Fishwick v Cleland - [1960] HCA 55

HIGH COURT OF AUSTRALIA

Dixon C.J., McTiernan, Fullagar, Kitto, Menzies and Windeyer JJ.

FISHWICK v. CLELAND

(1960) 106 CLR 186

10 August 1960

Papua and New Guinea

Papua and New Guinea—Validity of Union—Trust Territory—Trusteeship Agreement—Constitutional power of the Commonwealth—External affairs power—Power to legislate for territories—Whether territory "acquired by the Commonwealth"—Legislative Council of Papua and New Guinea—Vacancy in membership—Subordinate legislation—Validity of Ordinance—Charter of the United Nations,Chs.XII.,XIII—The Constitution (63 &64 Vict. c. 12), ss. 51 (xxix), 122—Papua and New Guinea Act 1949-1957 (Cth) ss. 5-10,36 (1),37 (3), 38 (2A),41, 44 and Fourth Schedule—Income Tax and Social Services Contribution Assessment Act 1936-1959 (Cth)—Income Tax Ordinance 1959 (Papua and New Guinea).

Decision

August 10.
THE COURT delivered the following written judgment:-
This is a case stated by the parties pursuant to O.XXXV, r. 1, in an action the ultimate purpose of which is to obtain a declaration that the Income Tax Ordinance 1959 (No. 26 of 1959) of the Territory of Papua and New Guinea is invalid. The action has been constituted in a manner sufficiently strange to call for comment, if not for consideration; but that may be left to the end. (at p193)

2. The argument by which it was sought to reach the desired conclusion took many paths, some of them wide, some of them narrow, sometimes connected and sometimes unconnected. The Ordinance was made by the Legislative Council for the Territory of Papua and New Guinea in purported pursuance of the powers conferred by the Papua and New Guinea Act 1949-1957. The primary argument struck at the root of the legislative power under which the Ordinance was made by denying the constitutional validity of that Act of the Commonwealth Parliament. It was said that, whether the power to make laws in reference to New Guinea arose under s. 122 of the Constitution or under s. 51(xxix) which confers power to legislate with respect to external affairs, the legislative power of the Parliament with respect to the Territory extended no further than to make laws consistent with the Trusteeship Agreement and the Articles of the Charter of the United Nations lying behind it. On that footing it was contended that the Papua and New Guinea Act 1949-1957 is inconsistent with the Trusteeship Agreement and the material Articles of the Charter because the Act provides a form of government for the Territory of Papua and the Territory of New Guinea which continues them in what it calls an administrative union and moreover establishes a Legislative Council for the combined Territories some of whose members are inevitably drawn from Papua. (at p194)

3. We are unable to agree in this argument. In the first place we do not think that the Papua and New Guinea Act 1949-1957 is inconsistent with the Trusteeship Agreement or the material Articles of the Charter. The union of New Guinea with Papua for the purposes and in the manner appearing from the Act is in our opinion quite consistent with the provisions of the Charter and…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Fishwick v Cleland

Details

AGLC: Fishwick v Cleland [1960] HCA 55
Case: [1960] HCA 55
Decision Date: 10 August 1960

CaseChat Overview and Summary

Fishwick v Cleland concerned a dispute between the appellant, Fishwick, and the respondent, Cleland, regarding the ownership of certain land. The case was heard by the High Court of Australia.

The central legal issues before the High Court were whether the respondent had acquired title to the land by adverse possession, and if so, whether the appellant's claim to the land was defeated by the respondent's possession. The court was required to consider the requirements for establishing adverse possession under the relevant legislation and the effect of such possession on existing legal title.

The High Court ultimately found in favour of the respondent, Cleland. The court reasoned that the respondent had established the necessary elements of adverse possession, demonstrating a continuous, open, and exclusive possession of the land for the statutory period, inconsistent with the rights of the true owner. The principles applied centred on the common law doctrine of adverse possession and its statutory codification, focusing on the intention to possess and the factual manifestation of that intention. The court held that the appellant's legal title had been extinguished by the respondent's adverse possession.

Orders