Minister for Army v Parbury Henty & Co Pty Ltd

[1945] HCA 52

70 CLR 459

THE MINISTER OF STATE FOR THE ARMY

RESPONDENT,

PARBURY HENTY AND COMPANY PRO-

RESPONDENT.

PRIETARY LIMITED

THE MINISTER OF STATE FOR THE ARMY

RESPONDENT,

CARRIER AIR CONDITIONING LIMITED

RESPONDENT. CLAIMANT,

BRICKWORKS LIMITED

THE MINISTER OF STATE FOR THE ARMY

RESPONDENT. RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF National Security-Acquisition of property-Compensation-Principles of assess-

ment-The Constitution (63 &64 Vict. c. 12), 8. 51 Security (General) Regulations (S.R. 1939 No. 87-1942 No. 402), regs. 54, 60F, 60G. Federal Jurisdiction-Acquisition of property by Commonwealth-Compensation-

Determination by Commonwealth Compensation Board-Appeal to single judge of State Supreme Court-Appeal to Full Court of State Supreme Court-Juris- diction-The Constitution (63 &64 Vict. c. 12), 88. 75-77-Judiciary Act 1903- 1940 (No. 6 of 1903-No. 50 of 1940), ss. 39 (2) (a), 79-National Security Act 1939-1943 (No. 15 of 1939-No. 38 of 1943), 88. 5 (1) (ac), 18-Supreme Court Procedure Act 1900 (N.S.W.) (No. 49 of 1900), 88. 3, 5-Administration of Justice Act 1924 (N.S.W.) (No. 42 of 1924), 8. II-National Security (General) Regulations (S.R. 1939 No. 87-1942 No. 402), reg. 60G.

70 CLR 460

A person dispossessed by reason of anything done in pursuance of reg. 54 of the National Security (General) Regulations is entitled to the value to him of the thing taken, and is not limited to the actual pecuniary loss suffered by him.

So held by Latham C.J., Rich, Starke, Dixon, McTiernan and Williams JJ. An appeal lies to the Full Court of the Supreme Court of New South Wales from a determination made on a review of compensation under reg. 60g (5) of the National Security (General) Regulations by a judge of the Supreme Court of New South Wales sitting as the Court but without a jury such appeal is not prevented by S. 39 2 (a) of the Judiciary Act 1903-1940.

So held by Latham C.J., Rich, Starke, Dixon, McTiernan and Williams JJ. By Latham C.J., McTiernan and Williams JJ. on the ground that S. 39 (2) (a) does not apply to a review of compensation by the Supreme Court of a State under reg. 60G of the Regulations. The jurisdiction of the Supreme Court is conferred by the Regulations and not by the Judiciary Act, and under the Regulations an appeal lies from the decision of a single judge of the Supreme Court to the Full Court of that Court. By Latham C.J. and McTiernan J. on the further ground that even if the jurisdiction of the State Supreme Court was held to be conferred by S. 39 of the Judiciary Act, S. 39 (2) (a) of that Act does not prevent an appeal in cases of Federal jurisdiction from a Supreme Court of a State constituted by a single judge to the Full Court of the State Supreme Court.

By Rich, Starke and Dixon JJ., on the ground that 8. 39 (2) (a) of the Judiciary Act does not prevent an appeal in cases of Federal jurisdiction from a Supreme Court of a State constituted by a single judge to the Full Court of the State Supreme Court. Per Starke and Dixon JJ. Proceedings under reg. 60G of the National Security (General) Regulations are subject to the provisions of S. 39 (2) (a) of the Judiciary Act.

Decisions of the Supreme Court of New South Wales in -

(a) Parbury Henty &Co. Pty. Ltd. v. Minister of State for the Army,

(1944) 45 S.R. (N.S.W.) 275; 62 W.N. 76, affirmed. (b) Carrier Air Conditioning Ltd. v. Minister of State for the Army, (1944)

45 S.R. (N.S.W.) 215 62 W.N. 102, affirmed. (c) Brickworks Ltd. v. Minister of State for the Army, (1944) 45 S.R.

(N.S.W.) 223 62 W.N. 73, reversed.

APPEALS from the Supreme Court of New South Wales.

Appeals were brought to the High Court from three judgments of the Full Court of the Supreme Court of New South Wales, in the cases of Parbury Henty &Co. Pty. Ltd. v. Minister of State for the Army 1 and Carrier Air Conditioning Ltd. v. Minister of State for the Army (2), allowing, and in the case of Brickworks Ltd. v. Minister of State for the Army 3, dismissing, appeals from decisions of Roper J. upon

2(1944) 45 S.R. (N.S.W.) 215 ; 62 1(1944) 45 S.R. (N.S.W.) 275; 62 3(1944) 45 S.R. (N.S.W.) 223 62 W.N. 73. 70 CLR 461

reviews of assessments of compensation made by a Compensation Board under reg. 60F of the National Security (General) Regulations.

The Minister of State for the Army took possession, under reg. 54 of the National Security (General) Regulations, of premises belonging to the said three companies respectively. The parties were unable to agree upon amounts of compensation, and the claims for com- pensation were referred to a Compensation Board. Applications were made to the Supreme Court of New South Wales for a review of the assessments made by the Compensation Board. The Supreme Court is a court of competent jurisdiction within the meaning of reg. 60G of the Regulations.

Facts relevant to the respective claims are as follows :- Minister of State for the Army v. Parbury Henty &Co. Pty. Ltd.- The company carried on the business of an indent agent at premises in Grace Building situate at Number 77 York Street, Sydney, and held by the company under a lease, which was due to expire on 31st May 1943, at an annual rental of £1,047 10s. Possession of these premises was taken on 28th August 1942 under reg. 54 by the Minister of State for the Army, who assumed, on behalf of the com- pany, all the obligations of the lessee under the terms of the lease as to rent or otherwise.

In order to preserve its business, the company, without delay, acquired other premises at Lawson House, Sydney, at an annual rental of £494, and further accommodation as a packing- and store- room for an additional annual rental of £52. A lease of these premises was taken for two years and eleven months and, as the premises were not suitably fitted, the money in question in the review was expended SO as to fit them.

The Compensation Board fixed the compensation payable at £1,137 6s. 3d. under five heads, namely fixtures and fittings, £734 17s. 2d.; cartage, £161 1s. 7d.; electric installations, £72 14s. 6d.; telephone system installation, £52 16s. and extra labour and sundries, £108 17s.

Of the sum of £734 2d. fixed in respect of fixtures and fittings, £270 13s. 1d. represented the cost of dismantling and removing fixtures from the premises of which possession was taken, and installing them in new premises which the company had acquired. It was not contested that this amount was properly allowable. The balance allowed under that heading, however, namely £464 4s. 1d., was allowed as the cost of purchasing and installing new fixtures and fittings in the new premises, with a set-off of £100, which was agreed to be the residual value which the new fixtures and fittings would have when the Minister gave up possession of the old premises or

70 CLR 462

when the lease of the new premises expired, whichever was the appropriate date. The allowance of this sum of £464 4s. 1d. was contested.

There was also a contest as to the item of electrical installations, this item representing the cost and expense of purchasing and installing electrical equipment in the new premises, less the residual value of those fixtures and fittings. It was not contested that the expenditure was reasonable for the purpose of adapting the new premises to the carrying on of the company's business. It was

BRICKWORKS claimed, however, that, when the Minister took over the obligations

of the company under its lease of premises in Grace Building, and paid the expenses of removal of the company's goods and fixtures and fittings from that building, the whole of the loss or damage suffered by the company because of the dispossession had been met. It was not established that the company's business had suffered by the change, and in fact the company showed a saving in rent of £501 10s. a year.

Roper J. held that the company had not shown any loss or damage arising out of the acquiring or fitting up of the new premises, and that its loss and damage was restricted to the money value of the premises which it had lost and the expense incurred by it in removing from those premises. He fixed the compensation at £637 18s. 8d., being: for fixtures and fittings, £270 13s. 1d.; for cartage, £168 1s. 7d. for telephone system installation, £52 16s.; for extra labour and sundries, £108 17s. and for electrical installation conceded to be payable by the Minister, £37 11s.

Upon an appeal to the Full Court of the Supreme Court, the deci- sion of Roper J. was, by a majority, set aside and the order of the Compensation Board was restored: Parbury Henty &Co. Pty. Ltd. V. Minister of State for the Army 1.

From the decision of the Full Court, the Minister appealed to the High Court.

Minister of State for the Army v. Carrier Air Conditioning Ltd.- Prior to 5th May 1942, Carrier Air Conditioning Ltd. carried on business in premises owned by it and situate at 36 Bourke Street, Woolloomooloo. On that date, under reg. 54 of the National Security (General) Regulations, the Minister of State for the Army took possession of part of the premises, namely, in area, 60,000 square feet. As a result of the action by the Minister, the area available to the company was SO reduced as to necessitate the company's re-organizing its business activities. This was done by housing part

1(1944) 45 S.R. (N.S.W.) 275 62 W.N. 76. 70 CLR 463

of its technical staff in temporary premises in re-arranging the H. C. restricted space available in the premises at 36 Bourke Street; and leasing premises in Yorkshire House, Spring Street, Sydney, at a rental of £275 per annum, for the accommodation of part of the administrative staff.

Upon a claim referred to it under reg. 60E (5), a Compensation Board, under reg. 60F, assessed compensation as follows :- a periodical payment at the rate of £942 5s. per annum as from 5th May 1942, by way of rental allowance for the occupied premises; (b) a sum of £618 17s. 1d., by way of removal and other expenses incurred (c) a further periodical payment of £104 2s. 6d. per annum as from 5th May 1942, for direct telephone line and for travelling expenses and (d) a further periodical payment of £87 11s. 2d. per annum, payable monthly, as from 5th May 1942, in respect of air conditioning and electrical installation at 36 Bourke Street.

Roper J. said that, apart from £296 11s. 5d. removal expenses, the company had reasonably and properly incurred expenses amounting to £672 10s. 3d. in altering its premises at Bourke Street, and in furnishing and refitting its new premises at Spring Street. The rent of the Spring Street premises was £275 per annum, and the carrying on of its business in the two premises involved the company in additional annual expenses amounting to £104 2s. 6d. per annum. The payment by the Minister to the company of the sum of £942 5s. as rent for the premises of which possession was taken gave the company a surplus over the rent and additional continuing business expenses at Spring Street of £563 2s. 6d. per annum. As the loss of possession had already endured for more than two years, the capital expenditure of £672 10s. 3d. had already been more than fully recouped to the company by the difference between the annual rent to which it was entitled in respect of the premises lost, and the rent of the new premises and additional continuing expenses in respect of carrying on its business in two separate buildings instead of in one entire one. The Judge held that the company had suffered no loss or damage in excess of the agreed rental value of the premises taken and its removal expenses and fixed the amount of compensation at: (a) a periodical payment of £942 5s. per annum payable monthly as from 5th May 1942, and (b) a sum of £296 11s. 5d. for removal expenses.

Upon an appeal by the company, the Full Court of the Supreme Court of New South Wales, by a majority, held that the Minister's claim to be entitled to set-off against the rental value of the premises of which possession had been taken under reg. 54 the difference between that value and the rent paid by the company for its new

70 CLR 464

OF A. premises could not be supported, and that the award of the Com-

pensation Board should be restored Carrier Air Conditioning Ltd. V. Minister of State for the Army 1.

From that decision, the Minister appealed to the High Court. Brickworks Ltd. v. The Minister of State for the Army.--Brick- works Ltd. owned an area of about fourteen acres at Alexandria, known as City Brickworks. It contained four kilns and a brick pit. On 25th May 1942, the Minister of State for the Army took possession of this area pursuant to reg. 54 of the National Security (General) Regulations and remained in occupation until April 1943. When the Minister took possession, the yard was not being used by the company for the purpose of making bricks, and was being looked after by a caretaker who lived in a cottage on the premises and, as occasion required, serviced the machinery and prevented the brick pit from flooding.

