Estates Development Co Pty Ltd v Western Australia
[1952] HCA 42
•1 August 1952
Maritime
Ser\ ices Boanl
15 ALD M9
126 HIGH COURT
[1952.
[H IG H COUR'l' OF AUSTRALIA.]
ESTATES DEVELOPMENT COMPANY PR O -\
A p p e l l a n t
;
PRIETARY LIMITED . . .
. /
P l a i n t i f f ,
.
AND
THE STATE OF WESTERN AUSTRALIA^
AR e s p o n d e n t s .
AND OTHERS .
D e f e n d a n t s ,
ON A PPEA L FROM TH E SU PREM E COURT OF
W ESTERN
AUSTRAJRA.
H . C. OF A. Ke.mmption—Land—R// Stale authority— Validity— Housing scheme— Powers of
1952. Housing Commission— No immediate p lan for use of land— Acquisition of more
land than necessary— Discrepancies in descripAion— Notice of acquisition— Me l b o u r n e ,Sufficiency— Validity— State Housing Act 1946-1948 (II'.A.) (AA. 51 o/ 1946—•
June 2, 3.
No. 19 o f 1948), s. 21 (1) (I/)— Public Works Act 1902-1945 (W .A.), (2 Edw. V II .,
SyDNijy,
No. 47 of 1902—AA. 41 of 1945), s. 17.
yluff. 1.Section 21 (1) (b) of the State Housing Act 1946-1948 provides th a t, with the consent of the Minister, the S tate Housing Comrriission m ay acquire
Dixoji C..T.,
Webb and
any land “ under the powers contained in and in accordance with the procedure
K itto
J J .
prescribed by the Public Works Act 1902-1945 ” . Section 17 of the la tter Act provides : “ W henever an}' land is required for any public work, the Governor may, by notice ])ublished in the Government Gazette, declare th a t the land has been set apart, taken, or resumed under this Act for the ]3ublic purpose iho7'oin oxj)ressed, and th a t a plan and more j)articular description of s-uch land may bo inspected a t a convenient place to be stated in such notice ” . Held, tha t, on the pro])er in terpretation of s. 21 (1) (b) of the State Housing Act 1946-1948, the jjrovisions of the Public Works Act 1902-1945 are to apply mutaiis mutandis to enable land to be compulsorily acquired by the commission for the pvnqioses of the State Housing Act. Consequently, s. 17 of the Public Works Act 1902-1945 is to bo ajqrlied as if every i)urpose for which the com mission, acting wdtliiu the scops of its powers, may decide to acquire land compulsorily wore a “ public w-ork ” witliiu the meaning of th a t section. A company was the owner of a largo number of lots of land wUich were ])ortion of an area resumed by the S tate Housing Commission for the purposes
87 C.L.R.] OF AUSTRALIA.
127
of a housing scheme of the S ta te of W estern A ustralia. The company
H . C. OF A.
attacked the validity of the resum ption on the ground.s, inler alia, (1) th a t the 1952.
commission had not form ulated any definite housing scheme bu t was planning
E states D e v e l o p
for the uncertain needs of a fifteen year period, and was m aking im m ediate
accjuisitions sim ply in order to avoid fu ture rises in price, recognizing th a t
m ent
when a scheme of developm ent should u ltim ately be worked out it would Co. P t y . L t d .
be found th a t no t all the land resum ed would be needed, and th a t some
V.
State of
would be sold back to the former owners ; and (2) th a t the commission’s W ester n
decision to resum e did not relate to the identical lands which afterw ards were
A u str a lia .
included in the notices of acquisition, and did not define with certa in ty to
w hat lands it applied.
Held : (1) th a t the facts th a t the commission had acc]uired more land th an it required for im m ediate purpose.?, and th a t it m ight dispose of some in future, did no t disclose any purpose other th an th a t for which the power of acquisition was conferred ; and
(2)
th a t the validity of the acquisition of each ])arcel of land was to be
determ ined upon the facts concerning th a t parcel alone, and it was not affected by proof th a t o ther parcels were om itted from the Gazette notices, although covered by the decision of the commission or vice versa ; in order to obtain any relief in the action the plaintiff had to establish th a t some of its own land included in the notices was no t included in the decision of the commission, and this it had failed to establish.
Campbell v. M unicipal Council of Sydney
(1923) 24 S.R. (X.S.W.) 193:
41 W .X. 1.3, distinguished.
Held, also, th a t notices of acquisition published in the G overnm ent Gazette th a t the accpiisition was for the purpose of “ S tate Housing ” .sufficiently indicated a j)urpose for which the powers relating to public works were applicable ; th a t the declaration in the notices th a t the land had been “ set apart, taken, or resumed ” involved no element of uncertainty ; and th a t the ’’ plan ” and more particular description ” of the land acquired referred to in s. 17 of the Public Works Act 1902-194.5 m ight be contained in the one docum ent.
Decision of the Su])rcmc Court of W estern A ustralia (Dwyer C..J.) affirmed.
Appeal from the Supreme Court of AVe.stern Australia.
The Estates Development Company Proprietary Limited, a company incorporated in the State of Western Australia which was engaged in tlie business of selling sub-divided real estate, commenced an action as plaintiff iit the Supreme Court of Western Australia against the State of Western Au.stralia,, the State Housing Commission, a body incorporated under the provisions of the l^tate Houfiinq Act ] 940-1948 (WbA.) and Robert Charles Buchanan, the Registrar of Titles appointed under the provisions of the Trap.^fer of Land Act 1893-1950 (W'.A.).
128 HIGH COURT
[1952.
