Leonard George Munday v Australian Capital Territory [1998] ACTSC 254 (8 July 1998)

  
  
  
  

  
   Downlaod RTF

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   HIGGINS J

  

  

   Property
Law - Unalienated Crown land in ACT - Public rubbish dump - Rights
of public to have access to - Rights of Crown over - Powers of
ACT Executive
in relation to - Whether Territory may grant exclusive right to salvaging
company to salvage materials left on site
- Nature and extent of such right -
Whether, to what extent, and by what means Territory may restrict access to
landfill areas to
certain persons - Whether, to what extent, and by what means
Territory may regulate activities of persons lawfully in landfill areas
-
Whether subsequent grant of Crown lease to Territory over site affects
parties' legal positions - Does not affect rights of either
party.

  

   Property Law - Ownership - Materials deposited at public rubbish dump in
Territory - Whether abandoned goods - Whether
property of Territory -
Occupiers' rights to property - Rights of finders - Relevance of requirement
that fee be paid to enter site
by all but salvaging company employees -
Constitutes grant of licence - Effect of signage on site and notice on receipt
asserting
exclusive rights to salvaging company to salvage materials left on
site - Effect of signage on site asserting that all deposited
material is
property of Territory - At what point does property in such materials pass to
Territory - Once materials no longer in
actual or constructive possession of
original owners - Whether owners entitled to transfer possession on site to
anyone other than
Territory - Gifts of goods by original owners to plaintiff
prior to abandonment not unlawful nor prohibited under terms of licence.

  

   Property Law - Licences - Whether person paying fee to enter public rubbish
dump becomes licensee of Crown - Terms of such
licence - Effect of signage on
site and notice on receipt asserting exclusive rights to salvaging company to
salvage materials left
on site - Effect of signage on site asserting that all
deposited material is property of Territory - Nature of such licence -
Contractual
- Licensee's rights - Licensor's rights.

  

   Property Law - Enclosure of public land - Power of ACT Executive to enclose
Commonwealth
land in Territory - Limits imposed by legislation - Public
rubbish dump - Consistency with Territory Plan.

  

   Injunctions -
Licensee as against licensor - Member of public as against
Crown servants and agents - Application to restrain Territory from interfering
with plaintiff's scavenging activities at public rubbish dump - Licensee's
rights - Licensor's rights - Partial relief granted.

  

   Australian Capital Territory (Planning and Land Management) Act 1988 (Cth),
ss.25-29

   Australian Capital Territory (Self Government) Act 1988 (Cth), ss.28, 36

   Seat of Government Acceptance Act 1909 (Cth), s.7

   Seat of Government (Administration) Act 1910 (Cth), s.9

   Trade Practices Act 1974 (Cth), Part 12

   Crimes (Offences against the Government) Act 1989 (ACT), s.19

   Crown Proceedings Act 1992 (ACT), s.5

   Enclosed Lands Protection Act 1943 (ACT), ss.3, 4

   Land (Planning and Environment) Act 1991 (ACT), s.8

   Motor Traffic Act 1936 (ACT), s.4

   Roads and Public Places Act 1937 (ACT), s.2

   Traffic Act 1937 (ACT)

   Trespass on Territory Land Act 1932 (ACT), ss.4, 8A, 8B

   Territory Plan , part B10

   Magna Carta
25 EDW.1 c.29 (1297), Article 29

   Dicey, "Law of the Constitution" , 10 th ed.

   Wade & Phillips' Constitutional Law, 6 th ed.

  

   Mabo v Queensland (No.2) [1992] HCA 23;  (1992) 175 CLR 1; cited

   Lukey v Sydney Harbour Trust Commissioners (1902) 2 SR (NSW) Eq.152; cited

   De Britt v Carr [1911] HCA 32;  (1911) 13 CLR 114; cited

   A-G v The Municipal Council of Sydney (1919) 20 SR (NSW) 46; referred to

   Exp. Collins (1914) 14
SR (NSW) 31; cited

   Wik Peoples v Queensland [1996] HCA 40;  (1996) 187 CLR 1; referred to

   Golden-Brown v Hunt (1972) 19 FLR 438; referred to

   Kruger v Commonwealth of Australia [1997] HCA 27;  (1997) 71 ALJR 991; referred to

   A-G v Brown (1847) 1 Legge 312; considered

   Borthwick v Bingle (1847) 1 Legge 384; considered

   Wilshire v Dearin (1857) 2 Legge 1000; considered

   Johns v Clarke (1919) 19 SR (NSW) 378; considered

   Haynes Case (1613)
126. Rep. 113; considered

   R v Edwards & Stacey (1877) 13 Cox CC 384; considered

   Hibbert v McKiernan [1948] 2 KB 142;
distinguished

   R v Woodman [1974] 1 QB 754; considered

   Gatward v Alley (1940) 40 SR (NSW) 174; considered

   Taylor v Manchester
University [1917] 1 CL 206; considered

   Re Evans [1946] QSR 20; considered

   Christie v Brown (1975) 5 ACTR 96; considered

   Johnstone & Wilmot Pty Ltd v Kaine (1928) 23 TasLR 43; considered

   Parker v British Airways Board [1982] 1 QB 1004; considered

   Cook v Saroukos (1989) 97 FLR 33; considered

   Re Jigrose Pty Limited [1994] 1 QdR 382; considered

   Wood v Leadbitter [1845] EWHC J83 (Exch);  (1845) 13 M&W 838; 153 ER 351; referred to

   Winter Garden Theatre (London) Ltd v Millenium Productions Ltd [1948] AC
173;
considered

   Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17;  (1937) 56 CLR 605; considered

   Graham H Roberts v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93;
considered

   Porter v Hannah
Builders Pty Ltd [1969] VR 673; considered

  

  

   CANBERRA, 15 and 18 May 1998 (hearing), 8 July 1998 (decision)

   #DATE 8:7:1998

  

   Counsel for the Plaintiff: Litigant in Person

   Counsel for the Defendant: C M Erskine

   Instructing Solicitors: ACT
Government Solicitor

  

  

   THE COURT ORDERS THAT:

  

   1. Leave be granted to bring in short minutes of declarations and
orders if
required.

  

  

   HIGGINS J

  

   1. This is an application by Mr Leonard Munday for an injunction to
restrain the
Territory, a body politic, by its servants or agents from
interfering with his scavenging (or "recycling" as he would prefer it)
activities at Mugga Lane Landfill area (the Tip).

  

   2. The Territory is established as a body politic by s. 36 of the
Australian
Capital Territory (Self Government) Act 1988 (Cth). It may sue or
be sued like any other litigant by virtue of s.5 of the Crown Proceedings
Act
1992 (ACT).

  

   The factual background

  

   3. Mr Munday has, for a number of years past, engaged in "scavenging" at
the
Tip. The Tip has over that time comprised a fenced-off area of unleased
Commonwealth land used for the purpose of both commercial
and domestic waste
disposal. The Tip is open to members of the public during specified hours to
enable them to approach an area designated
for the dumping of domestic waste
and to leave materials there. That area is referred to as the Tip face. There
are other areas where
recyclable materials such as bottles and paper may be
dumped and for dumping other categories of waste, not relevant for present
purposes. For a number of years, a company called Revolve Ltd (Revolve) has
been permitted to operate a depot at the Tip to receive
and sell goods and
materials apparently capable of being recycled. Its employees are also
permitted to salvage materials dumped at
the Tip face.