A claim by the company for compensation was referred under reg. 60E (5) to a Compensation Board. Before the Compensation Board, the following questions and answers were put to and obtained from the secretary of the company :-

'Q. All you have done with regard to that is to preserve the asset, isn't it ? A. Well, under the regulations, or I should say the agree- ment of which the City is a part, there is a necessity to keep the place in order, SO that it may work again when required.

Q. If it is called upon ? A. Yes. Q. The position is that there was no anticipation of it being called upon from the time the military went in until April of this year ? It was not anticipated that they would be called upon ? A. No.

Q. That was the position ? A. Yes. Q. It was not anticipated that the company would call upon that brickyard to produce bricks during the time the military were in occupation whether they had been there or not ? A. It was not anticipated, from knowledge in my possession.

Q. As events have turned out you can say now it would not have been called upon whether the military went in or not, that is so, isn't it ? A. Yes.

Q. You said the yards had to be in a condition to produce bricks on notice. What amount of notice ? A. At the most sixty days' notice.

Q. How much ? A. Sixty days' notice. Q. But in some cases less ? A. Yes, in some cases less. One month is the least and sixty days the most."

1(1944) 45 S.R. (N.S.W.) 215; 62 W.N. 102. 70 CLR 465

It was proved that, as the result of an appeal by the company against an allegedly excessive valuation, the brickyard was in 1942 assessed by the Valuer-General as having an unimproved value of £11,462; an improved value of £16,500 and an annual value of £990.

The Compensation Board awarded a sum of £221 12s. 1d. to the company in respect of the Minister's possession from May 1942 to April 1943, being the amount payable for municipal and water rates apportioned over the period of occupation by the Minister. Both the company and the Minister appealed against this assessment. the company contending that the Compensation Board had not allowed enough, and the Minister contending that it should not have allowed anything. An estate agent called on behalf of the Minister gave evidence that ' the rental value of the premises, apart from the brickworks, would be nil-1 that is apart from letting it as brickworks. As an ordinary letting proposition the value is nil."

Roper J. held that the company had failed to show any loss or damage suffered by it because of the occupation of its land, and he fixed the amount of compensation at nil.

An appeal by the company to the Full Court of the Supreme Court of New South Wales was, by a majority, dismissed: Brickworks Ltd. V. Minister of State for the Army 1.

From that decision the company appealed to the High Court. Upon the appeal by Brickworks Ltd. coming on for hearing, a jurisdictional point common to each of the three appeals was raised by counsel for the Minister of State for the Army after argument by counsel for the appellant had proceeded on the merits. The Court, consisting of Latham C.J., Starke, Dixon and McTiernan JJ., reserved this point and further argument thereon was adjourned and was later continued before the same justices, with Rich and Williams JJ., in conjunction with the hearing of the other two appeals.

Further facts and relevant statutory provisions and regulations appear in the judgments hereunder.

Barwick K.C. (with him Hooke) for the appellant Brickworks Ltd. " Loss or damage" within the meaning of reg. 60D of the National Security (General) Regulations does not mean loss or damage in fact for the period of the Minister's occupation. The loss suffered by the appellant was the loss of its right to possession of the whole property and is a loss within the meaning of reg. 60D. That right to possession should be valued as such. Prima facie the value of a right to possession of property is its rental value, due regard being had to restrictions on the legal right to let. There is no evidence of any such

1(1944) 45 S.R. (N.S.W.) 223 62 W.N. 73. 70 CLR 466

A. restrictions. It is nothing to the point that the appellant did not

propose to exercise its right in any particular way. The appellant has not only been deprived of the use of its land but also of the right to use it. The order under reg. 54 operates in effect as a restriction on the title. It carries with it a right in the Minister to override restrictions as to user which may have been created by the appellant. Regulation 54 and its effect on the title of an owner were considered in Minister of State for the Army v. Dalziel 1. Under reg. 54, the Minister may enter into possession and rightfully remain in possession and exclude the owner from possession. The question is: What is the rental value of the property on the basis that there is an indefinite taking for an indefinite term ? The evidence does not show that its right to possession was valueless to the appellant, nor does it show, as suggested in the courts below, that the property was suitable only for brickworks. The non-user of the land at the time of the taking is not itself relevant to the determination of compensation. Syme V. The Commonwealth 2 was not directed to the question now before the Court it called attention to the use of the word " personally." The short submission is: the appellant suffered loss the day that the order for possession, or the possession, was given or taken what the appellant lost was the right to possession or the right to use it. That right has a value. It is valued as at the date when it was lost by the appellant, and a periodic sum is fixed representing its value. Prima facie, the value is the fair rental of the land taking into consideration any legal bar to the letting or to the use of the land by the appellant. There is no such legal bar.

Teece K.C. and Webb K.C. (with them C. M. Collins), for the respondent, the Minister of State for the Army.

Teece K.C. The Full Court of the Supreme Court had no juris- diction to entertain the appeal from the Supreme Court constituted by Roper J. His Honour's decision was a decision of the Supreme Court within the meaning of S. 39 (2) of the Judiciary Act 1903-1940 (The Commonwealth v. Kreglinger &Fernau Ltd. 3; Cook v. Downie 4 ). This point was neither raised nor argued in the court below.

LATHAM C.J. Mr. Teece we do not think a Court of four Justices should determine the question which you have raised. Accordingly we propose to reserve this point and ask you to argue the remainder

1(1944) 68 C.L.R. 261, at pp. 285, 2(1942) 66 C.L.R. 413. 3(1926) V.L.R. 310 : (1926) 37 4(1945) V.L.R. 95. 70 CLR 467

of the case. You might consider whether in all the circumstances H. C. OF you desire to press it.

Teece K.C. The same point is to be raised in two appeals coming on for hearing before this Court. On the merits, it is submitted that the decision of Roper J. and the decision of the majority of the Full Court were correct. The issue before all the courts was what was the amount of the loss or damage suffered by the appellant, not what was the proper assessment of the value of the property acquired by the Minister for compensation for use and occupation (Minister of State for the Army v. Dalziel 1 Syme v. The Commonwealth 2 ). If the appellant had been absolutely free to deal with the land as it pleased, the measure of compensation might well have been the fair rental value of the land. Legal restrictions on the title and an agreement or understanding with other brickmaking companies prevented the appellant from dealing freely with its land. In certain circumstances, although certain land has potentialities, its potential value is nil (Odlum v. City of Vancouver 3 )

[LATHAM C.J. referred to Spencer v. The Commonwealth 4.] In assessing the amount of compensation where there has been a lapse of time, the court or assessor may ascertain the quantum of damage in fact suffered by the claimant by having regard to ex post facto matters (Bwllfa and Merthyr Dare Steam Collieries (1891) V. Pontypridd Waterworks Co. 5 Williamson v. John I. Thornycroft &Co. Ltd. 6 ). The evidence shows not only that the appellant did not use the land but also that, during the occupation by the Minister, the use of the land was not and would not have been required under the arrangement with the other brick manufacturers. A right to possession may not be of any value, and the value of land to the owner may be nil (Stebbing v. Metropolitan Board of Works 7, MacDermott v. Corrie 8 ). On the facts of this case, it appears that during the relevant time the occupation of the land was of no value or of negligible value to the appellant. The restrictions are relevant, though they do not affect the title but rather the use of the land by the appellant (A and B Taxis Ltd. v. Secretary of State for Air 9 ). In that case, it was held that " direct loss and damage " included consequential loss and damage. In principle, it does not matter whether the restrictions on the use are voluntarily imposed and observed or whether they are fixed by statute or by some

1(1944) 68 C.L.R., at p. 272. 2(1942) 66 C.L.R., at pp. 421, 424. 3(1915) 85 L.J. P.C. 95, at p. 96. 4(1907) 5 C.L.R. 418. 5(1903) A.C. 426, at pp. 428, 430. 6(1940) 2 K.B. 658, at p. 659. 7(1870) L.R. 6 Q.B. 37, at pp. 39, 8(1913) 17 C.L.R. 223, at p. 246. 9(1922) 2 K.B. 328. 70 CLR 468

reservation in the Crown grant, so'long as in fact there is a restriction on use which the owner or occupant observes and intends to observe.

Webb K.C. On the question of damage, the rule and principle shown in British Westinghouse Electric &Manufacturing Co. Ltd. V.

I HENTY

Underground Electric Railways Co. of London Ltd. 1 are applicable. Roper J. had before him all the facts which he could take into con- sideration.

Teece K.C. (with him Webb K.C. and C. M. Collins), for the Minister of State for the Army. Where the fact is brought to the notice of a final court of appeal that some lower court to which an appeal was brought in the matter had exceeded its jurisdiction, no matter how the fact was brought under the notice of the final court, and although not raised by any of the parties, it is the duty of the final court to take the point. It is the duty of the final court, upon becoming cognizant of it, no matter from what source the information was forthcoming, to take the point in order to protect the prerogative of the Crown (Benson v. Northern Ireland Road Transport Board 2; Westminster Bank Ltd. v. Edwards 3 ). The Minister did not invite the judgments of the Full Court, he was the respondent in the appeals to that Court. A duty is cast upon counsel to bring the matter under the notice of the final court (Glebe Sugar Refining Co. Ltd. v. Greenock Port and Harbour Trustees 4 ). In the circumstances, it was not necessary that the point should be taken in the Minister's notice of appeal. In any event, it is a pure point of law, not apparent on the evidence, therefore the Minister should be given leave to raise it (Adams v. Chas. S. Watson Pty. Ltd. 5 ).

LATHAM C.J. The members of the Court, with the exception of my brother Starke, think that, though it was not mentioned in the notice of appeal, you are entitled to take this point and that it is proper for the Court to allow the point to be argued.

Teece K.C. The judgment of Roper J. was a judgment of the Supreme Court of New South Wales within the meaning of S. 39 (2) of the Judiciary Act. His Honour so sitting as the Supreme Court was a court of competent jurisdiction within the meaning of reg. 60G (8) of the National Security (General) Regulations. Where in any

1(1912) A.C. 673, at pp. 688 et seq. 2(1942) A.C. 520, at p. 528. 3(1942) A.C. 529, at pp. 533, 536. 4(1921) 2 A.C. 66. 5(1938) 60 C.L.R. 545. 70 CLR 469

statute there is a provision giving jurisdiction to a specified court to hear and determine a matter, then, unless there is in the statute some context or some inconsistent provision, the jurisdiction of the court can be exercised by a single judge (Smeeton v. Collier 1; In re Mackenzie 2; Ex parte Thurecht 3; Re Estate of Grace 4; Parkin V. James 5 ). The records, including the orders as drawn up and settled, show that the proceedings were proceedings in the Supreme Court before Roper J. sitting as and for the Supreme Court. The Supreme Court Procedure Act 1900 (N.S.W.), either as originally enacted or as amended by the Administration of Justice Act 1924 (N.S.W.) following upon criticisms by Isaacs A.C.J. in Hazeldell Ltd. V. The Commonwealth 6, has no relevance to these proceedings. Where a judge sits without a jury pursuant to the Supreme Court Procedure Act, it is in respect of an action brought in the Supreme Court. This Court should be very slow to interpret sub-reg. 7 of reg. 60G as either wholly or partly repealing the Judiciary Act. The Supreme Court Procedure Act does not apply to this matter. This was a special jurisdiction to hear an appeal from a subordinate tribunal conferred upon the Supreme Court by the Constitution in which the law is laid down, therefore Smeeton v. Collier 7 does not apply. Section 39 (2) deprives the Full Court of the Supreme Court of jurisdiction in this matter (Kreglinger &Fernau Ltd. v. The Commonwealth 8, Cook v. Downie 9 ). Even though the Court was exercising a double jurisdiction (Lorenzo v. Carey 10 ), it was exercising a Federal jurisdiction and therefore it was exercising a jurisdiction directly governed by the provisions of the Judiciary Act. Where the jurisdiction is expressly conferred on the Court by a Federal statute, it is Federal jurisdiction. In The Commonwealth V. Limerick Steamship Co. Ltd. 11 it was pointed out that, by virtue of S. 39 (2) of the Judiciary Act, there was no appeal from the Supreme Court to the Privy Council because the Supreme Court was exercising Federal jurisdiction. Under the National Security (General) Regu- lations, a claim for compensation against the Commonwealth will not lie in the Supreme Court (Schweppes Ltd. v. The Commonwealth 12 ). The Regulations gave jurisdiction to the Supreme Court to hear appeals from the Compensation Board. Those appeals could be

1(1847) 1 Ex. 457, at p. 463 [154 2(1890) 11 L.R. (N.S.W.) 277. 3(1925) 42 W.N. (N.S.W.) 65. 4(1942) 43 S.R. (N.S.W.) 139 60 5(1905) 2 C.L.R. 315. 6(1924) 34 C.L.R. 442, at pp. 447- 7(1847) 1 Ex. 457 [154 E.R. 194]. E.R. 194, at p. 197]. 8(1926) V.L.R., at pp. 314, 323. 9(1945) V.L.R. 95. 10(1921) 29 C.L.R. 243. 11(1924) 35 C.L.R. 69. 12(1944) 45 S.R. (N.S.W.) 35 62 70 CLR 470

heard either by a single judge of the Supreme Court or by a Full

Court of the Supreme Court. If such an appeal is heard by a single judge, his judgment is a judgment of the Supreme Court, and then S. 39 2 of the Judiciary Act operates to deprive the Full Court of the Supreme Court of jurisdiction to hear an appeal from that judgment of a single judge. In any case in which the Commonwealth is a party, the Supreme Court is invested with Federal jurisdiction by the Judiciary Act (The Commonwealth v. Limerick Steamship Co. Ltd. 1 ).

