NEW SOUTH WALES. Statutes, construction of-Repeal by implication-Provisions of later Act inconsis-
tent with those of earlier Act-Proviso or exception from earlier ct-Crown Lands Act 1884 (N.S. (48 Vict. No. 18), sec. 93-Crown Lands Act 1895 (N.S.W.) (58 Vict. No. 18), sec. -Improvement lease-Ringbarking of timber -Condition of lease.
Sec. 26 of the Crown Lands Act 1895, which by sec. 1 (c) is to be read with and as part of the Crown Lands Act 1884 and the intervening Acts deal- ing with the same subject, authorizes the Governor to grant improvement" leases of Crown lands which by reason of inferior quality, heavy timber, or other cause are not suitable for settlement until improved and can only be rendered suitable by heavy expenditure, and to insert in such leases such covenants and provisions as may seem expedient according to circumstances,
and provides, further, that the leases shall contain covenants and provisions for the improvement of the land and the expenditure of money thereon, pay. ment of rent, and the determination of the lease upon breach of its covenants or provisions.
Sec. 93 of the Crown Lands Act 1884 made it an offence, punishable on con- viction before justices by fine and forfeiture of the lease, for any lessee to ringbark timber on his lease without the permission of the Local Land Board.
Held, that, the scheme of the later section with regard to the preservation and the destruction of timber being altogether different from that of the earlier section, the later section should be construed as authorizing the Governor, if he thinks fit, to grant an improvement lease on conditions which will have the effect of excepting the lessee from the operation of the earlier section, so far as the conditions are inconsistent with that section, and, therefore
That, an improvement lease containing a covenant by the lessee to preserve certain classes of timber and giving him the right to destroy any other timber by ringbarking or otherwise at his option, and also providing a different penalty for breach, and a different tribunal for dealing with any question arising as to breach of conditions or covenants from those provided by sec. 93 of the Act of 1884, exempts the lessee from liability under the latter section for ringbarking timber on his lease without the permission of the Local
Decision of the Supreme Court (Ex parte Phillips, (1908) 8 S.R. (N.S.W.), 52), affirmed.
APPEAL from a decision of the Supreme Court of New South Wales.
The respondent W. O. Phillips, the holder of an improvement lease under sec. 26 of the Crown Lands Act 1895 (58 Vict. No. 18) of Crown lands near Warialda, was proceeded against on an information laid by the appellant, alleging that he, being a lessee of Crown lands, that is to say, the holder of the improvement lease mentioned, did, without obtaining permission to do SO from the Local Land Board,…
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.
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AGLC
Goodwin v Phillips [1908] HCA 55
Case
[1908] HCA 55
Decision Date
CaseChat Overview and Summary
The appellant, the Crown, appealed to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute concerned the respondent, W. O. Phillips, the holder of an improvement lease granted under the Crown Lands Act 1895. Phillips had been prosecuted and convicted under section 93 of the Crown Lands Act 1884 for unlawfully ringbarking timber on his leasehold without the permission of the Local Land Board. The Supreme Court had made absolute a rule nisi for prohibition against further proceedings on the conviction, finding that the information disclosed no offence.
The legal issues before the High Court were whether the penal provisions of section 93 of the Crown Lands Act 1884 applied to an improvement lease granted under section 26 of the Crown Lands Act 1895, and if so, whether the specific conditions of the respondent's improvement lease exempted him from liability under section 93. The court was required to determine how later legislation, which provided for a new type of lease with potentially inconsistent conditions, should be construed in relation to earlier legislation that imposed specific restrictions on lessees.
The High Court held that section 26 of the Crown Lands Act 1895, which authorised the Governor to grant improvement leases with such covenants and provisions as deemed expedient, was intended to allow for conditions that might be inconsistent with earlier legislation. The court reasoned that the scheme of section 26, particularly concerning the improvement and potential destruction of timber on lands unsuitable for settlement, was fundamentally different from the timber preservation requirements of section 93 of the 1884 Act. Therefore, where the conditions of an improvement lease, such as the respondent's, provided a different regime for dealing with timber, including ringbarking, and specified different penalties and tribunals for breaches, these conditions operated as an exception to, or implied repeal of, section 93 of the 1884 Act to the extent of the inconsistency. The court found that the respondent's lease, which permitted ringbarking at his option subject to preserving certain timber, was inconsistent with the requirement to obtain permission from the Local Land Board under section 93.
The appeal was dismissed, affirming the decision of the Supreme Court. The court ordered that the appeal be dismissed with costs.