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Gilbert v Western Australia

Gilbert v Western Australia

Case [1962] HCA 7 12 February 1962

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HIGH COURT OF AUSTRALIA

Dixon C.J., Fullagar, Kitto and Windeyer JJ. (THE HONOURABLE MR. JUSTICE FULLAGAR died at Melbourne prior to the delivery of judgement in this appeal)

GILBERT v. WESTERN AUSTRALIA

(1962) 107 CLR 494

12 February 1962

War Service Land Settlement (W.A.)

War Service Land Settlement (W.A.)—Perpetual leasehold—Right to purchase fee simple at "such price as is fixed under the scheme by the Minister"—Meaning—War Service Land Settlement Agreements Act 1945 (Cth), Second Schedule—War Service Land Settlement Agreement Act, 1945 (W.A.)—War Service Land Settlement Agreement Act, 1951 (W.A.), s.6—States Grants (War Service Land Settlement) Act 1952 (Cth)—War Service Land Settlement Scheme Act, 1954 (W.A.), s. 7.

Decision

1962, February 12.
The following written judgment was delivered:-
DIXON C.J., KITTO AND WINDEYER JJ. This is an appeal from a judgment of D'Arcy J. in the Supreme Court of Western Australia by which his Honour dismissed with costs an action in which the appellant was plaintiff and the respondents were defendants. The appellant is a soldier settler, the holder of a perpetual leasehold farm under the war service land settlement scheme of Western Australia. He took up this farm, of 1430 acres, in May 1948. It was part of a property called Boraning in the Williams district, which had been acquired by the Crown in August 1947 for war service settlement. The first respondent, the Minister for Lands, is a body corporate constituted by the Land Act, 1933-1956 (W.A.), responsible, until June 1959, for the administration of the war service land settlement scheme. At relevant times since 1959 the second named defendant, Crawford David Nalder, was the Minister of the Crown so responsible. It is not suggested that the respondents were not the proper parties to defend the action, which is really a claim against the Crown in right of the State of Western Australia. Stated very broadly, the appellant's claim is that he is entitled to convert his perpetual leasehold into a fee simple upon payment to the Crown of the purchase price to be fixed by the Minister; and that the Minister cannot lawfully fix a purchase price in excess of 5,836 pounds. The respondents do not deny the right of the appellant to have his holding in fee simple upon payment of the purchase price; but they assert that the Minister could properly fix 12,761 pounds as the price. (at p500)

2. The appellant's lease contained no option of purchase, and when he took up his holding in 1948 there was no provision for conversion of war service settlement leaseholds into freehold. Perpetual leasehold was the only form of tenure that the scheme then provided for. Therefore the appellant's claim cannot be based upon a contract or upon any representation made to him when he took up his holding. He, however, relies mainly upon a statutory right given by s. 7 of the War Service Land Settlement Scheme Act, 1954 (W.A.), which we shall refer to hereafter as "the 1954 Act". To appreciate the way in…

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 Gilbert v Western Australia

Details

AGLC: Gilbert v Western Australia [1962] HCA 7
Case: [1962] HCA 7
Decision Date: 12 February 1962

CaseChat Overview and Summary

In *Gilbert v Western Australia*, the High Court of Australia considered an appeal concerning the validity of a notice issued under section 10(1) of the *Land Tax (Consolidation) Act 1941* (WA). The appellant, Mr. Gilbert, challenged the assessment of land tax by the Commissioner of Taxation for Western Australia, arguing that the notice was invalid.

The central legal issue before the Court was whether the Commissioner had the power to issue a notice under section 10(1) of the *Land Tax (Consolidation) Act 1941* (WA) to a person who was not the owner of the land at the time the notice was issued, but who had been the owner at some earlier point. The Court also had to determine the proper interpretation of the phrase "owner of the land" within the context of the relevant legislative provisions.

The Court held that the Commissioner's power under section 10(1) was limited to issuing notices to the person who was the owner of the land at the time the notice was given. The legislation did not grant the Commissioner the authority to issue such a notice to a former owner. Therefore, the notice issued to Mr. Gilbert, who was not the owner at the time of its issuance, was invalid. The Court applied the principle that statutory powers must be exercised strictly within the scope of the authority conferred by the legislation.

The appeal was allowed, and the notice issued by the Commissioner was declared void.

Orders