Barwick K.C. (with him Hooke) for the appellant Brickworks Ltd. and the respondent Parbury Henty &Co. Pty. Ltd. The jurisdiction of Roper J. was derived from the National Security (General) Regula- tions. Jurisdiction is given by those Regulations to the Supreme Court because the Supreme Court is a court within reg. 60G (8). Upon a trial of issues before a jury presided over by a judge in actions in the Supreme Court between subject and subject, a judgment is entered up which does not become the decision of the court. The Common Law Procedure Act (N.S.W.) provides for the entry of what is termed a judgment, or an incipitur of judgment. That judgment is not a judgment of the court, nor is it a judgment or order of the court from which, under the Constitution, an appeal lies to this Court (Musgrove v. McDonald (2) ). When reg. 60G invested the Supreme Court with jurisdiction to review the assessment, it did not invest a judge and jury with jurisdiction, it invested the Court, with all its machinery, in relation to this particular matter, because it is the whole court that is the competent authority. The judgment of the Court is reached only by using all the machinery of the Court in one or other form. In relation to reg. 60G, in New South Wales it is only the judgment of the Full Court that is a decision of the Full Court. There is no equitable jurisdiction as between subject and subject for the recovery of a debt, it is entirely Commonwealth jurisdiction. The Regulations contemplate that the jurisdiction which will be exercised will be that which is ordinarily exercised in relation to practice, powers and procedure in civil actions. In the Supreme Court, there are three methods of determining recovery of a debt as between subject and subject, namely by trial (i) at nisi prius with a jury (ii) by a judge without a jury and (iii) under the Commercial Causes Act 1903 (N.S.W.). In each of these methods, the judge sits merely to try issues of fact, not to give decisions of the court. Section 5 of the Supreme Court Procedure Act (N.S.W.) shows that the function of a judge when he decides the issues is merely the equivalent of a jury and that his decision will have no

2(1905) 3 C.L.R. 132. 1(1924) 35 C.L.R., at p. 118. 70 CLR 471

greater effect per se than that of a jury. There is no decision within the meaning of S. 39 2 of the Judiciary Act other than the decision of the Full Court of the Supreme Court. The word 'judgment as used in the State legislation does not refer to a decision of the court but to a judgment entered up on a jury's finding. The legislation puts what more accurately should be described as a finding of a judge in something like the same position as a verdict of a jury. The com- petent court under reg. 60G (8) is the Supreme Court in its totality. Roper J. was empowered to enter judgment only if there was not an appeal. Regulations 60D, 60G and 60K create a new right to compen- sation and that right is justiciable only in accordance with the Regula- tions (Schweppes Ltd. v. The Commonwealth 1 ). The investiture of the jurisdiction in the Supreme Court to hear a review under the Regulations is made by the Regulations and not by S. 39 (2) of the Judiciary Act. This course is permissible under S. 5 (1) (ac) of the National Security Act 1939-1943. Section 18 of that Act gives the Regulations effect where they are inconsistent with existing law. The words in S. 39 (2) of the Judiciary Act do not mean that, wherever and by whatever means State courts become invested with Federal jurisdiction, such investiture shall be upon the conditions of that sub-section unless there is something to the contrary in the context. The Regulations are special investing provisions and exclude the special provisions of the Judiciary Act. Consistent with all the decisions in respect of S. 39 (2), conditions of the jurisdiction conferred by the Regulations can be imposed which are different from S. 39 (2). An additional circumstance is that reg. 60G (8) excludes the original jurisdiction of the High Court. Also, the District Court of New South Wales, which has no juris- diction in an action against the Commonwealth, does not get juris- diction under reg. 60G (8). The District Court would not have jurisdiction under S. 39 (2) by reason of the limitation contained in S. 56 of the Judiciary Act. At common law the entry of a judgment on a verdict is ministerial (Parkin v. James (2) ), and the Privy Council has regarded the ministerial judgment entered up on the verdict as not being appealable to it (Nathoobhoy Ramdass v. Mooljee Madowdass 3, Tronson v. Dent 4 ). Section 39 (2) does not take a verdict in the Supreme Court, or a judgment founded upon it, out of the operation of the procedure of the State (The Commonwealth V. Brisbane

Milling Co. Ltd. 5 ). Section 5 (1) of the Supreme Court Procedure Act makes the judge's finding no better than a verdict.

2(1905) 2 C.L.R., at p. 339. 1(1944) 45 S.R. (N.S.W.) 35 ; 62 3(1840) 3 Moo. P.C. 87 [13 E.R. 40]. 4(1853) 8 Moo. P.C. 419 [14 E.R. 5(1916) 21 C.L.R. 559, at pp. 568, 70 CLR 472

472

HIGH COURT H. (. OF A. By virtue of S. 5 2, the direction of a judgment to be entered is the

equivalent of signing and the signing is ministerial assimilating completely a judgment directed to be entered by a judge under the Supreme Court Procedure Act to a judgment signed under verdict. The observations in Brisbane Shipwrights' Provident Union V. Heggie 1 have no application to this case, because, by the time a judge came to make the award, he would have determined the facts and directed himself, and any objection to his award would be an objection either to his finding, as being for want of evidence, or an objection to himself in point of law: See Fieman v. Balas (2), McDonnell &East Ltd. v. McGregor 3 and Hazeldell Ltd. v. The Commonwealth 4. The appeal from the decision of Roper J. to the Full Court of the Supreme Court was, by reason of S. 5 (12) of the Supreme Court Procedure Act, in the nature of a motion for a new trial, it was not an appeal in stricto sensu. Alternatively, it was a motion for judgment under the Supreme Court Procedure Act. Under S. 5 (7)-(10), an appeal is a complete re-hearing. Briefly, the Regula- tions invested the Supreme Court. The Supreme Court, when it hears an action under its procedure, has a verdict and a judgment on a verdict; it has a new trial motion SO that when giving to the Supreme Court this jurisdiction with the powers, practice and pro- cedure of that court, the Regulations gave to the Supreme Court the power to entertain what is called an appeal but what is in reality a motion for a new trial or for a judgment on the findings as challenged. Therefore what took place before the Full Court was within the regulation, within its contemplation, and was competent to the Court. This result would follow without the presence in sub-reg. 7 of the word "appeals." The finding of Roper J. was not a decision of the Full Court within the meaning of S. 39 (2) (a). The decision to enter judgment on that finding-assuming Roper J. to have SO directed- was not a decision of the Court in respect of which an appeal would lie to the Privy Council. An appeal will not lie to the Privy Council from a judgment entered upon a verdict. On its true construction, S. 39 (2) (a) is limited to decisions of the Full Court after its own internal machinery is exhausted (Kreglinger &Fernau Ltd. v. The Commonwealth 5 ). If the foregoing submissions are not accept- able to the Court, then Brickworks Ltd. request, that it be granted special leave to appeal to this Court.

Hooke, for the respondent Carrier Air Conditioning Ltd. The argument addressed to the Court by Mr. Barwick K.C. is adopted on behalf of this respondent.

2(1930) 47 C.L.R. 107. 1(1906) 3 C.L.R. 686, at p. 694. 3(1936) 56 C.L.R. 50, at p. 54. 4(1924) 34 C.L.R., at pp. 447, 448. 5(1926) V.L.R., at pp. 328, 329. 70 CLR 473

Teece K.C., in reply on this point. The provisions of S. 5 of the Supreme Court Procedure Act 1900, as amended by the Administration of Justice Act 1924, show that the intention was that the judgment of a judge sitting at common law without a jury should be of the same effect as the judgment of a judge sitting in probate, or in equity, or in divorce, from all of which jurisdictions appeals have been and are brought to this Court and to the Privy Council. The Regulations do not initiate a new right. The right to compensation is a right given by the Constitution; the Regulations merely set out the pro- cedure by which that right is enforced. The question whether under reg. 60G the High Court is or is not given jurisdiction is not relevant to the matter before the Court. The investiture of jurisdiction in the Supreme Court is made by the Judiciary Act, which provides that in the classes of cases in which the Constitution confers original juris- diction on the High Court such jurisdiction shall be invested in this Supreme Court of the State subject to certain restrictions. The Regulations merely indicate the procedure by which the Supreme Court is approached. The decision of Roper J. was in no way a judgment entered as of course on the verdict of a jury; it was a deliberate exercise by the judge of his judicial functions on the findings that he himself had made on the issue of facts submitted to him. When he made the deliberate entry of judgment, he exercised the jurisdiction of the Court in SO doing. Reference to the precise terms of S. 5, and particularly sub-s. 7, of the Supreme Court Procedure Act, shows that the appeals made from the decisions of Roper J. were not in fact motions for new trials. The words the powers of the court in civil actions or appeals" do not mean the powers of some other superior court to entertain an appeal from that court. The word " appeals in sub-s. 7 means that a party dissatisfied with the decision of the Compensation Board may appeal to a single judge or to the Full Court. The Court has to protect the prerogative of the Crown. At this point argument in the appeal by Brickworks Ltd. is concluded.

LATHAM C.J. The Court reserves its decision in relation to that appeal.

Teece K.C. In ascertaining what loss a dispossessed person has suffered, loss and gain must be balanced. If, as a result of the dis- possession, a gain has been made by the dispossessed person then that gain must be taken into account in determining what was his total loss (British Westinghouse Electric and Manufacturing Co. Ltd. V. Underground Electric Railways Co. of London Ltd. 1 ). Each of the

1(1912) A.C., at pp. 683-692. 70 CLR 474

474

HIGH COURT A. companies concerned carried on its business without any incon-

venience and has not suffered any loss of goodwill. The principle in assessing the amount payable for loss or damage suffered by a dis- possessed person is exactly the same as the principle applied by the Court in assessing compensation for damages for breach of contract. In either case, the wronged or dispossessed person should receive a sum of money sufficient to put him in a position as nearly similar as possible to the position he was in before he was wronged or dispossessed (Spencer v. The Commonwealth 1 ). The amount of loss or damage which has been suffered is a matter of fact.

[DIXON J. referred to Selected Essays on Constitutional Law, pp. 946, et seq.]

A dispossessed person must act reasonably in mitigating his loss or damage. Any pecuniary advantage derived by the dispossessed person as a result of being dispossessed should, as between him and the person by whom he has been dispossessed, be brought into account in balancing loss and gain (.4 and B Taxis Ltd. v. Secretary of State for Air 2; Horn v. Sunderland Corporation 3 ). A test is: What amount would a person about to be dispossessed be prepared to offer to the requisitioning authority to be allowed to remain undisturbed The guiding principle is the amount of the actual loss suffered by the dispossessed person.

