Fox v Allchurch

[1927] HCA 40

40 C.L.R.]OF AUSTRALIA,

135

[HIGH COURT OF AUSTRALIA. 1

FOX

......................................................................................Appellant ;

Defendant,

AND

ALLCHURCH................................................................Respondent.

Complainant,

ON APPEAL FROM THE SUPREME COURT OF

SOUTH AUSTRALIA.

By-law—Validity—Crown land dedicated as public garden—Whether control of land H. C. or A.

vested in Commissioner of Lands or in Board of Governors of garden—Botanic

1927.

Garden Act 1860 (<S.A.) (No. 8 of 1860), secs. 1, 2, 5*—Crown Lands Act 1888

—■

(S.A.) (No. 444), secs. 6, 148*.

Melbourne,

On 14th March 1894 certain Crown lands adjoining the Adelaide Botanic Oct. 24, 25.

Garden were by proclamation dedicated to the purposes of the Botanic Garden

^

under the name of the “ Botanic Park,” and by the same proclamation the Governor consented to the Board of Governors augmenting the boundaries

Botanic Garden Act 1860 (S.A.) The Crown Lands A 1888 (S.A.)pro-

by sec. 1, that the Botanic vides, by sec. 6, tha

Governor may

delaide as t from time to time roclamation

d shall be a dedicate any Cro

for any of

ernors ; bythe following p

s:— .

old in trust all lands

(ix.) for park lands or places for the

dicated to .

therecreation and amusement of the

or in anywise belonging to, inhabitants of any city, town, or place :

tution ; ” and, by sec. 5,

. . . (xi.) for any other public

rd “ shall have ful

ower purpose that he may think fit: and

rity ... to ho

and may at any time after dediation grant

lands granted to, or now

the fee-simple of such lan to secure

, omay hereafter be the use thereof for the

e for

or occupied by the which the same were dedicate” &c. ;

c G. . . never­

and, by sec. 148, that “ the care, con­

e said Board may, by and trol, and manage

all lands

consent of the Govemor-in- reserved odicatedGovernor

d of the Executive Council, for or to public

shall, in

diminish, or alter the bound­

the interimtween reservation or

of the said garden . . . anddedication of such lands, and until the

have full power ... to make same shall be granted in fee, be vested

ws ” for certain purposes.

in the Commissioner ” of Crown Lands.

of the Botanic Garden. On the same day it was notified that the Board of Governors had with the consent of the Governor in Council augmented the Botanic Garden by adding thereto the Botanic Park.

Held, by Isaacs A.C.J., Higgins, Oavan Duffy, Powers and Starke JJ. (Rich J. doubting), that, notwithstanding the provisions of sec. 148 of the Crown Lands Act 1888 (S.A.) and the absence of a grant of the Botanic Park to the Board of Governors, the Board had, under the Botanic Garden Act 1860 (S.A.), the management of the Botanic Park and had power under sec. 5 of that Act to make by-laws in respect of it.

Decision of the Supreme Court of South Australia (Full Court) affirmed.

Appeal from the Supreme Court of South Australia.

In the Police Court at Adelaide a complaint was heard whereby Herbert Allchurch charged that Samuel Bay ley Fox did in the Botanic Park at Adelaide “ take part in a certain public meeting without the Board having first given its consent in writing thereto contrary to the by-law under the Botanic Garden Acts 1860 to 1866- 1867.” At the hearing the complaint was amended by inserting the words “ to wit to the said taking part in the said meeting ” after the word “ thereto.” It appeared that on 14th March 1894 a proclamation was made as follows “ By virtue of the provisions of the Crown Lands Act 1888 and of all other powers and authorities me thereunto enabling I. the Lieutenant-Governor, with the advice and consent of the Executive Council do hereby dedicate the Crown lands the boundaries whereof are set out in the schedule hereto, for the purposes of ‘ the Botanic Garden of Adelaide,’ and as an addition thereto, to be called ‘ the Botanic Park ’: And, by virtue of the provisions of the Botanic Garden Act, No. 8 of 1860, I proclaim that I, the said Lieutenant-Governor, and the said Executive Council consent to ‘ the Governors of the Botanic Garden,’ augmenting the boundaries of the said Garden by adding thereto the land comprised in the boundaries set out in the said schedule hereto.” The schedule set out the boundaries of the land, which adjoined the Botanic Garden. On the same day a notice was published in the Government Gazette notifying that “ 1 The Governors of the Botanic Garden’ have, by and with the consent of His Excellency the Lieutenant-Governor and of the Executive Council, and by virtue of the provisions of the Botanic Garden Act, No. 8 of 1860, augmented the boundaries of ‘ the Botanic Garden of Adelaide ’ by adding thereto

the land comprised within the boundaries set out in the schedule H- c- OF A- Garden—by-law A applying to the Botanic Garden and by-law B applying to the Botanic Park. By clause 10 of by-law B it was provided that “ No person shall convene, hold, or take part in or attend any public meeting in the Park unless the Board has first given its consent in writing thereto,” &c.

hereto, and called ‘ the Botanic Park.’ ” The schedule set out the

same boundaries as those in the schedule to the proclamation.

