South Australian Land Mortgage & Agency Co Ltd v Taylor [1922] HCA 17; (1922) 30 CLR 523 (4 May 1922)

The South Australian Land Mortgage and Agency Company Limited Appellant; and Taylor and Another Appellants; and The Law Debenture Corporation Limited Appellant; and Manifold and Others Appellants; and The King Respondent.

This is an appeal by the South Australian Land Mortgage and Agency Co. from the decision of the Supreme Court of Queensland on questions of law stated by the Land Appeal Court in connection with an appeal by the Crown to that Court from the decision of the Land Court. The questions are:—[The judgment here set out the nine questions as above stated, and continued:—]

By the Land Act of 1910, which was an Act to consolidate and amend the law relating to the occupation, leasing and alienation of Crown land, it was provided (sec. 42) that when the term of the lease of any pastoral holding should exceed ten years the term should be divided into periods, the last period to be of such duration as would permit each other period to be of the duration of ten years. By sec. 43 it was provided that the lessee should during the term pay an annual rent at the rate for the time being prescribed, and that the rent for the second and each succeeding period should be determined by the Court (i.e., the Land Court) subject to a proviso that with respect to all pastoral holdings mentioned in the Second Schedule, except when otherwise expressly stated in the said Schedule, the annual rent for each period after the first should not exceed the annual rent payable for the next preceding period by more than one-half of the annual rent payable for such preceding period. At the time when the Act of 1920 became law there were in existence leases of pastoral holdings mentioned in the Schedule to the Act of 1910 as to which there was no limitation in the amount by which the annual rent might be increased in succeeding periods, and leases as to which the limitation contained in sec. 43 applied, and in both classes there were holdings of which the annual rent for the current period had been determined by the Land Court and holdings in respect of which there had been no such determination. The lessees of Hamilton Downs were entitled to the benefit of the proviso to sec. 43, and the annual rent of the holding had been determined by the Land Court on this footing at 60s. per square mile per annum for the period commencing on 1st January 1915 and ending on 31st December 1924. Sec. 2 of the Act of 1920 is in the following words:—"(1) In section forty-three of the Principal Act, the following words are repealed:—Provided that with respect to all pastoral holdings mentioned in the Second Schedule, except when otherwise expressly stated in the said Schedule, the annual rent for each period after the first shall not exceed the annual rent payable for the next preceding period by more than one-half of the annual rent payable for such preceding period. But nothing in this section shall be deemed to limit the maximum of rent which may be determined in the event of public works being executed or extensive mineral developments occurring as hereinafter provided. (2) In the fifth column of the Second Schedule of the Principal Act, the words The limitation as to increase of rent so as not to exceed by more than one-half the rent for the next preceding period does not apply, wherever the same occur, are repealed. (3) The amendments of the said section forty-three and Schedule II. hereby made shall have effect with respect to every pastoral holding, whether the annual rent thereof has or has not been actually determined by the Court under the said section forty-three at the passing of this Act, and to this extent this enactment shall have retrospective operation: Provided that with respect to pastoral holdings the annual rent whereof has been actually so determined at the passing of this Act, whether any appeal is pending from any such determination or not—(a) The Governor in Council may, by notification in the Gazette, direct and declare that the annual rent of certain holdings mentioned in such notification is a sufficient rent for the period for which it has been so determined, in which case the Court shall not determine afresh such rent; (b) In all cases except those referred to in paragraph (a) hereof, it shall be the duty of the Court to consider whether the annual rent of each holding for the period for which it has been determined is less than a sufficient rent, and if the Court considers that such rent is less than a sufficient rent the Court shall determine afresh such annual rent; and the annual rent so determined afresh shall be the annual rent for the period for which the rent is to be determined. The pastoral tenant shall forthwith pay the arrears of rent due by reason of any increase in rent under such fresh determination so as to adjust the balance due to the Crown: Provided that in any case where the Minister is satisfied that the immediate payment of the whole of such arrears would be a hardship he may accept payment thereof in such instalments as the Minister thinks just."

