Haig v National Parks and Wildlife Service

[1991] HCATrans 183

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S7 of 1991

B e t w e e n -

BRYAN DOUGLAS HAIG

Applicant

and

NATIONAL PARKS AND WILDLIFE

SERVICE

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 5 AUGUST 1991, AT 2.34 PM

Copyright in-the High Court of Australia

Haig 1 5/8/91

MR W.R. DAVISON: If it please Your Honours, I appear with

my learned friend, MR G.B. BEVERIDGE, for the

appellant. (instructed by Blake Dawson Waldron)

MR T.F.M. NAUGHTON, QC:  May it please the Court in this

matter, I appear for the respondent, with my

learned friend MR M.J. McGROWDIE. (instructed by

the Crown Solicitor for the State of New South

Wales)

MASON CJ: Yes, Mr Davison?

MR DAVISON:  Your Honour, these proceedings relate to the

interpretation of section 125 of the Public Works

Act 1912 of New South Wales. The section is set

out in the appeal papers on page 2 which

coincidentally is page 2 of the judgment at first

instance, if I could take Your Honours to that.

There is provision which has been interpreted to

mean that the total compensation for a dispossessed

owner in circumstances where a perpetual lease is

converted to a conditional purchase shall be the

amount paid for the conversion from the perpetual

lease to the conditional purchase, in this case a

sum of $798 plus 100 per cent which is the maximum

that the section allows in that event.

The effect for which we contend of that

interpretation is that the sum of $798 is only that

amount which is payable for the conversion. That

leaves the compensation for the perpetual leasehold

which underlay the conditional purchase as only

that same amount of money - $798 - which is the

100 per cent additional compensation which is

allowed by section 125.

The circumstances, Your Honours, are that this

conditional lease was originally granted in 1914,
being confirmed in 1918. At that point of time it
was a conditional lease having function and status

within the Crown Lands Act as being an instrument

in respect of which the holder was entitled to

convert the conditional lease to a conditional

purchase at any time on application. In 1953 a

right which had been included in 1931 to convert a
conditional leasehold to a perpetual lease was
exercised so that in 1953 the holding of this land

was that of a perpetual lease. The question which

arises arises in three ways. Two of them are set

forth in the application for leave, the third way

in which the matter is put, we would seek leave to

supplement the grounds that are set forth in the

application for leave, and could I hand up four

copies of the notification that has been given to

my learned friends to add that ground.

Haig 5/8/91

The additional argument, Your Honours, turns

upon the meaning of the word "land" in section 125.

It is a sub-argument of the third argument

considered by the learned primary judge and

considered by the Court of Appeal, namely, that

section 125 ought be interpreted in such a way as

to avoid the loss of property rights without

adequate compensation. No question of evidence can

arise, Your Honours, as the only right of appeal

from this class of suit in the Land and Environment

Court can only be on a question of law, and we contend that it only is an additional argument as

to the meaning of the word "land" and as to

statutory construction, and I seek leave to amend

the application for leave accordingly.

MASON CJ:  I do not know that it is necessary for you to

secure a grant of leave. You can present your

argument on the putting of the materials you have

presented.

MR DAVISON: If the Court pleases. Then, Your Honours, it

is our contention as put in the application at

page 45, paragraph 5(c), that between 1918 and 1981

this land was to be considered for the purpose of

determining compensation in respect of a compulsory

acquisition on a quasi freehold basis. We refer in

that context, Your Honours, to In re Cannon. Could

I hand to Your Honours four copies of a bundle of

authorities and extracts from legislation. In re

Cannon is the first. That was a case in 1912

to determine compensation. This is at

dealing with the basis for compensation of land appropriate

held on conditional lease under the Public Roads

page 78 of the report which is the second last page

of tht which has been copied.	The Chief Justice
says at the foot of the page:

those sections -

referring to sections 11, 12 and 13 of the Public

Roads Act -

in no way impose any limitation on the

generality of the provisions of s. 13 -

whi9h is a general entitlement to compensation

provision -

of a conditional lessee whose land has been

taken. He holds his lease, and incidental to

that lease is a statutory right to convert his

holding into a conditional purchase by making

a certain payment of money. The day before

notice to resume is given, that right is

vested in him. True, under s. 8(1), after the

Haig	5/8/91 notice is given, he has one month in which to lodge objections to the carrying out of the
proposed resumption, but that section does not
suggest that he has only one month in which he
may exercise his option to convert his holding. It was argued that the act of
resumption by notice put an end to his rights
as an owner of a conditional lease, and that
he was to be then treated as if no rights existed in respect to his option to convert.
The compulsory resumption of land does not
interfere with vested interests in this way -

There is a reference to Clissold v Perry.