  

   4. Not all recyclable goods and materials are delivered by members of the
public to Revolve or to recycling
areas. Many are dumped at the Tip face.

  

   5. If such materials are left at the Tip face and not salvaged they will,
eventually,
be bulldozed into the ground and covered by soil. That is the
process of land fill undertaken by the Territory. The Department of
Urban
Services causes heavy machinery, bulldozers, to be operated for this purpose
in the vicinity of the Tip face (among other areas).

  

   6. That is, of course, an appropriate activity for the Territory to
undertake in the interests of environmentally friendly
waste management.

  

   7. For years, members of the public have been permitted to salvage
materials from the Tip face. Subject
to health and safety concerns,
particularly as to operation of heavy machinery, that activity can be seen as
encouraging the recycling
of materials. To maximise recycling it is
understandable that the Territory would wish to encourage an organisation,
such as Revolve,
to engage in systematic salvaging and recycling.

  

   8. For a number of years both Revolve representatives and members of the
public have engaged in the process of salvaging materials from the Tip face.

  

   9. During 1994 fees were introduced for entry
to, inter alia, the Tip face.
Entry to the recycling areas and the Revolve depot remains without fee. There
is a minimum entry fee
for members of the public seeking access to the Tip
face. Fees vary according to the weight of material to be dumped and according
to whether the entrant is a commercial user or not. Signs have also been
erected stating that Revolve employees have the sole right
to scavenge at the
Tip face.

  

   10. Mr Munday, however, does not accept that these notices, though he was
aware of them, have
altered his right to salvage materials abandoned at the
Tip face.

  

   11. In about August 1996, the Territory sought expressions
of interest for
the exclusive right to salvage recyclable materials from ACT Landfill sites.
Mr Munday and a consortium of others
put in a bid in relation to the Tip.
Revolve was awarded the contract.

  

   12. It is not part of my role, nor is it relevant
to these proceedings, to
consider whether the tender process was or not fair to Mr Munday and his
consortium nor whether the Territory
obtained the best price for the activity
in question.

  

   13. Mr Munday's contention is that it is not open to the Territory
to grant
exclusive rights to salvage materials abandoned at Tips open to the public for
the purpose of dumping rubbish and other
unwanted materials.

  

   14. Further, Mr Munday contends that, having paid his entry fee, it is not
open to Territory employees
to demand that he leave the Tip area on the ground
that he has either solicited materials from persons about to abandon them or
that
he has salvaged abandoned materials from the Tip face. Those materials,
it is conceded, whilst they might be materials which Revolve
might otherwise
have salvaged, could be materials which Revolve has already rejected or itself
abandoned after initially attempting
to sell them.

  

   15. Mr Marshall, ACT Landfill Manager, explained that Revolve had also been
granted permission not only to
salvage material from the Tip for sale at its
nearby depot but was permitted to enter the Tip face area at any time without
fee,
whether it was open to the public or not, to abandon salvaged or other
materials which it had decided no longer to attempt to sell.
There is no
apparent reason why those materials, at least, should not be open to salvage
by persons such as Mr Munday. Although it
is likely that identifying them
might be difficult. In any event, there is no procedure in place to
distinguish those materials from
other materials which might be of interest to
Revolve.

  

   16. To restrict scavenging, as the Territory has purported to do,
has the
effect of denying to Mr Munday and others like him, access to those materials
as well as to the materials Revolve employees
might wish to salvage. However,
the Court is not concerned with what might be seen by some as a defect in the
present policy. It
is only concerned with its legality.

  

   17. In 1996, it seems, Mr Munday was charged with an offence against s.19
of the Crimes
(Offences against the Government) Act 1989 (ACT) arising out of
his presence at and activities upon the Tip. That section prohibits,
without
"reasonable excuse", trespass on "government premises" (sub-s.19(1)) or, inter
alia, refusal or neglect to leave "government
premises" when directed so to do
by a police or other authorised officer. That charge was, on appeal,
dismissed, but not for reasons
that are presently relevant. Indeed, I have no
evidence as to the factual situation leading to the laying of that charge.

  

 
 18. Nevertheless, it seems that, until recently, no further attempt was
made to impede or remove private scavengers such as Mr Munday.

  

   19. On 4 May 1998, Mr Harrington, the Landfill Supervisor at the Tip, and
Mr Marshall, approached Mr Munday, who was then
engaging in salvaging
discarded materials. Mr Harrington declared that he was an authorised officer
and directed Mr Munday to leave.
Mr Munday refused. Police were called by Mr
Harrington but, it seems, they declined to attend. Mr Munday departed
voluntarily at,
or shortly before, the Tip's stated closing time.

  

   20. The same process apparently followed on 9 May 1998. It may be observed
that, if Mr Harrington considered that Mr Munday had offended against s.19, it
was and remains open to him to take proceedings. However,
it is not relevant
for present purposes to consider whether that course would succeed or fail.

  

   21. The Territory submits
that it is entitled to restrict access to the
Landfill areas to such persons as it thinks fit and to regulate the activities
of persons
permitted by it to enter in such manner as it thinks fit,
effectively, by administrative decree.

  

   22. In particular, Mr Erskine,
Counsel for the Territory, submits that
whether by reason of its possession and control of the land in question per
se, or by reason
of the signage erected by it thereon, property abandoned at
the Tip face becomes property of the Territory. It, therefore, could,
in its
discretion, refuse or grant permission to persons to take away such materials.

  

   23. Indeed, he went further and submitted
that the property in such
materials would pass to the Territory as soon as the owner thereof paid to
have access to the Tip face.

  

   24. It seems to me that goes too far. After all, a member of the public
might well change his or her mind about abandoning
items taken to the Tip
face. It would be surprising if, even only in theory, such a person could be
charged with theft or with trespass
for retrieving their own waste items, at
least before another person has taken lawful possession, actual or
constructive, of them.

  

   25. However, Mr Erskine submits that, even so, the Territory must have
power to regulate, by direction, the activity of persons
entering the Tip
area. They are, he submitted, mere licensees who become trespassers if they
breach the terms of their licence. Those
terms are, basically, in the
discretion of the Territory.

  

   26. The signage, as at the date of this application was as follows.
At the
entrance off Mugga Lane, there were two signs, the top one of which stated:

  

   "DEPARTMENT OF URBAN SERVICES

   ACT
GOVERNMENT WASTE MANAGEMENT

   MUGGA LANE LANDFILL

   HOURS OF OPERATION

   6.15AM to 5.00PM - Transport and Commercial Operators

   7.30AM to 5.00PM - Public Access And Other Operators

   Closed Good Friday And Christmas Day"

  

   27. Immediately below
was the second sign which stated:

  

   "LANDFILL ACCESS AND DUMPING

   ALL MATERIAL DEPOSITED AT THIS LANDFILL IS THE PROPERTY
OF THE TERRITORY.

   DOMESTIC & COMMERCIAL CUSTOMERS WHOSE TIP FEES ARE NOT UP TO DATE WILL
NOT BE PERMITTED TO ENTER OR DUMP
AT THIS LANDFILL.

   REVOLVE HAS EXCLUSIVE RIGHTS TO SALVAGE MATERIAL FROM THE TIP FACE. ANYONE
FOUND REMOVING MATERIAL FROM THE
TIP MAY BE PROSECUTED."

  

   28. On the way to the Tip face, persons entering are issued with a receipt
on payment of the entry
fee. That authorizes them to take a motor vehicle and
any waste it carries or tows to the Tip face. The fee varies according to the
weight of the load, if it is able to be weighed.

