De Britt v Carr [1911] HCA 32; (1911) 13 CLR 114 (2 August 1911)

HIGH COURT OF AUSTRALIA

John McGill de Britt Appellant; and Thomas Francis James Carr Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

2 August 1911

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

Canaway K.C. and Coghlan, for the appellant.

Piddington and Coffey, for the respondent.

Canaway K.C., in reply,

Aug. 2

Griffith C.J.

We have had an opportunity of considering this matter since the adjournment, and as the case seems to be tolerably free from difficulty we do not think it necessary to reserve our decision.

The appellant and the respondent were rival applicants for certain portions of Crown lands. The appellant claimed to be entitled to take up the land as an additional conditional purchase in right of a conditional purchase of which he claimed to be the lawful holder. The respondent denies that the appellant is the lawful holder of the conditional purchase and contends that the appellant's title to the conditional purchase failing, any derivative title to acquire the additional land by virtue of it fails also. It is common ground that unless the appellant has a good title to the original conditional purchase his application to take up the additional land must fail, and that the respondent in that case has a better right to that land.

Sec. 41 of the Crown Lands Act of 1895 provides that "a person who is not a natural-born or naturalized subject of Her Majesty shall not be qualified to apply for any holding of the class referred to in the last preceding section" (which includes a conditional purchase) "unless he has resided in New South Wales for one year, and at the time of making such application he lodge a declaration of his intention to become naturalized within five years from the time of making such declaration. And if such person fails to become so naturalized within the period aforesaid, he shall absolutely forfeit all land the subject of his application, together with all the improvements thereon."

The material facts with regard to the appellant's title to the original conditional purchase are that he was not a natural-born or naturalized subject at the time when he made his application for it, but had resided in New South Wales for one year. At the time of making his application he lodged a declaration of his intention to become naturalized within five years. He did not, however, become naturalized within the five years. The consequence was, according to the primâ facie meaning of the latter words of the section, that the appellant absolutely forfeited the land the subject of his application, together with all the improvements thereon. That is the apparent meaning of the words, and the Supreme Court have held that it is the true one.

But it is contended that, although this is the apparent meaning of the section, the words "shall absolutely forfeit" mean "shall be liable to forfeit at the option of the Crown," and in support of that contention several other sections of the Crown Lands Acts have been referred to.

It is settled law in the interpretation of the Crown Land Acts that the power of forfeiting a lease is generally a power that may be waived by the Crown. But it does not follow that the legislature cannot provide otherwise. The question is what did they mean in this instance? Moreover, this rule has only been laid down as to cases of failure by Crown tenants or purchasers to observe the conditions of their contract, as in any other case between landlord and tenant. It has never been held that the performance of a condition, which is essential to the creation of a valid contract, can be waived. The suggestion in this case is that the Crown can waive what the legislature has said is a condition precedent to the existence of a valid contract. By the law of New South Wales the Crown is only authorized to dispose of Crown lands in accordance with the provisions of the Crown Lands Acts. In my opinion sec. 41 imposed upon the appellant an obligation to become naturalized within five years, and his compliance with this statutory requirement was a condition precedent to the creation of a contract that he should acquire the land by purchase from the Crown. During the five years his title to the land was inchoate or provisional, and his right to become a purchaser was conditional upon his becoming naturalized within that period. The fact that during the five years the appellant was in possession of the land cannot effect the construction of the Statute. That is sufficient to dispose of the case.

I will, however, refer to some other arguments that were addressed to us. Sec. 136 of the Act of 1884 provides that whenever any land is forfeited under the Act such land shall become Crown land, and may be dealt with as such, but that no forfeiture of any purchase or lease shall take effect until the expiration of thirty clear days after notification of such forfeiture in the Gazette. That section obviously assumes the existence of a valid purchase or lease.

