Clissold v Perry [1904] HCA 12; (1904) 1 CLR 363 (20 June 1904)

HIGH COURT OF AUSTRALIA

Clissold and Others Appellants; and Perry (Minister for Public Instruction) Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

20 June 1904

Griffith, C.J., Barton and O'Connor, JJ.

Dr. Cullen, for the appellants.

Sir Julian Salomons K.C. (C. B. Stephen with him) for the respondent.

Dr. Cullen, in reply.

20th June

Griffith, C.J.

This is an appeal from a decision of the Supreme Court of New South Wales, by which the Court, by majority (Stephen, Acting C.J., dissenting), discharged a Rule Nisi for a mandamus to the respondent, the Minister for Public Instruction, the constructing authority under the Lands for Public Purposes Acquisition Act, 44 Vict. No. 16 (consolidated in the Public Works Acts, 1900), to cause a valuation to be made of a piece of land at Canterbury, which the respondent, as the constructing authority, had resumed in 1891, for the purpose of erecting a public school. The appellants' claim was not put in until the year 1902, the time for so doing having been extended by the Supreme Court, in accordance with powers given under the Statute. The claim was as follows:—[His Honor here read the claim and particulars.] It appears now, and the fact was known to the constructing authority at the date of resumption, that the title set up by Clissold was ten years' possession. There was some evidence that he had bought his right to possession from one Knox, who had been in possession for a number of years, but he himself had only been in possession for ten years, and his case practically rests upon that basis. The contention on behalf of the appellants is that as Clissold, at the time when the land was resumed, had a right to the possession of it against everyone except the real owner, and could have brought an action of ejectment against anyone who could not show a better title than himself, he ought to be compensated for whatever was taken from him. For the respondent it is contended that the appellants have not shown any title to the land except possession, that Clissold was in possession merely as a trespasser, and that, upon the resumption of the land by the constructing authority, the original owner's legal title became vested in the Crown or constructing authority, and that thereupon Clissold's imperfect title became merged and swallowed up by the legal title, and that, therefore, on the face of the proceedings, it appears that the executors have no interest in the land which can be valued, and no title which will give them a right to compensation. In support of this contention the respondents rely on the case In re Paling, 3 (N.S.W.) W.N., 41, in which the Supreme Court of New South Wales held that a person claiming compensation for resumption, on a title consisting merely of 18 years' possession, was not entitled to compensation. We are therefore, in effect, invited to review and over-rule the decision of the Supreme Court in that case, which is not substantially distinguishable from the present.

