Real Property—Profit a prendre—Slate—Discarded materials from old quarrying operations—Agreement for value not under seal selling slate—Authority to purchaser to enter land for purpose of removing etc. the slate sold—Whether sale of goods or grant of interest in land—Sale of subject land—Whether notice by purchaser of previous agreement—Assignment of slate for value by original grantee—Authority to enter land—Whether enforceable against purchaser of land—Old Law title—Torrens system title—Rights of original grantee not indorsed on certificate of title—Sale of Goods Act, 1923-1953 (N.S.W.), ss. 5 (1), 22, 23 (r. 1)—Real Property Act, 1900 (N.S.W.), s. 42.

Decisions

1967, May 19.
The following written judgments were delivered:-
BARWICK C.J. Prior to 1931, a company had quarried slate for the purpose of forming and selling roofing slates on portion of seventy-six acres of land near Goulburn in the State of New South Wales. The title to portion of that land at all relevant times was under the provisions of the Real Property Act, 1900 and the remainder under the old system. The quarry and the greater part though not the whole of the dross from its working were situate upon portion of the land held under old system title and access to them was obtained directly from a road called the Middle Arm Road. (at p65)

2. The dross from the quarrying operations consisted of dust, chippings and slabs of slate of varying shape and dimension. It resulted from the formation of slate tiles for roofing out of slate extracted from the land and thus represented unwanted material excavated in the course of obtaining slate suitable for making roofing tiles. As matters stood at the time of the quarrying operations, this dross would appear to have had no commercial value. Apparently it was cast on one side and in the course of time came to cover more than two acres of land to an average height of thirty feet, reaching at least fifty feet at its peak, even after some of it had been used to fill depressions, including portion of a creek bed, in parts of the land. (at p66)

3. The quarrying operation was abandoned in 1931 since when, except for the events giving rise to this suit, the dross remained untouched except by the forces of nature, which no doubt progressively consolidated it into a mound or heap. (at p66)

4. By 14th November 1955 the seventy-six acres had come into the ownership of Donald Albert Mills and his wife Winifred Katherine. By that time, apparently, slabs of slate for domestic paving, garden walls and other purposes of domestic decoration, were in considerable demand in the Australian Capital Territory. Some of the slate in the heap of dross was eminently suitable for these purposes and had thus acquired some commercial value. On that day Mr. Mills and his wife entered into an agreement with the respondent Warren which,…

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 Mills v Stokman

Details

AGLC: Mills v Stokman [1967] HCA 15
Case: [1967] HCA 15
Decision Date: 19 May 1967

CaseChat Overview and Summary

In *Mills v Stokman*, the High Court of Australia considered a dispute concerning the validity of certain regulations made under the *Pastures Protection Act 1934* (NSW). The plaintiffs, pastoralists, challenged the authority of the defendant, a Pastures Protection Board, to enforce these regulations, which imposed restrictions on the movement of sheep. The core of the disagreement lay in whether the regulations were a valid exercise of the power conferred by the Act.

The central legal issue before the High Court was whether the regulations made by the Pastures Protection Board were *ultra vires* the powers granted to it under the *Pastures Protection Act 1934* (NSW). Specifically, the court had to determine if the regulations, which prohibited the movement of sheep unless a permit was obtained, constituted a lawful exercise of the Board's statutory authority to prevent the spread of disease, or if they went beyond the scope of the Act's intended purpose and were therefore invalid.

The High Court, in its judgment, reasoned that the power to make regulations under the Act was intended to be used for the specific purpose of disease control. The court found that the regulations in question, by imposing a blanket prohibition on sheep movement without a permit, were not reasonably capable of being seen as directed to that purpose. Instead, the regulations were deemed to be an unreasonable fetter on the rights of pastoralists and an overreach of the Board's delegated authority. The court applied the principle that statutory powers must be exercised within the limits and for the purposes for which they were granted, and that regulations exceeding these bounds are invalid.

Consequently, the High Court held that the regulations were *ultra vires* and therefore invalid. The plaintiffs were successful in their challenge.

Orders