H. Cl. OF A. The ])laiiiliir l)y its .statement of claim set forth tliat it had been, ])i'ior to 27th Noveml)er, 1950, registered under the provisions i<;sT\TF.s 9 / dynw/ Ad. 1893-1947 (W.A.) as registered pro- Diovm.oi'- prietoi' of an estate in lee simple in pos.se.ssion of certain pieces
M lO.N 'J'
C'’o. L’tv. Ltd.and parcels of land, which, on tliat date, the Governor in Council
V.had ])urporf,(‘d to ac((uire and to vest in the State Housing
.St .\t d
ok
Commi.ssion. The ]Hirported ac<(uisition had been effected by
W
e s t e r n
a numb('r of notices of ac(|ulsition dateil 23rd November 1950 and published in the Government Gazelle of 27tli November 1950. All the notices were similar, and the following is representative of
A u s t r .v h .-v.
| them : “ S t a t e H o u s in g A c t , 194G ; P u b l ic W o r k s A c t , 1902 -1945 |
L a n d R e s u m p t io n ■
*
State Housing at Alount Yokine and Wanneru—Area No. 1.
N o t ic e is hereby given, and it is hereby declared, that the several
pieces or parcels of land described in the schedule hereto—being all in the Perthshire District—have, in pursuance of the written approval and consent of His Excellency the Governor, acting by and wdth the advice of the Executive Council, dated the 23rd day of November, 1950, been set apart, taken, or resumed for the purposes of the following public wmrk, namely :—State Housing at Mount Yokine and Wanneru—Area No. 1.
And further notice is hereby given that the said pieces or parcels of land so set apart, taken, or resumed are marked off and more particularly described on Plan, l^.W.D., W.A., 32549, which may be inspected at the Office of the Minister for fVorks, Perth.
And it is hereby directed that the said lands .shall vest in The State Housing Commission for an estate in fee simple in possession for the public work herein expressed, freed and discharged from all trusts, mortgages, charges, obligations, estates, interests, rights- of-w^ay or other easements whatsoever.”
The plaintiff claimed that the, accjuisition was invalid and of no effect, by reason of the following matters : (a) that the said notices and each of them did not comply with the provisions of the “ Public Works Acl 1902-1945 ” in that they and each of them did not or did not sufficiently state the purposes or the public work for which the said lands WTre set apart taken or resumed ; (b) that the public work alleged in each of the said notices was not a public wmrk within the meaning of the Public Works Act 1902-1945 ; (c) that the said notices and each of them were uncertain in that they stated that the said lands had been set apart taken or resumed and that the purpose and the public wnrk for wffiich the said lands wnre alleged to have been taken set apart or resumed wnre not sufficiently stated ; (d) that the defendant commission was not a
87 C.L.R.] OF AUSTRALIA.
129
local authority within the meaning of the “ Pithlic Works Acl 1902
H . C. OF A.
1945 ” ; (e) that the said lands had not been taken or resumed
1952.
in the manner and form required by the State Housing Act 1946E states
1948 ; and (f) that the consent of the Minister for Housing to the
D ev elo p
m ent
taking and compulsory acquisition of the said lands by the defendant
C o. P t y . L t d .
commission was not obtained.
V.
State
op
The first and second defendants by their defence to the statement of claim claimed that the acquisition was valid in all respects.
W ester n
A u str a lia .
The defendant, the Registrar of Titles did not defend the action. The action was tried before Dunjer C.J. who, on 21st December
1951, gave judgment dismissing the action with costs.
From this decision the plaintiff appealed to the High Court of Australia.
H. G. Alderman, Q.C. (with hinii?. K. Fvdlagar), iox the appellant. A “ public w ork” under the Public Works Act 1902-1945 (W.A.) involves manual work, but the element of manual work is not necessarily present in the purpose stated in the notice of acquisition. Consequently, the power given by the State Housing Act 1946-1948 (W.A.), s. 21 (1) (b) to the Housing Commission to acquire land under the powers contained in and in accordance with the procedure prescribed by the Public Works Act 1902-1945 is not applicable in the present case. That being so, there is iio other authority upon which the acquisition can be supported. The notice of acquisition is not sufficiently specific. The purposes should be stated with sufficient particularity to enable the Court to see whether they are proper. [He referred to Wilkinson v. IhiU & Railivay and Dock Co.
(1), per Lindley L.J.]
There has been no compliance with s. 17
of the Public Works Act 1902-1945. Under s. 17 it is necessary that the precise one relied upon, of the three alternatives “ set aside, taken, or resumed ” , should be stated.
[Dixon C.J. referred to Welshach Light Co. of Australasia Ltd. v. Commomvealth (2); Ex parte Walsh; In re Yates; Ex parte Johnson ; In re Yates (3).]
Section 17 refers to two documents (a) a plan, and (b) a more particular description of the land. Accordingly, the notice is not a sufficient compliance with the Act.
I t is disclosed by the evidence that a t the time of acquisition, the commis.sion had not formulated any definite housing scheme but was merely vaguely planning for the future. I t was, moreover,
(1) (1882) 20 Ch. D. .323, a t p. 341.(3) (1925) 37 ( ’.L.R. 36.
(2) (1916) 22 C.L.R. 268.
VOL.
LXXX\'1I.— 9
i:50 HKIH COURT
[1952.
II.
OK \ .
a.c('.o])t('(l l)y the commission tliat some of the land acquired would
| in future he sold. It is not competent for an authority to acquire |
I'l.STA'I'K.S huul in such circ.umstances. [He referred to
Ilowarth v. McMahon
1 )HV Kl.Or-
(1) ; Minister for I^ublic Works v. JJar/fian (2) ; Baicula v. Baulkham
M 10 NT
Hills S/nre Conned (.‘5).|
On the evidence the land included in the
( 'o . 1’t v .
Lt i >.
r.
proposed a.cipiisition which had the consent of the Minister under
S t a TIO
0 I ‘'
W'lO.STlORNs. 21 (1) (1)) of the SUde Ilousinf/ A d 1940-1948, is not the same as
A i '.s t u a u a .the hind in fact ac(|uired. Consequently, there has been no com
pliance with s. 21 (I) (1)). Moreover the acrpiisition is lacking in
certainty.