In considering this matter it is necessary to bear in mind that it is a general rule to be followed in the construction of Statutes such as that with which we are now dealing, that they are not to be construed as interfering with vested interests unless that intention is manifest. When this land was resumed, Clissold was in possession, and that possession gave him certain definite rights. In Cholmondeley v. Clinton, 4 Bligh, 1, Lord Redesdale, L.C., speaking of Statutes of Limitation, said (at p. 75):—"The policy of the law with respect to those Statutes is unquestionably this: possession is always regarded by the law as primâ facie title, and it is so regarded with a view to public benefit. It is not with a view to the benefit of the individuals who may be in possession or out of possession, who may have title or who may not have title, but it is with a view to public benefit; because it is the public policy that possession should remain undisturbed. The Statute against pretenced titles is formed on this view, and it is on such ground that a person out of possession is not at liberty to deal with the property in any way whatever, because it tends to disturb the actual possession to the injury of the public at large." Whether we sympathise or not with persons who, to use an Australian expression, are called "jumpers," that is the law and the policy of the law. In the case of Ex parte Winder, 6 Ch. D., 696, Hall, V.C., a Judge of large experience in conveyancing law, dealt with the nature of the interest of such persons as the present appellants, whose land has been taken by a constructing authority. In that case the land had been taken under a contract with the person who was in possession. The learned Vice-Chancellor said (at p. 700): "In this case the party who claims to have the fund paid out had acquired a title by possession of this property for nearly the time which would have operated as a bar to a claim by anybody else. Being in possession, the company negotiate with him for the purpose of taking the land; thus treat him as being in possession, and he assumes himself to be a person who can make a title to the property. A contract is entered into based upon the assumption of his being the owner and capable of making a title to the fee-simple. Nobody can doubt for a moment, that, if this Act of Parliament had not been passed, he had a most valuable right and interest, which could have been sold in the market, although he had not yet the full statutory title." That description exactly fits the position of Clissold, when the land was taken by the Government. The Act referred to by the Vice-Chancellor in the case cited was the Land Clauses Consolidation Act, 1845, upon which the New South Wales law on the subject is founded with some variations. Under the English Act of 1845, land may be resumed in either of two ways—by contract, or, if the parties cannot come to terms, then by a notice to treat given by the constructing authority to the other party. If no agreement results, the price is assessed under an elaborate system, sometimes by a jury, sometimes by arbitration. The other party is required to execute a conveyance of his interest. If he cannot make a clear title, the constructing authority executes a deed poll, but before doing so must deposit in Court the amount agreed or assessed. In every case the constructing authority, in order to acquire a title, must pay to the claimant the agreed or assessed sum, or pay it into Court. By the New South Wales Act of 1880, now consolidated in the Public Works Act (1900), two methods are prescribed for taking land for public purposes. One is by contract with the owner. By the other method, different from the English, the Governor-in-Council is authorized to issue a notification, which is to be published in the Government Gazette and one or more newspapers, declaring that the land has been appropriated or resumed (see sec. 6). Then sec. 8 provides that upon such notification the land "shall forthwith be vested in the Minister and his successors, &c., for an estate of inheritance, freed and discharged from all trusts obligations estates interests contracts charges rates rights-of-way or other easements whatsoever and to the intent that the legal estate therein together with all powers incident thereto as conferred by this Act shall be vested in the Minister as a trustee, &c." The term "Minister" is defined by sec. 4. Sec. 11 provides that "the estate and interest of every person entitled to land resumed under this Act or any portion thereof and whether to the legal or the equitable estate therein shall by virtue of this Act be deemed to have been as fully and effectually conveyed to the Minister as if the same had been conveyed by the persons legally or equitably entitled thereto by means of the most perfect assurances in the law. And every such estate and interest shall upon the publication of such notification as aforesaid be taken to have been converted into a claim for compensation in pursuance of the provisions hereinafter contained and every person shall upon asserting his claim as hereinafter provided and making out his title in respect of any portion of the said resumed lands be entitled to compensation on account of such resumption in manner hereinafter provided." Sec. 12 provides that, within 90 days after publication of the notification already referred to, the person claiming compensation must make his claim setting out the nature of his estate or interest together with an abstract of his title, &c. The time may be, and in this case was, extended by the Supreme Court. Sec. 13 provides that "within sixty days after the receipt of every such notice of claim by the Crown Solicitor he shall forward the same together with his report thereon to the constructing authority who shall thereupon (unless no primâ facie case for compensation is disclosed) cause a valuation of the land or of the estate or interest of the claimant therein to be made in accordance with the provisions of this Act and shall inform the claimant as soon as practicable of the amount of such valuation, &c." The appellants duly sent in a claim, and they now ask for a valuation.

