Lansen v Olney

Case [1999] FCA 1745

FEDERAL COURT OF AUSTRALIA

Lansen v Olney [1999] FCA 1745

ABORIGINAL LANDS  - traditional land claims – pastoral lease – vested in Northern Territory Land Corporation – whether alienated Crown land – Corporation taking transfer of pastoral lease from Northern Territory – Northern Territory taking transfer of pastoral lease from mortgagee - whether transfer to Northern Territory valid – whether transfer to Northern Territory Land Corporation valid – radical title – doctrine of merger – Torrens Title System – application to transfers of pastoral leases – indefeasibility – motion to amend statement of claim – allegation of improper purposes vitiating title to pastoral lease – appropriate forum – motion to amend dismissed – application dismissed.

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 50(1)(a)
Pastoral Land Act 1992 (NT) ss 3(1), 4, 6, 9, 30, 31, 40, 48, 56, 57, 58, 59, 67, 68, 69, 129, 130, 132
Real Property Act (NT) ss 47, 49, 60, 67, 68, 69, 70, 91, 93, 94, 95, 96, 113, 150, 151, 220(4)
Crown Lands Act 1992 (NT) ss 3, 4, 9(2), 9(3), 12, 13, 14, 15, 16, 17, 26, 27, 36, 38
Northern Territory Land Corporation Act 1986 (NT) ss 4(2), 15, 16
Judiciary Act 1903(Cth) s 39B(1A)
Real Property Act 1886 (SA) ss 68, 69, 70
Crown Lands Ordinance 1931 (NT)

R v Kearney; Ex parte Japanangka (1984) 158 CLR 395, cited
Wik Peoples v Queensland (1996) 187 CLR 1, applied
De Britt v Carr (1911) 13 CLR 114, cited
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, cited
Attorney-General (NSW) v Brown (1847) 1 Legge 312, cited
Mabo v Queensland (1992) 175 CLR 1, cited
Amodu Tijani v Secretary, Southern Nigeria (1921) 2 AC 399, considered
Nireaha Tamaki v Baker [1901] AC 561, considered
Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520, cited
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 42 NTR 1, cited
English Scottish and Australian Bank Ltd v Phillips (1937) 57 CLR 302, considered
Cooper v Federal Commissioner of Taxation (1958) 100 CLR 131, considered
Shell Co of Australia Ltd v Zanelli (1973) 1 NSWLR 216, considered
Post Investments Pty Ltd v Wilson (1990) 26 NSWLR 598, cited
Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (In Liq) (1948) 45 NSWLR 556, cited
Lansen v The Hon Justice H W Olney [1999] FCA 1026, cited
Arcadi v Whittem (1992) 59 SASR 515, cited
Nield v Whittem (1993) 67 ALJR 514, cited
Public Trustee v Paradiso (1995) 64 SASR 387, cited
Rogers v Resi-Statewide Corporation Ltd (1991) 29 FCR 219, cited
Breskvar v Wall (1971) 126 CLR 376, cited
Wicklow Enterprises Pty Ltd v Doysal Pty Ltd (1986) 45 SASR 247, cited
King v Smail [1958] VR 273, cited
Rasmussen v Rasmussen [1995] 1 VR 613, cited
Valoutin Pty Ltd v Furst

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Details
AGLC
Lansen v Olney [1999] FCA 1745
Case
[1999] FCA 1745
Decision Date

CaseChat Overview and Summary

Lansen v Olney is a case brought under section 39B of the Judiciary Act 1903 (Cth), which concerns the jurisdiction of the Aboriginal Land Commissioner in a claim instituted under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The primary issue before the court was whether the Commissioner erred in law in determining that the claimed land, Billengarrah Station, was neither "unalienated Crown land" nor "alienated Crown land in which all estates and interests not held by the Crown [were] held by, or on behalf of Aboriginals" on 29 May 1997, thereby concluding he had no jurisdiction over the application. The Commissioner's decision hinged on the land's status as of the application date, which was held under a perpetual pastoral lease by the Northern Territory Land Corporation (NTLC). The NTLC had acquired the lease from the Northern Territory, which in turn had obtained it from the Commonwealth Development Bank of Australia. The applicants argued that the NTLC was not empowered to acquire land from the Crown, or that the Pastoral Land Act did not allow for such a transfer.

The court addressed the legal issues by examining the statutory provisions and the powers of the NTLC under the Northern Territory Land Corporation Act. It found that the NTLC was indeed empowered to acquire, hold, and dispose of real property, including leasehold interests, under the Act. The court concluded that the NTLC was validly empowered to take a transfer of the perpetual pastoral lease and hold it, thus affirming the Commissioner's decision. The court further held that the indefeasibility provisions of the Real Property Act were not necessary to support the NTLC's title, as the transfer was valid under the relevant statutory framework. Consequently, the court dismissed the applicants' motion to amend the statement of claim and the application itself, with the applicants to pay the respondents' costs.

In summary, the court upheld the Commissioner's jurisdictional determination, finding that the NTLC was empowered to hold the lease in question. The applicants' arguments regarding the NTLC's statutory powers and the applicability of the Real Property Act were rejected, leading to the dismissal of the application and the imposition of costs on the applicants.