R. V. Nevile, (with him W. 0. Harris)^ for the respondents the State of Western Australia and the State Housing Commission. Section 21 (1) (b) of the State Housing Act 1946-1948 (W.A.) is a restriction of the powers of the State Housing Commission. The commission is a “ local authority ” within the meaning of s. 2 of the Public Works Act 1902-1945 (W.A.) by virtue of the powers conferred upon it by the State lionising Act 1946-1948, ss. 21 (1) (e) (f) and 21 (7), although subject to the restriction. Once the position is reached that it is a public authority, then anything which it can undertake becomes a “ public work ” within the meaning of s. 2 of the Public Works Act 1902-1945. Acquisition under the Public Works Act 1902-1945 only dates as from notice published in the Government Gazette. Prior to this time there is no necessity for identiheation of the land any more precise than is necessary for the purposes of the commission and for the Minister to know to what he is consenting. The land comprised in the acquisition is sub stantially the same as the land which the commission decided to acquire. [He referred to Hillingdon Estates Co. v. Stonefield Estates Ltd. (4).] The Stede Housing Act 1946-1948 contemplates that the commission may hold land for its purposes in future. See ss. 8 (2), 21 (1) (j). The commission’s powers are of indefinite length. Alternatively, the commission may acciuire land for use within a reasonable time. [He referred to Stockton and Darlington Railway Co. v. Brown (5).] The mere fact that it is contemplated that ]>arts of the land acquired may be sold by the commission in future is not of significance. The commi.ssion’s only motive is the performance of its statutory duty. The finding of the trial judge that the acf|uisition w-as bona fide excludes the operation of such decisions as Thompson v. Council of the Municipality of Randivick (6); Iloimrtli v. McMahon (1); Minister for Public IToHx v.
(]) (mr)l) <S:i C.L.R. 442. (5) (I8(>0) !) H.L.C. 24H
[II E.R.
(2) (lOSI) K.2 C.I..R. 424.
124].
(3) (1951) S3 C.L.R. 344.(0) (19.50) SI C.L.R. S7.
(4) (1952) I All E.R. 853.
87 C.L.R.] OF AUSTRALIA.
131
Duggan (1) ; Baiada, v. BaidkJimn Hills Shire Council (2). The H. c. of a.
onus is on the appellant to show that the acquisition is invalid.
1952.
[He referred to Municipal Council of Sydney v. Campbell (3).]E states
The purpose expressed in the notice of acquisition is a public work,
D ev elo p
and is expressed in sufficiently precise terms. If there are any
m ent
Co. P t y . L t d .
discrepancies as between the notices of acquisition and the plans
V.
it does not follow that the whole acquisition fails. There are as State of many acquisitions as there are parcels of land, and the failure of austr\li\
some would not affect others.
-----
H. G. Alderman, Q.C., in reply.
Cur. adv. vult.
T h e Co u r t delivered the following written judgment :
Aug. 1.
This is an appeal from a judgment of the Supreme Court of Western Australia [Dwyer C.J.) dismissing an action for a declaration that a purported compulsory acquisition of certain lands of the plaintiff company l>y the State Housing Commission of Western Australia, was invalid, and for consequential relief.
3’he plaintiff company was the registered proprietor under the provisions of the Transfer of Land Act 1893-1947 (W.A.) of an estate in fee simple in a large number of lots of land in the vicinity of AVanneru and Mount Yokine, a few miles north of Perth. These lots, together with lots owned by a number of other persons, were comprised in five areas, each of which was the subject of a notice by the Governor, dated 2-3rd November 1950 and published in the Government Gazette of 27th November 1950. The notice in respect of one of these areas, which may be taken as typical of them all, was in these terms :
“ S t a t e H o u s in g A c t , 1946 ; P u b l ic W o r k s A c t
1902-1945
L a n d
R e s u m p t io n
State Hou,sing at Mount Yokine and AVanneru—Area No. 1.
N o t ic e is hereby given, and it is hereliy declared, that several
pieces or parcels of land described in the Schedule hereto—being all in the Perthshire District—have, in pursuance of the written approval and consent of His Excellency the Governor, acting by and with the advice of the Executive Council, dated the 23rd day of November, 1950, been set apart, taken, or resumed for the purposes of the following public work, namely :—State Hoiusing at Alount Yokine and AVanneru—Area No. 1.
(1) (I'lr.i) S3 C.L.R. 42-1.(3) (192.5) A.C. 3.38, a t ]). 343.
(2) (l!t.^,l) 83 C.L.R. 344.
I 3l> HKJH C!OUH,T
(1952.
ir. (!. ()]•' A, And ftii'llu'f notict! is littrcthy given that the said piecc-s or parcels I'ini’.of hind so set aptirt, taken, or resumed are marked off and more
I' jSTA’I'ICS])artieular]y dese.rihed on Plan P.W.D., W.A., .32549, which may
Diov m.ui’-
!)(' inspt'cted ;it the Ofliett td’ the Minister for Works, Perth.
UNT
.'Vnd it is ht'rthiy dirtjcted tliat the said lands shall ve.st in The
C o.
L'i'I)
r.
