Mackinnon v Attorney-General (NSW) [1909] HCA 71; (1909) 9 CLR 503 (25 November 1909)

HIGH COURT OF AUSTRALIA

Charles Mackinnon Defendant, Appellant; and The Attorney-General for New South Wales Informant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

25 November 1909

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

Shand K.C., Canaway, and Bavin, for the appellant.

Cullen K.C., Hanbury Davies, and Bethune, for the respondent,

Griffith C.J.

In my opinion this case is practically concluded by the decision reported in Minister for Lands v. The Bank of New South Wales[1] decided in August last, while this appeal was pending. The question raised is as to the rights of a person who becomes the holder of a preferential occupation licence under the Improvement Leases Cancellation Act 1906 (No. 42). In the case to which I have referred the particular question was whether the holder of a preferential occupation licence was entitled to the ordinary privileges of occupation licensees conferred by the Crown Lands Acts relating to such land. The Court held that he was. It then became necessary to inquire whether the particular privilege set up in that case really existed, and the Court held that it did. The Court held, in effect, that in construing the Act of 1906 all the other Acts relating to Crown lands were to be read with it, and that when a preferential occupation licence was granted under the Act of 1906 the holder was entitled to the same advantages, and subject to the same conditions, as the holders of other occupation licences.

In the present case the question arises in this way: The holder of an occupation licence is liable, as soon as the land has been thrown open to any other form of occupation, to lose his occupation right. It is contended that under this Act the holder of an occupation licence has, in fact, a perpetual tenure until some new legislation is passed. That is entirely inconsistent with what the Court held in the case of the Minister for Lands v. The Bank of New South Wales[2]. In my judgment, the holder of an occupation licence under this Act is liable, like the holder of a similar licence under the other Crown Lands Acts, when the land becomes open for selection, to have the land selected, and as soon as it is selected, his title ceases. That is the only point to be decided. Simpson J. did not address himself to the subject at length. His observations are summed up in these words:—"When the Improvement Leases Cancellation Act of 1906 makes the lessee under a cancelled lease holder of a preferential occupation licence it makes him holder under a tenure well known and recognized; it does not create a new tenure. In my opinion such licence was intended to be subject to the incidents mentioned in sec. 25 of the Crown Lands Act of 1895, and consequently the Governor has power by granting a settlement lease to put an end to the defendant's preferential occupation licence."

I entirely agree. I think that the appeal fails, and I think also that if the decision in the case of the Minister for Lands v. The Bank of New South Wales[3] had been given before this appeal was brought we should not have heard of it.

Barton J.

I am of the same opinion and have nothing to add.

O'Connor J.

I agree. It is unnecessary to add anything to what has been already said.

Isaacs J.

I am of the same opinion, but I should like to add a few words. The reason given in the case we have already decided is undoubtedly opposed to the appellant's contention. Counsel for the appellant, as I understand their argument, took up two positions. First, they asked us to review the decision given in another case like the present, where no patent error is pointed out, and in those circumstances I do not feel disposed to reconsider the reasoning which led us to the conclusion we came to in that case. Their contention is as to the manner in which the Governor in Council may alienate the land, namely, that the power of the Governor in Council is limited to the express matters referred to in the Act itself. I do not think that there is anything in this Act which indicates that the power of the Governor in Council is limited to the modifications which are distinctly referred to in the Act itself. The appellant claims to be the holder of a preferential occupation licence of land, which he undoubtedly is, but he claims to be such a licensee with much greater rights than any other occupation licensee of other land can have, and I think the contention is destroyed when we look at the words of sec. 3, sub-sec. 1, and find that in the same breath, so to speak, in which the legislature has made him the holder of the preferential occupation licence, it has also added that "such lands shall thereupon become reserved from sale and lease generally." These words would be unnecessary if his contention were correct. Then those words are followed by a significant expression "until such reservation is revoked in whole or in part."

So far from finding in those words any indication that the ordinary power given under the Crown Lands Acts to alienate is curtailed, those words appeal to my mind as confirming that power. Then, at the end of sec. 5 are words which also appear to me to have no meaning whatever, supposing the contention of the appellant is correct. Under sec. 26 of the Crown Lands Act 1895, unless land is of a certain description, it can be granted by way of improvement lease. Sec. 5 of this Act modifies that by allowing it to be granted, notwithstanding that fact, on one condition, if in the opinion of the Board the land is unfit for settlement, or not likely to be required during the currency of the improvement lease. If the Governor in Council had no power to grant that land for settlement, I cannot understand why the legislature should have inserted those words. It is nothing to the point to say that the legislature contemplated some other enactment, because it would be time enough then to put in those words, but the presence of those words is sufficient reason to me that the Act conveys, by implication, power to deal with the land as Crown lands. For these reasons I think no distinction can be made between this case and the previous case, and that the appeal must be dismissed with costs.

Appeal dismissed.

Solicitors, for the appellant, Macnamara & Smith.

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

[1] [1909] HCA 54; 9 C.L.R., 322.

[2] [1909] HCA 54; 9 C.L.R., 322.

[3] [1909] HCA 54; 9 C.L.R., 322.