McGuire v Browne - [1913] HCA 57

which, assuming that it had "arisen," could properly be referred

to the Governor in Council under the proviso.

His contention, for which I can find no ground, was that it had not been, but ought to have been, SO referred. It was further conceded that if we were of opinion, as we are, that it had been referred to and had been decided by the Executive, the appeal must fail. That concession accords with my view of the meaning of the section, and as I am of the opinion that the question has been referred and decided, I am bound to hold that the judgment appealed from must be affirmed.

Many interesting questions were discussed in the argument, and particularly the construction of sec. 12. I offer no opinion upon any of them, because the points on which I have expressed my opinion are sufficient for the decision of the case.

As. the Crown did not begin to allot the appellant a pension until after the delivery of his petition, and as it has to that extent admitted the justice of his claim, we are all of opinion that we should not grant costs of this appeal against him.

The judgment of GAVAN DUFFY and RICH JJ. was read by

GAVAN DUFFY J. In this case we are asked to determine the rights of the parties as they existed at the time of the hearing before McMillan J., and not as they existed at the time this liti- gation began. At the time of the hearing the petitioner had been granted a pension, but a smaller one than he claimed, and the only question between the parties was this :- How long had the petitioner served in an established capacity in the permanent Civil Service of the Colonial Government within the meaning of sec. 1 of Act 35 Vict. No. 7 ? It is admitted that that was a proper one to be referred to the Governor in Executive Council under the provisions of that section, and that, if it was

SO referred, the decision of the Governor in Executive Council would be final. In our opinion the question was in fact referred to the Governor in Executive Council and decided by him, and that disposes of the petitioner's case. In the circumstances it is not necessary to consider the effect of sec. 12 and the other sec- tions of Act 35 Vict. No. 7 which were discussed before us, and in the judgment of McMillan J.

17 CLR 366

The judgment of the Supreme Court should, in our opinion, be affirmed.

As the Crown has abandoned the position which it assumed when the litigation commenced, and has, in effect, conceded a considerable portion of the petitioner's claim, we think there should be no costs of this appeal.

Appeal dismissed. No order as to costs. Solicitor, for appellant, S. W. Curtis. Solicitor, for respondent, F. L. Stow, Crown Solicitor for Western Australia.

[HIGH COURT OF AUSTRALIA.] MAGUIRE

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 McGuire v Browne

Details

AGLC: McGuire v Browne [1913] HCA 57
Case: [1913] HCA 57
Decision Date: 3 November 1913

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a judgment of the Supreme Court of Western Australia. The appellant, McGuire, sought to recover possession of land, arguing that the respondents' (Browne and Sweeting) right of action was barred by the Real Property Limitation Act 1878 (W.A.) and the Imperial Act 3 & 4 Will. IV. c. 27. The appellant contended that he had possessed the land in a manner contemplated by the Statute of Limitations since 1898, thereby extinguishing the respondents' title.

The primary legal issue before the High Court was whether the appellant had established a discontinuance of possession by the respondents and their predecessors in title for the statutory period of twelve years. This required determining if the appellant's possession was of a nature that would extinguish the paper title of the respondents.

The Court, in its judgment delivered by Gavan Duffy J., affirmed the decision of Rooth J. The Court found that the evidence did not support the appellant's claim of adverse possession. Specifically, the Court agreed with the trial judge that there were repeated acts of ownership by the respondent Browne and her predecessors in title that were inconsistent with a discontinuance of possession for the required twelve-year period. Therefore, the appellant had not satisfied the conditions necessary to claim protection under the Statute of Limitations.

The appeal was dismissed, and no order was made as to costs. This outcome was influenced by the Crown, as the respondent, having abandoned its initial position and effectively conceding a portion of the appellant's claim.

Orders