' iStiite Housing Commission for an estate in fee simple in possession
S t A'I'IO Oh'
W'k s 'I'iohn for the public work herein expressed, freed and discharged from
| A r.sTitAi.iA. | all trusts, mortgages, charges, obligations, estates, interests, rights- |
| l>ixon c..r. | of-wiiy or other easements whatsoever.” |
| \Vrl)l) ,1. Then followed a schedule identifying the subject lands by means of numbers of lots on the plan, the name of the owner or reputed owner of each lot, its description by reference to lot number on a Lands Titles Office yilan and the relevant certificate of title, and the area. Each notice was later amended, but for the purposes of this case nothing turns upon the amendments. After publication of tlie notices, copies of them were delivered to the Registrar of Titles, who thereupon registered the lands comprised in them in the name of the State Housing Commission. The plaintiff company then brought the action which has led to this appeal, joining as defendants the State of Western Australia, the State Housing Commission and the Registrar of Titles. |
| K itto ,1. |
The defendants support the challenged resumptions by relying upon the combined, operation of the State Homing Acl 1946-1948 (W.A.), and the Public lEor/os Act, 1902-1945 (WbA.). Tlic olijects of the former Act are stated by s. 5 to be the improvement of existing housing conditions and the provision of adequate and suitable housing accommodation for persons of limited means and certain other persons not otherwise adeipiately housed. The Act sets up a housing authority called the State Housing Commission, which, subject to any directions of the Minister, is charged with the administration of the Act and is given extensive rights, powers, authorities and duties : s. 8 (1). I t is constituted a body corporate and is given, subject to the Act, power to acquire, purchase, sell, lease, hold and dispose of lands and other property for the purposes of the Act : s. 8 (2). I t is also empowered with the consent of the Minister to purchase, contract for the use of, or otherwise ac([uire any land, and also power, in terms to be mentioned in a moment, to acipiirc land compulsorily : s. 21 (1) (a) and (b). A7nongst the powers with, which the commission is clothed are powers with the consent of the Minister to erect houses on, and lay out and construct as streets, any land so purcliased or acipiired or any other land acipiircd, to set apart any land for gardens, parks, recreation grounds and certain other community and social facilities,
87 C.L.R.] OF AUSTRALIA.
133
and a power to sell, let or lease any such land for any one or more H . C. of A.
of the piirposes : s. 21 (1) (e) (f) (g).
1952.
The power to acquire land compulsorily is found in s. 21 (1) (b), which provides that " Subject to this Act, the Commission may from
D e v e l o p -
time to time exercise the following powers :— . . . (b) subject
^ en t
to subsection (2) of this section with the consent of the Minister,
̂
to take and compulsorily acquire any land under the powers con-
8 tate of
tained in and in accordance with the procedure prescribed by the Australia.
Public AVorks Act, 1902-1945.” Sub-section (2) confers upon a Dixon C.J.
land owner a limited right of appeal against a compulsory acquisiWebb J .
| K itto J . |
tion, except in certain'circumstances in which he is given a right
to have a suitable block made available to him under the Act.
The Public Worlis Act provides for the taking of land required for the purposes of any public work which His Majesty, or the Governor, or the Government of the >State is authorized, by that or any other Act, to undertake, construct or provide : s. 10. The procedure laid down for compulsory acquisition consists of the publication by the Governor in the Government Gazette of a notice declaring that the land has been set apart, taken or resumed under the Public Works Act for the public purpose therein expressed, and that a plan and more particular description of such land may be inspected at a convenient place to be stated in such notice : s. 17. The effect of the publication of the notice is that the land vests in His Majesty, or the local authority, as the Governor may direct and the case require, for an estate in fee simple in possession for the public work expressed in the notice, freed and discharged from all trusts &c., and the estate and interest of every person in the land is deemed to be converted into a claim for compensation under the provisions of the A c t: s. 18. The expression “ local authority ” is defined in s. 2 to mean and include any municipal council or road board, and any persons or body, however designated, having authority under any statute to undertake the construction of any public work ; and “ public work ” is defined to mean and include “ every work which . . . any local authority is author ised to undertake under this or any other Act ”, as well as a variety of specifically described classes of works.
On behalf of the plaintiff it was argued that the purpose stated in the notices by which the Governor purported to resume tlie plaintiff’s land, namely State housing, was not a “ public work ” within the definition contained in the Public Works Act, and that for that reason there was not to be found in the latter Act any power which s. 21 (1) (b) of the State Housmg Act could make applicable so as to support the resumptions. To uphold this contention
134 HIGH COURT
[1952.
H.
OF A. would he to deny all operation to s. 21 (1) (b). One answer
1»5L>.suggested liy the defendants was that the State Housing Commission I'^STATHS satisfies the definition of local authority in the Public Works Act, DUV 101.01'- because, by s. 21 (7) of its own Act, any building or structure which,
MIONT
in the opinion of the Minister on the recommendation of the com
C o. J 't v .
Ltd
r.
mission, is necessary for the purposes of that Act is deemed to be a
IS'IWTH OF
WlOSTHRN “ public work ” within the meaning of the Public Works Act, and
| A i :HTK,\1.1..\.therefore the commission, having authority to undertake the con Dixon struction of such “ pul)lic works ”, satisfies the definition of “ local |
\Vol)li .r. au thority” in the Public Works Act. If this be so, it was said,
K itto J.
it follows from the definition of “ public work ” in the latter Act that every work which the commission is authorized to undertake is a “ public work ” , and consequently the power of resumption under s. 17 of the Public Works Act is available, according to the terms of that section itself, to be exercised so as to vest land in the commission. The submission accordingly went on to ascribe to s. 21 (1) (b) of the State Housing Act the office, not of an enabling provision, but of a provision placing upon the exercise of the power of resumption under the Public Works Act a twofold limitation by subjecting it both to the consent of the Minister and to the right of appeal conferred upon a landowner by s. 21 (2).
