Maddalozzo, Angelo v The Commonwealth of Australia

MADDALOZZO v. COMMONWEALTH (No. 2) (1979) 39 FLR 254
Resumption and Acquisition of Property

COURT

FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
Forster(1), Brennan(1) and Lockhart(2) JJ.

CATCHWORDS

Resumption and Acquisition of Property - Compulsory acquisition of land - Compensation - Construction of notice of acquisition - Meaning of "estate in fee simple land" - Whether mining lease acquired - Lands Acquisition Act 1955 (Cth.), ss. 5, 10(4), 11 - Mining Ordinance 1939-1971 (N.T.).

HEADNOTE

Held, per Forster and Brennan JJ., Lockhart J. dissenting - that notice of acquisition of "all the estate in fee simple" of described land, by the Commonwealth pursuant to the Lands Acquisition Act 1955, included mining leases granted pursuant to the Mining Ordinance 1939-1971 (N.T.).

HEARING

Darwin, 1979, June 1; August 9. #DATE 9:8:1979

APPEAL

Appeal from the Supreme Court of the Northern Territory. The relevant facts appear from the judgment.

M.D.A. Maurice, for the appellant.

T.R. Morling Q.C. and N.A. Hemmings, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Ward Keller.

Solicitors for the respondent: Alan R. Neaves (Commonwealth Crown Solicitor).

R.W. DAVIS

JUDGE1

August 9.

The following written judgments were delivered.

FORSTER AND BRENNAN JJ. This appeal is brought from a judgment of the Supreme Court of the Northern Territory dismissing an action brought by the appellant against the respondent. The respondent had acquired certain land near Darwin pursuant to the Lands Acquisition Act 1955, and the appellant claimed that, upon the true construction of the published notice of acquisition, the respondent had acquired two mining leases of which he was the lessee and that he was entitled to compensation pursuant to s. 11 of the Act in respect of that acquisition. By his statement of claim he claimed declarations relating to his entitlement to compensation and a determination of the amount of compensation payable. The facts relevant to the appellant's entitlement to compensation were substantially admitted on the pleadings, but the respondent denied that it had acquired any interest in the leases. An order was made for the hearing and determination as preliminary issues of the appellant's claim for two declarations, namely: "(a) A declaration that the plaintiff was, immediately before 15th June, 1973, entitled to the interest of a lessee under a mining lease on private lands granted under the Mining Ordinance 1939-1971 in respect of lease Nos. 269B and 270B in the Waggaman Gold Field. (b) A declaration that the plaintiff's interests as a lessee as aforesaid were compulsorily acquired by the defendant on 15th June, 1973, under the Lands Acquisition Act 1955-1966." At the hearing of these preliminary issues, the appellant's first claim was conceded but he failed on his second claim and the action was dismissed with costs. The appellant was granted the two mining leases over private land pursuant to the Mining Ordinance 1939-1971 (N.T.) for a term of twenty-one years from 1st January, 1972, for the purpose of mining for quartzite. On 15th June, 1973, the notice of acquisition was published in the Gazette pursuant to the Lands Acquisition Act 1955 declaring certain land to be acquired for a public purpose which was specified. The notice reads:

"Lands Acquisition Act 1955-1966

NOTICE OF THE ACQUISITION OF LAND BY THE COMMONWEALTH (at p255)