After this Act became law the Crown applied to the Land Court to determine afresh the annual rent of this holding for the second period of the lease which was then current. Notice of this application having been given to the lessees, the correspondence set out in pars. 9, 10, 11 and 12 of the special case passed between the lessees, the Under-Secretary for Lands and the Registrar of the Land Court. When the matter was called on in the Land Court a report and valuation made by a Commissioner for the purpose of sec. 29 of the Act of 1910 stating the fair rental value of the holding at 63s. per square mile, and the correspondence referred to above, were put in evidence, and the Court thereupon determined the annual rent for the period at 63s. per square mile.

Subsequently the Crown gave notice of appeal against this decision to the Land Appeal Court. On the hearing of that appeal the Land Appeal Court, having received further evidence of value tendered on behalf of the Crown, allowed the appeal, and determined the rent of the holding afresh at 80s. per square mile per annum for the whole period from 1st January 1915 to 31st December 1924, and subsequently stated for determination by the Supreme Court the questions set out above.

Of the questions so raised those numbered 2, 4, 5, 6 and 7 were common to this case and to cases stated in respect of the pastoral holdings known as Katandra, Sesbania and Dagworth, in connection with which similar proceedings had been taken by the Crown; and as the appeals to this Court in all four cases were argued together it will be convenient to consider these questions before dealing with the others.

Question 2.—On this question we agree with the opinion expressed by Shand J., and substantially with the reasons given by him in support of that opinion.

The rules of construction to be applied in interpreting this Act of Parliament are correctly stated by him as follows[1]:—"It is not disputed that when the language of an Act of Parliament is reasonably open to two constructions, that construction should be adopted which involves the infliction of less injustice than would be inflicted by the other. But unless it can be shown that the meaning of an Act of Parliament is reasonably open to more than one construction, this proposition of law has no application. Similarly, it is not disputed that by virtue of the provisions of sec. 2 of the Acts Shortening Act of 1867 (and, I think, apart from these provisions), enactments should not be construed so as to give them a retrospective or retroactive operation, unless the intention to give them this operation has been clearly expressed by the Legislature. But here, again, everything depends upon the question whether the Legislature has or has not expressed a clear intention; and if it has, then effect must be given to the clearly expressed intention, no matter what the consequences may be."

The Act of 1920, on the construction put forward by the Crown, no doubt operates harshly on pastoral tenants, but we can find no ambiguity in its words. Sub-sec. 1 of sec. 2 repeals so much of the provisions of sec. 43 of the Act of 1910 as limits the amount by which the annual rent for a period succeeding the first may be increased by the Land Court. Sub-sec. 2 appears to us to do no more than remove from the Schedule of the Act of 1910 words which are rendered unnecessary by the repeal effected by sub-sec. 1, and which if left standing could have no operation whatever. Sub-sec. 3 provides that the amendment of sec. 43 made by the Act (i.e., the repeal of the provision limiting the amount of increase of rent) shall have effect with respect to every pastoral holding whether the rent has or has not been determined by the Court under sec. 43, and that "to this extent this enactment shall have retrospective operation." The plain meaning of these words, applied to holdings the rent of which had not been determined before the passing of the Act, is that the rent shall be determined without regard to the limitation originally contained in sec. 43 and as if that section were no longer in force. And the same words, read in conjunction with the provisions for determination afresh contained in the proviso to the sub-section, appear to us necessarily to have the same meaning when applied to holdings the rent of which had actually been determined before the passing of the Act. For there is, in our opinion, no escape from the conclusion that the words of clause (b) of the proviso mean that the period for which the annual rent is to be determined afresh is the period for which it had been determined under the Act of 1910—i.e., in this case, the whole period of ten years from 1st January 1915 to 31st December 1924.

