Ali Gunnee Khan v Fawaz [1919] HCA 55; (1919) 27 CLR 289 (28 October 1919)

HIGH COURT OF AUSTRALIA

Ali Gunnee Khan Defendant, Appellant; and George Fawaz Complainant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

28 October 1919

Isaacs, Gavan Duffy and Rich JJ.

Owen Dixon, for the appellant.

Hassett (Starke with him), for the respondent.

Owen Dixon, in reply.

The judgment of the Court, which was read by Isaacs J., was as follows:—

Oct. 28

Isaacs, Gavan Duffy and Rich JJ.

Upon the facts found by the Magistrate the appellant and the respondent are the respective occupiers of contiguous lands, and their lands abut on water frontages of the Glenmaggie Creek on the north and south sides respectively. The parties are also licensees, under sec. 737 of the Local Government Act 1915, of the water frontages on which they respectively abut, the appellant's licence being for three years and entitling him to exclusive occupation and use for that period, subject to certain contingencies which have not happened. An interest in the land is parted with by the Crown and given to the licensee.

The question is whether the appellant is an occupier within the meaning of the definition of that term in sec. 3 of the Fences Act 1915. The answer depends on whether the land is "alienated" in the sense in which that expression is used in the statutory definition of "occupier." Alienation is an expression that is easily controllable by subject matter and context. In the definition under consideration, it is manifest that it is not confined to transfer of the fee mediately or immediately, because the excluding words are inconsistent with such a meaning. And similarly the clause excluding yearly licences under an Act relating to the sale or occupation of Crown lands shows that these would otherwise be included. If so, the water frontage licensed to the appellant would seem to come within the phrase "land alienated from the Crown by grant lease or licence."

It is said that sec. 733 of the Local Government Act is opposed to that view, and that in any case a possibly unfair burden is put on the licensee of a water frontage because he may have to pay and then be deprived of any benefit of his outlay. But we think that that section, which as to fences is of limited application only, cannot, nor can sec. 739, control the general question we have to determine.

The judgment appealed from is affirmed, and the appeal dismissed.

Appeal dismissed with costs.

Solicitors for the appellant, Fitzgerald & Fitzgerald, for Patten & Staveley, Sale.

Solicitors for the respondent, Weigall & Crowther, for Arthur F. Rice, Maffra.