This particular owner had a complete title to

a conditional lease the moment before the

resumption, he therefore had the right to

convert. We find that that interest in the

land is taken away from him compulsorily, and

s. 13 says he is to get the value of that

interest.

Now, Your Honours, we say that the same approach

relates to an acquisition of a conditional lease

where the resumption is under the Public Works Act

and it is in relevant respects no different. The

only difference as between Cannon's case and the Public Works Act flows from the fact that in the Public Roads Act conditional leases are excluded

from the statutory definition in the Public Roads

Act of Crown land. We contend, Your Honours, that

that alters the situation in the sense of

determining compensation not at all, that what

remains to be valued is the right of the

conditional leaseholder and the value of the right

to convert.

We say, Your Honours, that in that context

between 1918 and 1981 the value was therefore that

quasi freehold value - the value of the total

interest less the cost of conversion which in this

case is $798. Between 1981 and 1986 which is the	five year period to which section 125 applies, if
the judgments below stand, the compensation is converted from that freehold basis to simply the amount paid to convert from the perpetual lease to the conditional purchase, that being a sum of $798 plus the 100 per cent of $798 which is allowable
under section 125, and that had there not been an
acquisition of the land during that period, after 1986 the land would have been valued as freehold.

So that it is our contention, Your Honours,

that the legislature could not have intended that

land which had a freehold value, less simply the

amount of money which one had to pay to exercise

Haig 4 5/8/91

the right to convert, should be altered so as to

only give an entitlement to the money paid to

convert plus 100 per cent of that amount of money;

no relationship of that to the value of the land.

It is our contention that it could not have been

intended by the legislature that the value of the
perpetual leasehold was to be taken away by the

operation of section 125.

MASON CJ:	How do you read section 125?
MR DAVISON:	We read it, Your Honours, in three alternative

ways: the first way was the way in which it was

put at first instance and in the Court of Appeal

that the alienation took place when there was the

grant to the applicant in the first place in 1918.

We say that, Your Honours, by reason of the

expression which is used in section 125 that, at

line 11 on page 2, land taken:

at any time within five years ..... when such

land was alienated in fee by the Crown,

whether absolutely or conditionally.

So, Your Honours, that expression, though it does

not find a felicitous coincidence in any other

either legislation or authority as an expression,

we say that from an interpretation point of view,

we take Your Honours to the commentary in Coke's

Commentary upon Littleton which is the fifth

extract in the bundle of documents and authorities,

the first page after the heading page right-hand

column dealing with the expression "conditionally",

at about point 3 of the page:

"Upon condition." Littleton having before

spoken of estates absolute, now beginneth to

entreate of estates upon condition. And a

condition annexed to the realtie, whereof

Littleton here speaketh in the legall understanding, est modus, a qualitie annexed

by him that hath estate, interest, or right, to the same, whereby an estate, etc. may	either be defeated, or enlarged, or created
upon an incertaine event.

Then two pages on, top of the right hand column:

Also - - -

McHUGH J: But is not your problem that the authorities,

including Taylor's case in this Court, take the

view that alienation of the land only takes place

at the date of the confirmation of the application

and not before?

Haig 5/8/91

MR DAVISON:  We would seek to distinguish Taylor. Taylor

was dealing solely with the proposition of whether

there was a notional dating back by reason of the

words in section 184.	What the Court said in that
case was "No".	One cannot notionally alter the

date at which the alienation operates. There was

no analysis in Taylor's case of the effect of

Hawkins and Walsh which are referred to in Taylor's

case and followed to the extent that it was

necessary to follow them. It is our submission,

Your Honours, that both Hawkins and Walsh were

Crown Lands
confined to an interpretation of the of that Act which is set out by the learned primary

judge in his judgment at page 5, top of the

page - - -

MASON CJ: But if your submission on this point is right,

Taylor's case was wrongly decided was it not?