Mr. Macrossan for the appellant argued that the provisions of sub-sec. 3 applied not only to holdings entitled to the benefit of the limitation imposed by sec. 43, but also to holdings to which that limitation did not apply. Assuming, without deciding, that this is so, we do not think the suggested absurdity or injustice which would flow from this construction can be used to cut down the clear meaning of the words of clause (b). Those words admit of only one interpretation, and, if this be so, it is not for this Court to consider what are the consequences of this construction. We are, therefore, of opinion that on this question the decision of the Supreme Court was correct.

Questions 4, 5 and 7.—Mr. Macrossan for the appellant did not argue before this Court the appeal against the decision of the Supreme Court on these questions; and we see no reason to doubt that the decision of that Court was right.

Question 6.—The appeal on this point in effect challenges the correctness of the decision of the Supreme Court of Queensland in Australian Pastoral Co. v. The King[2]. In our opinion that decision was correct. We can find nothing in sec. 29 which confines the discretion of the Land Court in determining the amount of rent or compensation or value of improvements within the limits of the valuations furnished by the Crown and the lessee or other person respectively.

We proceed to deal with the questions relating to the cases of Hamilton Downs (South Australian Land Mortgage and Agency Co. Ltd. v. The King) and Katandra (Taylor and Craig v. The King).

Question 1.—The contention of the appellant on this question was that the determination afresh under sec. 2 (3) (b) of the Act of 1920 of the annual rent of a pastoral holding was not a power or duty which was required by sec. 31 of the Act of 1910 to be exercised or performed by one member only of the Land Court. We are unable to agree with this contention. The determination afresh of the annual rent is, in our opinion, an assessment of rent within the meaning of sec. 31 of the Act of 1910, and is therefore subject to appeal.

Question 3.—We think the duty of the Land Court under the Act is to determine as between the Crown and the lessee the amount of the annual rent of the holding on the evidence led by the parties, but with power to take evidence of its own motion for the purpose of further informing its mind on the question to be determined. In arriving at a decision it should consider and, if it thinks proper, give effect to any agreement between the parties as to the method of conducting the case or as to the evidence to be called by either party. The duty of the Land Appeal Court on a rehearing is similar to the duty of the Land Court as stated above with this addition, that it should take into consideration not only any such agreement between the parties as ought to have been considered by the Land Court but also any agreement between them relating to the conduct of the case in the Land Appeal Court. In this case, while reserving to itself the right to call for further evidence from the parties or to take further evidence of its own motion, the Land Appeal Court should have given weight to what was alleged to have taken place between the parties before and with reference to the proceedings in the Land Court. In our opinion, that Court would wisely exercise its powers by giving effect to any agreement between the parties or any inference which might properly be drawn from their conduct, except where some ground, such as fraud or mistake, on which an agreement can be set aside is shown to exist.

Question 8.—Assuming that the Crown had the right to appeal to the Land Appeal Court, it is provided by sec. 35 (8) of the Act of 1910 that the appeal to that Court shall be in the nature of a rehearing, and by sec. 35 (9) that evidence may be taken by the Land Appeal Court on an appeal. The evidence of James Ernest Arnold, given before the Land Appeal Court was therefore admissible, and, if believed by that Court, was sufficient to support its decision.

In the case of the Law Debenture Corporation Ltd. v. The King, relating to the pastoral holding known as Dagworth, a further question was submitted to the Supreme Court, viz., Was the Land Appeal Court right in holding that the decision of the Land Court that the annual rent determined for the second period of the lease was a sufficient rent, was appealable?