  

   29. On the bottom front of the receipt is endorsed:

  

   "*****REVOLVE
HAS EXCLUSIVE RIGHTS TO SALVAGE MATERIAL FROM THIS
LANDFILL*****"

  

   30. As the vehicle approaches the Tip face there is another
sign, partly in
red, as follows:

  

   " REVOLVE has exclusive rights to salvage material at this Landfill

   SCAVENGING IS PROHIBITED
"

  

   31. At various other points between there and the Tip face were temporarily
located other signs, able to be moved to follow
the shifting location of the
Tip face. Each of those stated:

  

   "REMOVING MATERIAL FROM THE TIP FACE IS PROHIBITED.

   REVOLVE
HAS EXCLUSIVE RIGHTS TO MATERIAL DUMPED AT THE TIP FACE

   OFFENDERS MAY BE PROSECUTED."

  

   32. Further, the Landfill Manager
apparently followed a practice of
delivering a warning notice to persons who had failed or appeared likely to
fail to comply with
these notices.

  

   33. Mr Munday was given one such notice on 21 April 1998.

  

   34. It was in the following terms (omitting
formal parts):

  

  

   "Removing material from the tip face at the landfill is prohibited. At the
entrance to the landfill there
is a sign which states that 'Revolve has
exclusive rights to salvage material from the tip face'. Anyone found removing
material
from the tip risks being prosecuted. It is dangerous to scavenge at
the tip face. Sharps [sic] and potentially infectious material
may be mixed
with the other wastes. You also risk being run over by heavy machinery such as
bulldozers, compactors and track loaders.
Any person seen to be scavenging at
the tip face without authority will be directed to leave the site. We seek
your compliance. Under
Section 19 of the Crimes (Offences Against the
Government) Act, 1989, it is an offence to refuse to leave the premises on
being directed
to do so by a police officer or an authorised officer. It is
also an offence to behave in an offensive or disorderly manner at the
tip
face. Penalties for offences are fines of up to $250 or imprisonment for up to
three months, or both."

   35. Further, on the
day following the filing of this application, i.e. on
14 May 1998, Mr Rod Gilmour, Chief Executive of the Department of Urban
Services,
caused a letter to be delivered to Mr Munday, purporting to give him
a "direction". It was in the following terms (omitting formal
parts):

  

  

   "You are entitled to enter onto Landfill Sites in the ACT upon payment of
the determined fee for such time as
is reasonably required for you to dispose
of any garbage you may wish at the tip face. You may also attend any recycling
facility
for any business you may have in connection with the operation of
that facility. You are otherwise directed not to remain within
the area of any
Landfill Site for any longer than is necessary to achieve the previously
mentioned purposes. In particular, you are
not to remain on any Landfill Site
for the salvaging of any item found thereon or for soliciting for any goods
which are brought
onto the site by any person."

   36. On 15 May 1998, I denied interim relief to Mr Munday but, by consent of
both parties, listed
this matter for hearing on 18 May 1998. The Territory
agreed that, in the meantime, it would merely maintain current signage. That
signage would not, in terms, prevent Mr Munday from "soliciting". Mr Munday,
in return, agreed not to "salvage" at the Tip face.

  

   37. A further development, however, is that, in purported exercise of its
powers under the Land (Planning and Environment) Act 1991 (ACT), the Territory
Executive has, on behalf of the Commonwealth, granted to the Territory a 99
year lease of land, said to be the
Mugga Lane Landfill site, from 27 February
1998. The lease document is dated 18 May 1998.

  

   38. Mr Erskine submits that, even
if Mr Munday had certain rights in
relation to unleased land, this lease renders those rights nugatory and any
relief he might have
been entitled to otherwise is of no value in the future.
To grant relief would, therefore, be futile. The starting point is a
consideration
of the status of unalienated Crown land in the Territory.

  

   Territory land - Powers of the Territory Executive

  

   39.
The land comprising the Territory was surrendered to and accepted by
the Commonwealth on the 18 th October 1909. The agreement so
to do was
ratified by the Seat of Government Acceptance Act 1909 (Cth). Section 7
continued all previous estates and interests in land within the Territory.

  

   40. Section 9 of the Seat of Government (Administration) Act 1910 (Cth)
stated that:

  

  

   "No Crown lands in the Territory shall be sold or disposed of for any
estate of freehold, except in
pursuance of some contract entered into, or the
right to enter into which existed before the commencement of this Act [1
January
1911], or except for the purpose of giving effect to some right which
existed before the commencement of this Act under or by virtue
of any law of
the State of New South Wales which has continued in force in the Territory by
virtue of section six of the Seat of Government Acceptance Act 1909, or of
that Act as subsequently amended."

   41. The law relating to the management of land in the Territory was
radically altered
by the Self-Government legislation which came into effect,
substantively, on 11 May 1989. Part of that legislation was the Australian
Capital Territory (Planning and Land Management) Act 1988 (Cth) (the PALM
Act).

  

   42. That Act categorizes land in the Territory as being either "National
Land" or "Territory Land".

  

   43. Section 27 permits "the Minister", i.e. the Commonwealth government, to
declare land to be "National". It is then not
subject to the control of the
Territory. The land comprising the Tip has not been so declared. Section 28 of
the PALM Act therefore
applies to it. It reads:

  

  

   "At any time when any land in the Territory is not National Land, that land
is Territory Land
for the purposes of this Act."

   44. The Australian Capital Territory Executive (the Executive) is granted
by s.29 of the PALM
Act certain powers and duties in relation to Territory
land. Sub-section (1) provides:

  

  

   "The Executive, on behalf of the
Commonwealth: (a) has responsibility for
the management of Territory Land; and (b) subject to section 9 of the Seat of
Government (Administration) Act 1910, may grant, dispose of, acquire, hold and
administer estates in Territory Land."

   45. The Executive's powers are subject to some
limitations. They are
referred to in sub-section (2):

  

  

   "(a) that new estates in Territory Land shall be granted only in
accordance
with procedures that are notified to the public; and (b) that appropriate
classes of decisions relating to the administration
of estates in Territory
Land shall be subject to just and timely review without unnecessary
formality."

   46. Sub-section 3 limits
the grant of leasehold estates to 99 years "or
such longer period as is prescribed." No provision has been made, pursuant to
s.53
(power to make regulations) or otherwise, to permit the grant of a longer
lease.

  

   47. It is apparent that the transfer of
Territory land made to the Crown in
right of the Commonwealth by the Crown in right of New South Wales was not
intended to alter
any previously existing estates or interests in that land.
Thus, it may be accepted, that, on acquisition, the Commonwealth acquired
over
unalienated Crown lands in the Territory only that radical title or
sovereignty referred to in Mabo v Queensland (No.2) [1992] HCA 23;  (1992) 175 CLR 1.

  

   48. That radical title or sovereignty does not, of itself, alter or limit
rights acquired by either previous
native title holders (if any) or members of
the public. In that sense, the common law may be said to favour freedom of
association
and of resort to public places.

  

   49. This is traditionally based on Magna Carta, Article 29:

  

  

   "No freeman shall
be taken or imprisoned, or disseised of his freehold,
liberties or free customs, or be outlawed or exiled or in any other wise
destroyed;
nor will We [the Crown] pass upon him nor condemn him, but by
lawful judgment of his peers or by the law of the land."

   50. Dicey,
"Law of the Constitution" , 10 th ed. pp 207-8 expressed that
freedom as follows:

  

  

   "The right to personal liberty as understood in England means
in substance
a person's right not to be subjected to imprisonment, arrest, or other
physical coercion in any manner that does not
admit of legal justification."

