Ku-ring-gai Municipal Council v Attorney-General for the State of New South Wales

Bw*«p()00)49 NSWLR49

421

99 C.L.R.]OF AUSTRALIA.

251

[HIGH COURT OF AUSTRALIA.]

KU-RING-GAI MUNICIPAL COUNCIL .

Appellant

;

Defendant,

AND

ATTORNEY-GENERAL FOR THE STATE OF

Respondent.

NEW SOUTH WALES . . .

Plaintiff,

THE MINISTER FOR PUBLIC WORKS OF

Appellant

;

NEW SOUTH WALES . . .

Defendant,

REGINALD CLARK TURNER AND ALAN"l

Respondents.

TASMAN GURR

Plaintiffs.

ON APPEAL FROM THE SUPREME COURT OP

NEW SOUTH WALES.

Land — Acquisition — Resumption — ̂Compensation — Interest — Quantum —Right

H. C. OF A.

— Vested—Accrual—Gazette notification—Statute—Amendment—Prospective or

1957.

retrospective operation—Existing right—Effect—Intention—Local Government

Act 1919-1945 (N.S.W.), as. 532, 536—Public Works Act 1912 (-A.N.1F.), ss.

Sydney,

43-45, 126 (1), (2), (3)—Land Acquisition {Charitable Institutions) Act 1946,

Apr. 1, 2;

as. 3 (1), 5—Interpretation Act of 1897 (iV.iS. WC), a. 8.

Sept. 12.

Dixon C.J., McTieruan,

In the absence of evidence of an intention discoverable in s. 5 of the Land

Acquisition (Charitable Institutions) Act 1946 (N.S.W.) to substitute a reduced

Fullagar, Kitto and

rate of interest for an acquired right to interest at four per cent per annum on

Taylor JJ.

moneys payable by way of compensation in respect of a resumption the variable rates of interest provided for in s. 126 of the Public Works Act 1912 (N.S.W.) as amended by s. 5 aforesaid are by virtue of s. 8 of the Interpretation Act of 1897 not applicable to moneys so payable in respect of a resumption effected prior to the amending Act coming into operation.

Sydney Municipal Council v. Troy (1927) A.C. 706 considered.

252HIGH COURT

[1957.

H. C. OF A. Decision of the Supreme Court of New South Wales (FuU Court): Attorney-

1957.                  General for New South Wales v. Ku-ring-gai M.C.; Turner v. Minuter jar Public Works {N.S.W.) (1957) S.R. (N.S.W.) 17; 73 W.N. 636, affirmed.

Ku-Ring-Gai

Municipal

Council

Appeals from the Supreme Court of New South Wales.

V.

Attoenby-In actions brought in the Supreme Court of New South Wales by

Genbeal

way of writs of summons between (i) the Attorney-General for the

FOR THE

State ofState of New South Wales as plaintiff and the Ku-ring-gai Municipal

New South Council as defendant and (ii) Reginald Clark Turner and Alan

Tasman Gurr as plaintiffs and the Minister for Public Works (N.S.W as defendant in pursuance of s. 55 of the Common Law Procedure Act 1899, a special case was stated in each action.

The questions for determination were similar in each case and depended upon the construction of s. 126 of the Public Works Act 1912 (N.S.W.) as amended by s. 5 of the Land Acquisition (Charitable Institutions) Act 1946.

In the first-mentioned action the case was stated in the following terms (omitting certain formal passages) :

1. On 4th July 1944 the defendant council made an application under ss. 532 and 536 of the Local Government Act 1919, as then amended, for the approval of His Excellency the Governor to that council acquiring by way of resumption certain land and deposited a sum with the Minister being the estimated cost of compensation for the resumption of the land together with interest and all neces­ sary charges and expenses incidental to such resumption and also gave an undertaking to pay any additional amount required.

2. The said land was duly resumed by notification in the Govern­ ment Gazette No. 106 of 20th September 1946.

3. A notice of claim and abstract dated 19th December 1946 was duly received from Christopher Bowes Thistlethwayte, WiUiain Lyle Patison and Reginald Clark Turner, the then trustees of the estate of William Moore deceased, the owner of the resumed land wherein they claimed the sum of £66,(X>0 being £55,000 as value of property and £11,000 as compensation.

4. A notice of valuation of such claim at the sum of £15,000 was duly issued to the said trustees.

5. The trustees being dissatisfied with that valuation commenced an action to recover compensation for such resumption and claimed therein the sum of £66,000.

6. The action was remitted to the Land and Valuation Court for determination under s. 9 of the Land and Valuation Court Act 1921 and after hearing the action Sugerman J., the judge of the Land and Valuation Court, did, on 20th March 1953, determine the

99 C.L.R.]OP AUSTRALIA.

253

compensation payable by the Minister in respect of the resumption R­

at the sum of £35,000.

7. At the request of the Minister Sugerman J. stated a case for ktj-Ring-Gai

the decision of the Full Court of the Supreme Court and in a judg-

Municipal COTJNCrL

ment dated 28th September 1953 that court upheld the decision of

V.

Attorney- Genebal

Sugerman J. 8. The Minister subsequently appealed to Her Majesty in Council

FOR THE

State of New South

against the decision of the Full Court of the Supreme Court and

such appeal coming on to be heard the Lords of the Judicial Com­

Wales.

mittee of the Privy Council reported to Her Majesty as their opinion that the appeal should be dismissed whereupon the aforesaid sum of £35,000 together with statutory interest at the appropriate rate became due and payable by the Minister to the trustees.

9. A claim was duly made by the Minister upon the defendant council for additional moneys to enable payment of compensation and statutory interest to be made to the claimants such interest being calculated at the rate of £4 per cent per annum from the date of resumption, namely, 20th September 1946 up to the date of payment.

10. As at the date of resumption, namely, 20th September 1946, provision for the payment of statutory interest upon compensation for land resumed was to be found in s. 126 of the Public Works Act 1912 which in so far as relevant was in the following terms

“ 126. (1) In aU cases where compensation or costs are awarded or adjudged to be paid by the Constructing Authority, the amount thereof shall be paid to the party lawfully entitled thereto, or to his agent duly authorised in that behalf, within one month after such amount is determined. Provided that in every such case the party claiming payment shall be bound to make out a title to the lands or interest in lands in respect of which he claims to the satisfaction of the Constructing Authority. (2) If such compensation is payable in respect of land taken or acquired by notification in the Gazette, it shall bear interest at the rate of four per cent per annum from the time of such notification.”

11. This provision was amended by the Land Acquisition {CJiarit- ahle Institutions) Act 1946 which was assented to on 27th December 1946, the relevant amendment being foimd in s. 5 of the amending Act and being in the following terms :—“ 5. The Public Works Act, 1912, as amended by subsequent Acts, is amended—(a) . . . (b) by omitting from subsection two of section one hundred and twenty-six the words ‘ it shall bear interest at the rate of four per cent per annum from the time of such notification ’ and by inserting in lieu thereof the words ‘ it shall, for the period of twelve months

254HIGH COURT

[1957.

H. C. or A. next following the time of the notification, bear interest at the rate of four per centum per annum, and thereafter shall bear iuterest at

Ku-Rino-Gai payable by a bank on a fixed deposit with the bank for a

Municipal period of twelve months of a sum equivalent to the amount of such

Council

V.compensation ; Provided that where at any time or from time to

Attorney-time after the expiration of the said period of twelve months and

General

FOR THEbefore the compensation is paid, the rate of interest payable by a

State ofbank on a fixed deposit as aforesaid is altered, the compensation

shall as from the date of the alteration bear interest at that altered

----’ rate

12. The rate of interest payable by a bank in Xew South Wales upon a fixed deposit for a period of twelve months on the sum of £35,000 was one per cent from and including 29th September 1947 to and includiug 29th July 1952 ; one and one-half per cent from and including 30th July 1952 to 31st December 1954 ; and one and three-quarters per cent from and including 1st January 1955 until the commencement of this action.