But the language of s. 21 (1) (b) is that of a provision conferring a power ; and, although it is somewhat unhappily expressed, the more natural construction to place upon it is that the provisions of the Public Works Act conferring a power and prescribing a pro cedure for the compulsory acquisition of land are to apply mutatis mutandis to enable land to be compulsorily acquired by the com mission for the purposes of the State Housing Act. The result of thus adapting the relevant provisions of the Public Works Act is that whenever any land is required by the commission for a purpose of its Act, if the Minister consents, and subject to s. 21 (2), that land may be acquired by the ccmmission by means of the publication in the Gazette of a notice by the Governor declaring that the land has been set apart, taken or resumed for that purpose, and that a plan and more particular description of the land may l)e inspected at a stated convenient place, together with a direction by the Governor that the land shall vest in the commission. Upon this view of the operation of s. 21 (1) (b), it is not necessary for the defendants to maintain that the purpose for which land may be acquired under the State Housing Act is a “ public work ”, or a “ public purpose ” , within the meaning which those expressions respectively bear in the Public TforA:s Act. I t is enough to say that s. 17 of the latter Act, and the sections which follow it, are to
87 C.L.R.] OF AUSTRALIA.
135
be applied as if every purpose for which the commission, acting
H . C. OF A.
within the scope of its powers, may decide to acquire land com
1952.
pulsorily were a public work and a public purpose within the E states
meaning of those sections.
D ev e l o p
m ent
This conclusion enables an answer to be given at once to one of the minor submissions made for the plaintiff.
Co. P t y . L t d .
I t was that the
V.
Gazette notices in this case did not express a “ public purpose ” State
of
W ester n
or a “ public work ” with a degree of particularity sufficient to
A u st r a l ia .
satisfy ss. 17 and 18. Their only statement of the purpose of the
Dixon C..T.
resumptions was contained in the words : “ State Housing atWebb .1.
| K itto .1. |
Mount Yokine and Wanneru The expression is brief, but it means, clearly enough, the provision of housing accommodation as an activity of the State by the State Housing Commission in the vicinity mentioned. I t would be an unreasonable construction of the sections which would treat them as rec[uiring greater particu
larity than that.
I t is obviously with a twofold object that ss. 17
and 18 insist upon the purpose of a resumption being expressed on the face of the Gazette notices : first, that the public in general and expropriated owners in particular may be assured that the authority which Parliament has given to the Executive to deprive individuals of their property is being exercised within proper limits of purpose ; and secondly, that it may be publicly recorded that the resumed property, having been resumed for a stated purpose, is devoted exclusively to that purpose by force of s. 18. This dual object is fully served, in the case of a resumption under the combined provisions of s. 21 (1) (b) of the State Housing Act and ss. 17 and 18 of the Public Works Act, by a statement in the terms which appeared in the Gazette notices in this case.
I t will be convenient to deal at once with two further criticisms of the Gazette notice which the plaintiff made in the course of its attack upon the resumptions. First, it was argued that the notices erred in following the precise words of s. 17 of the Public Works Act, that is in declaring that the lands had been “ set apart, taken, or resumed ” . In order to be valid, it was said, the reader should have been informed whether the lands had been set apart, or taken, or resumed ; and the failure to choose one expression (and that the appropriate one), to the exclusion of the others, made the notices invalid. I t is true that the Public Works Act appears to use “ set apart ” in respect of Crown lands, public reserves, and the like, and to use “ resumed ” in respect of privately owned lands, and to use “ taken ” indifferently for both classes of lands. But the use of the three expressions disjunctively in the notices involves no uncertainty of meaning ; the section is satisfied by the perfectly
i;{(i IIKJH ('OURT
[I0o2.
II.
( ' .
( I K
A. c.loiir intimation wliicli the not-ic(\s ;j:ive that the lands they describe i'ir>2.ltav(' luM'n made the subject of the a^pproyKriatc form of accjuisition.
Ks t .\t k s
Si'condly, it wa.,s ,sa,id tl)a,t tlu; notices should liave d(!C!lared that
1 )i;s I'M.oi’- lher(' miyht be inspec.ti'd a,t tlu' oltice of tlie Mini.ster for Works
:m i;nt
('ll. I'ts . l;ni. not only a, phui but, in a, si'fia-rate document, a more particular
r.
(h'script ion o( tiu'. hind resmiH'd. d’here is, however, nothing in
S t ATI'’
. OK'
W ' K ' . S T K K N
s. 17 t.o napiire that tJie plan and the more parthmhir description
- \ l S ' l ' K A U A .may not b(' provichal by the. one document. The notices were
Dixon (',.1.
accordingly not deh'ctive for rehu'ring to the phin which, was
Wchli ,1.
KiUo ,1.availa.ble for inspeedion a.t the. Minister’s office a.s performing the
dual function of a, plan and of a document containing a more
]>articula.r description.
The nuiin a,ttack ipion. the resumptions wa.s based upon two grounds r<da,ting to the circumstances surrounding the publication of tlu' (h)V('rnor’s notices in t he GazeMe. The first of these, grounds wa.s that the commission had not forimdated any definite housing sclieme but was vagiudy yilanning for the uncertain needs of a fifteen year period, and was nia.king immediate acquisitions simply in order to avoid future rises in price, recognizing that when a scheme of development should ultimately be worked out it would be found that not all the land resumed would be needed, and that some would be sold back to the former owners. On this it waas argued that the purported acquisitions were not for any authorized purpose, and were invalid under the principle applied in Baiada, v. BauR-hmn Hills Shire Council (1), and cases wdiich that decision followed. The second ground was that although the commission had decided, before tlie Governor’s notices were published, that some lands in the Mount Yokine-Wanneru area should be com- yuilsorily acijuircd, its decision did not apply to the identical lands which a/fterwards were included in the notices, and indeed did not define wdth certainty to wdiat lands it applied. On this basis of fact, it was argued that the yiublication of the notices wars ineffectual to vest in the commission the lands described in them, because there was a failure of the condition, precedent, existing by the combined operation of s. 21 (1) (b) of the State Housing Act and s. 17 of the Public Works Act, that the commission must have decided wdth the consent of the Minister to acquire the land as being required for a purpose of the Stale Housing Act.