Orders

Orders of the court

1. The Applicants’ motion to amend the statement of claim is dismissed.

2. The application is dismissed.

2. The Applicants pay the Respondents’ costs of the application.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH, TAMBERLIN, SACKVILLE JJ
In my opinion the amendment should not be allowed. These are not the appropriate proceedings in which to ventilate the issue of improper purpose. At a practical level it would require hearing by a Full Court of extensive evidence relating to the central and ancillary issues. It may be a matter that could separately be ventilated in the Supreme Court or possibly in the jurisdiction of this Court conferred by s 39B(1A) in respect of matters arising under laws of the Commonwealth. But the proposed amendment is not appropriate to an application for judicial review of Olney J’s decision. Conclusion For the reasons set out above, I would dismiss the application with costs. I agree with the reasons for judgment delivered by Sackville J and the reasons of French J incorporated therein. I also agree with the orders proposed by Sackville J. The question raised by this application, which is brought pursuant to s 39B of the Judiciary Act 1903 (Cth), is whether the first respondent, the Aboriginal Land Commissioner (“the Commissioner”), erred in law in determining a preliminary issue that arose in a claim instituted under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“Land Rights Act”). The Commissioner determined that the claimed land, known as the Billengarrah Station, at 29 May 1997 (the date of the application to the Commissioner), was neither(a) “unalienated Crown land”, nor(b)“alienated Crown land in which all estates and interests not held by the Crown [were] held by, or on behalf of Aboriginals”,for the purposes of s 50(1)(a) of the Land Rights Act. On this basis, the Commissioner decided that he had no jurisdiction to perform in relation to the application. The course of events has been set out in the judgment of French J and I need not repeat his Honour’s account. It will be seen from that account that, at 29 May 1997, the second respondent (“the Land Corporation”) was registered under the Real Property Act (NT) (“Real Property Act”) as the proprietor of Perpetual Pastoral Lease 1069 (“PPL 1069”) in respect of Billengarrah Station. The Land Corporation derived its interest by a transfer from the third respondent (“the Territory”), executed on 6 July 1993. The transfer to the Land Corporation, which stated the value of the interest transferred to be “nil”, was lodged for registration with the Registrar General on 20 July 1993 and duly registered on 21 July 1993 at 9.20 a.m. The transfer described the land as that comprised in Volume 111, Folio 76, located at Billengarrah, being the parcel known as NT Portion 1323. The tenure under which the land was held was described as “Pastoral Lease No. 759”. As will be explained, the reference to Volume 111, Folio 76 was to a folio in the Register Book of Crown Leases. For its part, the Territory had received a transfer of land, dated 6 July 1993, from the Commonwealth Development Bank of Australia (“the Bank”) in the exercise of its power of sale as mortgagee over the Billengarrah Station. The value of the interest so transferred to the Territory was recorded as $250,000, presumably reflecting the consideration paid by the Territory. The transfer to the Territory was lodged on 20 July 1993, a few seconds before the Territory’s transfer to the Land Corporation and was registered at the same time as the transfer to the Land Corporation. The description of the land included in the transfer to the Territory was in substance the same as that in the transfer to the Land Corporation.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH, TAMBERLIN, SACKVILLE JJ

Concluding as I do, that the Northern Territory was empowered to take a transfer of PPL 1069 and to hold the lease, there is no need to resort to the indefeasibility provisions of the Real Property Act to support its title.Validity of the Transfer of PPL 1069 to the Northern Territory Land Corporation The applicants submitted that the NTLC was not empowered by its Act to acquire an interest in land from the Crown. Alternatively it was said that the scheme of the Pastoral Land Act did not provide for a transfer by the Crown of any crown land to a third person. The NTLC was initially established as the Northern Territory Development Land Corporation pursuant to the Territory Development Act. It was continued by the Northern Territory Land Corporation Act. By s 4(2) of that Act:“4(2) The Corporation is –(a)a body corporate with perpetual succession and a common seal; and (b)capable, in its corporate name, of –(i)subject to this Act, acquiring, holding and disposing of real (including leasehold) and personal property; and (ii)suing and being sued.”The Corporation is not an authority or instrumentality of the Crown and is not subject to the control and direction of a Minister of the Crown (s 6). Its function is described in s 15 thus: “15(1) The function of the Corporation is to acquire (by agreement or otherwise), hold and dispose of real property (including an estate or interest in real property) in accordance with this Act and it may acquire and hold such property notwithstanding any other law in force in the Territory which would restrict or otherwise limit the capacity of the Corporation to acquire and hold it. (2) The Corporation has power to do all things necessary or convenient to be done for or in connection with or incidental to the carrying out of its function. (3) Moneys payable by the Corporation for or incidental to the acquisition of an estate or interest in real property may be advanced by the Territory on such terms and conditions as the Treasurer thinks fit.(4) Moneys payable to the Corporation in respect of an estate or interest in real property held or disposed of by the Corporation shall be paid to the Territory, whose receipt shall be a sufficient discharge therefor, and moneys payable by the Corporation in respect of an estate or interest in real property held by the Corporation may be paid by the Territory.... (6) The Corporation may enter into such arrangements as it thinks fit with the Territory or any other person in relation to the care, control and management of land or an interest in land held by the Corporation.(7) Subject to subsection (6), the Minister has the care, control and management of all land and interests in land held by the Corporation.”The Administrator is empowered to declare any land in respect of which all the right title and interest is vested in the Territory or where no person other than the Territory or the Corporation holds a right, title or interest, to be vested in the Corporation (s 16(1)). Application of such a notice vests in the Corporation all right, title and interest legal and beneficial in respect of the land as though the notice were an alienation in fee from the Crown by way of grant to the Corporation (s 16(2)). There is also provision for registration of such a notice as though it were an instrument of transfer or conveyance to the Corporation (s 16(3)).