13. The defendant council refused and stiU refuses to pay interest calculated as set out in par. 9 hereof and paid interest on the said sum of £35,000 calculated as follows :

For first year following date of resumption, four per cent per

annum.

From 20th September 1947 to 29th July 1952, one per cent per

annum.

From 30th July 1952 to 31st December 1954, one and one-half

per cent per annum.

From 1st January 1955 to date of payunent one and three-

quarters per cent per annum.

14. On 23rd May 1955 a notice of intention to institute proceed­ ings against the defendant council to recover the amount of the difference between the sums arrived at by calculating interest on the basis referred to in pars. 9 and 13 hereof, was duly given.

In the action secondly mentioned the case was stated in the following terms (omitting certain formal passages) :

On 20th September 1946, the then trustees of the will of William Moore late of Lawson, New South Wales, homoeopathic practitioner, deceased, were, as such trustees, the registered proprietors for an estate in fee simple of about forty-eight acres of land at Gordon, New South Wales.

1.

2. By reason of the deaths since that date of certain trustees and by reason of certain consequent appointments of new trustees, the plaintiffs are the present trustees of the said will.

99 C.L.R.]OF AUSTRALIA.

265

3. By notification published in the Gazette on 20th September

1946 pursuant to s. 536 of the Local Government Act 1919, as amended

to the said date, the then Minister resumed the land under Div. 1 xu-Rino-Gai

or A.

of Pt. V of the Public Works Act 1912, as amended to the said date.

Municipal Council

and notified that the land was vested in the Council of the Munici­

V.

Attobney-

pality of Ku-ring-gai.

Genebal

4. Within nmety days from 20th September 1946 (namely, on 19th December 1946) the then trustees of the said will duly served

EOB THE

State of

New South

upon the Minister and upon the Crown Solicitor a notice in writing

Wales.

setting forth the matters referred to in pars, (a) and (b) of s. 102

of the Public Works Act 1912.

5. At all material times before 27th December 1946 s. 126 of the Act provided as follows :

[Sub-sections (1) and (2) of s. 126 as stated in par. 10 of the first case stated, were set out, after which sub-s. (3) was set out as follows ;]

“ (3) All moneys by this Act directed to be paid by the Construct­ ing Authority shall be paid by warrant of the Governor addressed to the Treasurer.”

6. On 27th December 1946 the Royal Assent was given to the Land Acquisition {Charitable Institutions) Act 1946 (Act No. 55 of 1946), s. 5 of which provided that the Public Works Act 1912, as amended by subsequent Acts should be amended inter alia—

[Sub-section (b) of s. 5 was set out as appearing in par. 11 of the first case stated.]

7. The Minister duly complied with s. 103 of the Public Works

Act 1912.

8. The trustees of the will and the Minister did not agree as to the amount of compensation payable in respect of the resumption as aforesaid of the land, and the trustees therefore, by writ of summons issued on 25th October 1951, instituted an action in the Supreme Court which action after issue joined was remitted pursuant to s. 9 of the Land and Valuation Court Act 1921 to the Land and Valuation Court.

9. The only issue upon the pleadings m that action was the quantum of compensation payable and, the action having been so remitted, the Land and Valuation Court on 20th March 1953 deter­ mined that issue and adjudged the amount of the said compensation at £35,000.

10. The said judge having on the written requirement of the Minister stated a case, pursuant to s. 17 of the said Act, for the decision of the Supreme Court thereon, that court on 28th September 1953 duly delivered its decision thereon, from which the Minister

256HIGH COURT

[1957.

H.C. OF A. appealed to Her Majesty in Council, who dismissed the appeal on

1^. 22nd July 1954.

Ku-Ring-Gai

Minister on 24th December 1953 paid the trustees of the

Municipal will £25,250 on account of the sum of £35,000, and on 5th July 1955

CoUlfCIL

V.paid them the balance, namely £9,750 of the said sum.

Attorney-

12. The Minister has paid the trustees £4,074 Os. 3d. on account

General

FOR THEof interest, and claims that that amount is the total amoimt of Ms

State of

liability on account of interest.

New South

The plaintiffs claim that interest is payable only in accordance with the provisions of s. 126 of the Public Works Act as it stood before it was amended as aforesaid, and that therefore interest is payable at the rate of four per cent per aimum on the said sum of £35,000 from 20th September 1946 to 24th December 1953 and on the said sum of £9,750 from 25th December 1953 to 5th July 1955, so that the sum of £10,785 14s. 5d. is payable for interest, of whicli the sum of £6,711 14s. 2d. is due and impaid.

13.

Wales.

14. The defendant disputes the plaintiffs’ claim and claims that, on the contrary, interest is payable only in accordance with s. 126 of the Public Works Act 1912 as amended by s. 5 of the Land Acquisition {Charitable Institutions) Act 1946, and that therefore interest is payable at the rate of four per cent per annum for the period of twelve months next following 20th September 1946 and thereafter (subject to the proviso to sub-s. (2) of s. 126) only at the rate payable by a bank on a fixed deposit with the bank for a period of twelve months of a sum equivalent to the amount of such com­ pensation.

15. The following are particulars since 17th January 1944 of the rate of interest payable by cheque-paydng banks in Austraha on fixed deposits of any amount for a period of twelve months :

Date from which rate

Rate per cent per annum

operated

17th January 1944 One and one-half

11th August 1944 . .One and one-quarter

1st December 1945

One

29th July 1952 ..

One and one-half

1st January 1955

One and three-quarters

15th March 1956 ..

Two and three-quarters.

16. On 27th December 1946 certain resumptions had been effected

by notification in the Gazette before 1st December 1944 in respect of which compensation had not been wholly paid by 27th December 1946.

99 C.L.R.]OF AUSTRALIA.

257

The question of law submitted for decision by the court was R- C!-

substantially similar in each case and was as follows : “ Whether interest upon so much of the said sum of £35,000 payable as com­ pensation for the subject land as was for the time being unpaid Mtoicipal

CoirsciL

should be calculated : (i) at the rate of four per cent per annum

V.

Attoeney- Gbneeal

from the date of the resumption until payment, or (ii) at the varying

rates provided for in s. 126 of the Public Works Act 1912 as amended FOR THE

State op New South

by s. 5 (b) of the Land Acquisition {Charitable Institutions) Act 1946.”

The Full Court of the Supreme Court {Owen, Herron and Manning JJ.) answered the questions in the stated cases: (i)Yes; (ii)No. (1). From that decision the council and the Minister for Public Works

Wales.

appealed by special leave to the High Court.

G. P. Stuckey Q.C. (with him F. Officer and E. E. George), for the appellant Ku-ring-gai Municipal Council. The amendment effected by s. 5 of the Land Acquisition {Charitable Institutions) Act 1946 is prospective from the time it is passed and deals with the ascertain­ ment of compensation at any time thereafter. The procedure is stated in Collins on Valuation of Property Comfcnsation and Land Tax, 3rd ed. (1949), pp. 244-248. Statutes should not be construed to have a retrospective operation unless such an intention clearly appears from the words used : Maxwell on the Interpretation of Statutes, 9th ed. (1946), pp. 221 et seq. The Public Works Act 1912, as amended, in Pts. V, VI and VII, provides the code for the general regulation of the rights of the Crown to take lands by Gazette notification and the rights of the subject, in respect of the lands taken, to compensation. The right to interest does not arise from the Gazette notification but flows from an award of compensation. Unless the dispossessed owner establishes his title in compensation and hence no interest becomes payable. The amended s. 126 (2) of that Act is remedial legislation. It was designed to correct what the legislature regarded as wrong. If there is any doubt about whether a particular provision should be construed to be retrospec­ tive or prospective, then it ought to be construed as prospective rather than retrospective unless there is a clear indication to the contrary in the words themselves: R. v. Commonwealth Court of Conciliation and Arbitration ; Ex parte Federated Clerks’ Union of Australia, N.S.W. Branch (2). Under s. 126 (2) of the Public Works Act 1912, as amended, interest does not accrue from day to day. Until there has been an adjudication as to the amount of compensation there is no interest payable. The amendment makes

(1) (19,•57) S.R. (N.S.W.) 17; 73

(2) (1950) 81 C.L.R. 229, at pp. 245,

W.N. 636.

