Mackinnon v Attorney-General (NSW) - [1909] HCA 71

CHARLES MACKINNON

THE ATTORNEY-GENERAL FOR NEW

RESPONDENT.

SOUTH WALES Crown lands-Improvement Leases Cancellation Act 1906 (N.S. W.), (No. 42), secs.

2, 3, 4*-Crown Lands Act 1895 (N.S.W.), (No. 18), secs. 24, 25-Cancellation *Secs. 2, 3 and 4 of the Improve-

The said former lessee may within ment Leases Cancellation Act 1906, No.

sixty days after such cancellation make application for an improvement lease or improvement leases or for a lease under section eighteen of the Crown Lands Amendment Act 1903, of the any improvement lease, then current

said land or any part thereof. and in force, which was the subject of

4. (1) For the purpose of dealing inquiry by the Royal Commission on

with land comprised in leases so for- feited, the Governor shall appoint a partment was granted or purported to

board of three persons, one of whom be granted under circumstances evi-

shall be a Judge of the Supreme Court, dencing improper acts or serious ir-

who shall preside at meetings of the regularity, and that such lease should be dealt with under this Act, such cer-

(2) Such board shall inquire and tificate shall be notified in the Gazette,

finally determine- and thereupon such lease shall become

(a) whether any and what part of

such land may be leased under an improvement lease or under feiture, the former lessee of the land

section eighteen of the Crown comprised in such lease shall become the holder of a preferential occupation

(b) the term, not exceeding twenty- licence thereof, and such land shall

eight years, the rent, and the thereupon become reserved from sale

conditions of any such lease; and leases generally until such reserv-

circumstancessurroundingt the notification by the Governor in the

granting of the cancelled lease and the equities of the case,

9 CLR 504

of improvement lease- Power of Crown to determine preferential occupation licence by grant of settlement lease.

The appellant was the holder of an improvement lease, which was cancelled under the Improvement Leases Cancellation Act 1906. By sec. 3 of this Act the appellant thereupon became the holder of a preferential occupation licence in respect of the land comprised in the improvement lease.

Held, that this land was subject to the provisions of the Crown Lands Acts, and that the preferential licence of the defendant was determined by the grant by the Governor of a settlement lease of the land under sec. 25 of the

Minister for Lands v. The Bank of New South Wales, 9 C.L.R., 322 con- sidered and applied.

Decision of A. H. Simpson C.J. in Eq. (Attorney-General v. Mackinnon, 26 W.N. (N.S.W.), 138), affirmed.

APPEAL by the defendant from the decision of A. H. Simpson C.J. in Eq., upon the hearing of an information brought by the Attorney-General under the following circumstances,

In 1906 the appellant was the registered holder of two improve- ment leases in the central…

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 Mackinnon v Attorney-General (NSW)

Details

AGLC: Mackinnon v Attorney-General (NSW) [1909] HCA 71
Case: [1909] HCA 71
Decision Date: 25 November 1909

CaseChat Overview and Summary

The appeal concerned the rights of the appellant, Mr. Mackinnon, as the holder of a preferential occupation licence over land previously held under an improvement lease. This lease had been cancelled under the Improvement Leases Cancellation Act 1906. The Attorney-General for New South Wales sought declarations that the Crown was entitled to grant settlement leases over this land and that the appellant's occupation licence would be determined upon the issue of such leases. The Supreme Court of New South Wales, in Equity, found in favour of the Attorney-General, and Mr. Mackinnon appealed to the High Court of Australia.

The central legal issue before the High Court was whether the preferential occupation licence granted to the appellant under the Improvement Leases Cancellation Act 1906 was determinable by the Governor granting a settlement lease of the land, or if the appellant held a perpetual tenure until further legislation was enacted. This required the Court to interpret the scope of the Improvement Leases Cancellation Act 1906 in conjunction with the broader Crown Lands Acts.

The High Court, affirming the decision of the Supreme Court, held that the preferential occupation licence was not a new tenure but a recognised form of occupation licence under the Crown Lands Acts. Consequently, it was subject to the same incidents and conditions as other occupation licences. The Court reasoned that the Act did not curtail the Governor's general power to alienate Crown lands. The provisions for reserving the land from sale and lease generally, and the subsequent revocation of these reservations, indicated that the land remained subject to the ordinary powers of the Crown to grant new leases, such as settlement leases. The Court applied the principles established in *Minister for Lands v. The Bank of New South Wales*, finding that the holder of a preferential occupation licence, like other occupation licensees, loses their right when the land is opened for selection and subsequently selected.

The appeal was dismissed.

Orders