Hall v Costello [1909] HCA 33; (1909) 9 CLR 239 (28 May 1909)

This is in some respects a singular case. The appeal is incidental to a long continued litigation between the appellant and the respondent, who were rival applicants for Crown land. Under the provisions of the New South Wales Crown Lands Acts, when there are competing applications for land the local Land Board is the tribunal appointed to decide between the competing parties. From the Land Board there is an appeal to the Land Appeal Court, and to no other Court; from the Land Appeal Court there is a limited right of appeal to the Supreme Court by way of special case, and to no other Court. The Supreme Court decides the points of law submitted to it and remits the case to the Land Appeal Court to be dealt with according to its decision, and that Court again remits it to the Land Board which gives its decision, subject to further appeals through the same channel. As I have said, the appellant and the respondent were rival applicants. It now appears that, under the law as it has been declared by this Court, the appellant and not the respondent was entitled to the land. The application was made in 1904. In 1905 the Supreme Court on appeal from the Land Appeal Court decided that the appellant was not entitled to make application for the land under the provisions of sec. 17 of the Crown Lands Amendment Act 1903. Then the matter was further litigated before the Land Board and the Land Appeal Court, and in May 1907 the Supreme Court on appeal from that Court decided that the appellant was not entitled to apply for the land under sec. 3 of the Act of 1903. Shortly after that this Court in the case of Phillips v. Lynch[1] overruled the decision of the Supreme Court pronounced in 1905, from which it followed that the appellant was originally entitled to make the application. After the decision of the Supreme Court in 1907 the matter went back to the Land Appeal Court, and they sent it back to the Land Board which took up the matter in February 1908, and decided in favour of the respondent, obeying, as they were bound to do, the decision of the Supreme Court. The appellant again appealed to the Land Appeal Court which dismissed the appeal in April 1908. No appeal lay from that decision except to the Supreme Court, and no such appeal was brought. The decision therefore stands as a final judgment from which no appeal now lies to any Court. Under these circumstances it would be idle for us to entertain an appeal from the decision of the Supreme Court pronounced in 1907 for the purpose of discussing the propriety of the previous decision of the Supreme Court, which was only an incident in a litigation terminated by the final judgment of the Land Appeal Court in April 1908. This Court has held that one of the decisions of the Supreme Court was wrong and the other right. Whatever opinion this Court might express in this case would be merely a reiteration of the opinion it has already expressed; it would not affect the judgment of the Land Appeal Court which stands for all time between the parties. That in itself is sufficient reason for refusing to entertain the appeal. With regard to the decision of the Supreme Court pronounced in 1905, which is the decision really objected to, the long delay that has taken place, followed by the entry of the respondent upon the land in reliance upon the unappealed from, and now unappealable, judgment of the Land Appeal Court, is sufficient to justify this Court in refusing to entertain an appeal after such a lapse of time, though mere lapse of time is not of itself conclusive ground for refusing special leave to appeal.

I agree on all the grounds put forward by Mr. Pike that special leave should be rescinded. The most important ground, I think, is that last alluded to by my learned brother the Chief Justice, that in April 1908 the Land Board made an order allotting this land to the respondent. There was an appeal to the Land Appeal Court in the same month and they decided that the Land Board was right. The respondent waited 28 days, which is the prescribed time for appealing to the Supreme Court; no action was taken by the appellant to upset the decision, and the respondent thereupon, as he was entitled to do, went into possession of the land, put an outside fence round it, erected certain improvements on it, and used it in the course of a butchering business which he established, and spent a considerable amount of money upon it. All that has taken place under the final order of the Land Court, which put the respondent in possession of the land. I agree with my learned brother that that order is not before us, that it is impossible that it can ever be brought before us, and that no order that we could make could ever affect its validity. Now, whatever view we may entertain of the law laid down by the earlier decisions in 1905, we cannot give back to the appellant the land which the order of 7th April 1908 has vested in the respondent. Under these circumstances to grant leave to argue the question raised by Mr. Armstrong would be to give leave to argue a question that is merely abstract and academic, and in regard to which the Court would have no power to give effect to its decision. That seems to me a complete answer to the application for special leave. But in addition to that there is, to my mind, no justification for the long delay in making application for special leave, particularly as the party now in possession, who was entitled to take possession, has expended a substantial amount upon the land, in reliance upon the final order of the Land Appeal Court. No doubt, if that were the only matter to be considered there is a good deal to be said in favour of the view that by putting the appellant on terms the position might be adjusted, so as not to prejudice the respondent. But the present position of the parties, taken in connection with the appellant's failure to account for the delay in applying to this Court constitute, to my mind, a reason conclusive against allowing the leave granted ex parte to stand. I need not go into the question whether the other points are open or not. It is sufficient to say that for these reasons I think that the special leave should be rescinded.

I concur cordially in the order rescinding special leave to appeal. But I must confess to entertaining some doubt as to the main ground upon which it is proposed to rescind the leave. The special leave obtained was for an appeal from the order of the Supreme Court in May 1907, as to sec. 3 of the Act of 1903—not from the decision of the Land Appeal Court in April 1908. I think that the leave should be rescinded upon the merits, that there is no important point of law and no matter of further importance or interest involved, to say nothing of the extraordinary delay since the decision of the Supreme Court in 1907. There is no ground for special leave of the kind stated in Dalgarno v. Hannah[2]. As for the order of 1905 which is not the subject of this appeal, but which Mr. Armstrong asked leave to appeal from, I think that the fact that the law has been laid down differently since that decision is not a ground for granting special leave to appeal after the time fixed by the Act.

Special leave to appeal rescinded. Repondent to pay the costs of the appeal and of the motion. One set of costs only.

Solicitors, for the respondent Minister, J. V. Tillett, Crown Solicitor for New South Wales.

[1] [1907] HCA 34; 5 C.L.R., 12.

[2] [1903] HCA 1; 1 C.L.R., 1.

High Court of Australia

Hall v Costello [1909] HCA 33; (1909) 9 CLR 239 (28 May 1909)

HIGH COURT OF AUSTRALIA