246.

VOL.

xcix—17

258HIGH COURT

[1957.

H. C. OF A. jjQ alteration in the framework of sub-s. (2) of s. 126. The section

is prospective in operation and has no retrospective operation Ku Ring Gai whatever. [He referred to Sydney Municipal Council v. Tray (i)

Municipaland

West v. Gwynne (2).] As to retrospective legislation and the

Council

V.effect of legislation on existing rights see South Australian, Land

Attorney-Mortgage Agency Co. Ltd. v. The King (-3). The question was

General

FOR THEdealt with in

Ross v. Beaudry (4).

State of

[McTiernan j. referred to Kraljevich v. Lake View & Star The right to payment of interest arises when the compensation is ascertained, and the transaction is not closed until there is at least an adjudication on the amount of the award or in fact the amount is paid. No alteration was made in the words “ land taken or acquired by the Gazette notification ” and when it is found that there is an alteration in the method of calculating interest on com­ pensation awarded, then the words “ land taken or acquired ” are to be taken to refer to all lands, irrespective of when it was taken, whether before or after the amendment. Section 8 of the Interpretation Act of 1897 (N.S.W.) speaks of the “repeal” but in this amending Act the legislature used the word “ amend ” and not “ repeal ” : Moakes v. Blackwell Colliery Co. Ltd. (6). The same principle as was applied in Ross v. Beaudry (7) should be applied in this case : see also West v. Gwynne (8) and Sydney Municipal Council v. Troy (9). The fact that the calculation of interest is to be made in respect partly of a period already passed, when the amendment came into effect, does not make the amend­ ment retrospective ; the amended sub-section applies to all amounts of compensation as and after it came into operation, irrespective of when the notification in the Gazette was given: Reg. v. Inhabitants of St. Mary, Whitechapel (10) ; Overseers of Salford v. Overseers of Manchester (11) ; Reg. v. Inhabitants of Christchurch (12) andJIaster Ladies Tailors' Organisation v. Minister of Labour and National Service (13). All those cases are in line with the construction contended for by the appellant and show that in respect of all

New South

Wales.

Ltd. (5).]

(1) (1926) 26 S.R. (N.S.W.) 507, at

(8) (1911) 2 Ch. 1.

pp. .508-510, 512 ; (1927) A.C.

(9) (1927) A.C. 706 ; 27 S.R. (N.S.W.)

706, at pp. 709, 710 ; (1927) 27

308.

S.R. (N.RW.) 308, at pp. 311,

(10) (1848) 12 Q.B. 120, at p. 127 [116

312.  E.R. 811, at p. 814].

(2) (1911) 2 Ch. 1, at pp. 11, 13.

(11) (1863) 3 B. & S. 599, at p. 603

(3) (1922) 30 C.L.R. 523, at pp. 546,

[122 E.R. 225, at p. 227].

547. (12) (1848) 12 Q.B. 149, at pp. 152,

(4) (1905) A.C. 570, at pp. 574, 575.156 [116 E.R. 823, at pp. 824,

(5) (1945) 70 C.L.R. 647, at p. 652.

825].

(6) (1925) 2 K.B. 64.

(13) (1950) 66 T.L.R. (Pt. 2) 728, at

(7) (1905) A.C. 570.

p. 730.

99 C.L.R.]OF AUSTRALIA.

259

compensation assessed after that date for land acquired or taken H. C. of a.

by notice in the Gazette at any time the dispossessed owner is only

entitled to interest at the rate under the amended sub-section,

ring-Gai

The enacting part of sub-s. (2) is complete and unambiguous.

One Municipal

Council

cannot, or should not, alter the plain meaning of an enacting pro­

V.

Attohney- Geneeal

vision by reference to the proviso unless it is clearly necessary to

do so : Jennings v. Kelly (1). The words “ is altered ” fall FOE THE

State of

naturally into place on the construction now submitted of the sub­

New South

section because they relate to periods of time after the amend­

Wales.

ment, but before the calculation.

The construction of the amend­

ment refers to all compensation for all land acquired. It applies to compensation payable in the future, assessed in the future. The substitution of the provisions of s. 126 (2) came into operation at once on the passing of the Act in 1946, therefore the omitted provisions ceased then to have effect and became as if they had never been.

E. T. Perrignon, for the appellant Minister for Public Works. This appellant adopts the argument addressed to the Court on behalf of the other appellant.

J. D. Holmes Q.C. (with him E. N. Dawes), for the respondent Attorney-General for the State of New South Wales. Sub-section (1) of s. 126 of the Public Works Act 1912 refers to all cases where compensation or costs are awarded or adjudged whether the resump­ tion be effected by Gazette notification under Div. 1 of Pt. VII of such Act or by notice to treat under Div. 2 of such Part. Sub­ section (2) is confined to compensation payable in respect of a taking by a Gazette notification. There is some difficulty in making “ such ” work as a word to tie in s. 126 (1) because that sub-section is dealing with both types of compensation whereas sub-s. (2) of s. 126 is clearly defined to one type of compensation. “ Awarded ” in s. 126 (1) refers to the method of determination following a notice to treat whereas “ adjudged ” refers to the other method of determining compensation, that is on the verdict of the jury by the court which would suggest that the word “ such ” in sub-s. (2) does not refer back to sub-s. (1) at all but is independ­ ently dealing with interest on compensation where the compensation is payable in respect of land acquired by Gazette notification. That being so is a reason for saying that sub-s. (2) itself gave the right to interest in respect of this particular method of acquisition—it was

(1) (1940) A.C., at pp. 217, 218, 220.

260HIGH COURT

[1957,

H.C. OF A. not simply a subsidiary provision following on sub-s. (1) and dealing

1957. the assessment of the interest after the assessment of the com-

Ku-Rrao Gai Pensation, that it was giving an independent right to interest on

Municipal compensation. Section 45 converts all rights into rights to compen­

COOTTCIL

V.           sation, therefore, on notification in the Gazette the dispossessed

Attoenby-owner has in lieu of his land, the right to be paid compensation

Genbeal

FOE THE

arrived at in a particular manner and that is the right he gets

State of immediately on publication of the notice in the Gazette. The right

New South

Wales.to compensation under s. 45 includes a right to interest and it

does that either as a result of the construction of the Act, apart altogether from s. 126 (2), or, alternatively, that s. 126 (2) does give the right. The word “ compensation ” includes “ interest ”:

Inglewood Pulp & Paper Co. v. New Brunswick Electric Power Commission (1). If there was no s. 126 (2) in the Public IVorks Act

that case would be authority for the proposition that interest would be payable as from the date of the taking, which is notification in the Gazette, and interest would be payable on the compensa­ tion money when the compensation money was assessed. IMiether interest was payable and the amount thereof was dealt with in In re claim of Myles McRae (2). The right to the payment of interest was recognised as marching with the taking of possession: In re Piggott and the Great Western Railway Co. (3). Alternatively, s. 126 (2) gives the right to interest and fixes the rate at whicli interest is to be paid, as well as the time from which it is to be paid, and in doing so it gives a right to the dispossessed owner which accrues to him at the time when the notice in the Gazette is pubhshed. When the estate of the owner is converted into a claim for compen­ sation, it is a claim for compensation with interest payable at the rate and from the time specified in the section. The quantification of the compensation is simply a subsequent determination of the value as it was at the date of the notification. The owner at the date of such notification has an assumed right to compensation. If that be so then the Interpretation Act of 1897 applies and the rights have all been fixed by the statute in the form it was before the amendment. It is obvious that the word “ such ” at the commenc- ment of sub-s. (2) of s. 126 cannot be referred back to sub-s. (1) of s. 126 ; it cannot refer to compensation awarded or adjudged—it would contradict itself. What was said by the judges in Marcus

Clark & Co. Ltd. v. Commissioner for Railways (4) was obiter dicta

but two of the judges supported the view now submitted to this (1) (1928) A.C. 492, at p. 498.

