answer these questions

specificMlly. (2) No. (3) No. Declare that the lands in the writ of summons mentioned including royal and other metals therein vest in the Commonwealth freed and discharged from all reservations, rights, royalties, con ditions and obligations of any kind whatsoever to the State of New South Wales, subject to compensation pro vided pursuant to the Constitution and by the Lands Acquisition Acts respectively. Declare that the Common wealth is not entitled to a certificate of title under the Real Property Act 1900 (iV.<S.ll̂ .) to the said parcels of lard in the writ of summons mentioned.

Solicitor for the plaintiff, Gordon H. Castle, Crown Solicitor for the Commonwealth.

Solicitor for the defendants, J. V. Tillett, Crown Sohcitor for New South Wales.

Solicitor for the intervener, E. J. D. Guinness, Crown Solicitor for Victoria.

B. L.

Commonwealth v New South Wales

9 August 1923

Key Legal Topics

Areas of Law

Constitutional Law

Property Law

Legal Concepts

Jurisdiction

Statutory Construction