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South Australia v Victoria

South Australia v Victoria

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Case Copied 22 May 1911 86 min read

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12 CLR 667

THE STATE OF SOUTH AUSTRALIA

THE STATE OF VICTORIA

DEFENDANTS. Jurisdiction of High Court-" Matters between ates"-Dispute as to boundary

between States-Boundary fixed by Imperial Statute-Authority of Governors to mark boundary on the ground-Effect - of marking-4 &5 Will IV., c. 95- The Constitution (63 &64 Vict., c. 12), sec. 75.

The "matters" between States, in respect of which original jurisdiction is by sec. 75 of the Constitution conferred on the High Court, are matters which are of a like nature to those which can arise between individuals and which are capable of determination upon principles of law.

Therefore, the boundary between two States having been fixed by an Imperial Act of Parliament before federation,

Held, that the High Court had jurisdiction to entertain an action by one of these States against the other seeking a declaration that certain land adjoin- ing that boundary and in the de facto occupation of the latter State formed part of the territory of the former State.

12 CLR 668

The boundary between the Colony of South Australia and that portion of the Colony of New South Wales which now forms the State of Victoria having been fixed by 4 &5 Will. IV., c. 95, and by Letters Patent thereunder of 19th February 1836 as the 141st meridian of East longitude.

Held (Higgins J. dissenting), that an authority was to be implied in the Governors of South Australia and New South Wales jointly, possibly without, and certainly with, the concurrence of the Crown signified through a Secretary of State, to permanently locate and mark on the ground that boundary as soon as circumstances called for an exercise of that authority and that, if the boundary having been so located and marked was afterwards found to have been marked and located in the wrong place, the error could not thereafter be corrected by any judicial authority.

In 1847, by the authority of the Governors of New South Wales and South Australia and with the knowledge and approval of the Secretary of State, a line was located and marked on the ground as being the 141st meridian, but was in fact, as was discovered in 1869, about two miles to the westward of that meridian. The line so marked was proclaimed by the respective Gover- nors as the boundary and was the de facto boundary thenceforward. From 1869 onwards the Government of South Australia protested against the con- tinuation of the error in the marking out of the boundary and sought to have it rectified, but without result. In an action by the State of South Australia against the State of Victoria,in the High Court claiming a declaration that the strip of land between the 141st meridian and the line so marked out was part of the territory of South Australia.

Held, that South Australia had no right of which the High Court could take cognizance.

By Higgins J.-As the true 141st degree of East longitude was made the boundary by a British…

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: [1911] HCA 17
Decision Date: 22 May 1911

CaseChat Overview and Summary

The State of South Australia commenced an action in the High Court against the State of Victoria concerning a dispute over their shared boundary. South Australia sought a declaration that a strip of land, approximately two miles wide and in the de facto occupation of Victoria, was in fact part of South Australian territory. The boundary in question had been fixed by an Imperial Act of Parliament and subsequent Letters Patent as the 141st meridian of East longitude.

The High Court was required to determine two primary legal issues. Firstly, whether the Court possessed original jurisdiction under section 75 of the Australian Constitution to hear and determine a boundary dispute between two Australian States. Secondly, if jurisdiction was established, the Court had to ascertain the legal effect of a line marked on the ground in 1847 as the 141st meridian, which was later discovered to be approximately two miles west of the true meridian, and whether this marked line, or the true meridian, constituted the legal boundary between the two States.

The majority of the Court, comprising Griffith C.J., Barton, and Powers JJ. (with Isaacs J. concurring on the jurisdictional point but dissenting on the merits), held that the High Court did have jurisdiction to entertain such a dispute, reasoning that "matters between States" under section 75 of the Constitution encompassed disputes capable of determination by legal principles, akin to controversies between individuals. However, on the merits, the majority found that the Governors of South Australia and New South Wales, with the concurrence of the Crown, had the implied authority to permanently mark the boundary on the ground. They concluded that the line marked in 1847, despite being an error, had been established as the de facto and legal boundary and could not be corrected by judicial authority. Higgins J., dissenting, argued that only an Act of the Imperial Parliament could alter the boundary fixed by statute, and therefore the marked line, being erroneous, could not legally define the boundary.

Consequently, the High Court dismissed the claim by the State of South Australia. The Court ordered that South Australia had no right to the disputed strip of land of which the High Court could take cognizance, effectively upholding the de facto boundary as the legal one.

Orders