(4) (Full Court, Supreme Court of

(2) (1893) 10 W.N. (N.S.W.) 62.New South Wales—21st June

(3) (1881) 18 Ch. D. 146.

1950, unreported.)

99 C.L.R.]OF AUSTRALIA.

261

Court. One gets the matter in perspective in Troy’s Case (1). H. C. ofA.

The words in s. 17 of the Sydney Corporation Act were very much wider, and included all other Acts that affected the question, including the Interpretation Act of 1897. All that has happened Municipal

COTOCIL

in this case is that part of the section has been omitted—in effect

V.

repealed—and something else has been substituted for it. The ATTOEisrEr-

Genebai,

Interpretation Act of 1897 still remains. The accrued right of

FOR THE

an owner as at the date of the Gazette notification was one to com­State of

New Sottth

pensation and interest at four per cent. The right was preserved

Wales.

by the Interpretation Act of 1897. Troy’s Case (2) is not inconsis­ tent with anything submitted to the Court on behalf of this respond­ ent. It concedes a title to interest arising with the title to compensa­ tion, and the result on the rate flows rather from the use of the wide words at the commencement of s. 17 which are different in import from the words used in the 1946 statute. The words in s. 5 of the Land Acquisition {Charitable Institutions) Act 1946 do not carry the matter into the same field as the wide words used in Troy’s Case (2) the latter displaying all other legislation, whereas this only displaced s. 126 as it stood and repealed those words but did no more than that. This respondent adopts the judgment of the court below. That court did not use the proviso in the 1946 Act as a means of construing the substantive amendment to s. 126, but used it rather as emphasising the correctness of the view to which it would other­ wise come. Bennett v. Minister for Public Works (A.S.IF.) (3) does not touch this particular question.

M. F. Loxton Q.C. (with him B. B. Riley), for the respondents Turner and Gurr. This case raises the question whether, at the time of the coming into force of the Land Acquisition {Charitable Institutions) Act 1946, the right to interest at the higher rate was a right that had vested or accrued or was merely an existing right. A vested right is one where the right has been obtained and the liability fixed by operation of law upon events against which the existing law provided ; Kraljevich v. Lake View & Star Ltd. (4), whereas an existing right is merely a right to take advantage of an enactment or of a common law right. No question of retro- spectivity arises when vested or accrued rights are sought to be affected. Abbott v. Minister for Lands (5) was a case of an existing right. The other cases cited by the appellants were also cases of

existing rights.

In those cases upon the amendment the right was

(1) (1927) A.C., at pp. 708-710; 27

(3) (1908) 7 C.L.R. 372.

S.R. (N.S.W.), at pp. 310-312.

(4) (1945) 70 C.L.R. 647, at pp. 652,

(2) (1927) A.C. 706 ; 27 S.R. (N.S.W.)

653.

308. (5) (1895) A.C. 425.

262HIGH COURT

[1957.

H.C. OF A.repealed and there was then no right of which advantage could be

1957. taken. Here by the operation of the existing law upon events

Ku-Ring-Gaithat had happened the respondents’ property in the land was

Municipalconverted before the amendment into a chose in action, a claim for

Council

V.compensation. This appears from the Public Works Act 1912,

Attorney-

ss. 39, 43, 45 (1), (2), 101, 104, 124 and 126. The claim is for

General

FOR THEcompensation “ in manner hereinafter provided ”, that is to say,

State of to be determined upon the basis provided in s. 124 and to be paid

New South

Wales.in accordance with s. 126 (1) as to time, with interest at the rate provided in s. 126 (2). “Claim” is synonymous with “right”. It vested in substitution for the rights taken. In the absence of a contrary intention the repeal of s. 126 (2) would not at common law take away a right to interest that had vested or accrued. Section 8 (b) of the Interpretation Act of 1897 is relied upon. Here there is no contrary intention. The words of the section as amended do not express an intention that the amended rate shall apply to all resumptions nor is there any such intention by necessary imphca- tion. The words used on their interpretation limit the scope of the amended section to resumptions after 27th December 1946, and the right to interest at the higher rate in this case remains unaffected by the amendment.

G. P. Stuckey Q.C., in reply. It was not the correct use of the words “ from now on ” to effect an acquired right if they reduced interest rates in futuro : WestY. Gwynne (1). The members of the Court in Marcus Clark & Co. Ltd. v. Commissioner for Railways (2) agreed with the view now submitted on behalf of the appellants. The definition of a vested right as a right obtained by operation of law on events which have already happened, does not go far enough; there must be something done to assert the right. That is the very point in Abbott v. Minister for Lands (3) ; Hamiltoji Cell v. White (4) and Reynolds v. Attorney-General for Nova Scotia (5). In dealing with the matter of compensation regard should be had to the words in sub-s. (3) of s. 45 of the Public TTorAw Act. If the appellant succeeds in the appeal it should be awarded costs.

M. F. Loxton Q.C., by leave. This is a test case. In the circum­ stances in any event the respondent should not be ordered to pay costs.

Cur. adv. vult.

(1) (1911) 2 Ch. 1.(3) (1895) A.C. 425.

(2) (Full Court, Supreme Court of

(4) (1922) 2 K.B. 422.

New South Wales—21st June (5) (1896) A.C. 240.

1950, unreported.)

99 C.L.R.]OF AUSTRALIA.

263

The following written judgments were delivered :—

H. C. of A.

Dixon C.J., McTiernan and Taylor

JJ.

These are appeals

from orders of the Supreme Court of New South Wales answering ku-Ring-Gai

certain questions in cases stated by the parties in two related actions.

Municipal Council

The questions raised concern the rate of interest which the compen­

V.

Attorney- General

sation payable in respect of the acquisition of some land should

carry. The acquisition is that which was the subject of the appeal to the Privy Council reported under the title Minister for Public

FOR THE

State of New South

Works V. Thistlethwayte (1). It appears that the Ku-ring-gai Wales.

Municipal Council applied under ss. 532 and 536 of the Local Govern­

Sept. 12

ment Act 1919, as amended, for the approval of the resumption of the land and undertook to recoup the expenditure on account of compensation. That was as long ago as 4th July 1944. Thereupon on 20th September 1946 a notification was published in the Gazette resuming the land. As a result of proceedings which ended with the decision of the Privy Council already mentioned the compensa­ tion stood determined at £35,000 together with statutory interest. Of the two proceedings in which the eases were stated, one is by the landowners against the Minister to enforce their right to interest and the other by the Attorney-General on behalf of the Crown against the municipality to enforce, so far as it concerns interest, the undertaking to recoup the Crown’s expenditure in respect of compensation. In both cases stated the same question is necessarily

raised. It is how, having regard to Act No. 55 of 1946, s. 5, the interest is to be calculated. By the combined operation of s. 536 (4) and (5) of the Local Government Act 1919 (N.S.W.), as amended, and ss. 43, 44, 45 of the Public Works Act 1912 (N.S.W.) as amended the land vested in the municipality as from 20th September 1946 and the estate or interest of the landowners was turned into a claim for compensation : a claim entitling them on making out title to compensation as provided by the Act. By s. 126 (1) of the Public Works Act payment of compensation where it is awarded or adjudged to be paid is required to be made to the party entitled thereto within one month after such amount is determined. A proviso makes that subject to showing title. There follows sub-s. (2) which was as follows—(2) If such compensation is payable in respect of land taken or acquired by notification in the Gazette, it shall bear interest at the rate of four per cent per annum from the time of such notification.

Had this provision remained unamended the landowners would have been entitled to interest on the compensation viz. £35,000 at four per cent per annum from 20th September 1946 until payment.

(1) (1954) A.C. 475.

264HIGH COURT

[1957.