It is hereby notified that his Excellency the Governor-General acting with the advice of the federal executive council has authorized pursuant to the provisions of the Lands Acquisition Act 1955-1966, the acquisition by compulsory process of all estate in fee simple land included in the area of land hereunder described, and I hereby declare that the said land is acquired by the Commonwealth of Australia under the said Act for the following public purpose approved by the Governor-General: the planned development and control of the city of Darwin and its adjacent areas. (Ex. Min. No. 642.) Dated 14th June, 1973. KEP. ENDERBY Minister of State for the Northern Territory." There follows a "description of land" by metes and bounds. Within the area thus described are both parcels of unalienated Crown land and parcels of land granted in fee simple. The area demised by the mining leases is within the area described in the notice, and within an area of land granted in fee simple. (at p255)
The short question is whether, upon publication of the notice, the Commonwealth of Australia (the respondent) acquired by force of the Act the appellant's mining leases (see s. 10(4)). Counsel for the respondent formally submitted that the mining leases could not be acquired by force of the Act, because they did not constitute an interest in land as defined by s. 5. That section gives a statutory definition to the term "interest":
"'Interest', in relation to land, means -
(a) a legal or equitable estate or interest in the land; or
(b) a right, power or privilege over, or in connexion with, the land." (at p255)
Whatever may be the juristic classification of the rights which the mining leases conferred pursuant to Pt VII of the Mining Ordinance, they are within one or other of the paragraphs of the statutory definition (cf. Wade v. New South Wales Rutile Mining Co. Pty. Ltd. per Windeyer J. (1969) 121 CLR 177, at pp 192 et seq ; Emerald Quarry Industries Pty. Ltd. v. Commissioner of Highways (1976) 14 SASR 486, at pp 491, 500, 501 ). (at p256)
The lessee's rights under the mining lease were thus susceptible of acquisition under the Act, but the question is whether they were acquired. The answer depends upon the construction of the notice of acquisition. Two constructions of the notice were advanced: the appellant submitted that the respondent acquired the land itself - the surface, the subjacent soil and the space above the surface of the land which was within the area described in the notice and which had been granted in fee; the respondent submits that it acquired only the estates in fee simple in land within the described area. The notice is not felicitously expressed. Perhaps the difficulty in its construction stems from ambiguity in the meaning of "land", which may mean either a piece of land or an interest in a piece of land. This ambiguity has been judicially resolved by treating an acquisition of a piece of land as an acquisition of all those interests in or rights over the land which the Commonwealth does not already hold. In Commonwealth v. New South Wales Knox C.J. and Starke J. said: "The effect of the Act is that if a notification under sec. 15 contains a description of a piece of land, without more, then that piece of land usque ad coelum et ad inferos and all its constituent parts and all interests in and rights over it, whether in the ownership of the Crown or a subject, vest in the Commonwealth" (1923) 33 CLR 1, at p 23 . We take the reference to "interests in and rights over" land to comprehend those several bundles of rights which are comprehended within the definition of "interest" in s. 5 of the Act (see Commonwealth v. New South Wales (1923) 33 CLR, at p 21 ). (at p256)
It follows that if the construction for which the appellant contends be right, the respondent acquired all outstanding interests in the land granted in fee within the area described in the notice, and that the respondent therefore acquired the rights which the appellant held under the mining leases. (at p256)
The notice declared "the said land" to be acquired, a phrase which takes its meaning from the preceding reference to land, "all estate in fee simple land included in the area of land hereunder described". "Land" is the object of acquisition, and it is qualified by two descriptive phrases - it is both "estate in fee simple land", and "land included in the area of land hereunder described". It is thus land which has been granted in fee, and land capable of inclusion in an area described by metes and bounds. The object of acquisition is therefore the pieces of land so included which have been granted in fee - the pieces of land, not particular estates or interests in the land nor particular rights over the land. It is inherent in the respondent's submission that "land" where it is first used means a fee simple estate, and that it is next used to mean the parcel described by metes and bounds. But the notice speaks of the former being included in the latter and the "land" to which the notice refers on each occasion must be of the same nature. (at p257)
The appellant's construction facilitates the fulfilment of the public purpose, namely, the planned development and control of the City of Darwin, for which the land was acquired. That purpose could not be freely or fully implemented if interests in or rights over alienated land, other than estates in fee simple, were left outstanding. (at p257)
It follows that the appellant's construction is right. We would order that the appeal be allowed, that the order of the Supreme Court of the Northern Territory be set aside, and that in lieu thereof it be declared that the appellant's interests as lessee under mining leases on private lands granted under the Mining Ordinance 1939- 1971 in respect of lease Nos. 269B and 270B in the Waggaman Gold Field were compulsorily acquired by the respondent on 15th June, 1973, under the Lands Acquisition Act 1955 and that the appellant recover against the respondent his costs of the preliminary proceedings before the Supreme Court to be taxed and that the action be remitted to the Supreme Court for further hearing and determination and with directions to proceed in accordance with the declaration made by this Court and that the appellant recover against the respondent his costs of and incidental to this appeal to be taxed. (at p257)

JUDGE2

LOCKHART J. This appeal is not without novelty. Usually, people are averse to their land being taken from them by compulsory process. Angelo Maddalozzo (the appellant) is not. He seeks to have two mining leases held by him over land in the Northern Territory brought within the terms of a notice of acquisition. The Commonwealth of Australia (the respondent) would have it otherwise. (at p257)

