Gundowda Pty Ltd v Gray

[1968] HCA 47

HIGH COURT OF AUSTRALIA

Barwick C.J.,Kitto and Menzies JJ.

GUNDOWDA PTY. LTD. v. GRAY

(1968) 118 CLR 339

8 August 1968

Practice—Agriculture

Practice—High Court—Appeal from Supreme Court of a State—Appeal as of right—Final order—Order dismissing application that writ of summons and subsequent proceedings thereon be set aside—Not final order—Judiciary Act 1903-1965 (Cth), s. 35 (1). Agriculture (N.S.W.)—Prickly-pear—Eradication by Commissioner—Recovery of cost from owner or occupier—Action at law lies—Prickly-pear Act, 1924-1964 (N.S.W.), s. 12*.

Decisions

The following judgments were delivered:-
BARWICK C.J. In my opinion, the order of Lee J. was clearly not a final order within the meaning of s. 35 of the Judiciary Act 1903-1965 (Cth). Accordingly, in my opinion, the objection to competency should be upheld and the appeal lodged as of right, dismissed with costs, as imcompetent. (at p341)

2. I am further of opinion that leave to appeal from the order of the Supreme Court, Court of Appeal Division, should not be granted. The applicant for leave submits that under s. 12 (2) of the Pricklypear Act, 1924-1964 (N.S.W.), the Commissioner appointed under the Act has no cause of action to recover from the applicant the money which that section requires it as the owner of the land from which prickly-pear was eradicated to pay to the Commissioner. (at p341)

3. In my opinion, the section on its plain construction makes such moneys repayable by such an owner as the applicant and there is nothing in the section to suggest that the Commissioner may not sue to recover that money. Indeed, in my opinion, the section clearly contemplates the recovery of the money from such an owner or an occupier quite apart from the fact that a charge has been created on the land which, if the charge is registered, binds the land in the hands of other owners. In my opinion, the application for leave should be dismissed, with costs. (at p341)

KITTO J. I agree. (at p341)

MENZIES J. I agree. (at p341)

Orders

Objection to competency upheld and application for leave to appeal refused in each case with costs.