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…

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 Fox v Allchurch

Details

AGLC: Fox v Allchurch [1927] HCA 40
Case: [1927] HCA 40
Decision Date: 25 October 1927

CaseChat Overview and Summary

In *Fox v Allchurch*, the High Court of Australia considered the validity of a by-law made by the Board of Governors of the Botanic Garden. The dispute concerned the control and management of Crown land dedicated as a public garden, specifically whether such control was vested in the Commissioner of Lands or the Board of Governors.

The central legal issue before the Court was the proper interpretation of the relevant legislation, namely the *Botanic Gardens Act 1901* (NSW) and the *Crown Lands Consolidation Act 1913* (NSW), to determine which body held ultimate authority over the Botanic Garden. This involved ascertaining whether the dedication of the land for public garden purposes divested the Commissioner of Lands of his general control under the latter Act, or if the *Botanic Gardens Act* conferred exclusive control upon the Board.

The High Court reasoned that the *Botanic Gardens Act* established a specific statutory regime for the management of the Botanic Garden, vesting control and management in the Board of Governors. The Court held that this specific legislation prevailed over the more general provisions of the *Crown Lands Consolidation Act* in relation to the land dedicated as a public garden. Consequently, the by-law made by the Board was found to be validly made within its statutory powers.

Orders