H.C. OF A.But on 27th December 1946 Act No. 55 of 1946 was passed and it

1957. contains an amendment of sub-s. (2) of s. 126 of the Public Work

Ku-Ring-Gai

Act. The statute is called the Land Acquisition {Charitable Institu­

Municipal

tions) Act 1946 and s. 3 (1) says that the provisions of the Act shall

Council

V.apply to and in respect of such institutions as the Governor may

Attorney-from time to time by notification published in the Gazette declare

General

FOB THE

to be institutions for the purposes of this Act, and to and in respect

State of of those institutions only. No such institution is concerned in the

New South

Wales.present case and it is only by putting aside this expression of the

legislative will that s. 5 which enacts the amendment of the Public

Dixon C.J.

Works Act 1912 can be held to apply.

Section 5 simply opens with

McTiernan J. Taylor J.

the words “ The Public Works Act 1912, as amended by subsequent Acts, is amended ...” and then the amendments are stated. One is naturally entirely incredulous as to the real existence of an intention that this amending provision should be confined as s. 3 (1) provides. But there is nothing but incredulity to warrant the court in denying any effect, in the case of s. 5, to the completely clear and emphatic restriction upon the operation of the whole Act. However the parties were so incredulous that they proceeded to discuss s. 5 and the effect of the amendment it makes as if s. 5 were a general enactment.

The problem which arises from so treating s. 5 in its application to s. 126 (2) of the Public Works Act 1912 is a difficult one. Para­ graph (b) of s. 5 provides that the Public Works Act 1912 as amended by subsequent enactments is amended “ (b) by omitting from sub­ section two of section one hundred and twenty-six the words ‘it shall bear interest at the rate of four per cent, per annum from the time of such notification ’ and by inserting in lieu thereof the words ‘ it shall, for the period of twelve months next following the time of the notification, bear interest at the rate of four per centum per annum, and thereafter shall bear interest at the rate payable by a bank on a fixed deposit with the bank for a period of twelve months of a sum equivalent to the amount of such compensation : Provided that where at any time or from time to time after the expiration of the said period of twelve months and before the compensation is paid, the rate of interest payable by a bank on a fixed deposit as aforesaid is altered, the compensation shall as from the date of the alteration bear interest at that altered rate

There is nothing in the text to suggest an answer to the question whether the legislative adverted to acquisitions already made where the compensation had not then been assessed or paid and whether it possessed any actual intention as to the application or want of application of the amendment to such cases.

OF AUSTRALIA.

265

99 C.L.R.] The form of the amendment is to repeal the words of s. 126 (2)

H. C. OF A.

which provide that the rate of interest which the compensation

1957.

shall bear is to be four per cent per annum and then in lieu thereof Kit-Ring-Gai

MtriiioiPAL Coimoii,

to insert words providing bank rate after twelve months at four per

cent. Perhaps too much should not be made of the form of the amendment but it happens to bring out the fact that in an amend­

V.

Attorney- Genbeal

ment of this kind there is an abrogation of an old provision and the

FOR the

State of

introduction of a new one. Before the common law rule was

New South

changed by such provisions as s. 8 of the Interpretation Act of 1897 Wales.

of New South Wales this meant that so far as the previous law went Dixon C.J.

it had no operation that could support the continued existence of

McTiernan J.

Taylor J.

rights arising out of a transaction that had not been completed. In the absence of some provision to the contrary it was just as if the previous provision had never existed except as to transactions passed and closed : Surtees v. Ellison (1) ; Victorian Stevedoring <&General Contracting Co. Pty. Ltd. and Meakes v. Dignan (2) ; Maxwell v. Murphy (3).

It appears to us that the first step is to decide whether the “ right ” to interest at four per cent per annum existing in the plaintiffs at the passing of Act No. 55 of 1946 is of a description which s. 8 of the Interpretation Act would keep alive. Otherwise the old law would apply unless something to the contrary can be found in s. 5 (b). Section 8 (b) is the most material part. It provides that “ where an Act repeals in the whole or in part a former Act, then, unless the contrary intention appears, the repeal shall not . . . (b) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under an enactment so repealed ”. Although in cases of amendment the “ retrospectivity ” of the amending pro­ vision is often discussed without express reference to s. 8 (b) or analogous enactments, it seems to us that it applies as much to a repeal to make way for a substitutional provision as to a simple repeal. If there is any manifestation of an intention in the amend­ ing enactment that the amendment should apply to rights etc., arising from events that have already occurred then the application of s. 8 (b) will be negatived. But, if not, the rights so arising are supported and continued by that paragraph of s. 8. In the present case s. 126 (2) of the Public Works Act, before its amendment, con­ ferred a right to interest at four per cent per annum from the notifica­ tion in the Gazette calculated on an amount then unascertained and payable at an micertain future time. The interest doubtless accrued

(1) (1829) 9 B. & C. 750, at p. 752

(3) (1957) 96 C.L.R. 261, at pp. 266­

[109 E.R. 278, at p. 279].

268.

(2) (1931) 46 C.L.R. 73, at pp. 105,

106.

266HIGH COURT

[1957.

H. C. OF A.

from day to day. In these circumstances there is doubtless some­

1957.thing to be said for the view that the right at any given date as for

Ku-Rino-Gaiinstance 27th December 1946 to that rate of interest during the

Municipalremaining period in which compensation should remain unpaid is

Council

not a “ right accrued under the enactment But on consideration

V.

Attorney-we think that it is such a right.

It is a right conferred as part of

Geneeal

FOB THEthe reparation for the loss of the owner’s land which the statute

State of provides as the equivalent of the enjoyment of the land of which

New South

Wales.the owner has been deprived. He is given a capital sum with four per cent per annum thereon until payment. The ascertain­

Dixon C.J.

ment of the capital sum must be worked out under the statutory

McTiernan J. Taylor J.

provisions. But it is none the less true that the owmer on the loss of his land “ acquires ” a right in recompense therefor and the interest represents the deprival of income pending the payment of the capital sum, income representing the enjoyunent of the land of which he has been deprived.

Beguming with the view that there is an “ acquired right ” to interest at four per cent per annum, we think that before the amendment is construed as substituting a reduced rate for this “ acquired right ” some evidence of an intention to produce that effect should be discoverable in s. 5 of Ko. 55 of 1946.

There is in our opinion no evidence or indication of such an inten­ tion to be discovered. The whole amendment is expressed in a way altogether consistent wdth an intention to affect only resumptions made after it comes into operation.

We therefore think that the amendment does not apply to the present case and that the judgment of the Supreme Court is right. We do not fail to appreciate the use made by the appellant of Sydney Municipal Council v. Troy (1), but we think that the fact that we are here dealing with the deprivation of a right to a rate of interest obtained as a result of resumption under the statutes is of vital importance. Further the nature of the amendment made is very different from the positive statutory' statement as to interest under consideration in that case. It is we think fallacious to reason

from that case to the present. In our opinion the appeal should

be dismissed.

Fullagar J.

These tw'o appeals from the Supreme Court of

New South Wales were heard together.

On 20th September 1946

the Council of the Municipality' of Ku-ring-gai compulsorily' acquired (or “ resumed ”) certain land in its municipal district, of which the respondents in the second case w'ere the owners. The amount of

(1) (1927) A.C. 706.

99 C.L.R.]OF AUSTRALIA.

267

compensation payable to them in respect of the land was not finally

H. C. OF A.

1957.

determined until some time in 1953.

It is common ground that

interest on this amount is payable to the former owners from the Kv-Ring-Gai

Municipal Council

date of the resumption to the date of payment but the rate of

interest is in dispute. The reason why there were two proceedings

V.

Attorney- General

in the Supreme Court is that the compensation and interest are

payable by the Crown to the former owners, but the Cromi is

FOR THE

State of

entitled to be indemnified by the council of the municipality.

In

New South

each of the two actions the parties agreed on a case stated for the

Wales.

Full Court. The effect of the answers given by the Full Court to

Fullagar J.

the questions asked by the cases is that the rate of interest payable is four per cent per annum. The appellant contends that a lower rate is payable for at least a part of the period. The question depends on the effect to be given to an amendment of s. 126 of the Public Works Act (N.S.W.) which came into force shortly after the date of resumption. It is necessary, however, to refer to a number of provisions of the Local Government Act 1919 and the Public Works Act 1912.