MR DAVISON:	No, Your Honour.
MASON CJ:	Why not?
MR DAVISON:	Taylor's case was dealing with a proposition

that was not argued.

MASON CJ: True.

MR DAVISON:  It was dealing solely with the idea of whether

there could be a notional adjustment of the date.

It is our contention, Your Honours, that the

alienation in fee contemplated by section 125 in

this case, occurred back in 18 - - -

MASON CJ: Yes, I follow that, but that is quite

inconsistent with the decision in Taylor' case.

True it is your point was not argued - - -

MR DAVISON:	No, Your Honour.
MASON CJ:	- - - but your submission is necessarily

inconsistent with a decision in Taylor's case.

MR DAVISON:  It is inconsistent with the result,

Your Honour, yes.

MASON CJ: Yes.

MR DAVISON:  We contend, however, that it was not argued.

And, Your Honours, we say that an interpretation of section 6(5) of the Crown Lands Consolidation Act,

which is all that was called for in Hawkins and

Walsh, was against the background of whether there

was an entitlement on the part of the Crown in

respect of those two circumstances to reserve the

land in such a way as to deny the entitlement to

Haig 6 5/8/91

conditional purchase; in other words, the absolute

entitlement to conditional purchase.

It is our submission, and I am leaping ahead

one bound, that so far as the situation was at the

relevant time, that is to say between 1918 and

1923, there was no entitlement on the part of the

Crown to reserve the land for any purpose. The

only entitlement which section 57, as it existed at

the time, provided was in respect of reservations

for forestry and the extract of section 57 as it

existed between 1913 and 1923, is to be found as

item 4 in the bundle of documents, which

immediately follows In re Jones. The right is there

set out and the only proviso to the right is at the

foot of the left-hand page:

Provided always that nothing in this

section shall be taken to refer to any part of

a conditional lease which is for the time

being the subject of a dedication as a State

forest or reservation from sale under the

Forestry Act, 1909.

Forestry Act Forestry proviso in section 57 did not operate so as to

The 1909 was repealed by the

relate to a reservation from sale under the

Forestry Act 1916, and that was apparently accepted

by the legislature as there was no appeal from that

decision. What occurred was that in 1927 the Crown

Lands Consolidation Act was amended so as to delete

the Forestry Act 1909 and to insert the Forestry

Act 1916 or any Act amending or replacing the same.

So that between 1916 and 1927 there was no

reservation, no ability on the part of the Crown to

prevent the operation of the conversion from

conditional lease and the statutory right

incorporated by section 57 into a conditional

purchase.

It is our contention, Your Honours, that by

reference to what was then those terms of art of

alienation in fee and by reference to Coke on

Littleton, in Blackstone's commentary to which we

have already referred, that that expression where

it talks of a "conditional fee simple",

contemplates a thing such as a lease with a right

to_purchase. And, in our respectful submission,

nothing could be clearer than a lease with a

statutory right to convert that lease to a

conditional purchase which is what ultimately

occurred in 1981 in respect of this land, but that

right was relevantly for the purpose of

section 125, an alienation in fee of the land

conditionally; and that there was no power in the

Crown, short of the exercise of its powers of

Haig 7 5/8/91

resumption or amendment of the legislation, to

alter that entitlement and that the right was

therefore an absolute right and not one which was

capable of being taken away.

In Hawkins and Walsh the right was in type

able to be taken away and, indeed, it was that very
question which governed the decision in those
cases, the right having been replaced in 1927 so

far as forestry is concerned, having been extended

to mining subsequently, and in 1978 having been

extended generally.

I am reminded, Your Honours, that the other distinction between Taylor's case and this case is

that Taylor's case related to a Crown lease and not to a conditional lease which operated as a lease in

perpetuity.

MASON CJ: Yes.

MR DAVISON:  So that, Your Honours, it is our submission

that in the very latest by 1923 the operation of

section 125, so far as it involved a limitation on

the entitlement to compensation, was exhausted.