Sec. 6 of the Act of 1891 provides that in any case in which a purchase, lease or licence has or shall become liable to forfeiture by reason of the non-fulfilment of any condition annexed by law to such purchase, lease or licence, but in which the Minister shall be satisfied that such non-fulfilment has been caused by accident, error, mistake, inadvertence, or other innocent course, and that such forfeiture ought therefore to be waived, it shall be lawful for the Minister to declare that such forfeiture is waived either absolutely, or upon such conditions as he may see fit to declare, and the forfeiture shall thereupon be waived accordingly. That section, on its face, refers to a case where there is an existing lease or licence. It does not apply to a case where the question is whether there has ever been a valid contract for a purchase or lease.

Reliance was also placed upon sec. 44 of the Act of 1895, which provides that a purchase or lease purporting to have been theretofore made or granted under the provisions of the repealed Acts or the Principal Act shall not be held to be void by reason of any breach or non-observance of the provisions of those Acts, but every such breach or non-observance as aforesaid, if of a nature to affect the validity of the purchase or lease, shall render the same voidable only at the instance of the Crown.

That section only relates to past transactions and has no application to the present case. The concluding paragraph of the section, however, says that the provisions of the section shall apply in like manner to purchases or leases purporting to be made or granted after the commencement of the Act, but that the Governor shall not, in any such case, declare that the purchase or lease shall cease to be voidable unless notice of the intention to make such declaration shall have lain before both Houses of Parliament for not less than ninety days, without being objected to by specific resolution. It is said that the latter part of the section qualifies the words "a purchase or lease shall not be held to be void" in the earlier part, so as to make the whole section applicable to future contracts. But it is unnecessary to express any opinion on this point.

The terms of sec. 44 at first sight appear to be very strong, but it must be remembered that they occur in immediate conjunction with secs. 41 and 43. In sec. 41 the legislature has said that in certain cases the land shall be absolutely forfeited. Sec. 43 provides for the forfeiture of a holding for want of good faith. Then sec. 44 permits the validation of a purchase or lease where a mistake has previously been made.

It has been pointed out by Mr. Piddington that sec. 41 is the only instance in the existing Crown Lands Acts when the words "absolutely forfeit" are used. In the Crown Lands Act 1875 it was provided by sec. 9 that, if any person became the conditional purchaser of any land in violation of the provisions of that section, his right, title and interest and the land itself with all improvements should, on notification in the Gazette, be absolutely forfeited.

There was no doubt what that meant. It meant that the title ceased, and the land revested in the Crown.

Sec. 41 is the only other instance of the use of this expression in the Crown Land Acts. It is an entirely erroneous principle of construction to say that when the legislature goes out of its way to use a different and distinct expression it does not mean to express a different intention. The question of forfeiture is dealt with continually throughout the Crown Land Acts. The expressions used vary. In sec. 26 of the Act of 1884 the words used are "shall forfeit." That was a forfeiture for making a false declaration. Secs. 38, 39, 96 and 135 give a power of forfeiture to the Crown.

Sec. 16 of the Act of 1895 provides for forfeiture of the right to a homestead selection by notification in the Gazette, and that thereupon the applicant's right to continue in occupation shall wholly cease and determine. Sec. 29 of the same Act gives the Minister a power of forfeiture for non-performance of the conditions of residence by the holder of a conditional purchase. Power of forfeiture is also given in the later Acts of 1902 and 1905. But sec. 41, as I have said, is the only instance of the use of the term "absolutely forfeit."

I think it is impossible, having regard to the context and the whole course of legislation, to say that "absolutely forfeit" means "shall be liable to forfeiture at the option of the Governor." Upon the applicant's failure to become naturalized within the five years I think his title to the land came to an end, and that he was not entitled to apply for the additional land by a derivative title depending upon that title.

A question was raised as to the respondent's locus standi to take this objection. But although he probably could not be heard to object to the appellant's right to possession of the original selection, I do not think that he is debarred from taking this objection when the appellant sets himself up as a competitor with him for the purpose of acquiring additional land from the Crown. His object is not merely to interfere with the possession of the land which the appellant has de facto acquired, but to defend himself against the competition of a rival claimant whose right as against him to take up the additional land he disputes.