At the time of the resumption s. 532 of the Local Government Act provided that the council might acquire land for any purpose of the Act by, inter alia, “ resumption ”. Section 536, so far as material, provided : “ (1) Where the council proposes to acquire land by resumption it may apply to the Governor through the Minister. (2) The Council shall make provision to the satisfaction of the Governor for the payment of compensation for the land together with interest and all necessary charges and expenses incidental to the resumption. (3) The Governor may authorise the appropriation or resumption of the land. (4) Thereupon the Minis­ ter for Public Works may—(a) appropriate or resume the land by Gazette notification under Division 1 of Part V of the Public Works Act 1912 ; and (b) notify that the land is vested in the council. (5) Thereupon the land shall vest in the council.” The council and the Minister proceeded under these provisions, and 20th Septem­ ber 1946 was the date on which the relevant notification was pub­ lished in the Gazette.

So far as compensation is concerned, we have to turn to the Public Works Act. The effect of a Gazette notification under Div. 1 of Pt. V of that Act was, by virtue of s. 45 (1) to vest the whole estate and interest of the former owners of the land in the acquiring authority. Sub-sections (2) and (3) of s. 45 were in the following terms :—“ (2) Every such estate and interest shall, upon the publication of such notification as aforesaid be taken to have been

268HIGH COURT

[1957.

H. C. OF A.

converted into a claim for compensation in pursuance of the pro­

1957.visions hereinafter contained. (3) Every person shall upon asserting

Ku-Ring-Gaihis claim as hereinafter provided and making out his title in respect

Municipalof any portion of the said resumed lands be entitled to compensation

Council

V.on account of such resumption in manner hereinafter provided.”

Attorney-

The provisions to which the words “ hereinafter provided ” refer were contained in Pt. VII of the Act.

Genbral

Section 101 provided that

FOR THE

State of the former owners should be “ entitled to receive such sum of money

New South

Wales.by way of compensation for the land of which they have been

deprived under this Act as shall be agreed upon or otherwise ascertained under the provisions of this Division of this Act.” The succeeding sections of Div. 1 of Pt. VII provided for the assessment of compensation, where the amount was in dispute, in proceedings in the Supreme Court or a district court. Division 3, which com­ prised ss. 124 and 125, dealt with the basis on which compensation was to be assessed. Division 4, which is headed “Payment” con­ sisted of s. 126. Section 126 provided : “ (1) In all cases where compensation or costs are awarded or adjudged to be paid . . . the amount thereof shall be paid to the party lawfully entitled thereto, or to his agent duly authorised in that behalf, within one month after such amount is determined. Pro\dded that in every such case the party claiming payment shall be bound to make out a title to the lands or interest in lands in respect of which he claims to the satisfaction of the Constructing Authority. (2) If such com­ pensation is payable in respect of land taken or acquired by notifi­ cation in the Gazette, it shall bear interest at the rate of four per cent, per annum from the time of such notification.”

Fullagar J.

If s. 126 had stood in its then form, it would have been quite clear in the present case that the former owners of the land acquired were entitled to interest at the rate of four per cent per annum from 20th September 1946 to the date of payment of the amount of com­ pensation assessed. On 27th December 1946, however, the Land Acquisition {Charitable Institutions) Act 1946 came into force. Sec­ tion 5 of that Act was in the following terms : “ The Public Works Act, 1912, as amended by subsequent Acts, is amended. . • (b) by omitting from subsection two of section one hundred and twenty-six the words ‘ it shall bear interest at the rate of four per cent, per annum from the time of such notification’ and by inserting in lieu thereof the words ‘ it shall, for the period of twelve months next following the time of the notification, bear interest at the rate of four per cent, per annum, and thereafter shall bear interest at the rate payable by a bank on a fixed deposit with the bank for a period of twelve months of a sum equivalent to the amount of

99 C.L.R.]OF AUSTRALIA.

269

such compensation : Provided that where at any time or from time

H. C. OF A.

to time after the expiration of the said period of twelve months

1967.

and before the compensation is paid, the rate of interest payable Ku-Rnro-Gxi

MtmiciPAL COTOCU.

by a bank on a fixed deposit as aforesaid is altered, the compensation

shall as from the date of the alteration bear interest at that altered

V.

Attorney- General

rate

It may be noted in passing that it might possibly have been argued, having regard to the title to the Act and the context in

FOR THE

State of New South

which the amendment of s. 126 (2) found itself, that it was intended Wales.

to apply only to cases where land had been resumed for the purposes

of charitable institutions. No such argument, however, was put,

Fullagar J.

and I think that the correct view is that the amendment was

intended to apply generally.

In my opinion, to construe the enactment of 1946 as applying to cases where the Gazette notification had been published before its commencement would be to give to it a retrospective operation within the meaning of the rule that “ no statute shall be construed so as to have a retrospective operation, unless its language is such as plainly to require that construction ” {Broom’s Legal Maxims, 8th ed., p. 25). I pointed out recently in Maxwell v. Mwphy (1) that, when the word “ retrospective ” is used in this connexion, it is not used in its strict meaning ol“ ex post facto ” (2). A true ex post facto statute is a comparatively rare thing. What the rule really means is that prima facie a statute must not be construed so as to change the legal character, or the legal consequences, of past events and transactions. The expression “ change the character of past transactions ” is used by Willes J. in the well known passage in Phillips V. Eyre (3). In Reg. v. Guardians of Ipswich Union (4), Cockburn C.J. said : “ It is a general rule that, where a statute is passed altering the law, unless the language is expressly to the con­ trary, it is to be taken as intended to apply to a state of facts coming into existence after the Act ” (5). In Kraljevich v. Lake View & Star Ltd. (6), Dixon J. stated the rule in similar terms. He said ; “ The presumptive rule of construction is against reading a statute in such a way as to change accrued rights the title to which consists in transactions passed and closed or in facts or events that have already occurred ” (7). So in that case it was held that an amend­ ment of a Workers’ Compensation Act, which altered the method of assessment of compensation in certain cases, was not applicable to a case in which the accident to the worker had occurred before the

(1) (1957) 96 C.L.R. 261.(5) (1877) 2 Q.B.D., at p. 270.

(2) (19.57) 96 C.L.R., at p. 285.(6) (1945) 70 C.L.R. 647.

(3) (1870) L.R. 6 Q.B. 1, at p. 23.(7) (1945) 70 C.L.R. at p. 652.

(4) (1877) 2 Q.B.D. 269.

270HIGH COURT

[1957.

H. C. OF A. amendment came into force : cf. Moakes v. Blackwell Colliery Co. Ltd. (1); Clement v. D. Davis <& Sons, Ltd. (2); British Broken Hill Ku-Ring-Gai Simmons (3). Those were all cases relating to

Municipal workers’ compensation. The fact or event to which the relevant

Council

V.legal consequences attached was the accident to the worker. In

Attorney- the present case the fact or event to which the relevant legal con­

General

FOR THEsequences attach is the notification of resumption in the Gazette.

State of Prima facie the amendment of 1946 must be read as not attaching

New South

Wales.new and different legal consequences to a notification published

Fullagar J.before that amendment became law.

The rule is, of course, only a rule of construction. There is no more than a presumption, which must yield to any sufficient indication of a contrary intention. In the present case, however, everything tends to reinforce, rather than to negative, the presump­ tion. For not only are the words in their natural meaning apt to refer only to future Gazette notifications, but the greatest difficulty is encountered in applying them to past notifications. Clearly there might be cases in which, at the time when the Act of 1946 came into force, more than twelve months had elapsed since the notification without any assessment of compensation having been made. We were informed that there was in fact a number of such cases. The amended sub-section, as the learned judges of the Supreme Court in effect pointed out, cannot be applied to such cases without what really amounts to a distortion of what it says.

