Perry v Clissold - [1906] UKPCHCA 5

374HIGH COUllT

[1906.

[PRIVY

COUNCIL.]

PERRY

Appellant;

CLISSOLD AND OTHERS

Respondents.

ON APPEAL FROM THE HIGH COURT OF

AUSTRALIA.

PrivyLands for Public Purposes Acguisition Act 1880 {N.S. IP.), (44 Viet. No. 16), secs.

Council.*

P2, 13), {consolidated in Public Works Act 1900, secs. 95, 96)—Resumption of

1906. Land—Compensation—Person in exclusive possession—RiejMftd owner un

known.

Dec. 14.Where land in the exclusive possession of a person under a holding title is resumed by the Crown under the Lands for Public Purposes Acquisition Act 1880 (N.S. W.), a primd facie case for compensation under the Act is disclosed.

A case for compensation is not necessarily excluded by the circumstance that under the Act the Minister acquired not merely the title of the per son in possession as owner, but also the title, whatever it might be, of the unknown rightful owner out of possession who never came forward to claim the land or the compensation payable in respect of it.

Doe v. Barnard, 13 Q.B., 945, disapproved.

Decision of High Court (Olissold v. Perry, 1 C.L.R., 363), affirmed.

Appeal to His Majesty in Council from the decision of the High

Court: Olissold v. Perry (1).

The judgment of their Lordships was delivered by

Lord Macnaghten.

This was an appeal from a judgment of

the High Court of Australia, dated the 20th of June 1904, reversing a judgment of the Supreme Court of New South Wales. It raised a question under the Lands for Public Purposes

* Present. — The Lord Chancellor, Lord Atkinson, Sir Ford North, Sir

The Earl of Halsbury, Lord MacArthur

Wilson.

naghten, Lord Davey, Lord Robertson,

(1) 1 C.L.R., ,36.3.

4 C.L.K.]OF AUSTRALIA.

375

Privy

Acqidsition Act 1880 (44 Viet. No. 16), now superseded by the

CousciL.

Public Works Act 1900, which consolidates the law on the

1906.

subject.

Perry

The Act of 1880 in its preamble recites that it is expedient to

make provision for the acquisition on behalf of the Crown of

Clissold.

lands required for certain purposes, including among others “ sites for public schools,” and “ to provide compemsation for lands so acquired.”

Gazette, declare that such land, if private property, has been resumed for such purposes (sec. 6).

The following are the material provisions of the Act. school site he may, by notification in the

Upon such publication the land is forthwith vested in tlie Minister of Public Instruction and his successors on behalf of the Crown, for the purposes of the Act, for an estate of inheritance in fee simple in possession freed and discharged from all other estates and interests (sec. 8).

The owners of the land or the persons wlio, but for tlie pro visions thereinbefore contained would liave been such owners are entitled to receive such sum of money by way of compensa tion for the land of which they have been deprived under the Act as may be agreed upon or otherwise ascertained under the provisions thereinafter contained (sec. 10).

The estate and…

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: [1906] UKPCHCA 5
Decision Date: 14 December 1906

CaseChat Overview and Summary

In the case of Perry v Clissold, the appeal was brought before the Privy Council from the decision of the High Court of Australia, which had reversed a judgment of the Supreme Court of New South Wales. The central issue was whether a person in exclusive possession of land, which was resumed by the Crown under the Lands for Public Purposes Acquisition Act 1880 (N.S.W.), had a prima facie case for compensation under the Act. The respondents, who were the trustees of the deceased's estate, argued that the land was in the possession of their testator at the time of resumption and thus they were entitled to compensation. The court considered whether the Minister's acquisition of both the possessory title and the unknown rightful owner's title precluded a compensation claim. The Privy Council held that the Act intended to compensate those deprived of their land and that acquiring the title of the unknown rightful owner did not necessarily exclude a compensation claim.

The legal issues before the court involved the interpretation of the Lands for Public Purposes Acquisition Act 1880 and the implications of acquiring both possessory and rightful titles under the Act. The court examined whether the Minister's acquisition of the possessory title and the unknown rightful owner's title could exclude a compensation claim. The Privy Council reviewed the relevant statutory provisions and the case law, including Doe v. Barnard, which was disapproved. They concluded that a prima facie case for compensation was established and that the compensation should be assessed based on the value of the land at the time of the notification of the resumption. The court emphasized that the Act was designed to compensate those deprived of their land and that the unknown rightful owner's non-claim did not preclude the compensation claim.

Orders