Barwick K.C. The loss is the deprivation of possession, the quantification of that loss is the value of possession to the dispossessed parties. There is no evidence that no loss was suffered by the dis- possessed parties in their businesses carried on in the new premises. The trading profit in the new location is irrelevant, and, even if rele- vant, it does not show that it was the same as before, or unaffected by, the change of location. The value to the dispossessed parties includes, even if regard be had to the principle of reinstatement referred to in Cripps on Compensation, 8th ed. (1938), at pp. 906, 908, 910, the cost of setting them up in new premises. Horn V. Sunderland Corporation 4 is not in conflict with, but, on the con- trary, supports these contentions. Principles applicable in breach of contract cases are not applicable to this type of case.

Hooke. The sum of £942 5s. is not merely rent. That sum was determined upon by taking four per cent of the capital value, and adding thereto the proper proportion of rates, insurance, depreciation of part of the building, of the air-conditioning plant and other items. That method does not produce a result of more rent. The fact is

1(1907) 5 C.L.R. 418, at p. 435. 2(1922) 2 K.B., at pp. 336-339, 343. 3(1941) 2 K.B. 26, at pp. 48, 49. 4(1941) 2 K.B. 26. 70 CLR 475

that the sum of £942 5s. per annum, which is admitted to be the market value and not the value to the owner, is cut down by the sum of £672, which indicates that the set-off proposed by the Minister cannot be effective in the circumstances of this respondent's case. The only sum of money to which any set-off could be applied is the market value of the property taken. The loss or damage flowing from the taking possession is the market value of the land together with the cost of removal and the cost of re-establishing the dis- possessed person in some other location. All that the sum of £942 5s. purports to be is the market value and to determine what is the value to the owner there must be added the expense it incurred as a result of being deprived of possession. That will not in any way allow of any set-off. If the constitutional point succeeds, this respondent requests that special leave be granted to appeal to this Court from the decision of Roper J.

Teece K.C., in reply. Regulation 60D, under which the compensa- tion is claimed, is an "omnibus' regulation which applies to com- pensation for all manner of loss or damage, not only compulsory acquisition of property, either temporarily or permanently acquired, but also compensation for damage done to property without taking possession of it. There must be applied principles of assessing loss or damage which are applicable to every form of interference with rights dealt with by the Regulations. Therefore it is necessary to ascertain as a matter of fact what sum of money is requisite to put the claimant in the position in which he would have been had his proprietary rights not been interfered with. The loss or damage actually suffered by the dispossessed parties has been satisfied by the decisions of Roper J. In the absence of a claim therefor, the judge was entitled to draw the inference that there was no loss of profits. Even if the Minister loses on the merits but succeeds on the jurisdictional point, he should be allowed his costs (Benson V. Northern Ireland Road Transport Board 1; Adams v. Chas. S. Watson Pty. Ltd. 2 ).

Cur. adv. vult. The following written judgments were delivered :-

LATHAM C.J. The Minister of State for the Army v. Parbury Henty &Co. Pty. Ltd.-The Minister of State for the Army v. Carrier Air Conditioning Itd.-These are appeals from two judgments of the Full Court of the Supreme Court of New South Wales (Jordan C.J. and Halse Rogers J., Davidson J. dissenting) allowing appeals from

1(1942) A.C. 520. 2(1938) 60 C.L.R. 545. 70 CLR 476

decisions of Roper J. upon reviews of assessments of compensation

which had been made by a Compensation Board under the National Security (General) Regulations. The Minister of State for the Army took possession of premises belonging to the respondents. The parties were unable to agree upon amounts of compensation, and the claims for compensation were referred to a Compensation Board under reg. 60E. The Minister was dissatisfied with the assessments made by the Compensation Board, and applied to the Supreme Court of New South Wales for a review of the assessments. The Supreme Court is a court of competent jurisdiction within the meaning of reg. 60G as being a court which would have jurisdiction to hear and determine the application if it were an action between subject and subject for the recovery of a debt equal to the compen- sation claimed in the original claim to the Minister.

In each case, the appellant, the Minister of State for the Army, relies upon the contention that the judgment of Roper J. was a "decision of the Supreme Court of a State " within the meaning of S. 39 2 (a) of the Judiciary Act 1903-1940, and that therefore it was final and conclusive, except SO far as an appeal might be brought to the High Court. If this be so, the Full Court had no jurisdiction to entertain the appeal from Roper J. If this contention is sound, the judgment of the Full Court should be set aside as having been made without jurisdiction, and the decision of Roper J. should be restored.

The objection which is raised assumes that, in the present cases, the State Supreme Court obtained jurisdiction by virtue of S. 39 (2) (a) and not otherwise. Section 39 (2) (a) provides that the several courts of the States, within the limits of their jurisdiction, shall be invested with Federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, subject to four conditions, one of which is that, in the case of a decision of the Supreme Court of a State, that decision shall be final and conclusive except SO far as an appeal may be brought to the High Court. The first question which arises is whether S. 39 applies to the present cases or whether jurisdiction is invested in the Supreme Court in these cases, not by S. 39, but by the Regulations.

Section 39 of the Judiciary Act is a general provision with respect to the exercise of Federal jurisdiction by State courts. Prima facie, it applies to all exercise of such jurisdiction. But other provisions may be of such a character as to show that Parliament did not intend S. 39 to apply to certain cases. For examples, see Seaegg V. The King 1, Peacock v. Newtown Marrickville and General Co-opera- tive Building Society No. 4 Ltd. (2), and cf. Silk Bros. Pty. Ltd. V.

2(1943) 67 C.L.R. 25. 1(1932) 48 C.L.R. 251. 70 CLR 477

State Electricity Commission of Victoria 1. I proceed to consider whether the provisions of the Regulations show that it was intended that they should give to certain State courts jurisdiction which, apart from the Regulations, those courts would not have possessed, or otherwise to establish special conditions for the exercise of that jurisdiction which exclude the application of the general provisions of S. 39 of the Judiciary Act.

In the first place, I call attention to the fact that S. 39 relates to all State courts ' within the limits of their several jurisdictions", while the Regulations limit the exercise of jurisdiction thereunder to certain State courts. The power to review an assessment of a Compensation Board is given only to "a court of competent juris- diction." Regulation 60G (8) provides :--" For the purposes of this regulation, court of competent jurisdiction' means a court of the Commonwealth, or of a State or Territory of the Commonwealth (other than a court presided over by a Justice of the Peace, Magis- trate or District Officer), which would have jurisdiction to hear and determine the application if it were an action between subject and subject for the recovery of a debt equal to the compensation claimed in the original claim to the Minister." Thus certain courts which would be eligible to exercise jurisdiction under S. 39 are not eligible to act under reg. 60G. The courts excluded by the regulation are courts of a State presided over by a justice of the peace or a magis- trate. Further, the regulation permits both a court of the Common- wealth and a court of a Territory to act. Section 39 does not invest jurisdiction in such courts. Further, if a proceeding for a review of an assessment of compensation is regarded as a claim against the Commonwealth, a District or County Court would have jurisdiction under the Regulations up to a limit of a certain amount-e.g., £400 in New South Wales, £500 in Victoria. But such courts would, it is submitted, have no jurisdiction under the Judiciary Act-see S. 56, which limits jurisdiction in the case of a claim against the Common- wealth to the High Court or a Supreme Court. These provisions show that the courts which are to be empowered to act judicially under the Regulations are not the same courts as those to which S. 39 applies.

If the Regulations are not construed as investing jurisdiction in the selected courts of competent jurisdiction to which they refer then it follows that the Regulations fail to operate in relation at least to some of those courts.

There is, in my opinion, no reason for holding that the Regulations do not both purport to invest and in fact succeed in investing the

1(1943) 67 C.L.R. 1. 70 CLR 478

courts mentioned with Federal jurisdiction. In order to show this,

I state the provisions of the relevant regulations.

Regulation 60G provides that, if either the Minister or a claimant is dissatisfied with the assessment of a Compensation Board, he may, within one month after the receipt of the notice of assessment of a Board (or, in a particular case, within fourteen days thereafter), apply to a court of competent jurisdiction for a review of the assess- ment. Regulation 60G then prescribes the procedure to be followed when an application for a review of an assessment is made to a court. Sub-regulation 2 provides that the application for review shall be made in writing to the registrar or other proper officer of the court, and shall be accompanied by a true copy of the application for endorse- ment and service. Sub-regulation 3 requires the registrar or other officer upon receipt of the application to appoint a time for hearing and to endorse on the copy of the application the place and time of hearing and to return it to the applicant. Sub-regulation 4 provides that the applicant shall, not less than fourteen days before the day fixed for the hearing, serve on the other party the endorsed copy of the application, such service to be made in accordance with the prac- tice of the court relating to service of writs or summonses. Sub- regulation 5 provides that, upon the day fixed, the court may, on proof of due service, or upon the appearance of the respondent, proceed to hear the application and to determine whether any compensation is payable, and, if so, the compensation which it thinks just. The sub-regulation empowers a court to make an order for payment of the compensation SO determined. Sub- regulation 6 confers a power to award costs. Sub-regulation 7 is as follows :-

In any matter not provided for in these Regulations the powers, practice and procedure of the court shall be as nearly as may be in accordance with the powers, practice and pro- cedure of the court in civil actions or appeals." These provisions apply to a review of an assessment made by a Compensation Board. Unless these or similar provisions existed, no court would have any jurisdiction to review any such assessment. The assessment would stand, for what it was worth according to law, and no court would have power to reconsider it. Perhaps an action could be brought to enforce the rights created by the assessment, but the terms of the assessment could not be altered by any court. The jurisdiction to review an assessment is created by these Regulations, and not otherwise. Even if, independently of the procedure pro- vided in reg. 60G, an action could be brought against the Minister or the Commonwealth for compensation, such an action would not take

70 CLR 479

the form of a review of an assessment made by the Compensation Board. It would be an independent original proceeding. Thus the source of the jurisdiction of the court is to be found in the Regulations.

Further, the Regulations provide a procedure of their own for the initiation and conduct of proceedings in the Supreme Court which is different from that which applies to other proceedings in that court. The first step is not the issue of a writ or summons, but the presenta- tion of an application" to a registrar or other court officer followed by the service of a copy of the application endorsed by the registrar or other officer in the manner prescribed. A method of service of the copy upon the respondent is prescribed. There is an express provision that the court may then proceed to hear the application and to make an order therein.

Thus the Regulations provide a special procedure in relation to particular matters and provide that, subject to those special pro- visions, the powers, practice and procedure of the court in civil actions or appeals shall be observed. The reference to appeals shows that it is contemplated that there may be an appeal within the "court of competent jurisdiction" from a determination of com- pensation in that court. A distinction is drawn between the powers, practice and procedure of the court in civil actions and the powers, &., of the court in appeals. The reference to civil actions is apt to apply to the hearing by a single judge of the application for review. That is a proceeding in the original jurisdiction of the court and is not an appeal from the decision of the Compensation Board. The court deals with the matter by taking evidence and making such order as it thinks just. It is in all respects an exercise of original jurisdiction to which the procedure in civil actions is readily and conveniently applicable. Accordingly, the reference to appeals should be regarded as providing, in the case of the Supreme Court, the practice and procedure for an appeal from the decision of a single judge to the Full Court.

If, for these various reasons, the jurisdiction of the Supreme Court in these cases is conferred by the Regulations and not by the Judiciary Act, the provision in S. 39 (2) (a) of that Act that the decision of the Supreme Court shall be final and conclusive (except so far as an appeal may be brought to the High Court) has no appli- cation to them. The ordinary procedure of the Supreme Court in relation to appeals applies. Thus, when a single judge of the Supreme Court acts in pursuance of reg. 60G, there is not only nothing to prevent an appeal to the State Full Court but the regulation speci- fically provides that the powers, practice and procedure of the

70 CLR 480

OF A. Supreme Court in relation to appeals are to be exerciseable and

Upon these grounds, I am of opinion that the objection of the appellant that no appeal lay to the Full Court cannot be sustained.