The defendant, having been convicted, appealed to the Supreme Court. The appeal was heard by Napier J., who dismissed it: Fox v. Allchurch (1). The defendant then appealed to the Full Court, and that Court, having amended the complaint by striking out the words inserted in it at the hearing in the Police Court, dismissed the appeal. From the decision of the Full Court the defendant now, by special

leave, appealed to the High Court.

Owen Dixon K.C. (with him Norris), for the appellant. The Board of Governors had no authority to make the by-law. By virtue of sec. 148 of the Crown Lands Act 1888 the effect of the dedication of the land known as “ the Botanic Park ” by the proclamation of 14th March 1894 was to put the land in the care, control and management of the Commissioner of Lands, and, as there was no subsequent grant of the land to anyone, the care, control and management of the Park remained in the Commissioner. The augmentation of the Botanic Garden by including the Park was inconsistent with the provisions of sec. 148, and had not the effect of taking the control of the Park out of the hands of the Commis­ sioner. [The conviction was also attacked on two other grounds: one that the power to make by-laws did not enable the Board of Governors to make separate by-laws for the Botanic Garden and for the Botanic Park, and the other based on the amendments made in the complaint. It is not necessary, for the purposes of this report, to refer to these objections further.]

Hannan (with him Abbott), for the respondent. The object of the provision in sec. 148 was to put dedicated land under the control

(1) (1926) S.A.S.R. 384.

of the Commissioner in cases where control by some other body or person was not already provided for. In this case the control was already provided for by sec. 2 of the Botanic Garden Act, which directed that the Board of Governors was to hold in trust all lands dedicated to the purposes of the Garden, and the provision in sec. 148 does not apply. Even if that section does apply, there was a grant of the land in the sense that by the operation of the Botanic Garden Act the land was tied up in perpetuity as effectively as if there had been a Crown grant to the Board of Governors.

Owen Dixon K.C., in reply.

Isaacs A.C.J. In this case several grounds were advanced in support of the appeal. As to all but one they have been sufficiently dealt with in the course of the argument and I do not propose to say anything about them. There remains one ground, a ground of substance. The contention is that notwithstanding anything contained in the Botanic Garden Act 1860 the provisions of sec. 148 of the Cronm Lands Act 1888 have to be given effect to, and that on its true construction sec. 148 vested the care, control and manage­ ment of the Botanic Park at the time the by-law was made in the Commissioner of Crown Lands, and therefore excluded the care, control and management of the Board of Governors of the Botanic Garden and necessarily excluded the Board’s right to make by-laws in respect of the Park Lands. Sec. 2 of the Act of 1860 may or may not govern the matter on the principle of generalia specialibus non derogant, but I express no opinion as to that. I assume that sec. 2 would not have that effect; and on that assumption I proceed. The Botanic Park was dedicated under the power conferred by either clause ix. or clause xi. of sec. 6 (d) of the Cronm Lands Act for the purpose of the Botanic Garden. Now, that dedication being under sec. 6 of the Crown Lands Act, we have to read the concluding words of the sub-section : The Governor “ may at any time after dedication grant the fee simple of such lands to secure the use thereof for the purpose for which the same were dedicated, and may, at any time before the grant of the fee simple of any such lands, resume the same wholly or in part, by proclamation.” So

that the first’ thing that strikes one in that connection is that the power to grant the fee simple is to secure the use of the lands for the purpose for which they were dedicated. Remembering that when we come to sec. 148, it is fairly clear that the provision that the care, control and management of the lands dedicated should l3aaig A c j

be vested in the Commissioner during the interim between the dedication of the lands and the granting of them in fee was to keep the control of them in the hands of the Crown until they should be secured by a grant in fee for the purpose for which they -were intended. Looking at the proclamation, it proceeded first of all to dedicate Crown lands as an addition to the Botanic Garden and to be called “ the Botanic Park.” At that point of time, on the assumption I have made, the Crown had, so to speak, two possible legal roads by which the purpose of that dedication could be effected:—It might have proceeded to exercise the powers in the Crown Lands Act of making a Crown grant, and then sec. 148 would apply until the grant was made. Or it might have taken the alternative course pointed out in the Botanic Garden Act of securing the same end by giving the consent of the Governor in Council to the Board of Governors augmenting the boundaries of the Garden, in which case, says sec. 5 of the Botanic Garden Act, a certain legal result shall follow, namely, that the Board is to “ hold and retain all lands granted to, or now occupied by, or which may hereafter be granted to, or legally occupied by the said Botanic Garden.” That land, or that part of the Botanic Garden, would then be legally occupied by the Board of Governors as soon as it exercised the power of augmenting, and then, says the Act, “ unless any part thereof be diverted from such purpose by legislative enactment.” In other words, sec. 5 gives in the cases mentioned a legal right to the Board of Governors to hold the lands which for the time being are legally occupied by the Botanic Garden free from any interference except it be authorized by some Act of Parliament. That is the result of the alternative exercise of power in this case. The legal consequence is that at the moment of the dedication the Crown had the care, control and management or the lands to which the proclamation referred, and even after the Governor had given his consent to the

H. C. or A. augmentation the Crown had that care, control and management.

But after the Board of Governors had exercised its power of augmenting the boundaries, then, by force of sec. 5, those lands were no longer Crown lands which might be the subject of a Crown grant, because they were placed in the sole power of the Board of Governors until by some legislative enactment they were diverted from the purpose.

