Orr v Ford - [1988] HCATrans 146

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl9 of 1988
B e t w e e n -
JOHN STUART ORR

Appellant

and
BRIAN HUBIRD FORD and PHILIP
STRUGNELL as Executors of the
Will of the late FRANCIS WILLIAM
STONE

Respondents

MASON CJ
WILSON J
DEANE J

TOOHEY J

Orr(3)

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 2 AUGUST 1988, AT 10.18 AM

C2T 1/1/JM

2/8/88

MR G.L. DAVIES, QC:

May it please the Court, I appear

with my learned friend, MR R. BAIN for the

appellant. (instructed by Cannan & Peterson)

MASON CJ:

Yes, Mr Davies.

Yes, Mr Chesterman?

MR R.N. CHESTERMAN, QC:

May it please the Court, I appear

with my learned friend, MR D. RYAN for the
respondents. (instructued by T.J. Gibson & Co)

MASON CJ:

Yes.

Mr Davies.

MR DAVIES:

May it please the Court, may I hand up some

copies of our outline?

MASON CJ: Thank you. Yes.

MR DAVIES:

Your Honours, the appeal concerns the construction of some provisions of the LAND ACT.

Were it not

for the construction which the trial judge and the
Full Court arrived at of those provisions, they
would have granted the declaration which the
plaintiff appellant sought and seeks that a
holding, a selection under the LAND ACT, was held

in trust as to one half for him. In our respectful
submission the conclusion which the trial judge
and the Full Court reached as to the construction of
those provisions is wrong.
Could I take Your Honours immediately to the

first of the relevant provisions, which is section 91
of the LAND ACT?

(Continued on page 3)

C2Tl/2/JM	2	2/8/88
Orr(3)

MR DAVIES (continuing):

Your Honours, it provides, relevantly:

Subiect to this Act -
and may I pause there to say that we will be making
a submission that that means, amongst other things,

"subject to sections 296 and 297". Then:

(b) any .....

(ii) person who in respect of the land .... held - I will leave "applied for" out of account for

the moment. And then the following line:
is a trustee -

and then again in the following line:
for any other person,
shall not be competent to ..... hold any
selection.

It will be our submission, Your Honours, that
that subsection must be read with and subject
to sections 296(1) and (2) - I will not go to
them yet, Your Honours - and 297 ( 1) and ( 2).
If I may, at the outset, say what we say the effect
of those sections taken together is, we say the
combined effect of those provisions is that a
person who holds the selection as a trustee is
liable to have his holding forfeited - that question

being a question, ultimately, for the discretion
of the minister.
Your Honours, in dealing with section 91
in the way I have, I have omitted the provision

which provides that:

any -

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 Orr v Ford

Details

AGLC: Orr v Ford [1988] HCATrans 146
Case: [1988] HCATrans 146
Decision Date

CaseChat Overview and Summary

The appeal before the High Court of Australia concerned the construction of provisions within the Land Act. The appellant, Mr. Orr, sought a declaration that a selection held under the Act was held in trust for him as to one half. The trial judge and the Full Court had previously found in favour of the appellant's construction of the relevant provisions, which would have granted the declaration sought. However, the appellant argued that this construction was erroneous.

The central legal issue was the interpretation of section 91 of the Land Act, particularly in conjunction with sections 296 and 297. The appellant contended that section 91, which addresses the competence of individuals to hold land, must be read subject to sections 296 and 297. The appellant's submission was that the combined effect of these provisions rendered a person holding a selection as a trustee liable to have their holding forfeited, with the ultimate decision resting in the discretion of the relevant authority.

The appellant argued that the term "competent" in section 91, when applied to both applying for and holding land, carried a similar meaning. Specifically, it was submitted that a trustee was not competent to apply for a selection, and similarly, a trustee holding a selection was not competent to continue holding it, leading to potential divestment. This was contrasted with other provisions in the Act, such as section 274, which explicitly rendered certain transactions, like specific subleases, unlawful, and stipulated consequences for breaches of lease conditions.

Orders