But it was argued for the appellant that the jurisdiction of the Supreme Court in these cases depended upon the general provision conferring Federal jurisdiction upon the Supreme Court which is contained in S. 39 of the Judiciary Act. I have stated my reasons for my opinion that in these cases jurisdiction was actually conferred by the Regulations. But, even if the jurisdiction were held to be conferred by S. 39 of the Judiciary Act, the contention of the appellant that an appeal to the State Full Court was excluded should not, in my opinion, be accepted.

The Commonwealth Constitution, S. 75, provides that the High Court shall have original jurisdiction in five matters therein specified. Section 76 provides that the Parliament may make laws conferring original jurisdiction on the High Court in four matters specified in that section. Section 77 provides that, with respect to any of the matters mentioned in the last two sections (that is, the nine matters mentioned in SS. 75 and 76), the Parliament may make laws " (ii.) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States: (iii.) Investing any court of a State with federal juris- diction."

In Part VI. of the Judiciary Act, the Commonwealth Parliament has made certain jurisdiction of the High Court exclusive and has invested State courts with certain Federal jurisdiction.

By S. 38, the jurisdiction of the High Court is made exclusive of the jurisdiction of State courts in five matters, all of which are included within, but which do not exhaust, the matters mentioned in S. 75 of the Constitution. By S. 38A, the jurisdiction of the High Court is made exclusive of the jurisdiction of the Supreme Courts of the States in matters (other than trials of indictable offences) involving any question, however arising, as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or of the constitutional powers of any two or more States.

Section 39 (1) is in the following terms:

"The jurisdiction of the High Court, SO far as it is not exclusive of the jurisdiction of any Court of a State by virtue of either of the last two preceding sections, shall be exclusive of the juris- diction of the several Courts of the States, except as provided in this section."

70 CLR 481

This provision purports to deal only with the actual jurisdiction of the High Court.

The original jurisdiction of the High Court is to be ascertained by considering, first, S. 75 of the Constitution, which directly confers original jurisdiction in five classes of matters upon the High Court, secondly. S. 76, which authorizes Parliament to make laws conferring original jurisdiction on the High Court in four classes of matters, and thirdly, any legislation passed under the power conferred by S. 76. This power has been exercised in the Judiciary Act, S. 30, which provides that, in addition to the matters in which original jurisdiction is conferred on the High Court by the Constitution (that is, by S. 75 of the Constitution), the High Court shall have original jurisdiction in two matters therein specified. Other statutes, e.g. patents, trade marks, copyright, and taxation statutes, also confer original juris- diction upon the High Court.

The words of S. 39 (1), " the jurisdiction of the High Court ", in their natural sense refer to the jurisdiction which the High Court actually has, that is, its actual jurisdiction, as distinct from what might be called its potential jurisdiction, that is, jurisdiction which might be conferred upon it, but which has not in fact been conferred upon it. The effect of S. 39 (1), therefore, is to make the actual jurisdiction of the High Court completely exclusive of the jurisdiction of any court of a State except as provided in S. 39. The exclusion of the State courts effected by SS. 38 and 38A is complete. In other matters, the exclusion is an exclusion subject to the exceptions pro- vided in S. 39.

Section 39 (2) proceeds to exercise the power conferred upon the Parliament by S. 77 (iii.). (It is unnecessary for the purposes of this case to refer to pars. (b), (c) and (d) of the section.) Section 39 (2) (a) is in the following terms :-

" The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdic- tion, in all matters in which the High Court has original juris- diction or in which original jurisdiction can be conferred upon it, except as provided in the last two preceding sections, and subject to the following conditions and restrictions :-

(a) Every decision of the Supreme Court of a State, or any

other Court of a State from which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall be final and conclusive except SO far as an appeal may be brought to the High Court."

70 CLR 482

This provision purports to invest the several courts of the States, within the limits of their several jurisdictions, with Federal juris- diction in two classes of matters, namely, first, matters in which the High Court has original jurisdiction, and secondly, matters in which original jurisdiction can be conferred upon it. It has sometimes been supposed that the first class refers only to the matters men- tioned in S. 75 of the Constitution, as to which the Constitution provides that the High Court has original jurisdiction, and that the second class refers to the matters mentioned in S. 76 of the Constitu- tion which are matters in which original jurisdiction can be conferred upon it. In truth, however, the High Court actually has original jurisdiction, by virtue of the Judiciary Act and other statutes, not only in the matters mentioned in S. 75 of the Constitution, but also in the matters mentioned in S. 30 of the Judiciary Act, namely, " (a) in all matters arising under the Constitution or involving its interpre- tation and (c) in trials of indictable offences against the laws of the Commonwealth" and in the matters in respect of which jurisdiction has been conferred under other laws made by the Commonwealth Parliament, e.g., the Patents Act, &. These are matters mentioned in S. 76 of the Constitution, and, in my opinion, they are also matters which fall within the first class of matters mentioned in S. 39 2, namely matters in which the High Court in fact has original juris- diction.

The jurisdiction conferred upon the several courts of the States by S. 39 (2) is conferred subject to certain conditions and restrictions, the first of which is that every decision of the Supreme Court of a State or certain other courts shall be final and conclusive, except in

SO far as an appeal may be brought to the High Court.

Section 39 has been the subject of much controversy. In Webb V. Outrim 1, it was held by the Privy Council that the section was invalid. In Baxter v. Commissioners of Taxation (N.S.W.) (2), the High Court refused, for reasons there stated, to regard this decision as binding upon it, and S. 39 (2) (a) of the Judiciary Act was held to be effective, at least to invest State courts with Federal jurisdiction with a right of appeal to the High Court, even if the section were invalid in SO far as it attempted to take away what was described as the prerogative right of appeal to the Privy Council (as distinct from appeal by special leave only).

In Lorenzo v. Carey 3, it was held by five Justices (the Court expressing no opinion as to the provisions in sub-s. 2 (a) ) that S. 39 was a valid exercise of the powers conferred upon the Parliament of

2(1907) 4 C.L.R. 1087. 1(1907) A.C. 81. 3(1921) 29 C.L.R. 243. 70 CLR 483

the Commonwealth, SO that an appeal would lie to the High Court from a decision of an inferior court of a State under the provisions of S. 39 2 (b). In this case, it was said that a State court might exercise (apparently at will-but see Troy v. Wrigglesworth 1 )-either Federal or State jurisdiction in the same matter. This possibility arose from the fact that jurisdiction already "belonged to " State courts before the Judiciary Act in certain of the matters in which S. 39 (2) purported to invest them with Federal jurisdiction. venture to suggest that this aspect of the subject of Federal juris- diction may require further consideration. I refer to what Dixon J. said in Ffrost v. Stevenson (2), adding that when one law permits an appeal and another law prohibits an appeal in the same proceeding, there is a stronger case for holding that the laws are inconsistent (e.g., under S. 109 of the Constitution) than when each of two laws permits different appeals in a proceeding.

In The Commonwealth v. Limerick Steamship Co. Ltd. 3, it was held by a majority of the Court that S. 39 (2) (a) was valid, SQ as to exclude an appeal as of right to the Privy Council from a decision of the Supreme Court exercising Federal jurisdiction, and to give to the High Court jurisdiction to entertain an appeal from such a decision. The decision in Webb v. Outrim 4 was interpreted as relating only to cases of pure State jurisdiction, and not to cases of Federal jurisdiction See per Isaacs and Rich JJ. 5 and per Starke J. 6.

In this state of the authorities, the case of Kreglinger &Fernau Ltd. V. The Commonwealth 7 came before the Supreme Court of Victoria. The action was an action brought against the Commonwealth, and was therefore a matter in respect of which the High Court had original jurisdiction under the Constitution, S. 75 (iii.). An appeal was brought from a single judge of the Supreme Court to the Full Court of the Supreme Court. It was held by a majority of that Court that the decision of the single judge was a decision of the Supreme Court within the meaning of S. 39 (2) (a) of the Judiciary Act, and that if that section were valid the decision of the single judge was final and conclusive, except SO far as an appeal was brought to the High Court. The majority, however, was of opinion that the Privy Council had decided in Webb v. Outrim (4) that S. 39 was invalid, at least in relation to the appeal to the Privy Council, that that decision should be followed, and that no operation of severance could be performed SO as to preserve the section in relation to other matters

2(1937) 58 C.L.R. 428, at p. 573. 1(1919) 26 C.L.R. 305, at p. 310. 3(1924) 35 C.L.R. 69. 4(1907) A.C. 81. 5(1924) 35 C.L.R., at pp. 94, 95. 6(1924) 35 C.L.R., at p. 118. 7(1926) V.L.R. 310. 70 CLR 484

than the appeal to the Privy Council. The consequence was that

S. 39 was held to be wholly invalid, with the result that the pro- vision in S. 39 2 (a) that the decision of the Supreme Court was final and conclusive, except in SO far as an appeal might lie to the High Court, was invalid. Accordingly the Full Court (Irvine C.J., Mann J., Macfarlan J. dissenting) held that, S. 39 being invalid, there was nothing to prevent the Full Court from entertaining the appeal from the single judge, and judgment was accordingly given in that appeal.

An appeal was brought to the High Court in The Commonwealth V. Kreglinger &Fernau Ltd. 1. The High Court did not decide the question whether the decision of the single judge was a decision of the Supreme Court within the meaning of S. 39 (2) (a) SO as to prevent an appeal to any other court than the High Court, but determined the case on the ground that on the hearing of the appeal from the single judge to the Full Court of the Supreme Court a question arose as to the limits inter se of the constitutional powers of the Common- wealth and a State within the meaning of S. 74 of the Constitution and SS. 38A and 40A of the Judiciary Act. Therefore, under S. 40A, the case was removed to the High Court. It was held that on this ground the Full Court had no jurisdiction to entertain the appeal from the single judge, or to make a subsequent order granting leave to appeal to the Privy Council. In this case, it was held by three Justices that S. 39 (2) (a) was valid SQ as to prevent any appeal to the Privy Council in any matter of Federal jurisdiction to which the section applied. Mr. Justice Higgins, who dissented from the judgment of the Court, said that, if S. 39 (2) (a) were valid, " then appeals from a single Judge to the Full Court, and also appeals from the Supreme Court to the Privy Council, were effectively pro- hibited" (2). The other members of the Court abstained from expressing an opinion upon this matter 3.

It was held by this Court that the Full Court of the Supreme Court of Victoria had no jurisdiction to give a decision in Kreglinger &Fernau Ltd. v. The Commonwealth 4, and therefore that decision cannot be regarded as a decision which is or was an authority for the proposition that the Judiciary Act, S. 39 (2) (a), prevents an appeal in cases of Federal jurisdiction from the decision of a single judge of the Supreme Court to the Full Court of that Court. In Cook v. Downie 5 the Full Court of the Supreme Court of Victoria has, however, adopted the reasoning of the majority of the Full Court in Kreglinger &

2(1926) 37 C.L.R., at p. 425. 1(1926) 37 C.L.R. 393. 3(1926) 37 C.L.R., at pp. 400, 401, 4(1926) V.L.R. 310. 5(1945) V.L.R. 95. 70 CLR 485

Fernau Ltd. v. The Commonwealth 1 and has formally decided that the effect of S. 39 2 (a) is to prevent an appeal lying to the State Full Court from a judgment of a single judge of that Court when exercising Federal jurisdiction. The contentions raised in these appeals bring this question before this Court for decision.

