Minister for Lands v Priestley - [1911] HCA 68

13 CLR 537

THE MINISTER FOR LANDS

ROBERT EDWARD PRIESTLEY

RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF Crown Lands-Improvement lease-Forfeiture-Reservation from sale or lease-

Crown Lands Act 1884 (N.S. W.) (48 Vict. No. 18), secs. 96, 136-Crown Lands Act 1895 (N.S. W.) (58 Vict. No. 18), sec. 26-Crown Lands (Amend- ment) Act 1908 (N.S. W.) (No. 30), sec. 42.

When an improvement lease has been forfeited under sec. 96 of the Crown Lands Act 1884, the land included in the lease becomes Crown land reserved from sale or lease until otherwise notified in the Gazette, within the meaning of sec. 136 of that Act, as amended by sec. 42 of the Crown Lands (Amend- ment) Act 1908.

Decision of the Supreme Court: In re Priestley, 11 S.R. (N.S.W.), 107,

APPEAL by the Minister for Lands from the decision of the Supreme Court allowing an appeal by the respondent from the decision of the Land Appeal Court upon a case stated.

By notice in the Government Gazette of 27th January 1910 an improvement lease, which had been granted under sec. 26 of the Crown Lands Act 1895, was declared to be forfeited. On 28th April 1910 the respondent Priestley applied for a conditional purchase and conditional lease of certain lands within the boundaries of the forfeited improvement lease. On 14th June 1910 the local land board allotted to the respondent the land applied for by him in virtue of the said applications. On

13 CLR 538

H. July 1910 the Minister for Lands, under the provisions of sec. 59

of the Crown Lands Act 1895, applied to the Land Appeal Court for disallowance of the applications upon the ground that the lands applied for had on forfeiture of the improvement lease PRIESTLEY. became reserved from sale or lease until otherwise notified in the

Gazette, and that, no notification having been published, such lands were not available for conditional purchase or lease. The Land Appeal Court held that the lands were reserved from sale or lease. The Supreme Court, on appeal from the Land Appeal Court, held that they were not: In re Priestley 1.

Ralston K.C., and Hanbury Davies, for the appellant. The Supreme Court held that sec. 136 of the Crown Lands Act 1884 applied to conditional purchases and conditional leases, but did not apply to improvement leases, which were first created by the Crown Lands Act 1895. Sec. 136 is clearly divisible into two parts. The first part provides that, where a conditional pur- chase is forfeited, all rights held by virtue of it are also forfeited. It deals only with the consequences of forfeiture. Secs. 48 to 54 deal with applications for conditional leases. Sec. 38 provides for the forfeiture of a conditional purchase and sec. 96 for the forfeiture of a lease or licence. Sec. 136 deals with all these cases. Improvement leases are first dealt with by sec. 26 of the Crown Lands Act 1895. Sec. 1 (c) of that Act provides that it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Minister for Lands v Priestley

Details

AGLC: Minister for Lands v Priestley [1911] HCA 68
Case: [1911] HCA 68
Decision Date: 18 December 1911

CaseChat Overview and Summary

The Minister for Lands appealed to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute concerned the availability of land previously held under an improvement lease that had been forfeited. The respondent, Mr. Priestley, had applied for a conditional purchase and conditional lease of land within the boundaries of the forfeited improvement lease. The Land Appeal Court had found that the land was reserved from sale or lease following the forfeiture, but the Supreme Court had held otherwise.

The central legal issue before the High Court was whether land included in an improvement lease, once forfeited under section 96 of the Crown Lands Act 1884, became Crown land reserved from sale or lease under section 136 of that Act, as amended by section 42 of the Crown Lands (Amendment) Act 1908. This determination hinged on the interpretation of section 136, specifically whether its general provisions regarding forfeited land applied to improvement leases, a tenure created by later legislation.

The High Court, allowing the appeal, reasoned that the Crown Lands Act 1895, which introduced improvement leases, was to be read as part of the Crown Lands Act 1884. Therefore, provisions relating to improvement leases were to be considered as if they were incorporated into the earlier Act. The Court found that the words "whenever any land shall be forfeited under this Act" in section 136 were general in their application and not limited to the specific types of holdings mentioned in the earlier part of the section. The Court also addressed arguments that the term "land" in section 136 referred only to freehold tenure and that forfeited leases did not constitute a "forfeiture of land," finding these arguments unpersuasive given the context and other provisions within the Crown Lands Acts that referred to leaseholds as land. The amendment in 1908, which added the phrase "reserved from sale or lease until otherwise notified in the Gazette," further supported the interpretation that forfeited land, regardless of its prior tenure, was automatically reserved.

Consequently, the High Court held that upon the forfeiture of the improvement lease, the land became Crown land reserved from sale or lease until otherwise notified in the Gazette. As no such notification had been made, the land was not available for Mr. Priestley's applications for a conditional purchase and conditional lease. The appeal was allowed, and the decision of the Supreme Court was overturned.

Orders