New South Wales v The Commonwealth - [1926] HCA 23

THE STATE OF NEW SOUTH WALES

AND ANOTHER

THE COMMONWEALTH Crown Lands N.S.W.)-Dedication-Revocation of dedication-Garden Island-

Dedication to purposes of naval depot-Whether dedication perpetual-User and occupation by Imperial Navy-Agreement between Imperial Government and Government of State-Imperial Order in Council-Effect of recitals-Common- April 12-15;

wealth holding in right of Imperial Government-Right of New South Wales to Aug 18.

possession-New South Wales Constitution Act 1855 (18 &19 Vict. c. 54), sec. 2-Crown Lands Alienation Act 1861 (N.S.W.) (25 Vict. No. 1), secs. 3, 5-Colonial Fortifications Act 1877 (40 &41 Vict. c. 23), sec. 1-Crown Lands Consolidation Act (N.S.W.) (No. 7 of 1913), sec. 25-Imperial Order in Council of 26th October 1899. Practice-High Court-Original jurisdiction-Hearing of action-Direction that

whole case be argued before Full Court-Judiciary Act 1903-1920 (No. 6 of 1903 --No. 38 of 1920), sec. 18.

Garden Island, in Port Jackson, was, at the time the New South Wales Constitution Act 1855 was enacted, part of the waste lands of the Crown, the entire management and control of which was by sec. 2 of that Act vested in the Legislature of New South Wales. Pursuant to sec. 5 of the Crown Lands Alienation Act of 1861 (N.S.W.) the Island was, as to one part in 1865 and as to the other part in 1866, dedicated for the purposes of a naval depot. The Island had for some years before 1865 been continuously and exclusively used by the Imperial Government as a naval depot for the Royal Navy, and thereafter continued to be SO used until 1913, since when the Island was used by the Commonwealth for the purposes of the Australian Navy. By an Imperial Order in Council of 26th October 1899, made pursuant to the Colonial Fortifications Act 1877, it was recited that an agreement had been made between the Imperial Government and the Government of New South Wales that

38 CLR 75

certain improvements should be made to Garden Island and a suitable residence for the representative of the Navy on the Australian Station should be provided, and that, as soon as those works were carried out and the sites of a receiving depot and the said residence were conveyed, granted or dedicated in perpetuity for the use of Her Majesty's Navy "in the same way as Garden Island had been," the Imperial Government would surrender certain Ordnance Reserve and other lands. The Order in Council then set out that in consideration of the premises Her Majesty ordered that the Ordnance Reserve and other lands be and the same were vested in the Government of New South Wales. On 12th October 1923 the Minister administering the Crown Lands Consolidation Act 1913 (N.S.W.) purported, pursuant to sec. 25 of that Act, to revoke the dedication of Garden Island.

Held, by Knox C.J., Higgins, Gavan Duffy, Rich and Starke JJ. (Isaacs J. dissenting), that, notwithstanding the Order in Council of 26th October 1899 and the matters recited therein, the Minister might lawfully revoke the

Held, also, by…

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.

Keep reading for free

Create a free CaseChat account to read New South Wales v The Commonwealth and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1926] HCA 23
Decision Date: 18 August 1926

CaseChat Overview and Summary

The case of *New South Wales v The Commonwealth* was heard in the High Court of Australia. The State of New South Wales sought possession of Garden Island, or alternatively, a declaration of entitlement to possession, against the Commonwealth. The dispute arose from the State's purported revocation of a dedication of Garden Island for use as a naval depot.

The central legal issues before the Court were whether the dedications of Garden Island for naval depot purposes in 1865 and 1866 were perpetual and could be lawfully revoked by the Minister administering the Crown Lands Consolidation Act 1913 (NSW), and whether an Imperial Order in Council of 26th October 1899, and the agreement recited therein, affected the State's power to revoke such dedications. The Court was also required to determine whether the Commonwealth, claiming in right of the Imperial Government, had a superior right to possession of the Island.

A majority of the High Court (Knox C.J., Gavan Duffy, Rich and Starke JJ.) held that the State of New South Wales was entitled to possession of Garden Island as against the Commonwealth. The Court reasoned that Garden Island was part of the waste lands of the Crown, the management and control of which was vested in the Legislature of New South Wales by the New South Wales Constitution Act 1855. The subsequent dedications for naval depot purposes under the Crown Lands Alienation Act 1861 (NSW) did not confer any legal or equitable right upon the Imperial Government or any other authority that could prevent the State from revoking the dedication. The Court found that the Imperial Order in Council of 1899, made pursuant to the Colonial Fortifications Act 1877, did not interfere with the constitutional powers of New South Wales regarding its Crown lands and did not dedicate Garden Island in perpetuity. Therefore, the revocation of the dedications by the Minister in 1923 under section 25 of the Crown Lands Consolidation Act 1913 was lawful and effective.

Consequently, the majority of the Court ordered that a declaration of right to possession in favour of the State of New South Wales would be sufficient, with liberty to apply. Isaacs J. dissented, arguing that the State's claim should fail on equitable grounds, and Higgins J. also dissented, disagreeing with the majority's conclusion on the lawfulness of the revocation.

Orders