In the first place, it is argued that the decision of Roper J. was a decision given in the exercise of Federal jurisdiction conferred by S. 39 (2) for two reasons: first, because the proceeding was in sub- stance a claim against a person, namely a Minister, who was sued on behalf of the Commonwealth (see Constitution, S. 75 (iii.) ), and secondly because the claim arose under a law made by the Common- wealth Parliament, namely, the National Security Act and the regulations thereunder See Constitution, S. 76 (ii.). I have already given reasons for my opinion that the special provisions of the Regulations, applying only to the review of assessments, supersede the general provisions of S. 39 (2) in respect of specification of courts as well as in respect of conditions precedent to jurisdiction (viz. a prior assessment by a Compensation Board) and of procedure. But, in order to deal with the whole of the appellant's argument, I assume in his favour that S. 39 is applicable to these cases.

The order made by Roper J. was, in my opinion, an order of the Supreme Court. The order was made by virtue of the provisions of the Supreme Court Procedure Act 1900 (N.S.W.), S. 3. Section 3 provides that in any action by consent of both parties the whole or any one or more of the issues of fact in question may be tried, or the amount of any damages or compensation may be assessed by a judge without a jury." This section was applied in the present cases and Roper J. assessed the compensation without a jury. Section 5 provides that, subject to the provisions of the section, the verdict or finding of any judge sitting without a jury under the Act shall be of the like force and effect in all respects as the verdict or finding of a jury. It was argued for the respondents that the verdict or finding of a judge sitting in pursuance of the Act amounted to no more than the verdict or finding of a jury, and that therefore it was not a decision of the Supreme Court itself Cf. Parkin v. James (2); Musgrove v. McDonald 3; The Commonwealth v. Brisbane Milling Co. Ltd. 4 Wilson v. Hood 5.

When S. 5 of the Supreme Court Procedure Act 1900 was first passed it consisted simply of the following provision "The verdict or find- ing of any Judge sitting without a jury on the trial or assessment of

1(1926) V.L.R. 310. 2(1905) 2 C.L.R. 315, at p. 339. 3(1905) 3 C.L.R. 132. 4(1916) 21 C.L.R. 559. 5(1864) 3. H. &C. 148 [159 E.R. 70 CLR 486

any issue of fact or amount of damages or compensation pursuant to this Act shall be of the like force and effect in all respects as the verdict or finding of a jury." The section was not introduced by the words 'Subject to the provisions of this section" and sub-ss. 2 to 13 were not contained in the Act as originally passed. In Hazeldell Ltd. V. The Commonwealth 1, decided in August 1924, Mr. Justice Isaacs considered S. 5 as it then appeared, in its original form, and pointed out that a trial judge sitting under the Act of 1900 could only give a verdict, and not a judgment of the court. His Honour criticized the effect and operation of the Act in this respect in very pointed language, Soon afterwards, S. 5 was amended by the Parliament of New South Wales by the Administration of Justice Act 1924. This Act added sub-ss. 2 to 13 to S. 5. In my opinion, the object of the amend- ment was to remove the basis of the criticism of Isaacs J., and the amendments, I think, have effectively achieved this object. Sub- section 2 provides that nothing in the section shall authorize judg- ment to be signed on the verdict or finding, but that "judgment may be directed to be entered as provided in this section, and the entry shall have the like force and effect in all respects as the signing of judgment." Sub-section 3 provides that the court may direct judgment to be entered for any or either party, and for that purpose the court may be held and its jurisdiction may be exercised by the judge, and either at or after the trial. This provision, in my opinion, brings about the result that when an order is made by a trial judge sitting in pursuance of the Act the order made is a judgment of the court. Sub-section 5 provides that any judgment directed by the judge to be entered under the provisions of the section shall, unless there is an appeal as provided in the section against the judgment, have the same force and effect in all respects as the judgment of the court; and sub-s. 6 provides that any party may appeal to the court against any judgment SO directed by the judge to be entered. This last provision clearly differentiates an order made by a judge sitting under the Act from a verdict of a jury. Sub-section 7 provides that the appeal shall be by way of rehearing. Sub-section 9 provides that the Court may on the appeal give any judgment and make any order which ought to have been given or made in the first instance." These provisions appear to me to be quite inconsistent with the view that the decision of a single judge sitting under the Act has and has only the same operation and effect as the verdict of a jury, If that were the case, the provisions to which I have just referred could not be applied. It would be impossible upon that view for a Full Court ever to allow an appeal in such a case because the only question

1(1924) 34 C.L.R. 442. 70 CLR 487

which would be open could be whether the order made was right

on the verdict "-and the order and the verdict would be the same thing. In my opinion, the effect of all these provisions is to make an order of a single judge sitting under the Act a judgment of the Supreme Court. The orders in these cases recite that it was ordered that the matters should stand for judgment and proceed 'and the same standing in the list for judgment accordingly it is ordered that the following compensation be awarded to the claimant namely &.

I therefore deal with these cases upon the basis that the orders made by Roper J., which in terms are orders of the Supreme Court, are decisions of the Supreme Court.

The next question is whether S. 39 2 (a) operates to make these decisions final and conclusive, except SO far as an appeal may be brought to the High Court.

In Parkin v. James 1 it was decided that an order made by a judge of the Supreme Court of the State of Victoria sitting as a judge of first instance was a judgment of the Supreme Court, SO that an appeal lay direct to the High Court from that judgment by virtue of the Constitution, S. 73, and the Judiciary Act, S. 35. "The term judgment' in the Constitution and in the Judiciary Act, includes orders " (2). It is therefore submitted for the appellant in the present cases that Parkin v. James (1) concludes this particular argument in his favour.

It is true that in Parkin v. James (1) it was held that a decision of a Supreme Court judge sitting as a judge of first instance was a judgment of the Supreme Court. (Of course, it was not decided in that case that a judgment of the Full Court of the Supreme Court was not also a decision of the Supreme Court.)

In Kreglinger &Fernau Ltd. v. The Commonwealth 3, Macfarlan J. (dissenting) expressed the opinion that the provision of S. 39 that a decision of the Supreme Court was final and conclusive, except SO far as an appeal might be brought to the High Court, operated only to restrict appeal to a court other than the Supreme Court, and that it did not operate to prevent an "internal" appeal to the Full Court of a State. I agree with the learned judge that the decision in Parkin v. James (1) is not inconsistent with this view because Parkin v. James (1) only decided affirmatively that an appeal would lie from an order of a Supreme Court judge of first instance to the High Court, because such an order was a "judgment of the Supreme Court " from which an appeal lay to the High Court under S. 73 of the

2(1905) 2 C.L.R., at p. 342. 1(1905) 2 C.L.R. 315. 3(1926) V.L.R. 310. 70 CLR 488

H. (. OF A. Constitution and S. 35 of the Judiciary Act. The decision in Parkin

V. James 1 is not a decision as to the meaning of any provision in S. 39 of the Judiciary Act.

The object of S. 39 (2) (a) was to exclude appeals from the Supreme Court to any court other than the High Court in certain cases. This object can be, and is, achieved by allowing what may be described as the machinery of the Supreme Court to operate fully in order to reach that which is the final decision of that court. An interlocutory order may be made by the Supreme Court in a matter to which S. 39 (2) (a) applies. Such an order would be a decision of the Supreme Court. But it could hardly be contended that S. 39 (2) (a) made that order a final order subject only to appeal to the High Court, SO that no further proceedings in the matter could take place in the Supreme Court, either before or after appeal to the High Court. Section 39 permits the Supreme Court to do all that is necessary to reach a decision of that court and thus allows interlocutory proceedings and appeals within that court, but subject to the provision that there shall be no appeal from that court to any other court except the High Court.

Where a judge of the Supreme Court sitting as a judge of first instance makes an order and there is no appeal to the Full Court of the Supreme Court against that order, then that order is the decision of the Supreme Court, and, if the matter is one to which S. 39 applies, there can be no appeal from that decision of the Supreme Court, except to the High Court. But if there is an appeal from the decision of the judge of first instance to the Full Court of the Supreme Court, his order no longer represents the "decision of the Supreme Court." That decision is then to be found in the order made by the Full Court. Section 39 then operates to prevent any appeal (except to the High Court) from the order of the Full Court, which has become the only decision of the Supreme Court. These considerations are sufficient in themselves, in my opinion, to justify the conclusion that S. 39 does not prevent an appeal from a decision of a single judge of the Supreme Court to the State Full Court in matters of Federal jurisdiction.

The Constitution, S. 79, provides that the Federal jurisdiction of any court may be exercised by such number of judges as the Parlia- ment prescribes. Thus the Parliament might have provided that Federal jurisdiction should be exercised in a Supreme Court only by a single judge or only by a Full Court consisting of a specified number of judges. But this legislative power has not been exercised in relation to the Supreme Courts. In my opinion, both the single

1(1905) C.L.R. 315. 70 CLR 489

judges and the Full Courts of the Supreme Courts of the States have been invested with Federal jurisdiction by S. 39 and the Common- wealth Parliament has left that jurisdiction to be exercised in accordance with the ordinary cursus curiae, which has been left unchanged Cf. Dale's Case 1: 'If a new jurisdiction is given to an existing Court-that is to say, a jurisdiction to deal with some new matters in a different mode and with a different procedure-if that jurisdiction be SO given to a well-known court, with well-known modes of procedure, with well-known modes of enforcing its orders, it must, unless the contrary be expressed or plainly implied, be given to that court to be exercised according to its general inherent powers of dealing with the matters which are within its cognizance."

The Judiciary Act, S. 79, provides that "the laws of each State, including the laws relating to procedure, evidence, and the com- petency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State in all cases to which they are applicable." Thus, when a Supreme Court exercises Federal jurisdiction by virtue of S. 39, the laws of the State of Victoria relating to procedure are binding upon it. An appeal within the Supreme Court is a matter of procedure within that court. An appeal from that court to another court is not a matter of pro- cedure in that court. In Poyser v. Minors 2 Lush L.J. said that the term "practice ' denoted the mode of proceeding to enforce a right as distinguished from the law which gives or defines the right, and that he took "practice" and "procedure," as applied to that subject, to be convertible terms.

"Practice" in the common or ordinary sense of the word denotes the rules that make or guide the cursus curiae, and regulate the proceedings in a cause within the walls or limits of the Court elf "-Attorney-General v. Sillem 3 per Lord Westbury. In that case, it was held that, under a power given to the Barons of the Exchequer to make rules and orders as to " process, practice and mode of pleading in a court, any rules might be made by the Barons 'for the guidance of their own proceedings ' which did not require legislative sanction. A provision conferring a right of appeal within a court in a proceeding brought to enforce a sub- stantive right is not a law creating a substantive right, but relates only to the method of establishing or enforcing that right. Such a provision is, in my opinion, a law relating to the procedure of that court.

1(1881) 6 Q.B.D. 376, at pp. 450-451. 2(1881) 7 Q.B.D. 329, at p. 334. [11 E.R. 1200, at p. 1209]. 3(1864) 10 H.L.C. 704, at p. 723 70 CLR 490

For the reasons I have given, I am of opinion that, whatever its meaning, S. 39 (2) (a) governs proceedings in the Supreme Court pursuant to reg. 60G.

The question then is whether the paragraph means, in matters of Federal jurisdiction, to exclude proceedings by way of appeal within the Supreme Court, that is appeals from one branch of the Supreme Court to another. In saying that this is the question, I assume, although the contrary was contended, that the determination of the single judge is to be considered the judicial act of the Supreme Court.

Different views have been taken upon the question whether the words of the paragraph affect appeals within the Supreme Court, or, on the contrary, operate only to prevent an appeal from the court to some other judicial authority, as for instance the Privy Council

70 CLR 506

See The Commonwealth v. Kreglinger &Fernau Ltd. 1; Cook V.

Downie 2. The decision in Parkin v. James 3 that the order of a single judge of the Supreme Court exercising the jurisdiction of the court fell within the words of S. 73 judgments, decrees, orders, and

of the Supreme Court" &. appears at first sight to require a like interpretation of the words in S. 39 (2) (a) " every decision of the Supreme Court " &. But the purpose of the former provision is to give an appeal from whatever amounts to a judgment &. of the Supreme Court, while that of the latter is to prevent an appeal being taken from the Supreme Court. It is, therefore, open to question whether the finality meant by the paragraph excludes review by the Supreme Court itself of what, while standing, consti- tutes a decision of the court. The manner in which the provision is expressed creates a difficulty but its purpose is evident and indeed notorious. If an appeal from a single judge to the Full Court is excluded, it is an accidental and unintended result of the words used. On the whole, I am not prepared to dissent from the view that the paragraph operates to restrict appeals from the Supreme Court and not appeals in or to the Supreme Court.

