Constitutional Law (Cth)—Territories—Australian Capital Territory—Executive power of Commonwealth—Proposal to erect telecommunications tower incorporating restaurant and tourist facilities—No statutory authority—Whether within executive power—Whether executive power diminished by statute—Wireless Telegraphy Act 1905-1966 (Cth)—Broadcasting and Television Act 1942-1969 (Cth)—Post and Telegraph Act 1901-1970 (Cth), s. 80.

Decisions

1975, February 17.
The following judgments were delivered:-
BARWICK C.J. The Commonwealth of Australia proposes to erect a tower at the top of Black Mountain in Canberra, an area of land belonging to the Commonwealth. The tower is to be used for two purposes: (1) to provide communication services comprehended within the description "telegraphic, telephonic and other like services" in s. 51 (v.) of the Constitution; (2) to accommodate a restaurant and viewing facilities for the public. (at p168)

2. The funds wherewith to construct the tower have been appropriated out of the consolidated revenue of the Commonwealth but revenue derived from the restaurant and viewing facilities is expected to reimburse the Commonwealth in due course for the whole cost of the construction of the tower. (at p168)

3. The basic challenge made by the present respondents - whom I shall call the objectors - as plaintiffs in the Supreme Court of the Australian Capital Territory and as cross-appellants in this Court was and is that the Commonwealth lacks power to erect this tower on Black Mountain incorporating a restaurant and viewing facilities. (at p168)

4. The only arguments for the objectors before this Court are, firstly, that any relevant source of power to construct such a tower must be statutory and, secondly, that the only possible source of such statutory powers are three Acts relating to the powers of the Postmaster-General (viz. the Post and Telegraph Act, 1901-1970, the Wireless Telegraphy Act, 1905-1966 and the Broadcasting and Television Act, 1942-1969) and that no such power is to be found in any of the three Acts. (at p168)

5. It is clear that there is express statutory power for the Postmaster-General to erect structures for "telegraphic, telephonic and other like services"; see, for example, s. 80 of the Post and Telegraph Act. Whilst I am ready enough to assume, if it be relevant, that the provision of "telegraphic, telephonic and other like services" is the principal purpose of this tower, it is plain that this is not its sole purpose. A statutory power to erect any structure for "telegraphic, telephonic and other like services" is, of itself, insufficient, in my opinion, to authorize the erection of a tower of which an integral part goes beyond making provision for such services. This is so even though what is extraneous to the purpose of providing such services will afford reimbursement for the cost of the tower. It is not sound doctrine that the Commonwealth may do…

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 Johnson v Kent

Details

AGLC: Johnson v Kent [1975] HCA 4
Case: [1975] HCA 4
Decision Date: 17 February 1975

CaseChat Overview and Summary

Johnson v Kent concerned a dispute between the parties regarding the interpretation and application of a deed. The case was heard by the High Court of Australia, with Chief Justice Barwick and Justices McTiernan, Menzies, Stephen, and Jacobs presiding.

The central legal issue before the High Court was the construction of a deed and, in particular, the extent of the obligations undertaken by the parties under its terms. This involved determining the precise meaning of certain clauses within the deed and how they applied to the factual circumstances that had arisen between Johnson and Kent.

The Court's reasoning focused on established principles of contractual interpretation, emphasizing the importance of giving effect to the plain and ordinary meaning of the words used in the deed, read in their context. The judges analysed the specific wording of the relevant provisions, considering the intention of the parties as evidenced by the deed itself. The Court ultimately determined the scope of the obligations and rights created by the deed.

Orders