For these reasons I think that the objection is not tenable and that the appeal should be dismissed.

Higgins J. I have come to the same conclusion as my brother Isaacs, but on a somewhat different ground. The only difficulty that I have seen from first to last is as to the relation between sec. 148 of the Crovm Lands Act 1888 and the Botanic Garden Act

1860. The words of sec. 148 certainly literally fit this case : “ The care, control, and management of all lands reserved or dedicated . . . shall, in the interim between the reservation or dedication of such lands, and until the same shall be granted in fee, be vested in the Commissioner.” It is not the land that is vested in the Commissioner but the care, control and management thereof. But one must look at the object of the section. It is simply to provide for the care, control and management of lands which otherwise might be left derelict or neglected until the purpose be achieved. The position is that lands dedicated and not granted would perhaps be overrun by rabbits or might be used for all sorts of uncleanly purposes, and the Legislature says “ We must put the care and management of these reserves in someone,” and it makes the Commissioner the caretaker. But the vesting of the care, control and management in the Commissioner is obviously to provide for the care, control and management where no care, control or manage­ ment is otherwise provided. The provision was not intended to apply to lands where the care, control and management are provided for by statute ; sec. 148 does not take away any existing statutory control. Moreover, when you look at the preamble of the Crom Lands Act you see that it was meant merely to repeal two Acts— the Crown Lands Consolidation Act 1886 and Crovm Lands Amendment

Act 1887—and to make other provisions in lieu thereof, that is, H- c- OF A-

.

.

in lieu of those two particular Acts only. Then, by sec. 3, those two Acts are repealed. There is, therefore, no indication of an intention to repeal anything else. The Full Court decided this

case upon the principle generalia specialibus non derogant; but

think this case goes even deeper. The Botanic Garden Act still Btands unless it was repealed, and there can be no repeal of an Act of Parliament except by express words or necessary intendment. The result is, I should say, that sec. 148 does not apply at all to lands as to which the Legislature had already provided who is to have the care, control and management.

As to sec. 2 of the Botanic Garden Act, I do not think it has anything to do with title at all: it merely provides that whatever the Board holds it holds on a trust. Sec. 5 provides not only for lands granted in fee simple to the Board of Governors, but for lands “ now occupied ” or “ which may hereafter be . . . legally occupied ” by the Botanic Garden. I have no doubt that the by­ law, which applied when the boundaries had been “ augmented,” applied to the new part as well as the old. Then, as I take it, the proclamation gave such title as is involved in dedication, whatever it is, to the lands referred to ; but it also gave augmented duties to the Board of Governors under sec. 5 of the Act of 1860. It extended the Board’s duties to the Park Lands in the same way as if it had put more chickens under the wings of the Board. I think the by­ law applies to any lands which are added to the Botanic Garden.

For these reasons I agree that the appeal should be dismissed.

Gavan Duffy J.

I agree that the appeal should be dismissed,

and adopt the reasons of my brother Isaacs.

Powers J.

I agree that the appeal should be dismissed for the

reasons given by my brother Isaacs.

Rich J. I have had considerable doubt about the matter, but no good purpose would be served by expressing the reasons for that doubt.

H. C. of A. Starke J.

I agree with the views expressed by my brother

1927.

Isaacs.

Fox

v.  Appeal dismissed..

Allchurcfi.

Solicitors for the appellant, Donald Ken & Co., Adelaide, by

Hodgson & Finlay son.

Solicitor for the respondent, A J. Hannan, Crown Solicitor for South Australia, by Snowball & Kaufmann.

B.L.

[HIGH COURT OF AUSTRALIA.]

CALVERT...........................................................................Appellant;

AND

THE COMMISSIONER OF TAXES FOR

Respondent.

VICTORIA............................................

ON APPEAL FROM THE SUPREME COURT OF

VICTORIA.

H.C. of A. Income Tax—Assessment—Income—Deductions—Annuity paid by taxpayer and

1927. charged on land on which he carries on business—Money wholly and excliisively

—»

expended for purposes of trade—Income Tax Act 1915 (Viet.) (No. 2668),

Melbourne, 19 (2)

(g)*.

Oct. 27, 28.

The payment of an annuity payable by a taxpayer and charged upon his

Isaacs A.C.J.,

Gavan Duffy, land on which he carries on his business as a pastoralist is not money “ wholly

Powers, Rich and exclusively laid out or expended for the purposes of ” his “ trade,”

and Starke JJ.

within the meaning of sec. 19 (2) (g) of the Income Tax Act 1915 (Viet.), and,

therefore, may not be deducted from his gross income.

* Sec. 19 (2) of the Income Tax Act

bursements or expenses whatever not

1915 (Viet.) provides that “in being money wholly and exclusively

estimating the balance of the income laid out or expended for the purposes

liable to tax no sum shall be deducted of such trade.”

therefrom for ...(g) any dis­