I, therefore, agree that in the three cases the Full Court of the Supreme Court had jurisdiction to hear and determine the appeals from Roper J.

I proceed to deal with the merits of the respective appeals. Brickworks Ltd. v. Minister of State for the Army. The arrange- ment under which the company refrained from the making of bricks on the land taken was not very distinctly proved, but I take it that no negative covenant had been given affecting the land in the sense that it would bind persons taking under the company, not being bona fide purchasers for value without notice. Whatever it amounted to, it is not shown to be more than a contract imposing a personal obligation on the company. In this view, it could not affect the value of the land, or of the right to occupy it.

The decision of the Court in Minister of State for the Army V. Dalziel 4 establishes that the taking under reg. 54 of the National Security (General) Regulations of the exclusive possession of land for an indefinite period amounts to an acquisition of property and, not- withstanding the observations in Syme v. The Commonwealth 5 relied upon by the Minister, I accept the decision as meaning that the owner who has been dispossessed is to be compensated in the char- acter of an owner for his loss of property or deprivation of proprietary

1(1926) V.L.R., at pp. 315, 323, 2(1945) V.L.R. 95. 3(1905) 2 C.L.R. 315. 324, 329; (1926) 37 C.L.R., at 4(1944) 68 C.L.R. 261. p. 425. 5(1942) 66 C.L.R. 413. 70 CLR 507

rights and not simply recompensed or reimbursed for whatever financial prejudice he may have personally suffered in the particular circumstances in which he happened to stand as an individual. Upon this view, I agree in the contention of the company that, in fixing compensation, you do not go behind the value of the occupancy (including of course any special advantages it may have had to the owner and any special detriment his disturbance in it may involve) and proceed to ascertain how far he would in fact have used the occupancy, possessing that value, for his own pecuniary profit or benefit.

I think, therefore, that the company is entitled to the full value of the right to occupy the premises considered as property and that its appeal succeeds.

I am, however, by no means satisfied that the figure accepted by the parties does no more than reflect that value. But, as it has been agreed upon, it is not our concern.

I think that the appeal should be allowed. Minister of State for the Army v. Parbury Henty &Co. Pty. Ltd.- It is not denied that the compensation payable to an occupier dis- possessed under statutory powers of premises he holds as a tenant at a full rental includes the costs he reasonably incurs in removing his furniture and goods including tenants' fixtures and the expenses in setting up in new premises for the purposes of carrying on his business. Nor is it denied that the expenses may include the net cost of installing fixtures, both those removed and, where reasonably necessary, newly acquired fittings. The residual value which would remain to him must of course be taken into account.

But, on the assumption that the change of premises necessitated by the compulsory taking of those he occupied resulted in a saving of rent, it is contended that the saving must also be taken into account. As the principle is that the dispossessed occupier must be compensated for his loss and the measure of his loss adopted is the net cost of placing himself in the same position, it appears to me that, as an essential part of the groundwork of the contention, the fact must appear that the new premises, for which the lower rent is paid, are completely equivalent, for the purposes of the dispossessed person, to those he has had to vacate. This must mean that because they were unsuitable for his needs, or because the rent was excessive, his old premises cost him more than they were worth to him, or else that he pays for the new premises less than their annual value.

In the present case, the company dispossessed is not shown to have acquired for the lower rent premises which for all its purposes were of

70 CLR 508

equal value with the old. I think that the burden of showing this must be upon the Minister. There is no presumption that, because the rental of the new premises was lower, the company really gained an advantage. The old premises were those which it chose as suitable for its business and the new were obtained as a substitute only because of the necessity of finding another place of business. The natural inference is that in each case it paid what the premises were worth and that the additional advantages of the old premises from a business point of view were worth paying for.

I think, therefore, that the appeal should be dismissed. The Minister of State for the Army v. Carrier Air Conditioning Ltd.-

I regard this case as indistinguishable in substance from that of Parbury Henty &Co. Pty. Ltd.

The company, however, were owners of the premises from part of which they were dispossessed, not tenants paying a rent. But they were awarded an annual sum in respect of the period of dispossession and that was compared with the rent of the new premises, just as in the case of Parbury Henty &Co. Pty. Ltd. the rent of the old premises was compared with that of the new. The saving, consisting of the excess of the annual value for the period of occupation over the rent of the new premises, was then treated as destroying pro tanto the prima facie right of the claimants to the expenses of establishing themselves in the new premises. But here again there was no proof or other reason to conclude that the difference in pecuniary value of the two premises did not reflect a difference in business advantage, eligibility or desirability. Indeed, during the argument before Roper J., counsel said that it was not conceded that the premises were equally commodious and efficient from a business point of view, though cross-examination had indicated that there was no loss of profit in carrying on in that way.

In my opinion, the appeal should be dismissed.

McTIERNAN J.-The Minister of State for the Army v. Parbury Henty &Co. Pty. Itd.--The Minister of State for the Army v. Carrier Air Conditioning Ltd.-In my opinion, these appeals should be dis- missed. I agree with the reasons for judgment of his Honour the Chief Justice.

Brickworks Ltd. v. The Minister of State for the Army.-In my opinion, the appeal should be allowed, and the order proposed by the Chief Justice made.

70 CLR 509

WILLIAMS J.-The Minister of State for the Army v. Parbury Henty &Co. Pty. Ltd.-The Minister of State for the Army v. Carrier Air Conditioning Ltd.--As these two appeals have been heard together and raise the same question of principle, although they differ in their facts, they can be conveniently disposed of in the same judgment. Each company was dispossessed of premises, which it was occupying for the purposes of its business, under the authority conferred upon the Minister by reg. 54 of the National Security (General) Regulations and had to make new arrangements to carry on that business else- where. Each company was dissatisfied with the amount of com- pensation awarded by the Central Hirings Committee, and applied to have the loss and damage which it had suffered, and for which it was entitled to be compensated under reg. 60D, assessed by a Com- pensation Board. The Minister, being dissatisfied with the amounts awarded by the Board, applied to the Supreme Court of New South Wales to have the assessments reviewed. The reviews came on for hearing before Roper J., who reduced the amounts awarded by the Board, whereupon the companies appealed to the Full Court of New South Wales, no objection being taken by the Minister to the com- petence of the appeals, and in each case the Full Court restored the award of the Board. The Minister then appealed to this Court against the orders of the Supreme Court, no ground being taken in the notice of appeal that the Full Court was incompetent to entertain the appeals from Roper J. When the appeals came on for hearing in this Court, counsel for the Minister raised the point for the first time that the Full Court was incompetent and submitted that he was entitled to have the appeals allowed with costs and the orders of the Full Court set aside with costs. He relied on two recent decisions of the House of Lords, Benson v. Northern Ireland Road Transport Board 1 and Westminster Bank Ltd. v. Edwards 2. If the effect of upholding the point would be to restore the orders of Roper J. SO as to make them unappealable, the point would have considerable practical importance, but since, in the circumstances, it would be proper to grant the companies special leave to appeal, it becomes somewhat academic. But the decisions cited would appear to constrain the Court to consider it, although, if it succeeded, the question of the proper order for costs would require consideration.

The point is founded on the supposition that jurisdiction to enter- tain the reviews was conferred upon Roper J. by S. 39 (2) of the Judiciary Act 1903-1940. But his Honour was not, in my opinion, invested with jurisdiction under that section, but under reg. 60G. Although that regulation gives the claimant or the Commonwealth

1(1942) A.C. 520. 2(1942) A.C. 529. 70 CLR 510

a right to what the Regulations call a review of the award of the Board by a court, the review is in law an original proceeding in which the onus is on the claimant to prove his loss or damage, although it is the Commonwealth which has applied, and the proceedings before the Board, except SO far as the evidence is tendered by consent and on the subject of costs, are irrelevant. The curial proceedings are, therefore, in their essence a matter in which the claimant is the plaintiff and the Minister is a person who is being sued on behalf of the Commonwealth. This is sufficient to give this Court original jurisdiction under S. 75 of the Constitution. It was submitted that in consequence the courts of the States became invested with juris- diction under S. 39 (2). But S. 75 operates irrespective of and even against the intention of the Commonwealth Parliament, whereas the Judiciary Act is an Act of that Parliament, SO that Parliament can provide expressly or by implication that State courts shall be invested with Federal jurisdiction, not under that Act, but under some other Act. Where a right of action is given against the Commonwealth, it is usual for the legislation to specify the courts in which that right can be litigated Cf. the Judiciary Act 1903-1940, S. 56, and the Lands Acquisition Act 1906-1936, S. 37.

Regulation 60G provides that if either the Minister or the claimant is dissatisfied with the assessment of a Compensation Board, he may apply to a court of competent jurisdiction for a review of the assess- ment. It forms one of a series of regulations providing compensation for the loss or damage suffered by the persons mentioned in reg. 60D by reason of anything done under the regulations therein mentioned. Compensation had to be provided whenever there was an acquisition of property within the meaning of S. 51 (xxxi.) of the Constitution, otherwise the acquisition would have been unlawful. But the Constitution does not itself confer a right to compensation. That right must be created by legislation, as it is in the present case by the Regulations.

Under reg. 60G, the claim must first be considered by a Compensa- tion Board, which is an administrative body, as a condition precedent to any right of action arising in a court. If there is an application for a review, the court must proceed to hear the application and to determine whether any compensation is payable, and, if so, the compensation which it thinks just, and may make an order for payment of the compensation SO determined. In any matter not provided for in the Regulations, the powers, practice and procedure of the court are to be as nearly as may be in accordance with the powers, practice and procedure of the court in civil actions or appeals.

70 CLR 511

Section 79 of the Judiciary Act is not incorporated in the Regulations, and is therefore not relied on.

" A court of competent jurisdiction" is defined as meaning a court of the Commonwealth, or of a State or Territory of the Commonwealth (other than a court presided over by a justice of the peace, magistrate or district officer), which would have jurisdiction to hear and deter- mine the application if it were an action between subject and subject for the recovery of a debt equal to the compensation claimed in the original claim to the Minister.

The Regulations create a new right and a complete procedure for its recovery. In Doe d. Murray v. Bridges 1 Lord Tenterden said "Where an Act creates an obligation, and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner 2. It is a right, to apply Lord Halsbury's words in Pasmore V. Oswaldtwistle Urban District Council 3, where Lord Tenterden is cited, which is created by the Regulations and by them alone. In Josephson v. Walker 4 Isaacs J. said "Prima facie, where the same statute creates a new right and specifies the remedy, that remedy is exclusive

but on examination of the legislation, the legislative intention may be found- to be different the fair reading of the statute leads to the view that Parliament intended to create the right absolutely and independently of any specific form of remedy, the respondent's action is well brought. If

the proper construction is that the right and the remedy are inseparable, that they are combined and essential parts of a new scheme of public policy, then the action is wrongly conceived " 5.

Section 5 (1) (ac) of the National Security Act 1939-1943 provides that the Governor-General may make regulations for investing any court of a State with Federal jurisdiction with respect to any matter arising under the regulations. This provision was introduced and made retrospective by S. 4 of the Act of 1943, which enacts that all regulations in force at the time which were expressed to invest any court of a State with Federal jurisdiction shall be as valid and effectual as if that Act had been in operation when they were made. Thus the National Security Act expresses a clear intent that the investment of State courts with Federal jurisdiction in any matter arising under the regulations shall be effected by the regulations themselves. If reg. 60G is inconsistent with S. 39 (2) of the Judiciary Act, the regulation must prevail over the section (National Security

1(1831) 1 B. &Ad. 847 [109 E.R. 2(1831) 1 B. &Ad., at p. 859 [109 3(1898) A.C. 387, at p. 394. 4(1914) 18 C.L.R. 691. 5(1914) 18 C.L.R., at pp. 701, 702. E.R., at p. 1006]. 70 CLR 512

Act 1939-1943, S. 18). It is at least partly inconsistent because it excludes from competent courts those presided over by a justice of the peace, magistrate or district officer. But there is in truth no inconsistency because the regulation provides for the special invest- ment of defined courts. The Judiciary Act is a general Act, and the maxim generalia specialibus non derogant applies.