   51. The citizen may, therefore, as Wade & Phillips' Constitutional Law
states, (see 6 th ed
p.464)

  

  

   "Ögo where he pleases and do or say what he pleases provided that he
does not commit an offence against the
criminal law or infringe the rights of
others."

   52. There are two aspects of Mr Munday's freedom which are said to support
his
right to be upon the Landfill area. The first is his right peacefully to
have resort to public places. The other is the freedom to
take possession of
abandoned goods or to treat with their owners for a transfer of possession of
goods about to be abandoned.

 


   53. It is trite law and, indeed, a fundamental tenet of the rule of law
that the Crown, acting through its executive powers,
may not limit or control
the otherwise lawful activity of citizens save as permitted by law. A public
place is, by definition, a
place to which it is lawful for the public to have
access to associate and to engage in lawful social interaction and activity.

  

   54. It is apparent that the activities ascribed to Mr Munday do not, in
themselves, infringe the criminal law. A person carrying
on such activities
in, say, Garema Place, or some other public place, would rightly protest if
the Executive purported by mere administrative
decree, to limit or remove his
or her freedom to engage in those activities. The power to manage Commonwealth
(i.e. Crown) lands
in the Territory and to create estates and interests
therein does not confer such a power. However that is not to say that the Tip
is in the same position as a public place such as Garema Place.

  

   55. There is legislation which regulates the activities of
citizens in
public places. Indeed some areas are public places only at certain times or
under certain conditions.

  

   56. The
Roads and Public Places Act 1937 (ACT), s. 2, defines "public
place" to mean:

  

  

   "Ö any place that is Territory Land which the public are entitled to
use or which
is open to, or used by, the public and includes every public road
Ö"

   57. A "public road" is also defined. It means:

  

  

   "Ö any street, road, lane, thoroughfare, footpath, or place that is
Territory Land open to, or used by, the public Ö"

   58. It may be noted that the powers of the Executive, conferred on the
relevant Minister, to close public roads so as to deny
public access thereto
or thereon are strictly limited (see s.4). That is not relevant for present
purposes.

  

   59. Some rights of the public in relation to public places generally are
circumscribed
by the Roads and Public Places Act . Section 12 limits the
exhibition of any advertisement or notice in or adjoining a public place "upon
any property of the Territory". It will
be apparent that there is no
inconsistency between lands being "open to and used by the public" and being
"property of the Territory",
although not all "property of the Territory" will
be "open to and used by the public". Some "property of the Territory" will be
"open
to and used by the public" only at limited times or in limited
circumstances.

  

   60. Sections 15A to 15R of the Roads and Public Places Act regulate the
placing of "an object Ö in, over or across a public place."

  

   61. I would add that s.15A exempts "an object of a kind referred to in
paragraph 8(a)". That reference is entirely meaningless. Sub-section 8(a)
refers to "a
culvert, bridge, crossing or drain". That does not seem to be the
kind of "object" referred to in s.15A. However, nothing turns on that
reference for present purposes.

  

   62. Without attempting a detailed analysis of the history
of Crown Land in
Australia, a number of principles applicable thereto are relevant for present
purposes.

  

   63. The first is
that the Crown may not create or grant any interest in
Crown land save as authorised by statute - see Lukey v Sydney Harbour Trust
Commissioners (1902) 2 SR (NSW) Eq.152; De Britt v Carr [1911] HCA 32;  (1911) 13 CLR 114. It
follows that the Crown can no longer grant interests in land merely by decree.
Thus a citizen cannot rely
on acts of a Minister of the Crown so as to set up
a right to possession or occupation of Crown land unless those acts are
authorised
by legislation. The exclusive right to scavenge over Crown land
therefore can only be granted by the Crown if the right to grant
it is
authorised expressly or implicitly by statute. See A-G v The Municipal Council
of Sydney (1919) 20 SR (NSW) 46.

  

   64.
The second is that in the absence of such statutory authority the Crown
cannot prevent or limit the access to Crown land by citizens
provided they do
not occupy the same or infringe any rights of the Crown or of other citizens
by that access - see Exp. Collins (1914)
14 SR (NSW) 31.

  

   65. Those principles underpin the decision of the High Court in Wik Peoples
v Queensland [1996] HCA 40;  (1996) 187 CLR 1, although it is not necessary for present
purposes to consider the continuation or extinguishment of prior native
title.

  

   66. In the present case, it is apparent that the Territory Executive,
purporting to act on behalf of the Territory,
has enclosed the Tip area and
only permitted entry on payment of a fee. It has by way of a written agreement
granted certain rights
to Revolve. It has granted, expressly and implicitly,
licences to others to enter upon that area and to abandon waste materials
thereon.

  

   67. The purpose of doing so is intended to promote the public interest in
sound waste management. That is a legitimate objective.

  

   68. The Executive has purported to grant to Revolve an exclusive right to
salvage dumped materials and to exclude other lawful
entrants to the Tip from
engaging in such salvaging activities. They have further purported to control
the behaviour of those entrants
by limiting their access to areas within the
site and by, at least in Mr Munday's case, forbidding not only salvaging
material at
the Tip face, but the soliciting of other entrants to hand over
salvageable materials rather than dump them so as to be considered
for
collection by Revolve scavengers.

  

   69. The grant of rights to Revolve is intended to promote recycling. The
control of
the behaviour of entrants is sought to be justified both on public
safety grounds - the site is dangerous - and for the protection
of the value
of the right to salvage granted by the Territory to Revolve.

  

   70. The question for the Court is not whether those
policy objectives are
sound or whether better policy objectives could be substituted. The question
can only be whether what is being
done is authorised by law, including laws
made by the relevant Parliaments. The Court can only interpret and apply such
laws. It
cannot remake them. If there is dissatisfaction with either the law
or its administration by the executive within the law, then it
is for
Parliament not the courts to remedy that dissatisfaction.

  

   71. It will be apparent that the Roads and Public Places Act does not
itself authorize the acts of the Executive I have referred to, though it has
some impact thereon.

  

   72. Considerable
restriction on the use of Territory land, both leased and
unleased, is affected by the Land (Planning & Environment) Act . It
is not
open to the Legislative Assembly to make any provision by enactment, which
would be in conflict with the PALM Act. See s.28Australian
Capital Territory
(Self-Government) Act 1988.

  

   73. There is no right now vested in the Crown, its agents or employees to
restrict
access to, or to regulate the activities of persons upon, public land
otherwise than as permitted by law. Such rights may only be
conferred by
statute or common law.

  

   74. There are, of course, many such laws. The Motor Traffic Act 1936 is one
example.
Sub-section 4(1) thereof includes within its definition of a "public
place":

  

  

   "Öany part of a park, reserve, recreational
or sporting ground,
racecourse, or any other open place, to which the public has access whether
with or without payment for admission,
other than a street, road or lane that
is prepared with cement or concrete or is sealed with bitumen or other sealing
substance."

   75. That legislation restricts the parking of motor vehicles in public
places - see s.155. Those restrictions are created by
prescribed signs which
must only be displayed and deployed pursuant to Part VII of that Act.

  

   76. The Traffic Act 1937 provides
similar regulation of non-motorized
traffic.

  

   77. Access to public land in the Territory is further regulated by the
Trespass
on Territory Land Act 1932.

  

   78. The validity of the kind of provisions contained in that Act may be
inferred from Golden
- Brown v Hunt (1972) 19 FLR 438.