Jn order to deal wdth these two grounds of attack it is necessary to turn to the history of the matter so far as it is revealed by the
scanty evidence in the case.
I t appears that on 6th February 1950
an officer of the commission, Mr. J. Gallaher, made a report to the
(1) (11)51) sa (M. .H. :U4.
87 C.L.R.] OF AUSTRALIA.
137
commission’s Land Officer, Mr. R. B. McKenzie.
After pointing H . C. of A.
out that the existing land holdings of the commission were sufficient
1952.
only to satisfy its building needs for two to three years, Mr. Gallaher ^
stated that he considered that the commission’s needs should be
d e v e l o p -
planned at least fifteen years ahead, and that with this in view he
^
Co l̂ TY" Ltd
had made a complete survey of the metropolitan area with the ' ’
obiect of locatina: areas where large subdivisions coidd be established
State of
and continuity of building maintained without recourse to continual
A u str a lia .
acquisition of small areas. He then discussed a variety of areas,
Dixon C.J.
and ended by recommending the accpiisition of all available land Webb J.
| K itto J. |
in the area surrounding Mount Yokine. Mr. McKenzie sent on this report to the acting secretary of the commission with a memorandum of his own dated 6th April 1950. The memorandum stated that after much consideration, the Yokine-AVanneru area had been included in the commission’s land acquisition programme. Presumably this reflected a policy adopted by officers of the com mission rather than by the commission itself. The memorandum outlined a suggested procedure to be followed if the commission’s approval were given to proceed with accjuisitions in the area. I t spoke of the proposal to acquire the whole of the area, and said that the acquisition of such a large area would enable planning of all types to proceed in an orderly manner ; but it did not attempt to define the exact limits of the area to be acquired.
Presumably the commission gave general approval to the scheme, for on 14th April 1950 the chairman of the commission wrote to the Commissioner of Taxation seeking advice as to values throughout the area. The area was referred to as some 10,000 acres shown in red on a plan attached, but this plan was not put in evidence. The Acting Commissioner of Taxation replied in a letter of 30th May 1950. He described the area as slightly in excess of 10,000 acres, and added that a large number of developed properties within the area would need to be excluded. The letter was accom panied by a set of plans, and stated that the areas recommended for immediate resumption were enclosed within a green border, and areas for possible resumption subject to policy decision were shown hachured green. Improved properties or portions of properties were indicated in red (i.e. shaded red) or (if lightly improved) hachured red. The letter contained a con.siderable body of infor mation not material to this appeal, and for the sake of clarity in what follows it is necessary only to add that there were references in the letter to a \Vestminster Gardens subdivision, in which the plaintiff company was largely interested, and that the statement was made that the section of Westminster Gardens west of the
r.iH
HIGH COUP/J^
[1952.
H.C'. OK A. Waiiiiei'u Poad was mostly held by private owtiersliip, only about
| 1952. | 80 lots out ot 314 bciiio held by the plaintiff company at 30th June |
1949. '
Estates
1 )n\ni,oi’-
Th(' commission held a special meeting on 13th June 1950.
•MUNT
The st'cretary, Mr. Pond, was on leave, and the Land Officer, Mr.
C’o . Et y .
Lt d
r.
McKenzie, recorded the decisions arrived at. The minutes state
S t a ’I'k
ok
W KSTHKN thiit s])eci;d consideration was given to the Taxation Department’s
A k s t u a l i a .re])ort on the \Vaimeru-M.oimt Yokine area, and that five decisions
Dixoil C.,1. were made. First, it was decided that the commission purchase
Wobh .1.
or act(uire the whole of the area bounded by green lines on the
K itto
J .
Taxation Department’s plans, excluding portions shown as improved or slightly improved properties or portions of properties ; and the statement was added that this excluded Westminster Estate except ill so far as governed by the third decision. Secondly, it was decided to inform the Minister that it was the commission’s con sidered opinion, in view of recent land transactions and quickly rising values, that the land should be acquired under the commis sion’s powers of resumption. The third decision was to ask the source of the Taxation Department’s information that only 80 lots (presumably meaning in the W'Ystminster Estate) were held by the plaintiff company (apparently the reference to 80 lots in the Department’s letter of 30th May 1950 had been misunderstood), and that in the event of the company being found to hold more than fifty per cent of the estate the area be resumed. The fourth decision was that the commission resume all land either in quarter acres or larger areas which had not been built upon ; and it was added that the commission would accommodate holders of quarter acre lots when subdivision should have been made. Finally, it was decided that, because of the necessity for expedition, the whole plan of acquisition be placed before the Minister immediately, and that, if it should be approved by the Government, the land resumption officer of the Public Works Department be requested to take immediate action to effect the resumption.
The secretary of the commission, Mr. Bond, was called by the defendants to state what took place at a later date when he discussed the proposed resumptions with the Minister. But in cross-examina tion he was asked questions about the meeting of 13th June at which he was not present, and about the objects and views enter tained by the commission and the factors which affected its decisions. Upon such matters he was obviously unable to give admissible evidcirce, and the answers he gave could not be allowed to aftect the decision of the case even if they added anything significant to what has already been mentioned. However, all that they tend
87 C.L.R.] OF AUSTRALIA.
139
to suggest is that the commission’s object was to resume the entirety
H . C. of A.
of an area (which Mr. Bond was not asked to specify beyond saying
1952.
that it was the land within the green line), in order to provide for E states
the requirements of fifteen years ahead, although a development
D e v e l o p-
plan had yet to be prepared and some portions of the land would
i- ■/ ^ ^ ^
Co P t y L td
prove not to be required and would be returned to former owners. ' '
’
V.