The second way, Your Honours, in which we put

it is that the expression "alienation in fee",

though it might have meaning to conveyancers and
lawyers generally, is not an expression which in 1912 when included in the Public Works Act, that the provisions of section 6(5) of the Crown Lands

Consolidation Act the formula of words upon which

Hawkins and Walsh were decided, did not exist when

the Public Works Act 1912 was enacted and when

section 125 first began to operate. It is our

contention that the expression "alienation in fee"

is to be interpreted in such a way as to ensure

that it does not involve the expropriation of

property rights without adequate compensation.

That is capable of being done simply by considering

the meaning of the word "alienation" and the

meaning of the word "fee". "Alienation" is

referred to by Mr Butt in his book Land Law, an

extract from which is to be found in paragraph 7 of

the extracted material. The expression

"alienation" is to be found on page 7 of the

ex~~act, at the top of the page:

Disposition (dispose) and alienation

(alienate) are words of general import
denoting the act of passing or transferring an
interest in property. They are equally

applicable to the passing of title inter

vivos ..... or by will. The definition of

"disposition" in ..... the Conveyancing Act 1919

Haig 5/8/91

for the purposes of that Act corresponds

generally with this description.

The granting by the Crown of the conditional lease

in the first place was relevantly, therefore, in

our submission, an alienation. A subsidiary

argument is: Was it an alienation in fee? Our

contention, Your Honours, is that in 1953 when it

became a perpetual leasehold it was relevantly an

alienation in fee in that the concept of perpetuity

carried with it the entitlement to pass the

interest to successors, and it is that to which the

expression "fee" has historically related and in

that context we refer to the extract 8A in the

bundle, to Stroud and the concept which is there

set out in relation to "fee" on page 1023 of the

fourth edition:

"Fee in our legall understanding signifieth

that the land belongs to us and our heires, in respect whereof the owner is said to be seized

in fee".

It goes on to say:

So, if fee (only) is mentioned, it shall be

intended fee-simple".

It is our submission in that alternative argument,

Your Honours, that upon the lease becoming a lease

in perpetuity in 1953 there was relevantly an

alienation in fee. We refer Your Honours then to

an article in the Australian Law Journal ll(a) or

(j) 223 dealing with the strange situation of

perpetual leaseholds, and that is extracted in

part 10 of the bundle of documents, where the

learned author points to the internal inconsistency

of the expression "perpetual leasehold" and refers

to the practice then current in 1937 of the

Registrar-General issuing grants in respect of those interests which are identified as perpetual

leaseholds.

The learned author goes on to express his

doubt as to the appropriateness of that course and

he sets out on page 225 arguments for and against

the Registrar-General's practice and concludes, for

hi.s part, in the negative. We refer to that,

Your Honours, not as authority for the proposition

but only to reflect the position as it was in New

South Wales between that time, at least, 1937, and

the time at which the Parliament saw fit to amend
the Real Property Act in 1980 and that amendment is

referred to in the learned primary judge's decision

on page 5 at line 17:

Haig 9 5/8/91

In this respect it is also instructive to

considers. 5 of the Real Property (Crown Land

Titles) Amendment Act 1980 which obviously is

directed towards correcting the results of a

prior practice of recording in the Register

kept under the Real Property Act perpetual

leases as conferring estates in fee simple.

And, Your Honours, further in that context, the

Crown Lands Act itself was amended, extract BB, so

as to add section 56A:

In the case of a conditional lease the title

to which is a lease in perpetuity as to the

whole of the land comprised therein the this section, issue a grant of the conditional lease to the lessee his heirs and assigns for ever, such grant being made subject to the conditions attaching to such conditional

lease.

And that, in our respectful submission, simply

confirms the entitlement of a perpetual leaseholder to succession in his holding, and that accordingly,

in our submission, there is relevantly an

alienation or disposition in fee of the land at

least as early as 1953 if the primary argument were

to fail. I have referred Your Honours also at that
part of the bundle numbered 9 to an extract from

Megarry and Wade to similar effect to that set out

by Mr Butt in his publication.