  

   79. The primary provision forbidding trespass on Territory land is in the
following terms:

  

  

   "4(1) The Minister may cause to be placed on unleased Territory Land or
land occupied by the Territory a notice prohibiting
trespass on such land. A
person who, without reasonable excuse, trespasses or enters- unleased
Territory Land or land occupied by
the Territory - as to which any notice is
posted thereon prohibiting trespass; or which is in the City Area and is
delineated on
any of the subdivisional plans held by the Territory, and has
thereon a dwelling-house; or any garden, plantation or afforestation
area on
[1] unleased Territory Land or land occupied by the Territory; is guilty of an
offenceÖ.."

   80. Sub-section 8A(2)
prohibits, without a permit issued pursuant to s.8B,
camping, erecting a structure or occupying or being in a structure (not being
a structure belonging to the Territory for the time being open to the public)
on unleased land.

  

   81. Sub-section 8A(3) permits
the specification by the Minister, by notice
in the Gazette , of particular areas of unleased land upon which persons may
not park
or leave vehicles without a permit.

  

   82. The Minister is empowered under s.8B to authorize a public servant to
permit the
occupation of unleased land by persons wishing to conduct a
"festival, show, fair, circus or carnival."

  

   83. Such a permit
to occupy unleased Territory land authorizes only
temporary occupation.

  

   84. Those provisions have no application to the Tip.
The only relevant
prohibition is, therefore, s. 19 of the Crimes (Offences against the
Government) Act 1989. That, however, presupposes
"trespass".

  

   85. Unoccupied and unenclosed unleased land is not an area upon which any
person can, in law, trespass. The Crown
is presumed to consent to free access
to, but not occupation or obstruction of access to, those lands, subject to
the general statutory
regulation already referred to.

  

   86. The Tip is enclosed and the public in fact excluded save as permitted
by the entry sign
and, in the case of the Tip face, after payment of a fee. It
is, therefore, clearly subjected to greater control than Crown land
to which
access is not so restricted.

  

   87. Sub-section 4(1) of the Enclosed Lands Protection Act 1943 (ACT) makes
it an offence for any person, without lawful excuse, to enter upon the
enclosed lands of another person, "without the
consent of the owner or
occupier or the person in charge of those lands".

  

   88. There is an apparent intention that this Act
should apply to lands
occupied or managed by the Crown. "Enclosed lands" expressly include
"Ölands, whether public or privateÖ"
(s.3)

  

   89. The power of the ACT Crown to enclose Commonwealth land in the
Territory is limited by legislation. The primary
responsibility for preserving
the freedom of access by citizens to public land rests with the relevant
legislatures. The first limit
is contained in the conferral by the
Commonwealth Parliament of powers of management and disposal of interests in
Commonwealth land
upon the Territory Executive in relation to "Territory
Land." "National Land" remains within the exclusive control of the
Commonwealth
Crown. The Executive's powers of management and disposal in
relation to Territory land are further limited by the terms of s. 29(2)
of the
PALM Act.

  

   90. The PALM Act, ss.25 and 26 require the Legislative Assembly to
legislate to establish a Territory planning
authority and to prepare a
Territory Plan.

  

   91. The legislation so enacted is the Land (Planning and Environment) Act
1991. It limits the powers of the Executive in the management and disposal of
Territory Land.

  

   92. Section 8 provides:

  

  

   "The Territory, the Executive, a Minister or a Territory authority shall
not do any act, or approve the doing
of any act, that is inconsistent with the
Plan."

   93. Public consultation and parliamentary approval of any variation to the
interim
Plan are provided for pursuant to Division 3 of the Land (Planning and
Environment) Act .

  

   94. Pursuant to that Act there is a Territory Plan. No challenge has been
made to the validity of the Plan nor has any
inconsistency with or failure to
conform to the provisions of the Land (Planning and Environment) Act appeared.
I therefore accept that the Plan is validly authorised under that Act. The
Plan further limits the powers of the Executive
to use, occupy or dispose of
Territory land.

  

   95. The Plan, in part B10 "Broadacre Land Use Policies", identifies, inter
alia,
an Area 10H Mugga Landfill Site, Jerrabomberra. It adds to the general
broadacre objectives and controls, the following:

  

  
"(Objective)

  

   to make provision for land for the disposal of non-recyclable wastes and
for managing recyclable materials.

  

   (Controls)

  

   Land use

  

   Add to schedule 1: Landfill site. Waste disposal, storage and/or transfer
may be subject
to mandatory preliminary assessment under the Land Act.

  

   96. The enclosure of the landfill area has not been demonstrated
to go
beyond the defined Area 10H though Mr. Munday made such a suggestion. In any
event, even if it has, that is not a matter that
is immediately relevant. It
would only be a marginal encroachment should it have occurred at all.

  

   97. The use made of Area
10H, as disclosed by the evidence, does not appear
inconsistent with the Plan. Proper administrative authorization may properly
be
assumed for the erection of any structures, including fencing, thereon.

  

   98. The orderly use of the site for "disposal of
non-recyclable wastes and
for managing recyclable materials" is not inconsistent with the restriction of
public access to defined
areas within defined times and the levying of
prescribed fees. Nor is it inconsistent with that objective to license persons
to enter
on the land to abandon unwanted property and to authorize others to
recycle any such materials deemed suitable for that purpose.

  

   99. It should be emphasized that, once it is decided that the actions of
the Executive are not unlawful, it is no part of
the Court's function to
declare the decision to adopt one mode of administration preferable to
another.

  

   100. Kruger v The
Commonwealth of Australia [1997] HCA 27;  (1997) 71 ALJR 991 illustrates
that a government may adopt policies and administer laws in ways considered by
many to have been
unjust or oppressive but the Courts are limited to
determining the lawfulness of those policies and actions rather than the moral
or political wisdom thereof.

  

   101. It is not, therefore, appropriate for this Court to comment on the
propriety or appropriateness
of granting exclusive scavenging rights to
Revolve. The only question is the lawfulness of doing so and the effect
thereof on the
rights of others such as Mr. Munday. I am of the view that, for
the reasons set out above, it is lawfully open to the Territory to
enclose the
Tip to facilitate its use in accordance with the Plan and to control entry to
and recycling of materials dumped thereon.
I now turn to the nature and extent
of the restrictions imposed on Mr Munday and others in respect of the Tip and
to the question
whether any or all of those restrictions are or have been
lawful or otherwise.

  

   Licence to enter upon Crown Lands

  

  
102. As I have noted the Crown has the power, subject to legislation
enacted by Parliament, to authorize or forbid intrusion upon
Crown lands.

  

   103. The view taken in 1847 by Stephen CJ, Milford and Wise JJ in A-G v
Brown (1847) 1 Legge 312, was that all
non-alienated lands belonged to the
Crown. Thus the Crown could bring an action against a person who intruded upon
such lands without
the consent of the Crown. In that case the rights to mine
coal (inter alia) had been reserved in a Crown grant. The grantee's tenant
was
therefore held to have trespassed against the Crown in digging out and taking
away coals from the land.

  

   104. On unalienated
Crown land, that is, land on which no right to
exclusive possession in freehold or leasehold has been granted, intrusion may
be licensed
by the Crown. Queensland legislation relating to pastoral leases
was in Wik construed as conferring a power to license intrusion
for pastoral
purposes. That conclusion had, however, already been affirmed as early as 1847
in Borthwick v Bingle (1847) 1 Legge
384. In that case Stephen CJ, Dickinson
and Therry JJ held that a grant by the Crown of possession of lands for the
purpose of depasturing
stock did not prevent a concurrent grant of a licence
to depasture stock being granted by the Governor to the defendant. Of course,
their Honours would not have had in contemplation possible prior native title
rights.