It was suggested by counsel for the appellants that in such a case the rate of four per cent would be payable in respect of the period between the date of the Gazette notification and the date when the amendment became law, and at the bank rate on fixed deposits from the date when the amendment became law to the date of payment. Such a construction did not, it was said, give

to the amendment a retrospective operation. But it is impossible,

in my opinion, to make the amended sub-section mean that. Such a construction gives to the amended sub-section only a partial operation in such cases, and it seems obvious that it was intended, in every case to which it applied, to cover the whole ground and to prescribe the totality of interest payable. Or perhaps it is more correct to say that such a construction makes the words of the amendment mean something that they" caimot possibly mean. For the amendment says that interest at four per cent shall be payable “ for the period of twelve months next following the tune of the notification It saŷs neither more nor less than that, and it can

(1) (1925) 2 K.B. 64.(3) (1921) 30 C.L.R. 102.

(2) (1927) A.C. 126.

99 C.L.E.]OFAUSTKALIA.

271

mean neither more nor less than that. Yet the suggested con­

H. C. OF A.

struction makes it mean ‘ ‘ for the period of twelve months next

1957.

following the time of the notification, and for such further period, Kv-Ring-Gai

Mpiticipal Council

if any, as may have elapsed between the time of the notification

and the date of commencement of this Act It seems to me to

V.

Attorney- General

be impossible to get any such meaning out of the language used.

The suggested construction derives no support from Sydney

FOR THE

State of New South

Municipal Council v. Troy (1), where the amending enactment in

question was entirely different in form and in substance.

Wales.

For these reasons I am of opinion that the amendment effected by the Act of 1946 applies only to cases where the notification is published after it came into force, and that it has therefore no application to the present case. Since one effect of that amend­ ment was to repeal the old sub-s. (2) of s. 126, it might be suggested that there is, in the result, no provision on which the former owners of the land in question here could rely as entitling them to payment of any interest at all. But this is the very situation with which the provision contained in s. 8 (b) of the Interpretation Act of 1897 (N.S.W.) was designed to deal. That enactment provides that “ where an Act repeals in the whole or in part a former Act, then, unless the contrary intention appears, the repeal shall not . . . (b) affect any right privilege obligation or liability acquired accrued or incurred under an enactment so repealed.” The former owners were entitled before 27th December 1946 to interest at the rate of four per cent per annum from date of notification to date of pay­ ment, and in that respect they had clearly, in my opinion, a right which had been acquired by them before the Act of 1946 became law, and which was preserved to them by s. 8 (b) of the Interpreta­ tion Act after the Act of 1946 became law.

Fullagar J.

It was argued that no “ right ” to compensation was “ acquired ” until the amount of compensation payable was ascertained by agree­ ment or by assessment under the Act. But I cannot regard this view as tenable. Some colour is perhaps lent to it by the use of the word “ claim ” in s. 45 (2) of the Public Works Act, and by the fact that it is to a later part of the Act that we have to refer in order to find out the nature and incidents of the compensation payable. But the real and substantial effect of s. 45 is to give to the Gazette notification the immediate effect of depriving the owner of resumed land of all the rights of an owner of land, and to sub­ stitute therefor a right to receive a sum of money. It seems to me to give him immediate rights in the true sense of that word. The rights are defined later in the Act, and one of those rights is

(1) (1927) A.C. 706.

272HIGH COURT

[1957.

H.C. OF A.the right to receive interest under s. 126. It can make no difference

1957. that the right is not quantified until the amount is agreed or assessed.

Ku-Rino-GaiEven a “ right ” to unliquidated damages for a tort would, in my

Municipalopinion, be a right within the meaning of s. 8 of the

Interpretation

Council

Act. The view which I take is supported, if it needs the support

V.

Attorney- of authority, by the cases relating to workers’ compensation, which

Genebal I have cited above, and by

Hamilton Gell v. White (1). In Kral­

for the

State op

jevich V. Lake View & Star Ltd. (2), Dixon J. said : “ Section 16 of

New South

Wales.the Acts Interpretation Act ” (which was the Western Aastralian

Fullagar J.equivalent of s. 8 of the Interpretation Act of 1897 of New South Wales) “ keeps the old provisions of clause 18 alive for the purpose of assessing the amount of the appellant’s redemption payment ” (3). vUid his Honour referred to what was said by Scrutton L.J. in Moakes v. Blackwell Colliery Co. Ltd. (4).

The appeals should, in my opinion, be dismissed.

Kitto J. These are appeals against the answers given by the Full Court of the Supreme Court of New South Wales to questions submitted by special cases stated by the respective parties to two actions.

In 1944 the appellant council applied to the Governor under s. 536 of the Local Government Act 1919 (N.S.W.) for the resumption of certain land forming part of the estate of one Wdham Moore deceased. The council in its application undertook to recoup the Department of Works and Local Government for any expenditure incurred on account of compensation for the land and interest and all necessary charges and expenses incidental to the resumption. On 20th September 1946, the land was resumed, in accordance with s. 536 (4) (a), by Gazette notification under Div. 1 of Pt. V of the Public Works Act 1912 (N.S.W.), and by the same notification the Minister under s. 536 (4) (b) notified that the land was vested in the council. By virtue of s. 536 (5), this had the effect that the land became vested in the council and not, as in the case of a resump­ tion under the Public Works Act independently of the Local Govern­ ment Act, in the Constructing Authority on behalf of the Crown (cf. the former Act, s. 43).

The rights of the trustees of the deceased’s estate with respect to compensation are governed by the provisions of the Public TTorfo Act. There is not now any question outstanding with respect to the compensation moneys themselves, but a dispute has arisen as to the rate of interest which the trustees are entitled to receive from

(1) (1922) 2 K.B. 422.(3) (1945) 70 C.L.R., at p. 653.

(2) (1945) 70 C.L.R. 647.

(4) (1925) 2 K.B., at p. 70.

99 C.L.R.]OF AUSTRALIA.

273

the Crown and which the Crown is entitled to have recouped to it by the council. For the determination of this dispute the trustees have sued the Minister (by whom, as a corporation sole by virtue ku-Ring-Gai

of s. 4 of the Public Works Act, s. 126 of that Act provides that the

Municipal COTTNCIL

compensation shall be paid), and the Attorney-General on behalf

V.

Attoeney- General

of the Crown sues the council.

It is in the two actions thus brought

that the special cases have been stated.

FOE THE

State of

The Act provides two methods of resumption, namely acquisition by Gazette notification (Div. 1 of Pt. V) and acquisition by notice

New South

Wales.

to the parties interested (Div. 4 of Pt. V). It is with the former

• Kitto J.

only that we are here concerned. The matter of interest on com­ pensation moneys where a resumption has been effected by that method is governed by s. 126 (2) of the Public Works Act. Before its amendment in 1946, that sub-section was in these terms: “ If such compensation is payable in respect of land taken or acquired by notification in the Gazette, it shall bear interest at the rate of four per cent, per annum from the time of such notification.” But by s. 5 of the Land Acquisition {Charitable Institutions) Act 1946, the words “ it shall bear interest at the rate of four per cent per annum ” were omitted, and words were substituted which gave interest at four per cent per annum for the first twelve months after the notification and thereafter interest at the rate payable by a bank on a fixed deposit for twelve months of a sum equivalent to the amount of the compensation. There was added a proviso dealing with variations which may occur in the bank rate of interest on fixed deposits between the expiration of the twelve months and the payment of the compensation.

The amending Act came into force on 27th December 1946, three months after the date of the resumption in the present case. The question which arises is whether the rate of the interest payable to the trustees is governed by the original or by the amended provisions of s. 126 (2). The trustees say by the original provisions and the council by the amended provisions, because the fixed deposit rate was considerably lower than four per cent during the period between the expiration of twelve months from the date of the resumption and the pa}rment of the compensation to the trustees.

On the construction of the amending Act it may be open to question whether the amendments made by s. 5 are intended to apply only in respect of resumptions for the purposes of such institutions as the Governor declares to be institutions for the purposes of the Act; for s. 3 (1) provides that the provisions of “ this Act ” shall apply to and in respect of such institutions and

VOL. XCIX---18

274HIGH COURT

[1957.

H. C. OF A. such institutions only.

In the view I take of the case, however, it

is unnecessary to pursue this question.

