Wheeler v War Veterans' Home - [1953] HCA 29

89 CLR 353

WHEELER AND ANOTHER

APPELLANTS; PLAINTIFFS,

WAR VETERANS' HOME AND ANOTHER

RESPONDENTS. DEFENDANTS, Acquisition of Land-Resumption-" Owner Member of the forces-Official acts-

Preliminary to resumption-During period of owner's protection-Resumption after expiration of protection period-Validity- Purpose-Public-Re-establish- ment and Employment Act 1945-1952 (No. 11 of 1945-No. 89 of 1952), ss. 108, 118, 130, 137-Crown Lands Consolidation Act 1913-1948 (N.S.W.) (No. 7 of 1913-No. 48 of 1948), S. 197-Public Trusts Act 1897-1944 (N.S.W.) (No. 8 of 1897-No. 8 of 1944), SS. 2, 3, 5.

The exercise of the power to acquire compulsorily land owned by a member of the forces, or any act or proceeding with a view to any such compulsory acquisition, without the prior consent thereto of the Attorney-General, is, by S. 118 of the Re-establishment and Employment Act 1945-1952, prohibited, and S. 120 prescribes the period of time during which a member of the forces is SO protected.

With the object of acquiring compulsorily certain land in which a member of the forces had a beneficial interest the Minister referred to a local land board the question whether the compulsory acquisition of that land for the purpose of extending a War Veterans' Home was warranted in the public interest. The board answered in the affirmative. The proceedings before that board took place during the period of protection applicable to the said member of the forces, but after that period had expired the Minister declared in the Government Gazette that the Home was a public purpose within the meaning of S. 197 of the Crown Lands Consolidation Act 1913-1946 (N.S.W.), and notice of the resumption of the land was published in the Government

Held, (1) that the declaration that the War Veterans' Home was a public purpose within the meaning of the Crown Lands Consolidation Act 1913-1946 (N.S.W.) was not a contravention of S. 118 of the Re-establishment and Employ- ment Act 1945; (2) that the basic acquisition was not void under State law; and (3) that S. 130 (2) of the Re-establishment and Employment Act 1945 does not purport to give an order of invalidation a retrospective effect.

Decision of Taylor J. affirmed.

89 CLR 354

APPEAL from Taylor J.

In an action brought in the High Court, by way of writ of summons, by Alice Ann Wheeler and Alan George Wheeler, mother and son, against the War Veterans' Home and the Minister for Lands for the State of New South Wales, the plaintiffs claimed relief under S. 130 (2) of the Re-establishment and Employment Act 1945-1952.

The statement of claim was substantially as follows 1. The plaintiffs were at all material times the registered proprie- tors pursuant to the Real Property Act 1900-1940 (N.S.W.) of certain land situate in the Parish of Manly Cove, County of Cumberland, in the Metropolitan Land District and being part of the land comprised in Certificate of Title, vol. 4162, fol. 143, comprising, inter alia, fifty acres, two roods, thirty-eight perches being part of portion 1299 east of South Creek Road.

2.…

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 Wheeler v War Veterans' Home

Details

AGLC: Wheeler v War Veterans' Home [1953] HCA 29
Case: [1953] HCA 29
Decision Date: 20 May 1953

CaseChat Overview and Summary

The appellants, Alice Ann Wheeler and Alan George Wheeler, sought to invalidate the compulsory acquisition of their land by the respondent, the War Veterans' Home, and the Minister for Lands for New South Wales. The dispute arose from the Minister's actions taken with a view to acquiring the land for the extension of the War Veterans' Home, which the appellants contended was done in contravention of the *Re-establishment and Employment Act 1945-1952*. The matter was heard in the High Court of Australia.

The primary legal issues before the court were whether the preliminary steps taken towards the resumption of the land, which occurred during the period of protection afforded to Alan George Wheeler as a member of the forces under the *Re-establishment and Employment Act*, constituted a contravention of section 118 of that Act. Further, the court had to determine the effect of any such contravention on the validity of the resumption, particularly in light of section 130 of the same Act, which allows for the invalidation of transactions or proceedings entered into in contravention of the Act, subject to certain conditions. The court also considered whether the declaration of the War Veterans' Home as a public purpose under the *Crown Lands Consolidation Act 1913-1948* (N.S.W.) was valid and whether the resumption itself was valid under State law.

The court reasoned that while the preliminary steps taken towards the resumption, such as the reference to the local land board and the declaration of the War Veterans' Home as a public purpose, occurred during the period of protection for Alan George Wheeler and thus constituted a contravention of section 118 of the *Re-establishment and Employment Act*, this did not automatically invalidate the resumption. The court noted that the actual notification of resumption was published after the expiration of the protection period. Crucially, section 130 (2) of the *Re-establishment and Employment Act* provides that an order of invalidation shall not be made if it would prejudice the rights of a person who acquired them bona fide and without notice of the contravention. The court found that the War Veterans' Home had acted bona fide and without notice of any contravention, and that invalidating the preliminary steps would not affect the validity of the resumption itself, which had occurred after the protection period had expired.

Consequently, the High Court affirmed the decision of Taylor J. and dismissed the appeal. The court held that the declaration of the War Veterans' Home as a public purpose was not a contravention of section 118, the acquisition was not void under State law, and section 130 (2) of the *Re-establishment and Employment Act* does not purport to give an order of invalidation retrospective effect that would prejudice bona fide rights acquired without notice.

Orders