  

   105. Wilshire v Dearin (1857) 2 Legge
1000 involved the appropriation by
the defendant of a waterway used by the plaintiff. The land over which the
waterway existed was
Crown land.

  

   106. Stephen CJ, Dickinson and Milford JJ described as "ludicrous" the idea
that two trespassers against the
Crown could lawfully seek relief against each
other. However, the plaintiff claimed to be licensed by the Crown to have the
use of
the waterway. Their Honours were of the view that if that contention
was made good then the plaintiff could have protection of those
rights by
injunction but not if she was, as the defendant undoubtedly was, an intruder
as against the Crown.

  

   107. In Johns
v Clarke (1919) 19 SR (NSW) 378, Cullen CJ considered that an
enactment in terms similar to s.8A of the Trespass on Territory Lands
Act
rendered void a contract to erect a fence on Crown land. No interest or
licence had been given by or on behalf of the Crown to
authorize such usage of
the land.

  

   108. It seems to me therefore to follow that the Territory may, as manager
of Territory
Land on behalf of the Commonwealth, within the confines of a
validly approved Territory Plan, enclose public land and prevent intrusion
upon it. Intrusion without licence express or implied is prima facie
trespassory whether the lands are enclosed or not. However,
lack of enclosure
or warning signs would support the inference that a licence was extended by
the Crown to the public to enter upon
those lands.

  

   109. The enclosure of the Tip and the notice restricting access to it seem
to me to be intended to render intrusion
upon the lands of the Tip trespassory
unless in accord with a licence to enter.

  

   What were the terms of the plaintiff's licence?

  

   110. Even a licensee upon land may be protected by injunction. That
protection extends to the licensor as well as to others.
However, if the
licensee has breached the terms of that licence, at least in a respect
sufficient to entitle the occupier to regard
it as repudiated, he or she
becomes a trespasser and the owner or occupier of the land may lawfully
exclude or remove that person.
A summary process for so doing may be found in
the Crimes (Offences Against the Government) Act, s.19 supra.

  

   111. However,
s.19 does not permit government officials or agents
arbitrarily to suspend or terminate the licence of a person to be upon
Territory
lands. Such a licence might be terminated by reason of its lawful
expiry or by a breach of its terms sufficient to warrant its termination.
The
licensee would then become a trespasser and could be subject to s.19 (supra).

  

   112. The terms of the entry sign to the
Tip clearly impose some
restrictions upon access. The hours of operation are the most obvious. Mr
Munday acknowledges that he is
obliged to respect those hours.

  

   113. However, two further terms are contended for by the Territory. The
first is that it
is a term of the licence that no entrant other than persons
employed by Revolve may "salvage" or "scavenge" material from the Tip
face,
or, indeed, the area generally.

  

   114. That claim is supported by reference to notifications that "Revolve
has exclusive
rights to salvage material from the Tip face." The receipt
issued to entrants refers to exclusive rights "to salvage material from
this
landfill" being vested in Revolve.

  

   115. These messages are reinforced by the further notices I have referred
to.

 


   116. All notices, except for the notation on the receipt, relate to the
salvaging of materials from the face of the Tip. In
context, that receipt must
be taken also to refer to the rights conferred on Revolve to salvage materials
from the Tip face. That
means the area where persons dump waste materials. The
position of the Tip face alters from time to time. The notices relevant to
indicate that area and the terms of access to it are re-located from time to
time to reflect that.

  

   117. It is apparent that
the term "salvage" is not used in any technical
legal sense. It refers to persons saving or rescuing items before they are
bulldozed
into the landfill. To "scavenge" is, literally, to remove dirt,
rubbish and putrid matter. However, in the context of the Tip, it
carries the
meaning of picking over the Tip face to take materials abandoned by others.

  

   118. The notices are, it seems to
me, effective to restrict the activities
of licensees so that, unless they do so on behalf of "Revolve", they have no
licence to
salvage materials from the Tip face. If they do so, or attempt to
do so, they breach the terms of their licence and may be ordered
to leave the
Tip area, they may also be restrained by lawful means from salvaging such
materials. Such persons may then be removed
whether pursuant to Court order or
in consequence of lawful arrest.

  

   119. The agreement between the Territory and Revolve
grants exclusive
rights of salvage of such materials to the latter. However, Revolve has been
granted no more than a right to take
possession of materials left at the Tip
face after they have been apparently abandoned by their previous owners.

  

   120. The
status of materials dumped or apparently intended to be dumped is
the subject of the second further term contended for by the Territory.

  

   121. So far as materials taken by persons to the Tip to be deposited, the
Territory's position is clear. The entry notice
asserts that materials
deposited are "the property of the Territory." That is intended to assert
ownership of such materials as against
members of the public. The accuracy of
that assertion as a matter of law is, of course, another matter. The right to
take possession
of materials left at the Tip face is vested by the Territory
in Revolve only thereafter. Persons entering the Tip area are not forbidden
from transferring possession and property in any goods lawfully then in their
possession. Trade and commerce between citizens at
the Tip is not forbidden by
any law nor does any notice purport to do so. It is not open to the Territory
to obtain property in goods
owned by citizens merely because they are
"deposited" on its land. It is, however, open to a citizen to abandon goods
and for the
Territory to take possession of them to the exclusion of third
parties.

  

   122. A question arises as to whether the Territory
is entitled to vest
itself with property in deposited materials as soon as they are placed at the
Tip face.

  

   Ownership of
abandoned goods

  

   123. It is trite law that abandoned goods, not yet in the lawful possession
of another, are not capable of
being stolen. The traditional view is that
title is retained by the abandoner until the goods are taken into lawful
possession by
another, see Haynes Case (1613) 126. Rep. 113; R v Edwards &
Stacey (1877) 13 Cox CC 384.

  

   124. Mr Erskine, however, referred
to Hibbert v McKiernan [1948] 2 KB 142.
That authority, he submitted, supports the view that when goods are abandoned
on occupied
land they fall into the lawful possession of the occupant of the
land who may, therefore, assert good title against the rest of the
world.

  

   125. In that case, a trespasser had entered upon private golf links and,
without the landowner's permission, took
possession of golf balls which had
been lost by their owners. He was charged with larceny.

  

   126. The conviction for larceny
was supported by reference to the assertion
by the members of the club of control over golf balls lost by players. They
had caused
a police officer to be stationed so as to apprehend any person
entering the links and retrieving balls without their permission.

  

   127. Lord Goddard CJ stated, at 150:

  

  

   "The fact is that the theft alleged was of golf balls from a golf course;
on every course balls must be lost from time to time, to be retrieved when the
grass is cut or when someone has the time to look
for them. Clearly there is
no licence from the club to all and sundry to go on to the course and take
what they can find, and the
facts show that the club did mean to exclude these
pilferers Ö".

   128. It will be apparent that the finding of larceny depended
on not only
the intention of the owner of the land to take possession of the abandoned
golf balls but also, the evident intent to
exclude persons such as the accused
from taking possession of them.

  

   129. To similar effect is R v Woodman [1974] 1 QB 754.

  

   130. However, whilst those cases are authority for the view that, as
against the finder of abandoned goods, an occupier of
land may, by excluding
potential finders, have a superior title, they do not address the issue of the
occupier's title as against
the prior owner of the apparently abandoned goods.