Ku-Ring-Gai argument in favour of the application to this case of the Municipal amended provisions of s. 126 (2) places emphasis on the word Council « pg^yg^pjg ippg compensation is not “ payable ”, it is said, until

Attorney- the time for payment has arrived, and therefore the only right with

General

FOR THE

respect to interest is one which springs into existence at that time,

State of as a right to a lump sum. The time for payment of compensation

New South

Wales.is governed by sub-s. (1) of the same section ; it is to be paid to the

Kitto J. •party lawfully entitled or his agent wdthin one month after such

amount is determined, provided that in every case the party claiming payment shall be bound to make out his title to the satisfaction of the Constructing Authority. In the present case the amount of the compensation was not determined until 1953, so that on the suggested construction of s. 126 (2) the right of the trustees to interest arose under that provision as amended, and therefore the rate applicable from time to time is to be ascertained in accordance with the amendment.

The argument for the trustees, on the other hand, treats the introductory words of s. 126 (2), not as meaning that the right of a dispossessed owmer in respect of interest has no existence until the time for payment of compensation as prescribed by s. 126 (1) has arrived, but merely as confinmg the application of s. 126 (2) to the class of cases in which the resumption is effected by the method of Gazette notification. It is contended that immediately upon the publication of a notification there arises in every person who had any estate or interest in the land affected, an immediately vested right to be paid in accordance with the Act the proper amount of compensation together wnth interest thereon at the rate or rates prescribed by s. 126 (2). Accordingly it is said that in the present case the trustees acquired on 20th September 1946 a right to com­ pensation plus interest at four per cent per annum, and that this right, havmg been acquired before the Act of 1946 came into force, is not affected by the amendment of s. 126 (2) which that Act introduced.

This contention is based alternatively upon s. 8 (b) of the Inter­ pretation Act of 1897 (N.S.W.) and upon the rule of construction that a statute ought not to be understood as operating retrospectively unless there is some positive indication of intention that it shall so operate. Section 8 (b) of the Interpretation Act provides that where an Act repeals in the whole or in part a former Act, then, unless the contrary intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued and incurred

99 C.L.R.]OF AUSTRALIA.

275

under an enactment so repealed. The Act of 1946 repealed a part of the Public Works Act by omitting the words prescribing the rate of four per cent in s. 126 (2), and only by way of substitution did it ku-Ring-Gai

go on to enact the words prescribing the new variable rate.

It Municipal

Council

contained nothing to indicate an intention to affect rights which

V.

Attorney- General

had been acquired before its enactment. The contention of the

trustees must therefore be upheld if the submission is correct that FOR THE

State of New South

their right to interest was a “ right acquired ” before the Act of

1946 came into force.

Wales.

It would be difficult to resist this submission if s. 126 (2) were found as part of s. 45, for that section operates to create substantive rights immediately upon the publication of a notification. After making it an immediate consequence of a resumption that the estate and interest of every person entitled to the land resumed is deemed to have been conveyed to the Constructing Authority, the section goes on to provide that every such estate and interest shall, upon the publication of the notification of resumption, be taken to have been converted into a claim for “ compensation in pursuance of the provisions hereinafter contained ”, and that every person shall, upon asserting his claim as provided and making out his title, be entitled to compensation on account of the resumption “ in manner hereinafter provided In this section, “ claim ” obviously means an enforceable right, which is acquired at once though it is a right to a payment at an unascertained future time ; and “ entitled ” must mean “ entitled to receive ”, and must there­ fore refer to the maturing of the right into a right to immediate payment. But interest is not dealt with at this point in the Act. The topic is relegated to Div. 4 of Pt. VII, which contains those of the provisions foreshadowed in s. 45 which regulate the time, con­ ditions and manner of the payment of compensation ; and there it is embedded among provisions which are concerned, not with the creation of substantive rights, but with prescribing matters of machinery. It is because of these considerations arising on the structure of the Act that the argument is plausible which denies that any right to interest vests in the dispossessed owner until, the required preliminary steps having been taken and the prescribed period having expired, the time for payment has arrived.

Kitto J.

But clearly enough s. 126 (2), despite its position in the Act, creates a substantive right. It is a right given to the former owner of the land to compensation for the loss of his right to retain posses­ sion while the compensation remains unpaid ; Inglewood Pulp d Paper Co. v. New Brunswick Electric Power Commission (1). As is

(1) (1928) A.C. 492, at p. 499.

276HIGH COURT

[1957.

H.C. OF A.appropriate in a provision having this purpose, it does not take the

1957. form of a direction for payment—which might have lent some

Ktj-Ring-Gaisupport to the notion that there is no right imtil the time for pay­

Mtoicipalment arises—but provides that the compensation “ shall bear

CoTjNcn-

interest ” from the time of the notification. This strongly suggests

V.

Attorney-that it shall commence to bear interest at that time, and therefore

General

FOR THE

that the right to have it bear interest arises at that time in favour

State of of the former owner. The operation of s. 126 (2) in each case to

New South

Wales.which it applies is that upon the notification being published it

gives the former owner an immediate assurance that in the inevitable

Kitto J.

interval of time before his compensation is paid, during which he will have neither the right to possession of the land nor the oppor­ tunity to derive income from the money which is to take its place, interest will be accruing so as to become payable to him when he receives the compensation. Things must be done and a time must elapse before either wOl be payable, and the quantum of each depends upon events ; but, although for these reasons they are both characterised by some uncertainty neither is, in point of right, contingent or only a possibility. A right to both has been acquired: cf. Hamilton Gell v. White (1).

There is an analogy with the situation which has often been considered in the realm of workers’ compensation law. As at the time of a worker’s injury it is true that the exact amount of com­ pensation which will be payable depends on many factors, such as the particular circumstances and the quality of the injury (includ­ ing, of course, the duration of the resulting incapacity), whether death supervenes, and the state of the worker’s family; but the method of calculation is fixed once and for all, and the true view is that rights have been acquired and liabilities incurred immediately upon the happening of the injury : Clement v. D. Davis & Sons, Ltd. (2) ; Stevens v. Railway Commissioners for New South Wales (3); cf. Kraljevich v. Lake View & Star Ltd. (4).

The amending Act, it should be observed, cannot be read as meaning that in respect of past resumptions the interest upon unpaid compensation moneys shall be altered for the future only. In this respect it is in marked contrast with the enactment which engaged the attention of the Privy Coimcil in Sydney Municipal Council V. Troy (5). It is so expressed that if the new provisions as to interest apply to a past resumption at all they must apply retrospectively as from the date of the notification, so that, in a

(1) (1922) 2 K.B. 422.(4) (1945) 70 C.L.R. 647.

(2) (1927) A.C., at p. 131.(5) (1927) A.C. 706.

(3) (1930) 31 S.R. (N.S.W.) 138, at

p. 143 ; 48 W.N. 69.

99 C.L.R.]OP AUSTRALIA.

277

case where compensation for a resumption effected more than twelve months before the amendment was still outstanding when the amendment took etfect, the four per cent interest which the ku-Ring-Gai

compensation was bearing from the end of the twelve months to Municipal

Council

the date of the amendment must be treated as not having accrued,

V.

Attoeney- Geneeal

and interest at the new rate must be regarded as having accrued

in its place. Even apart from s. 8 (b) of the

Interpretation Act, a

FOE THE

State of New South

construction which would give the amendment that operation

should be rejected if another is fairly open.

Wales.

The view I have expressed accords with that of the learned judges

of the Supreme Court, and I would accordingly affirm the answers

which their Honours gave to the questions in the special cases.

Kitto j.

In my opinion the appeals should be dismissed.

Appeals dismissed with costs.

Solicitors for the appellant Ku-ring-gai M.C., Dowling, Tayler,

Pratt & Nicol.

Solicitor for the respondent Attorney-General, F. P. McRae, Crown Solicitor for New South Wales.

Solicitor for the appellant Minister for Public Works, F. P. McRae, Crown Solicitor for New South Wales.

Solicitors for the respondents Turner and Gurr, W. A. Gilder,

Son & Co.

J. B.