Sec. 13 of the Crown Lands Alienation Act of 1861 (N.S.W.) provided that certain Crown lands should be open for conditional sale; and sec. 18 provided that, at the expiration of three years from the conditional sale and after payment of the purchase money and compliance with certain other con- ditions, a grant in fee simple should be issued to the purchaser with reserva- tion of any minerals which the land may contain." Sec. 2 of the Crown Lands Act of 1884 (N.S.W.) repealed certain Acts including the Crown Lands Aliena- tion Act of 1861, but enacted that the repeal should not " (iii.) Prejudice or affect any proceeding matter or thing lawfully done or commenced or con- tracted to be done under the authority of any enactment or regulation hereby repealed," and provided that "(b) All rights accrued and obligations incurred or imposed under or by virtue of any of the said repealed enactments shall subject to any express provisions of this Act in relation thereto remain un affected by such repeal." By sec. 4 the word "minerals," unless the context necessarily required a different meaning, was defined to mean and include coal, kerosene shale and any of certain named metals or any ore containing the same, " and any other substance which may from time to time be declared a mineral within the meaning of this Act by Proclamation of the Governor published in the Gazette." Sec. 5 provided that 'Crown lands shall not be sold leased dedicated reserved or dealt with except under and subject to the pro- visions of this Act," &. Sec. 6 provided that "The Governor on behalf of Her Majesty may grant dedicate reserve lease or make any other disposition of Crown lands but only for some estate interest or purpose authorized by this Act and subject in every case to its provisions." Sec. 7 provided that " All grants of land issued under the authority of this Act shall contain a reser- and exceptions as may by the Governor be deemed expedient in the public
Held, by Griffith C.J. and Rich J. (Gavan Duffy J. dissenting), that a Crown grant issued after the passing of the Crown Lands Act of 1884 pursuant to a purchase by conditional sale under sec. 13 of the Crown Lands Alienation Act of 1861 should, in an action between strangers to which the Crown in right…
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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AGLC
The Commonwealth v Hazeldell Ltd [1918] HCA 75
Case
[1918] HCA 75
Decision Date
CaseChat Overview and Summary
The Commonwealth appealed to the High Court of Australia from a decision of the Supreme Court of New South Wales concerning compensation for land acquired under the Lands Acquisition Act 1906. The dispute arose from a claim for compensation by Hazeldell Ltd. for land containing limestone deposits, which the Commonwealth had acquired. The core of the disagreement centred on whether the limestone was a reserved mineral belonging to the Crown, thereby affecting the compensation payable to Hazeldell Ltd.
The legal issues before the High Court were twofold: first, the proper interpretation of the reservation of "all minerals" in a Crown grant issued in 1886, particularly in light of subsequent legislation defining "minerals"; and second, the application of section 46(2) of the Mining Act 1906 (NSW) to determine whether the land was open to public mining for limestone, thereby impacting the compensation entitlement. The court was required to ascertain the legal effect of the reservation in the Crown grant and the scope of the Mining Act 1906 in relation to private land and declared minerals.
Griffith C.J. and Rich J., in their joint judgment, held that a Crown grant issued after the commencement of the Crown Lands Act 1884, but pursuant to a conditional sale under the earlier Crown Lands Alienation Act 1861, should be construed according to the provisions of the 1884 Act when determining rights between private parties. They reasoned that the reservation of "all minerals" in such a grant should be interpreted in accordance with the definition of "minerals" provided by the relevant legislation at the time of the grant's construction. Furthermore, they interpreted the term "reservation" in section 46(2) of the Mining Act 1906 to mean a clause that legally effected a reservation at the date of the Crown grant. Consequently, they concluded that the reservation in the 1886 grant did not legally reserve limestone, as it was not considered a mineral under the applicable legislation at that time. The court also considered the meaning of "minerals" in both instances within section 46(2) to refer to the same substances, and that a Proclamation declaring limestone a mineral under the Mining Act 1906 did not retroactively alter the meaning of the reservation in the 1886 grant.
The appeal was dismissed, with Griffith C.J. and Rich J. affirming the decision of the Supreme Court of New South Wales. They held that Hazeldell Ltd. was entitled to compensation for the value of the limestone, as it was not effectively reserved to the Crown by the 1886 grant and was therefore considered part of the land acquired by the Commonwealth. Gavan Duffy J. dissented, finding that the Crown grant should be construed under the 1861 Act and that limestone was a mineral within the ordinary signification of the word, thus falling under the reservation and the provisions of the Mining Act 1906.