  

   131. A succinct summary of the means by which a person may lawfully acquire
title to lost or abandoned chattels may be found in the judgment of Jordan CJ
in Gatward v Alley (1940) 40 SR (NSW) 174.

  

  
132. A sufficient summary of those principles for present purposes is that
the old adage "finders keepers, losers weepers" is only
partly true. A finder
of lost or abandoned goods, if acting honestly, gains good title against all
but the true owner. The true owner
may be either unable or unwilling to assert
that superior title. The true owner would be unable to assert such rights if
he or she
could not be found. The abandonment of a chattel by the true owner
indicates an unwillingness to assert that superior title against
a subsequent
possessor.

  

   133. However, it also follows that, at least until taken into lawful
possession by another, the owner
of lost or abandoned goods retains superior
title to those goods.

  

   134. The owner of goods may also make a gift of them to
another. Such
transfer of property is achieved by delivery accompanied by the intention to
pass ownership. See e.g. Taylor v Manchester
University [1917] 1 Ch 206; Re
Evans [1946] QSR 20; Christie v Brown (1975) 5 ACTR 96.

  

   135. A person "scavenging" at a public
rubbish dump may assume that those
discarding goods do not intend in future to assert their title to those goods.
If the "scavenger"
then takes possession of those goods, he or she obtains
good title against the rest of the world.

  

   136. However, a person
who is freely given goods by an owner who intends to
pass title thereto to the donee, gains title against all the world including
that previous owner.

  

   137. That the above would be the legal position in general terms was not
challenged by Mr Erskine. He
submitted, however, that two factors were present
in the current situation at the Tip which materially altered the application
of
either or both of those principles.

  

   138. One of those factors I have already referred to. It relates to the
status of the
land and the right of the Territory to regulate the entry of
persons onto the land and to exclude them if it so chooses. In relation
to
that issue I have concluded that it is lawful for the Territory to have
enclosed the Tip and to regulate access to it. It may
lawfully grant an
exclusive licence to Revolve to salvage material from the Tip face, subject to
compliance with the Trade Practices Act 1974 (Cth). No argument was addressed
to any issue concerning any possible breach of that Act.

  

   139. The second factor is said
to be the terms of the notice at the
entrance to the Tip which asserts that:

  

  

   "All material deposited at this landfill
is the property of the Territory."

   140. Insofar as Hibbert v McKiernan is applicable to the factual situation
assumed for present
purposes, there is some truth to this statement. However,
in that case, the occupier of the land had good title against trespassers
but
not against persons lawfully on the land. To gain "property" in the "material"
referred to, according to the terms of the notice
it must first be
"deposited". That can be regarded as delivery by the owner into the lawful
possession of the Territory. However,
it is trite law that mere delivery is
not enough. A person entering the Tip may be assumed to intend to give to the
Territory possession
of deposited material. They do not, however, thereby
surrender their capacity to consent to possession being taken by other
persons.
The notice does not address the possibility of a transfer of
possession of materials before they are deposited at the Tip face with
the
intention of abandoning possession to the Territory. The deposit of such
materials and the leaving of them at the Tip face would
prima facie evidence
abandonment. If the intention to abandon the goods was, in fact, absent, the
Territory would not gain good title
thereto as against the owner.

  

   141. The possibility of the owner of materials giving them to a person
other than a Revolve
or Territory representative is implicitly recognised by
the licence agreement entered into between the Territory and Revolve. That
agreement does not purport to do more than grant "exclusive rights to salvage
of materials from the tipping faces ". Until materials
are abandoned there,
Revolve has no right thereto superior to anybody else.

  

   142. The Territory cannot, merely by a notice,
extinguish the rights of a
prior owner of "materials" taken to the Tip. That lack of power would
necessarily limit the right of the
Territory to grant a monopoly to "salvage"
apparently abandoned goods left on Territory land.

  

   143. "Deposited" materials
are obviously intended to include any object or
matter placed in or on the Tip face by persons licensed to enter upon the Tip
area.
That could, as was pointed out in argument, include items the licensee
in question did not intend to abandon. A licensee might inadvertently
dump
items not intended to be abandoned.

  

   144. It would be a curious result indeed if property in such items was
transferred
to the Territory merely because they were placed on the ground.

  

   145. That a fundamental rule of law relating to the transfer
of title to
chattels could be reversed by the somewhat cryptic notice at the Tip entrance
seems unlikely to have been intended, even
if it was legally allowable.

  

   146. Blackstone Vol.1 para 295, referring to treasure trove, makes the
point that treasure trove
belongs to the Crown by Royal prerogative and arises
from "the finding and not the abandoning of it". If "treasure" is not hidden,
the title vests in "the finder if no owner appears." That is the general
starting point in relation to goods lost or abandoned on
Crown land.

  

   147. Clark J in Johnstone & Wilmot Pty Limited v Kaine (1928) 23 Tas LR
43 considered that the effect of
the traditional view of English law was, at
58:

  

  

   "Öthe intentional abandonment of a chattel by the owner of it does
not
divest him of his ownership, and that if another person finds the chattel not
knowing who the owner of it is, he is in the same
position as the finder of a
lost chattel who does not know who the owner of it is ..."

   148. Thus a seller of goods, who invalidly
reserved a right of
repossession, was found guilty of conversion even though the owner had
intentionally abandoned them.

  

  
149. That the materials in this case are abandoned on land in the control
of the Territory is not decisive.

  

   150. In Parker
v British Airways Board [1982] 1 QB 1004 an outgoing
passenger, a visitor to the Executive lounge of British Airways, found a lost
gold bracelet. He handed it to a British Airways official with a note that it
should be forwarded to him if the owner could not be
discovered. Instead of
doing so, British Airways asserted that, because the bracelet was lost on its
premises, it had the superior
right to the bracelet, no owner having been
found.

  

   151. That claim was rejected. Had the finder been a trespasser, there
would
have been no difficulty in according the occupier the better right. That,
Donaldson LJ opined, was "Ö clearly public policy.
Wrongdoers should not
benefit from their wrongdoing" (at 1009).

  

   152. The occupier has a superior right in respect of chattels
lost or
abandoned on, as opposed to in, the land only if that occupier:

  

  

   "(at 1018)Ömanifests an intention to exercise
control over a building
and the things which may be upon or in it so as to acquire rights superior to
those of a finder is under
an obligation to take such measures as in all the
circumstances are reasonable to ensure that lost chattels are found and, upon
their
being found, whether by him or by a third party, to acquaint the true
owner of the finding and to care for the chattels meanwhile.
The manifestation
of intention may be express or implied from the circumstances including, in
particular, the circumstance that the
occupier manifestly accepts or is
obliged by law to accept liability for chattels lost upon his 'premises', e.g.
an innkeeper or
carrier's liability."

   153. Both Angel J in Cook v Saroukos (1989) 97 FLR 33 and Kiefel J in Re
Jigrose Pty Limited [1994] 1 QdR
382 recognised the possibility that a finder
of intentionally abandoned goods might acquire a good title even against the
true owner.

  

   154. As Kiefel J noted in the later case, at 386:

  

  

   "It seems to me that if I do not wish to retain the possession
or property
in goods (perhaps most clearly shown by throwing them away), there is no
reason in principle why the common law would
require me to remain owner."