I therefore think that the appellant's application should have been rejected by the Land Board.

A difficulty arises as to the form in which the questions for determination are submitted in the special case.

I do not think it is necessary to answer Yes or No to the first question submitted. It will be sufficient to say that, so far as regards the appellant's right to make the application now in question, the absolute forfeiture provided for in sec. 41 of the Crown Lands Act of 1895 was not subject to notification before such forfeiture took effect.

The answer to the second question will be, No, so far as regard the appellant's right to make the application now in question.

It is not necessary to answer the third question.

I think therefore the answer to the questions given by the Supreme Court should be varied to the extent stated, and that the decision of the Supreme Court as so varied should be affirmed.

Barton J.

concurred.

O'Connor J.

In this case the validity of the appellant's title to his original conditional purchase comes in question only in investigating whether he is a person qualified to apply for additional land under sec. 5 of the Act of 1905. I agree that we should confine our answer upon the questions submitted to the appellant's right to apply under that section. On this point I concur in the decision of the Supreme Court, and I adopt the reasons expressed by Pring J. in support of that decision except those which have reference to the word "absolutely." Differing from his Honor in this respect, I think the use of that word in the context in which it stands throws considerable light on the sense in which the word "forfeiture" is used in sec. 41 of the Act of 1895. Mr. Canaway put his argument in two ways. His first contention was that a forfeiture does not take effect until the Government have, by notification in the Gazette, expressed their intention to take advantage of it. The soundness of that contention depends upon whether a forfeiture under sec. 41 of the Act of 1895, upon the failure of an alien to become naturalized within 5 years, is the kind of forfeiture dealt with in sec. 44 of the Act of 1895, and sec. 136 of the Act of 1884. In considering that question it is very important to notice what Mr. Piddington has pointed out, that in every case in which the word "forfeiture" is mentioned in the Crown Lands Acts (and in the whole series the word is used many times) there is only one other section in which the power of forfeiture is not conferred expressly as a permissive or optional power. Speaking generally, the scheme of the Acts is that the Crown may take advantage of a forfeiture or not as it thinks fit. If it elects to take advantage of the forfeiture it must notify its election in the Government Gazette. But in looking at the section under consideration the question at once arises, is that the kind of forfeiture with which it is dealing? The section cannot be properly construed without giving some effect to the change in the form of expression relating to forfeiture which occurs in its provisions. There is nothing there to suggest that the exercise of the power by the Crown is optional, that it may or may not as it pleases take advantage of the forfeiture. In the other sections to which I have alluded forfeiture does not take effect until after the Gazette notification intimating the Crown's intention to take advantage of it. In addition to that, in sec. 41 the forfeiture is expressed to be absolute, which clearly distinguishes it from the other forfeitures which only take effect conditionally, that is to say, subject to the condition that the Crown has elected to take advantage of them and has notified its election to do so in the Gazette. For these reasons I am of opinion that sec. 136 of the Act of 1884 and sec. 44 of the Act of 1895 have no application to the forfeiture provided for in sec. 41, and that the forfeiture under that section operates immediately and automatically on breach of the condition.

It was also contended that sec. 6 of the Act of 1891 gives power to the Crown to waive the forfeiture. The answer is that that section deals with an existing contract for conditional purchase, lease, or licence in the same way as sec. 136 of the Act of 1884 and sec. 44 of the Act of 1895 deal with estates created under valid subsisting contracts and with forfeitures for noncompliance with conditions embodied in such contracts. Giving effect to the words of the section, absolute forfeiture takes effect beyond recall when the alien has failed to become naturalized within the five years as provided in the section. In my opinion therefore the Supreme Court was right, and the appeal must be dismissed.

Appeal dismissed.

Solicitor, for appellant, L. L. Hogan, Young, by Collins & Mulholland.

Solicitors, for respondent, Coomenelen, Bertie & Co., Grenfell, by L. G. B. Cadden.