(His Honour then set out the terms of the notice of acquisition, and continued:) (at p257)
There follows a "description of land" by metes and bounds which includes both unalienated Crown land and privately owned land. The land thus described has an area of about thirty-two square miles. (at p257)
The two mining leases held by the respondent are for terms of twenty-one years from 1st January, 1962, for the purpose of mining for quartzite. The mining leases cover an area of some seventy-nine acres and are included in the land described in the Gazette notice. (at p257)
The primary question for determination is one of construction of the notice, namely, whether what is acquired are all estates in fee simple in the land described in the notice of acquisition or all privately owned land described therein. (at p257)
Mr. Maurice of counsel, who appeared for the appellant, contended that the respondent acquired such of the land described in the notice of acquisition as was privately owned as distinct from unalienated Crown land. Mr. Morling Q.C., who appeared with Mr. Hemmings for the respondent, contended that it acquired only the estates in fee simple in land included in the area described in the notice. (at p258)
The notice does not describe what is acquired as privately owned land or freehold land or some similar description. Rather it is expressed in the language of real property. It uses the words "estate in fee simple" which are appropriate to describe a particular type of realty. If the construction contended for by the appellant is correct the words "estate in fee simple" are not only inappropriate but otiose. If it had been intended to acquire all interests and estates of any kind in alienated Crown land, one would have expected to find a form of words appropriate to that intention, for instance "all land included in the area of land hereunder described except unalienated Crown land". (at p258)
In my opinion the words "all estate in fee simple land" describe the nature or quality of the interest in land being acquired, and the ensuing words "included in the area of land hereunder described" delineate or describe the area or parcels of land being acquired. (at p258)
In my opinion the respondent's contention is correct, so that the notice operates to acquire by compulsory process all estates in fee simple included in the land described. (at p258)
Although the language of the notice is not as clear and felicitous as it might be, it is not ambiguous. If it suffered from ambiguity, this would afford an additional reason for accepting the construction contended for by the respondent. Statutes must not be construed so as to divest persons of proprietary rights unless the intention of the legislature is expressed in clear and unambiguous language (see Re Cuno (1889) 43 Ch D 12 ; Craies on Statute Law 7th ed., p. 118). (at p258)
The appellant contended that the notice of acquisition described the land itself, and that such description carried with it all interest in and rights over the land. Although it has been decided by the High Court that a notice of acquisition of land described in the notice in a physical sense operates as an acquisition of all interests in and rights over the land (see Commonwealth v. New South Wales (1923) 33 CLR 1 ). I do not regard that decision as being decisive of the question in this case. If it were clear from the language of the notice that what was acquired was the land itself in the physical sense, then all interests in and rights over the land would vest in the Commonwealth. In my opinion the language of the notice does not admit of that construction. It describes the subject matter of the acquisition not as physical land but as estates in fee simple. (at p258)
The fact that the acquisition was for a specified public purpose, namely, the planned development and control of the City of Darwin and its adjacent areas, if it aids either contention, which I doubt, rather assists the contention of the respondent. (at p258)
There may be, for all I know, all manner and variety of interests in the land described in the notice other than unalienated Crown land, whether leases, easements, life estates or otherwise. The respondent may intend to leave some of those interests unaffected by the process of acquisition, they not being inconsistent with the use to which the respondent proposes to put the land. Indeed, they may aid that use. The respondent may intend to acquire some interests in the land in the future. The respondent is free to choose, when it wishes, which interests in land it will acquire to achieve the specified public purpose. (at p259)
It has chosen by the notice to acquire only estates in fee simple. I do not see that as being inconsistent with the specified public purpose. However, I do not find these considerations of any real assistance in determining the question of construction. I prefer to rest my opinion on the text of the instrument itself. (at p259)
For these reasons, as the appellant's mining leases are not estates in fee simple they are not included in the terms of the notice and therefore have not been acquired by the respondent. (at p259)
In view of my conclusion as to the proper interpretation of the notice it is not strictly necessary to decide whether the appellant has an interest in the relevant land. However, it was formally submitted by the respondent that the appellant's interests were not acquired by the respondent because they did not answer the description of an interest in land as defined by s. 5 of the Lands Acquisition Act 1955. That section defines the word "interest" in relation to land as meaning:
"(a) a legal or equitable estate or interest in the land; or
(b) a right, power or privilege over, or in connexion with, the land." (at p259)
In my opinion the rights of the appellant as lessee under the two mining leases granted to him are interests in land within the meaning of that definition in s. 5 (see Unimin Pty. Ltd. v. Commonwealth per Connor J. (1974) 22 FLR 299, at p 308 ). (at p259)
For these reasons in my opinion the appeal should be dismissed with costs. (at p259)

ORDER

Appeal allowed with costs.

[1979] FCA 78

09 AUGUST 1979