State of W ester n
There is nothing in this to justify a conclusion that the power of
acquisition was being employed for unauthorized purposes. The A u str a lia .
provision of housing in pursuance of the State Housing Act was,
Dixon C.J.
W ebb K itto J.,T.
so far as evidence reveals, the whole purpose of the proposal;
and neither the commission, nor any of its officers, nor even the Taxation Department, directed attention to any matter which was not within that purpose or incidental to it. The legislature has shown by the provisions of s. 21 (1) that it contemplates the cominission having land vested in it beyond its immediate require ments for the purposes of the A c t: par. (j), and before re-planning and re-subdividing the area : par. (d), and also contemplates its selling (otherwise than under the main power to sell houses and land), any land purchased or acquired under the sub-section or any part of the land : par. (k), and exchanging land for other land : par. (1). The commission is given by par. (q) a power to do all matters and things incidental to any of the subjects of power under the preceding paragraphs of the sub-section. In view of these provisions it is clear that the commission’s recognition from the beginning that there would be some part of the land it was deciding to acquire which would not be needed and could be returned to former owners was quite consistent with there being no purpose actuating the commission other than the purpose of planning and developing the whole area as a housing scheme in accordance with the Act, and disposing of such lands as should be found in the process to be surplus. All this was well within the purposes for which the power of acquisition was conferred. I t is in the width of those purposes that the distinction is to be seen between this case and Campbell v. Municipal Council o f Sydney {No. 2) (1), (affirmed on another point (2) ), where the statutory purposes were the carrying out of improvements in or remodelling any portion of the city of Sydney and it was held that land could not be said to be required for that purpose until a scheme or plan for improving or remodelling a definite area of the city had been considered and the general nature at least of the improving or remodelling has Ijeen determined. Again, the fact that the commission’s decision to accjuire at once
(I) (1923) 24 S.R. (X.S.W.) 193;
(2) (1925) A.C. 338.
41 W.X. 13.
140 HIGH COURT
[1952.
II. OK A.<i l;iTg('T ai'Cii titan wa,s needed for immediate use sprang from a desire l-o forestidl anticipated increases in land values shows only
I'jSTATHSthat its purpose was to perform its statutory duty with a minimum
1)k\' 101,or-
outhiy. That is tpiitc dilferent from a purpose of reselling at a
MIONT
| profit so iis to ofCset the cost of resumptions. There is no trace in |
Co. 1’t y . 1/ri).
r.
this ctise of such a collateral ])urpose as vitiated the resumptions in
iS t .A'I'I0
Oh’
W ' l O S T i O U NThompiiov V. Council o f the Munici'jxdity o f Randwick (1); Hotvarth
A u s t k a u a .V.
McMahon (2); Minister for Riiblic Works v. Lhujfjan (3); and
IMxon C..I.
Baiada v. Bavlkhani Hills S/dre Council (4).
Wi'bb .1.
The rest of the evidence must now be referred to for the purpose of detding with the ])laintiff’s remaining contention, that the resump tions which the Gazette notices purported to effect were not in accordance with any decision of the commission or consent of the IMinister, and were therefore unauthorized by s. 21 (1) (b) of the State Housing Act and s. 17 of the Public Works Act.
K i t t o
.1.
I t is common ground that there was no relevant decision of tlie commission except at the meeting of 13th June 1900. In the margin of the minutes of that meeting there are two notations indicating ministerial consent, one by Mr. G. P. Wild as Assistant IMini.ster for Housing on 16th June 1950, and the other by the same gentleman as Minister for Housing on 30th October 1950. The secretary of the commission, Mr. Bond, said in evidence that he took the file and a plan “ of the whole area ” to the Minister on the latter date and discussed with him in broad outline the whole scheme of the intended resumption and the necessary work to be done to resume “ the land marked on plan ” . He said that the Minister had a large plan before him and was familiar with the details of the proposal. At some date, which presumably was before 30th October 1950, the Land Ofi&cer, Mr. McKenzie, had made inquiries of the Taxation Department concerning the Westminster Estate in pursuance of the third of the decisions made by the commission on 13th June. He had ascertained that in that estate, which was about one-eighth of the whole area, the plaintiff company owned over fifty per cent of the land. That being so, the effect of the first and third of the decisions of 13th June was that the .
whole of the area bounded by green, lines on the Taxation plans was to be acquired, including (or with the addition of—it is not clear which) the Westminster Estate, but excluding portions shown on the plans by red shading or hachuring, as improved or lightly improved.
(1) (1950) 81 C.L.R. 87.(3) (1951) 83 C.L.R. 424.
(2) (1951) 82 C.L.R. 442.
(4) (1951) 83 C.L.R. 344.
87 C.L.R.]
OF AUSTRALIA.
H . 0 . OF A.
Now, until the Taxation Department’s plans are examined and compared with a plan indicating the lands which were included in
19.52.
the Gazette notices, there is nothing whatever to suggest that on E sta te .s
]8th June the commission was in any uncertainty as to the identity
.Dev elo p
of the lands it was deciding to acquire, or that Mr. Bond was wrong
m ent
Co. P t y . Lt d .
when he said in evidence that on .30th October the Minister, who
V.
had a large plan before him, was familiar with the details of the State of
Wu.STEFtN
proposal. And it is not unimportant to observe that Mr. Bond, A u.stra lia .
who, in the responsible position he occupied, must have made
Dixon C..T.
himself thoroughly familiar with the scheme before interviewing Webb .J.
| K itto J . |
the Minister, was not asked in cross-examination a single question directed to establishing that there was any discrepancy between the proposal to which the Minister gave his consent by notation in the margin of the minutes of 13th June and the resumptions carried out by the Gazette notices. I t is highly improbable that the Executive Council would have advised the Governor to resume and vest in the commission land which the commission and the Minister had never decided should be acquired. The onus lies heavily upon the plaintiff to establish that that in fact happened.
