Hogan v Ochiltree [1910] HCA 9; (1910) 10 CLR 535 (30 March 1910)

HIGH COURT OF AUSTRALIA

Henry William Hogan Plaintiff; and Alfred Graham Ochiltree Defendant.

H C of A

30 March 1910

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

Langer Owen K.C. and Bethune, for the plaintiff in support of the application.

Bavin (Whitfeld with him), for the defendant.

Griffith C.J.

In August last this Court delivered judgment in the case of Minister for Lands (N.S.W.) v. Bank of New South Wales[1] which was an appeal from a decision of the Supreme Court of New South Wales, to which the present plaintiff was a party. By that decision this Court, in effect, declared that, according to the law of New South Wales, as it then stood, the present plaintiff had no title in the preceding June to occupy the land in respect of which this suit is brought. That decision must be taken to have declared the law of New South Wales as it was in August last. Afterwards the legislature of New South Wales, in the exercise of its power to deal with the Crown lands of the State, passed a law declaring, in effect, that the plaintiff should be deemed to have had a title to occupy that land from the preceding June, and this action is continued upon the basis of that Statute.

It may be considered a singular thing that a man who went into occupation of land in June with no title to it, and afterwards, by an Act of Parliament passed in October, obtained a retrospective title going back to the preceding June, should be entitled to maintain an action against another for a trespass committed at the time when he had no right to possession. It is a strange thing to find in an Act of Parliament; but the questions whether or not that is the true construction of the Act, and whether it is within the competence of the legislature so to enact, are not questions arising under the Constitution of the Commonwealth, and it is not necessary to express an opinion upon them. When these facts were brought under the notice of the learned Chief Judge in Equity by counsel for the defendant, it was suggested to him that, in substance, the legislature of New South Wales were attempting to reverse a decision of the High Court. It occurred to his Honor that a question arose as to limits inter se of the constitutional powers of the Commonwealth and the State, and he, accordingly, assuming that the case came within the meaning of sec. 40 (1) of the Judiciary Act 1903, directed all the proceedings to be transmitted to the High Court. Now a motion is made that the suit be remitted back to the Supreme Court for decision.

I am at a loss to understand how any question arises under the Constitution. The decision of this Court remains deciding that under the law as it stood in August last the plaintiff had no title to the land. It is now the law, as declared by a Statute passed in October, that he then acquired a retrospective title to the land; but whether that entitles him to maintain an action upon his retrospective title is not a matter which arises under the Constitution. If the legislature of the State has power to say that from an antecedent date a piece of land shall be deemed to have ceased to be the property of one man, and to have become the property of another, the propriety of their doing so is a question entirely between the legislature and their constituents. In my opinion there is no question arising under or involving the interpretation of the Constitution. I think, therefore, that the application must be granted.

Barton J.

I concur.

O'Connor J.

I am of the same opinion.

Isaacs J.

I agree.

Griffith C.J.

In the result the case must be remitted to the Supreme Court, and in the circumstances we see no reason why the unsuccessful party should not pay the costs of the motion.

Cause remitted, defendant to pay costs of the motion.

Solicitor, for plaintiff, J. V. Tillett, Crown Solicitor for New South Wales.

Solicitors, for defendant, Macnamara & Smith.

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