   155. However, it will be noted that there are two requirements to be
satisfied before lost or abandoned
goods become the property of another. The
first is that the prior owner has truly intended to abandon the goods. The
second is that
the person taking possession thereof does so lawfully.

  

   156. In the present case, I am not concerned to resolve any issue
as to
whether a person intentionally abandoning goods at the Tip face thereby
divests himself or herself of property in those goods
in favour of the
Territory or whether they retain a better title if they should choose to
assert it. The issue is whether the Territory
as occupier may, as against
persons licensed to enter the Tip face area, assert control over all such
goods for the benefit of Revolve.

  

   157. It seems to me that it can. The statements made to entrants to the
Tip, although overstating the position, make it clear
that, at least as to
goods intentionally abandoned at the Tip face, the Territory asserts control
to the exclusion of all save Revolve.

  

   158. It therefore follows that the Territory has, and may assert, a
superior right to possession of such goods to that of
persons such as Mr
Munday. A fortiori, if such persons have had their licence to be present at
the Tip face area terminated for breach
of their licence to be upon that area
of land.

  

   159. However, it is not open to the Territory, either as a matter of law or
of construction of the relevant notices, to obtain ownership or control of
goods brought to the Tip to be abandoned nor, as against
the true owner, of
goods not intentionally abandoned. It is unnecessary to express any view which
would resolve the conflict of opinion
as to whether a true owner of goods may
change his or her mind after intentionally abandoning goods so as to recover
possession or
have damages for conversion.

  

   160. It will be apparent from the foregoing that it is not open to the
Territory to forbid one
licensee from, instead of finally abandoning his or
her goods, making a gift of them to another. There is no interference in that
process with any right vested in Revolve. Its rights as conferred by the
Territory arise only once goods are abandoned at the Tip
face. It is also
apparent that the true owner does not lose control of abandoned goods at least
until they are out of his or her
actual or constructive possession. That would
usually be after the owner has thrown such goods away and departed the Tipping
face
area.

  

   161. It is also necessary to observe that there is nothing in the licence
agreement governing the entry of persons
to the Tip which imposes any
requirement that they abandon whatever goods they have with them or that they
refrain from attempting
to persuade other entrants from giving or selling
goods to them. It follows that the Territory has no current right to require
persons
such as Mr Munday to leave the Tip merely because he, otherwise
lawfully, attempts to persuade persons to give goods to him rather
than to
abandon them to be available to be taken up by Revolve.

  

   162. The standard form of notice giving a warning to persons
not engaged by
Revolve against scavenging at the Tip face, such as was given to Mr Munday on
21 April 1998, though it incorrectly
states the effect of s.19 of the Crimes
(Offences Against the Government) Act, correctly implies that a licensee
breaches the terms
of his or her licence to be at the Tip face area if they
scavenge materials from the Tip face.

  

   163. The letter of 14 May
1998, however, does not set out accurately the
terms of the licence granted to members of the public generally to be upon the
Tip
face area.

  

   164. Such persons are licensed to remain on the site during opening hours
whether they have materials to deposit
or not.

  

   165. Further, though such persons are not permitted to scavenge for
materials abandoned at the Tip face, they are
at liberty to "solicit" for
goods brought to the site by others.

  

   166. The letter to Mr Munday, therefore, may be interpreted
in one of two
ways. It is either Mr Gilmour's interpretation of the effect of the signage
displayed to entrants licensed to attend
at the Tip face or it is a specific
offer of an agreement with Mr Munday in particular. If the former, it is, with
respect to Mr
Gilmour, not correct. If the latter, this would single out Mr
Munday as a person whose licence to enter upon the Tip face area is
considerably more restricted than that granted to other members of the public.

  

   167. It is apparent that, before the grant
to Revolve of exclusive rights
to salvage materials, persons entering the Tip face area, provided they
behaved in an orderly and
safe manner, could salvage materials or engage in
"soliciting" for materials, at least during the period allowed for public
access.

  

   168. While it would, theoretically, be open to a private land owner to
licence persons to enter premises on materially different
terms one from the
other, this does not seem to have been Mr Gilmour's intention. Nor would I
lightly assume that the Executive would
authorize its employees to act towards
members of the public in such a discriminatory manner.

  

   169. There has not been argument
addressed to me concerning the validity of
the grant of exclusive rights to Revolve. I have made no decision or comment
as to the
consistency or not of that contract with Part IV of the Trade
Practices Act . It is no part of my task to speculate as to what further terms
other than those currently imposed might be imposed upon would-be
licensees.
However, it should not be assumed that the Territory enjoys unlimited power to
impose arbitrary or unreasonable conditions
upon the future entry of persons
or classes of persons onto the Tip area.

  

   170. Given that the Territory charges a fee for
entry to the Tip face area,
the licence to enter, which might otherwise have been classified as
"gratuitous" (see Wood v Leadbitter
[1845] EWHC J83 (Exch);  (1845) 13 M&W 838; 153 ER 351), is
contractual. It is not different in kind to the contractual licence referred
to by Viscount
Simon in Winter Garden Theatre (London) Ltd v Millenium
Productions Ltd [1948] AC 173, where, approving Hurst v Picture Theatres
Ltd
[1915] 1 KB 1, his Lordship said at 189:

  

  

   "Ö [I] repudiate the view that a licensor who is paid for granting
his
licensee to enter premises in order to view a particular event, can
nevertheless, although the licensee is behaving properly,
terminate the
licence before the event is over, turn the licensee out, and leave him to an
action for the return of the price of
his ticket."

   171. Lord Uthwatt, at 202, pointed out that,

  

  

   "The settled practice of the courts of equity is to do
what they can by an
injunction to preserve the sanctity of a bargain."

   172. That view did not find favour with the majority of
the High Court in
Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17;  (1937) 56 CLR 605. However, that decision
was based upon the separation then existing between law and equity in New
South Wales.

  

   173. The principles upon which, given the fusion of law and equity, an
injunction will be granted was discussed by Helsham
J in Graham H Roberts v
Maurbeth Investments P/L [1974] 1 NSWLR 93.

  

   174. It should be noted that in Porter v Hannah Builders
Pty Ltd [1969] VR
673, Lush J refused to enforce by injunction a licence to be upon land. That
did not deny to the licensee the right
to stand fast and have damages for
wrongful imprisonment and assault if forcibly removed.

  

   175. Therefore, whilst it would
be a breach of the terms of the licences
hitherto granted to Mr Munday for Territory officers to impede or prevent him
from "soliciting"
for goods from other licensees or to attempt to curtail his
presence on the Tip area during opening hours, it is not a breach by
the
Territory of that licence to impede or prevent him from salvaging materials
abandoned at the Tip face. It is open to the Territory
to terminate his
licence should he do so. What remedies the Territory may then apply is not
relevant on this application by Mr Munday.
There is no counter-application by
the Territory.

  

   176. Mr Munday is entitled to relief accordingly. However, as the Territory
may be expected to act lawfully, once the law is declared to it, without
compulsion, I will hear the parties as to the form of relief,
if any, which
may be required.

  

   177. It follows from the above that it is not necessary to determine the
validity of the lease
the Territory issued to itself on 18 May 1998. It makes
no difference to the rights of either the Territory or lawful entrants as
between them, though it may enable the Commonwealth, as landlord, more
directly to control the Territory's actions on the land than
otherwise would
have been the case.

  

  

  

   FOOTNOTE

  

   [1] Note: The latest reprint of the Act erroneously reads "or".
The
Government Printer should correct this error lest the provision be interpreted
incorrectly.