In order to establish this, counsel for the plaintiff turned first to the Taxation Departnrent’s plans, and pointed out that the green lines do not completely enclose the area they are intended to delineate. He also pointed out, and rightly, that the evidence does not enable the Court to tell where the MTstm.inster Estate was. What were its boundaries or area, or whether it was within the green lines or the areas hachured green, shaded red, or hachured red on the plans, are questions which the evidence leaves un answered. I t must therefore be conceded that on the face of the minutes and the plans it is impossible to know what precise lands the commission considered, and the Minister agreed, ought to be acquired. But to say that one coming fresh to the plans would be uncertain as to this is not to say that the commission’s decision itself lacked certainty, or that the Minister, when giving his consent, failed to understand perfectly what that decision was. The case is not to be decided as if the minutes of 13th .1 une were the operative decision of the commission and the task of the Court were to decide whether the minutes, construed with the plans, are void for un certainty. The minutes are but evidence of the decisions they record ; and it does not follow, from the fact that ambiguity exists in the minutes or appears from inspection of the plans, that the commission or the Minister was not entirely clear about the land to which they were directing their minds. Imperfection in the d(!Scription of that land is found only in documents which, after
142 HKIH COURT
11952.
H.('. UK all, wore not, di'awn up for uouera,) ijiformatiou, but were prep>ared
| 1952. | and pr(\serv('d a,s intra,-dej)iu'tinental records only. And the |
I''.stat ks important la,ct must not lx; overlooked that not one person who
1 )K\- K.l.Ol’-
played any pa,rt in the matter lias ever given the sligfitest hint
M KNT
('u. I’t v . Ltd
of (loiil)t oi’ la,ck' of unanimity as to the identity of the lands to be
r.
acipiired.
S ’I'ATK.
UK
W l ' lS T KKNBut undoubtedly diser('pa,ncies do ajipear when the plan sliowing
A ksthai .i a .the hvnds described in the (U:zvlLe. notices is set a,gainst the Taxation
I )ixon I'.,I.
l)('})artment’s plans. We have been supplied Iry Mr. Fullayar
Wi'ltl) ,1. K>Uo ,1.with a very helfiful memorandum pointing out these discrepancies
in detail. I t is made by this quite clear that some lands which on any view were included in the commission’s decision to acquire wx're omitted from the Gazette notices. I t is also clear that of the lands included in the Gazette notices some were not within the green lines on the Taxation Department’s plans while some were hachured green on tlie Taxation Department’s plans ; and all these lands were outside the commission’s decision to acquire, unless they were part of the Westminster Estate.
In this state of things, the plaintiff company wmuld be entitled to succeed if the assumption were justified which underlay the argu ment presented on its behalf on this part of the case. The assump tion was that the challenged acquisitions are to be considered in globo and are to be held valid or invalid according as the whole of the lands described in the Gazette notices were or were not identical wdth the wdiolc of the lands covered by the commission’s decision. But clearly this cannot be so. In point of law, there were as many acquisitions as there were parcels of land separately described in the Gazette notices. The validity of the acquisition of each parcel depends upon the facts concerning that parcel, and it cannot be affected even by conclusive proof that some other parcels were omitted from the Gazette notices though covered by the commission’s decision or were included in the Gazette notices though outside that decision. Moreover, the plaintiff company’s interest to maintain the action wdtli respect to the purported acepusition of ajiy one parcel depends upon its having been the registered proprietor of that ])arcel at the date of resumption. It is therefore irrelevant to this action that some j)arcels of land of whicli the plaintiH was not the registered proprietor w'crc inchuled in the Gazette notices without any decision having been made by the commission to accjuire them. In order to obtain any relief in the action, the plaintiff had to establish that some of its own land included in the notices was 7iot included in the decision of the commission. This it has failed to establish. Because of the complete uncertainty wdiich
87 C.L.R.] OF AUSTRALIA.
143
exists on the evidence as to the identity of the lands comprised
H . C. OF A.
in the Westminster Estate, no finding could possibly be made that
1952.
any land which was included in the Gazette notices and is foundTestates
to be outside the green lines, or to be hachured green, on the
d b v e l o p -
Taxation Department’s plans was not within the Westminster ̂ vent
E state. In particular, no such finding could be made with respect
' v.' ̂ '
to any of the plaintiff’s lands. Indeed, in the end counsel for the
State of
plaintiff was constrained to agree that, if the condition was in fact A ustra lia .
satisfied upon which the inclusion of the Westminster Estate in
Dixon C..I.
Webb .T. K itto J.
the commission’s decision depended, the plaintiff had not proved
affirmatively that any of its land which the notices purported to resume was outside the commission’s decision. He disputed the fulfilment of the condition, contending that Mr. McKenzie’s inquiries of the Taxation Department were insufficient to establish that the plaintiff company held more than fifty per cent of the estate. But though the evidence was slight, it was uncontradicted. The tru th of the matter was peculiarly susceptible of proof by the plain tiff company, yet it adduced no evidence on the point. The case must therefore be dealt with on the footing that the AVestminster Estate, whatever it was and wherever it was, fell within the commission’s decision to which the Minister gave his consent. On that footing, the only possible conclusion is that there was no proof of the inclusion in the Gazette notices of any land belonging to the plaintiff to which the commission’s decision did not extend. The challenge to the validity of the resumption of the plaintiff’s lands fails at every po in t.' The learned Chief Justice of Western Australia rightly dismissed the action, and the appeal must also be dismissed.
Ajtfeal dismissed with costs.
Solicitors for the appellant, Olney & Nevile, Perth, by Norris,
Coates & Hcarle.
Solicitor for the defendants, R. V . Nevile, Crown Solicitor for the State of W'estern Australia, by F. G. Menzies, Crown Solicitor for the State of Victoria.
R. D. B.
0
0