Your Honours, the final argument is that more

recently foreshadowed which flows from the

definition of "land" in section 125. It is our

contention that where the expression "land is there

referred to" it is referring only to that. interest

beyond the perpetual leasehold and up to the

freehold, and not to the already subsisting

interests in the land, namely in this case, the

perpetual leasehold.	We say, Your Honours, that
the reason there is no particular definition of

"land", we say that a reading of the Act leads one

to the conclusion that "land" includes any interest

in land and in decision upon legislation from which

the Public Works Act was in part taken of

Oppenheimer v Minister of Transport,

(1942) 1 KB 242, which is No 14 or the last

authority in the bundle that has been handed up.

It was there held that the lands or any

interest therein in the context that the interest

was relevantly a lesser interest than the fee

simple, and in this context, Your Honours, we say

that what section 125 is concerned with is properly

limiting the claim in respect of the upgrading of

Haig 10 5/8/91

the interest from perpetual leasehold to

conditional purchase to the amount of money

actually paid for that privilege or entitlement, as

we put it, plus 100 per cent, 100 per cent

reflecting what might occur in respect of - being

an upper limit of what might occur in respect of

that value over the period of five years during

which the limitation operates. And so read,

Your Honours, section 125 would then be

appropriately limiting the compensation for that

interest but not dealing with the compensation

which would be payable in respect of the perpetual

leasehold which underlay that interest, that

interest being compensated pursuant to section 124.

Your Honours, the public interest and public

importance questions flow, in our submission, from

what is said by Their Honours in the Court of Appeal in the appeal book at pages 27 and 28.

There, Your Honours, what is being put is that in

relation to the learned primary judge's decision:

Bignold J did accept Mr Haig's third

submission. That was, that it was legitimate,

having regard to the purpose of s 125, to

construe it in a manner to avoid an unjust

expropriative effect on Mr Haig.

The submission so put contains an

assumption which is far from self-evident.	So
far as the material before this court goes -

and then there is a reference to certain matters
which were not really in issue in the proceedings

and lead to conclusions which, in our respectful

submission, were unsafe as to a subjective analysis

of whether there is loss or not. It is our

contention that the loss must - say the means of

interpreting a provision must arise objectively and

not subjectively, and that Their Honours were led

into error by dealing with an approach to the

subjective question. And then in the middle of the

page: 

the question in concrete terms would be

whether the application of s 125 would have an

unjust expropriative effect, as compared to

_ what Mr Haig would submit was the more just

effect of the application of s 124. This

question may be answered differently by

persons holding different views of the weight

to be given to property rights in comparison

with general public rights when dealing with
the price to be paid by the State for resuming

land previously held for the Crown and

recently disposed of to an individual.

Haig 11 5/8/91

. What is there done, in our respectful

submission, Your Honours, is to deny the

proposition that the Crown will be presumed not to

take property rights without adequate compensation.

Applying that simply to section 125 of the Public

Works Act - an Act of general application in respect of resumption of land, expropriation of land within New South Wales - is of sufficient public importance. But, coupled with that, the

doubt cast by those comments on pages 27 and 28 of

the principle that there should not be an

expropriation of property rights without adequate

compensation, is what gives rise to the question of

public importance.

DEANE J:  What section of the Act would have been applicable

if there had been no conversion?

MR DAVISON: Section 124, Your Honour.

DEANE J: So, if it had stayed a perpetual leasehold

MR DAVISON:  If it stayed a perpetual leasehold then it

would have been determined under section 124.

DEANE J:	And there is no doubt about that?
MR DAVISON:	No, Your Honour.
MASON CJ:	But you would have got the higher measure of

compensation?

MR DAVISON:  We would have got the higher measure of

compensation; we would have had it adjusted for

the amount we would have been required to pay for the conversion which is the basis on which it was

done in Cannon's case and which is appropriate.

DEANE J:  Can the Crown force conversion?

MR DAVISON:  No, Your Honour. Those are our submissions,

may it please Your Honour.

MASON CJ: The Court need not trouble you, Mr Naughton.

MR NAUGHTON: If the Court pleases.

MASON CJ:	The Court is not persuaded that the decision of the.Court of Appeal is attended with sufficient
doubt to justify a grant of special leave to
appeal.  The application is therefore refused.
MR NAUGHTON:	May the respondent have an order for costs?

Haig 12 5/8/91

MASON CJ:	You cannot oppose that can you, Mr Davison?
MR DAVISON:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 3.20 PM THE MATTER WAS ADJOURNED SINE DIE

Haig 13 5/8/91