Bearing in mind that the Statute is to be construed, if possible, so as not to interfere with vested rights, let us consider their position. Clissold was entitled to possession of the land as against anyone except the real owner, and could have asserted that right by an action of ejectment. Indeed, but for the notification, he could have ejected the constructing authority. The Act expressly provides that the title of the holder of the land shall cease upon the notification of the resumption being published in the Gazette, and that his estate shall be converted into a claim for compensation. But, if the contention of the respondents were to prevail, that the effect of the notification was to swallow up the ten years' title of the claimant, that would be to give to it the effect of a judgment in ejectment recovered by the real owner—who is unknown to this day—against the person in possession, and the claim to compensation into which the estate is to be converted would be illusory. That would certainly not be a protection of vested interests. To construe the Act in that way would be to make it an Act, not for compensation, but for confiscation. A further examination of the Act will show that, if the effect of resumption were to extinguish imperfect titles, some of its provisions would be quite unnecessary. In the English Act the sections providing for compensation in such cases are introduced by an introductory clause, "and with respect to the purchase-money or compensation coming to parties having limited interests or prevented from treating or not making title ... be it enacted" &c. (sec. 67). There is no such provision in the New South Wales Statute, but there are various provisions which show that they were intended to apply to persons who failed to make title, like the claimant in this case. After the notification of resumption, the person claiming compensation is not entitled to receive the moneys appropriated for that purpose until he has proved his right to it to the satisfaction of the constructing authority, who, if not satisfied, may pay the amount into Court. It appears, therefore, that the Statute intended to provide that the compensation to be offered should be assessed in the case of persons who could not make a legal title, as well as in the case of those who could. Whatever the nature of the interest which they have, it is assumed to be capable of being valued for compensation. The legislature apparently took it for granted that persons in the position of the claimant here would make claims for compensation, and therefore made provision for their recognition and satisfaction. It cannot make any difference to the rights of the claimant, whether the money is paid into Court or not. His rights cannot be affected by the manner in which the discretion of the constructing authority is exercised. Although the documentary owner, as he has been called, is not known, the Crown is indebted to somebody, and its representative may take advantage of the Act, and avoid further responsibility to the true owner by paying the money into Court. If the money were paid into Court, it is clear from sec. 56 of the Act of 1900 that the present claimants would, under certain conditions, be the persons entitled to receive it. That section provides that "the parties respectively in possession of such lands as being the owners thereof or in receipt of the rents of such lands as being entitled thereto, at the time of such lands being purchased or taken, shall be deemed to have been lawfully entitled to such lands until the contrary is shown to the satisfaction of the Court, and unless, upon such inquiry as the Court thinks fit to direct, the contrary is shown as aforesaid, the parties so in possession and all parties claiming under them or consistently with their possession, shall be deemed entitled to the money so deposited and to the dividend or interest of the securities purchased therewith and the same shall be paid and applied accordingly." The contention of the Crown here is that the "contrary is shown," inasmuch as the claimants' title is not complete. But possession is a good title against all the world except the real owner. It is a saleable and devisable interest. "Until the contrary is shown" means until someone else shows a better title in himself. In the meantime, therefore, the contrary not having been shown, it is to be assumed that, if the money had been paid in, the appellants would have been entitled to so much as represents Clissold's interest. The only condition which, under the Statute, will excuse the constructing authority from causing a valuation to be made is that a primâ facie case for compensation has not been disclosed. It would be contrary to the principles of construction which have been already referred to, as well as inconsistent with the other provisions of the Act which I have just mentioned, to hold that a man who has a possessory title, good against the whole world until the "contrary is shown," has not disclosed a primâ facie case for compensation. For these reasons I think that the rule nisi for a mandamus directing the respondent to make a valuation should be made absolute. As to In re Paling, it may perhaps be distinguishable on the ground that the application for a mandamus there was made before the expiration of the twenty years, and the learned Judges there thought, admittedly erroneously, that the granting of a mandamus would conclude the inquiry as to title. Sir James Martin, C.J., however, gave expression to the opinion that an inchoate possessory title such as that of the present claimants gave no right to compensation. On that point that decision must be taken to be over-ruled.

Barton, J., and

O'Connor, J.,

concurred.

Griffith, C.J.—

Our decision does not conclude the principle upon which the assessment will be made, but we hold that the appellants are entitled to compensation for the estate or interest taken from Clissold, whatever that may be ultimately shown to be.

Appeal allowed. Order of the Supreme Court discharging the Rule Nisi for a mandamus discharged. Rule Nisi made absolute with costs. Respondent to pay the costs of the appeal.

Solicitors for appellants, Carruthers & Wilson.

Solicitors for respondent, The Crown Solicitor of New South Wales.