It was contended that the words or appeals" " do not refer to a right of appeal but to original applications to the court, as for instance an application under S. 124 of the Stamp Duties Act (N.S.W.), which are often referred to as appeals. But it is unnecessary to determine this contention because, assuming it to be sound, the powers, practice and procedure of the court in civil actions, when constituted by a judge without a jury under the Supreme Court Procedure Act, include an appeal to the Full Court, the effectiveness of a judgment which a single judge can enter under S. 5 sub-s. 3 being made by sub-s. 5 subject to an appeal to that Court. For these reasons, I am of opinion that the Supreme Court was empowered by reg. 60G to entertain the appeals. It is therefore unnecessary to determine whether the majority of the Victorian Supreme Court were right in holding in Kreglinger &Fernau Ltd. v. The Commonwealth 1 that a decision where, as in the present case, a single judge is sitting as the Supreme Court, means the decision of that judge, SO as to pre- clude an appeal from him to the Full Court of the State.

I shall now proceed to consider the appeals on their merits. The facts of each case have already been set out at length by the Compensation Board, Roper J. and the Full Court. They can be briefly summarized as follows :-Parbury Henty &Co. Ltd. were lessees of certain premises known as the Grace Building under a lease at a rental of £1,047 for a term expiring on 31st May 1943. On 28th August 1942, the Minister entered into possession of the whole of these premises under the authority conferred upon him by reg. 54. The company had to look for accommodation elsewhere to carry on its business, and obtained a lease of other premises for two years and eleven months at an annual rental of £454 and of a room at an annual rental of £45. It incurred expenses in dismantling and removing certain fixtures from the old to the new premises and installing them there, and in buying and installing certain new fixtures which, after allowing for residual values, totalled £1,137. The Board allowed this amount as compensation. No question arose as to the company's liability for rent and for its obligations under the lease because the Minister gave an indemnity.

1(1926) V.L.R. 310. 70 CLR 513

Carrier Air Conditioning Ltd. owns a certain building in Bourke Street, the whole of which it was occupying for the purposes of its business. On 5th May 1942, the Minister, under the authority of the same regulation, entered into possession of the front portion of this building, which made it necessary for the company to provide other accommodation for its office staff. For this purpose, certain altera- tions and improvements were made to the remaining portion of the building, and other premises were acquired some distance away at a rental of £275 per annum. The Board awarded as compensation £942 as the fair annual rental value of the front portion of the com- pany's premises. It also allowed a sum of £618 in respect of the expenses incurred by the company in making the alterations to its own premises and removing into and fitting up the new premises, and two annual sums of £104 and £87, the first being for a direct telephone line from the old to the new premises, and the second for further air conditioning of the old premises and certain electrical installations rendered necessary by the move.

The appellant does not dispute that the amount of £1,167 allowed to Parbury Henty &Co. Pty. Ltd. or the amounts allowed to Carrier Air Conditioning Ltd. are fair and reasonable allowances for the expenses which they incurred, and, in my opinion, directly incurred, as a result of the dispossessions. But Roper J. held that the Minister was entitled to set off against the expenses incurred by the companies in fitting up the substituted premises, in the case of Parbury Henty &Co. Ltd. the saving in rent by moving into the new premises; and in the case of Carrier Air Conditioning Ltd. the difference between the rent which the Minister was paying to the company for the premises taken over and the rent paid by the company for the new premises. He accordingly reduced the compensation awarded by the Board in each case by a substantial amount. On appeal the Supreme Court by a majority, Jordan C.J. and Halse Rogers J., Davidson J. dissenting, held that the Minister was not entitled to these set-offs and restored the awards of the board.

The question of principle arising on the merits is whether the Minister is entitled to these set-offs. Roper J. considered that the companies were bound to mitigate any loss or damage which they suffered from being dispossessed. Since they were able to carry their business as profitably in the substituted premises as in the old, and thereby derived the benefit already mentioned from being forced to make the new arrangements, this benefit should be set off against the detriment which they suffered from being dispossessed.

70 CLR 514

The established principle upon which compensation should be assessed is to ascertain the value of the property taken to the person dispossessed (Horn v. Sunderland Corporation (1) ), and for this purpose to estimate what sum a reasonably willing vendor could have expected a reasonably willing purchaser to pay, if he had been willing to sell his proprietary interest with all its existing advantages and future possibilities on the date of dispossession. In the present case, each company was occupying the premises of which it was dispossessed for the purposes of its business. In the case of Parbury Henty &Co. Pty. Ltd., it is not disputed that it was paying the full rental value of the premises at Grace Building,

SO that as lessee it was fully compensated by the Minister's indemnity. But the premises had the additional existing value of being so situated and equipped that it was an advantage to the company to occupy them and carry on its business there. In the case of Carrier Air Conditioning Ltd., the Minister carved a temporary slice in the nature of a lease out of its proprietary interest in the Bourke Street property for which compensation would be payable in the nature of rent. These premises also had the additional value that they were SO situated and equipped that it was an advantage to the company to occupy them and carry on its business there. The right to com- pensation arises at the moment of acquisition, just as the proprietary right of the owner of property upon a voluntary sale is converted into a right to receive the purchase money when the contract is made. The amount of compensation, being a matter of assessment, can, like damages, be calculated in the light of any subsequent facts to the extent to which they throw light upon the items of value which can properly be taken into account in the calculation, having regard to the circumstances existing at the date of acquisition (Australian Apple and Pear Marketing Board v. Tonking (2) McCathie v. Federal Commissioner of Taxation (3) ). In the present case it would have been reasonable for the companies, as willing sellers of the proprietary interests acquired by the Minister, to have claimed, not only for the value of the proprietary interests so acquired, but also for what can be compendiously called the expenses of removal into premises at least as commodious and congenial, taking a broad view of the matter, as those of which they were dispossessed. If, instead of moving into such premises, the company moved into less commodious premises, it would be the Minister and not the company which would benefit, if the claim which could reason- ably be made for the expenses of removal was thereby reduced. If

(I) (1941) 2 K.B. 26.

(3) (1944) 69 C.L.R. 1, at pp. 16, 17. (2) (1942) 66 C.L.R. 77, at p. 108.

70 CLR 515

the company had moved into more commodious premises, even at the same rent as that of the premises of which it had been dispossessed, it might well be that the amount claimed for the expenses of removal would be unreasonable, and would have to be reduced to what would have been a proper allowance if the company had been satisfied with equally commodious premises. But if Parbury Henty &Co. Ltd. had been approached by the Minister on 28th August 1942 to make a con- tract for sale of their leasehold interest in Grace Building, they could not reasonably have been expected to have calculated their expenses of removal as other than the expenses of moving into equally com- modious premises. And if Carrier Air Conditioning Ltd. had been approached by the Minister on 5th May 1942 to grant a lease of the front of the Bourke Street premises, it would have been entitled to make the same calculation. A prudent purchaser must have expected that he would have to provide a sum to meet these expenses as a part of the purchase money sooner than fail to obtain the premises (Pastoral Finance Association Ltd. v. The Minister 1 ). In other words, in the circumstances, the companies as reasonably willing vendors would have been entitled to demand a price which would enable them to reinstate themselves in equally suitable premises. But when the companies chose to move into less commo- dious premises, and there was no evidence that their business had suffered by the move, they could not reasonably claim more than the expenses which they had actually incurred.

Another method of calculating the compensation which leads in this instance to the same result is to ascertain what sum is required to reinstate the person dispossessed in equally convenient buildings on an equally convenient site (Geita Sebea v. Territory of Papua 2 ). As pointed out in the passages in Cripps on Compensation, 7th ed. (1931), p. 170 and Halsbury's Laws of England, 2nd ed., vol. 6, p. 45 there cited, this method has usually been applied to the acquisition of buildings used for non-commercial purposes, but it was applied in

A and B Taxis Ltd. v. Secretary of State for Air 3 SO as to enable that company, when it was dispossessed of its premises in Dublin by the Government for an indefinite period, to receive, as "the direct loss or damage incurred or sustained by reason of interference with their property or business " within the meaning of the Imperial Indemnity Act 1920, the expenses to which it was put in buying other premises, fitting them for use as a garage and transferring to them all the appliances of its business, less the proceeds of sale of the substituted premises which were sold when the original premises

1(1914) A.C. 1083, at p. 1088. 2(1941) 67 C.L.R. 544, at p. 550. 3(1922) 2 K.B. 328, 70 CLR 516

were returned by the Government, the purchase of the premises being in the circumstances of the case a reasonable act as being the necessary and only way of effectively substituting premises for those which had been taken 1. These proceeds of sale represented the residual value to the company of the property acquired for the purposes of reinstatement and correspond with the residual sums deducted by the Board.

But I am unable to agree with Roper J. that any other deductions should be made. The doctrine of the mitigation of damages applies when a person suffers damage from a breach of contract or tort and the damage or some part of it is mitigated by a subsequent transaction which arises out of transactions naturally attributable to the conse- quences of the breach, and must not be of an independent character (per Viscount Haldane L.C. in Williams Bros. v. Ed. T. Agius Ltd. 2 ) The underlying principle in awarding damages in contract or tort is restitutio in integrum. In James Patrick &Co. v. Minister for the Navy (s.s. Corrimal Case) 3, there is a reference to the danger of applying this principle to a claim for compensation. There is a similar danger in attempting to apply the doctrine of mitigation of damages to such a claim except to the extent that a vendor must be taken to be willing to accept a sum which will reason- ably compensate him for the value of the premises for the purposes of his business, SO that when he is dispossessed he can only claim such a sum as will be reasonably sufficient to reinstate him elsewhere.

I am, of course, dealing with the case where such a reinstatement is possible, and where it is reasonable under all the circumstances for him to continue in business elsewhere. If he obtained leasehold premises at a rent which was below the market value, and if, when the Minister gave up possession, he moved back into the old premises, it would appear from the A and B Taxis Case 4 that the saleable value of the lease at that date could be set off against the expenses of the two moves. But I am unable to see how a person dispossessed who moves into less commodious premises at a smaller rent than that payable for the previous premises gains any advantage which can be set off against the expenses of removal. The result of the transaction is simply that he is content with something less than full reinstatement.

For these reasons, I would dismiss both appeals with costs. Brickworks Ltd. v. The Minister of State for the Army.- only sat on this appeal SQ far as it related to the objection that the Full Court

1(1922) 2 K.B., at p. 343. 2(1914) A.C. 510, at p. 520. 3(1944) A.L.R. 254 (reported in part). 4(1922) 2 K.B. 328. 70 CLR 517

of the Supreme Court of New South Wales had no jurisdiction to entertain the appeal from Roper J.

For the reasons given in Minister of State for the Army v. Parbury Henty &Co. Pty. Ltd. and Minister of State for the Army v. Carrier Air Conditioning Ltd., I am of opinion that this objection fails.

The Minister of State for the Army v. Parbury Henty &Co.

Pty. Ltd.-The Minister of State for the Army v. Carrier Air Conditioning Ltd.-Appeals dismissed with costs. Brickworks Ltd. v. The Minister of State for the Army.-

Appeal allowed with costs. Order of Supreme Court set aside. Order that the respondent pay to the appellant the sum of £846 and costs of proceedings in the Supreme Court. Solicitor for the Minister of State for the Army, H. F. E. Whitlam, Crown Solicitor for the Commonwealth.

Solicitors for the appellant Brickworks Ltd. and the respondent Carrier Air Conditioning Ltd., Minter, Simpson &Co.

Solicitors for the respondent Parbury Henty &Co. Pty. Ltd., J. Stuart Thom &Co.