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NSW Rifle Association Inc v Commonwealth

NSW Rifle Association Inc v Commonwealth

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Case Copied 20 July 2012 81 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: NSW Rifle Association Inc v The Commonwealth of Australia [2012] NSWSC 818
Hearing dates: 12-15 June 2012
Decision date: 20 July 2012
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to paras [276]-[278] of judgment.

Catchwords:
CONTRACT - termination - contractual licence to occupy Commonwealth land - doctrine of executive necessity - whether the Commonwealth can terminate licence contrary to express contractual terms because of a change of policy concerning use of the land - contract entered into as present exercise of power as owner of land - not a fetter on future exercise of duty or discretion under statute or prerogative - held termination not justified on ground of executive necessity

CONTRACT - implied terms - whether the Commonwealth required to act reasonably and in good faith in exercising contractual power to require licensee to remedy default and to fix time for default to be remedied

CONTRACT - performance - obligation to keep buildings in good and safe repair - obligation to keep in good and safe repair includes requirement to first put into good and safe repair - whether obligation displaced by expectation of parties when entering into licence for anticipated short duration

REAL PROPERTY - whether agreement for use and occupation of land was lease or licence
CONTRACT - whether jurisdiction to grant relief against forfeiture of contractual licence to occupy land - if Commonwealth entitled to terminate licence for licensee's failure to remedy defaults within specified time limited, whether licensee entitled to relief against forfeiture
Legislation Cited: Associations Incorporation Act 1984 (NSW)
Defence Act 1903 (Cth)
Pipeline Authority Act 1973 (Cth)
Judiciary Act 1903 (Cth)
Conveyancing Act 1919 (NSW)
Firearms Act 1996 (NSW)
National Parks and Wildlife Act 1974 (NSW)
Cases Cited: NSW Rifle Association Inc v The Commonwealth of Australia (26 April 1990, Waddell CJ in Eq, unreported; BC9002511)
NSW Small-Bore and Air Rifle Association Inc v Commonwealth of Australia; NSW Rifle Association Inc v Commonwealth of Australia (Supreme Court of New South Wales, Bryson J, 22 July 1994, unreported; BC9405172)
NSW Rifle Association Inc v Commonwealth of Australia (Court of Appeal, 15 August 1997, unreported; BC9703604)
Ayr Harbour Trustees v Oswald (1883) 8 HL 623; (1882-83) LR 8 App Cas 623
Watson's Bay and South Shore Ferry Co Ltd v Whitfeld (1919) 27 CLR 268
William Cory & Son Ltd v London Corporation [1951] 2 KB 476
Commissioners of Crown Lands v Page [1960] 2 QB 274
Cugden Rutile (No. 2) Pty Ltd v Chalk [1975] AC 520
L'Huillier v State of Victoria [1996] 2 VR 465
City of Subiaco v Heytesbury Properties Pty Ltd [2001] WASCA 140; (2001) 24 WAR 146
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Rederiaktiebolaget Amphitrite v R [1921] 3 KB 500 ("The Amphitrite")
Robertson v Minister of Pensions [1949] 1 KB 227
Reilly v R [1934] AC 176
Suttling v Director-General of Education [1985] 3 NSWLR 427
Dunn v R [1896] 1…

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.

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Details

Case: [2012] NSWSC 818
Decision Date: 20 July 2012

CaseChat Overview and Summary

The case of NSW Rifle Association Inc v Commonwealth dealt with a dispute between the Commonwealth and the NSW Rifle Association over the termination of a licence to occupy Commonwealth land at Popran National Park. The NSW Rifle Association sought a declaration that the Commonwealth's termination of the licence was invalid, and that they were entitled to relief against forfeiture. The case was heard in the High Court of Australia.

The legal issues before the Court were whether the Commonwealth could terminate the licence contrary to the express terms of the contract due to a change in policy, whether the Commonwealth was required to act reasonably and in good faith in exercising its contractual powers, and whether the obligation to keep the buildings in good and safe repair included the requirement to first put them into good and safe repair. Additionally, the Court considered whether the agreement for the use and occupation of the land was a lease or a licence, and whether the Court had jurisdiction to grant relief against forfeiture of the licence.

The Court held that the doctrine of executive necessity did not justify the termination of the licence by the Commonwealth, as the licence was entered into as a present exercise of power as the owner of the land, and not a fetter on the future exercise of duty or discretion under statute or prerogative. The Court also found that the Commonwealth was required to act reasonably and in good faith in exercising its contractual powers, and that the obligation to keep the buildings in good and safe repair included the requirement to first put them into good and safe repair. The Court further held that the agreement for the use and occupation of the land was a licence and not a lease, and that the Court had jurisdiction to grant relief against forfeiture of the licence.

The Court's decision was that the termination of the licence by the Commonwealth was invalid, and that the NSW Rifle Association was entitled to relief against forfeiture. The Court further held that the Commonwealth was required to act reasonably and in good faith in exercising its contractual powers, and that the obligation to keep the buildings in good and safe repair included the requirement to first put them into good and safe repair.

Orders