In the case of this holding the annual rent for the second period of the lease was on 23rd November 1917 determined by the Land Court to be 52s. 10½d. per square mile. On 10th March 1920, after the passing of the amending Act, the Registrar of the Land Court gave notice to the appellant that the Court would, as required by sub-sec. 3 (b) of sec. 2 of that Act, consider whether the rent of 52s. 10½d. per square mile per annum already determined was a sufficient rent, and that if the Court should consider that the rent was less than a sufficient rent it would determine the rent afresh. When the matter came on to be heard the Land Court did not consider that the rent already determined was less than a sufficient rent, and accordingly did not proceed to determine it afresh. It is argued for the Crown that this was a decision in respect of assessment of rent within the meaning of sec. 31 of the Act of 1910, and therefore subject to appeal; and both the Land Appeal Court and the Supreme Court upheld the contention. We are unable to agree. We think that the Court, in finding that they were unable to arrive at the conclusion necessary to give them authority to proceed to determine afresh, did not make a decision appealable under sec. 31.

The main question in all these cases is how far the Act of 9th March 1920 (10 Geo. V. No. 30) is retrospective. The term "retrospective" is sometimes used in an ambiguous sense, and seldom calls for definition. Here, however, the word itself appears in the statute under consideration, and definition is necessary. I adopt the definition given by Lord Wrenbury (then Buckley L.J.) in West v. Guynne[3], viz.: "If an Act provides that as at a past date the law shall be taken to have been that which it was not, that Act I understand to be retrospective." I do not regard this Act as saying merely that the Land Court in assessing rents is to treat the Act as applying its amendments only to the time subsequent to the date of its passing, and leaving all earlier time to the operation of the 1910 Act as unamended. That would not be "retrospective" in the sense stated by Lord Wrenbury: it would be, to use his words, "interference with existing rights," but prospectively only.

At the time of passing the Act of 1920 there were, under the Act of 1910, two classes of pastoral holdings: (1) those mentioned in the Second Schedule, and (2) those arising since the commencement of the Act of 1910. The Act of 1920 began by declaring it should be "read as one with the Land Act of 1910." Then it proceeded to address itself to amendments which relate only to the first class mentioned, namely, "all pastoral holdings mentioned in the Second Schedule." It repealed (a) the provision in sec. 43 covering certain pastoral holdings in that Schedule ascertainable by inspection of the Schedule itself, and (b) certain words in the Schedule attached to specified pastoral holdings. Up to that point it would be a doubtful question whether the operation of the section was "retrospective" or not. Then comes sub-sec. 3, which in express terms enacts: "The amendments of the said section forty-three and Schedule II. hereby made shall have effect with respect to every pastoral holding, whether the annual rent thereof has or has not been actually determined by the Court under the said section forty-three at the passing of this Act, and to this extent this enactment shall have retrospective operation." Several expressions in sub-sec. 3 are important. The first is "every pastoral holding"; the second is "determined"; the third is "to this extent"; and the fourth is "retrospective." As to the first, I take the phrase "every pastoral holding" to be certainly limited by the Second Schedule, but I am not prepared, as at present advised, to limit it to any specific portion of the Second Schedule. It is not necessary, in the view I take, to formally decide it; the matter has not been argued in the presence of any lessee directly interested, and I shall assume, for the purposes of this judgment, that the phrase includes "every pastoral holding" in the Second Schedule. "Determined" is the word used in sec. 43, and seems to me to be equivalent, in that section, to the phrase "assessment of rent," just as it applies in sec. 152 to "assessment" under sec. 43 of "compensation," or in sec. 155 to "assessment" under section 43 of "the value of improvements." "To this extent" is the next phrase; and much depends on its meaning. Does it mean that the enactment in sec. 2 of the Act is to be "retrospective" to the extent of disregarding the fact of previous actual determination? I think it does; and I think, moreover, that that is made perfectly clear by reference to the same words in sub-sec. 2 of sec. 3, because in that sub-section there can be no other possible meaning. I desire at this point to say that I firmly adhere to the view expressed by me in R. S. Howard & Sons Ltd. v. Brunton[4], adopting Lord Lindley's words in Lauri v. Renad[5]. But the intention of the Legislature may be made so clear, either by express language or by necessary implication, as to convince a Court, and, when that is the case, it is the duty of the Court to give effect to the will of Parliament. (See per Lord Cozens-Hardy M.R. in West v. Gwynne[6], per Lord Wrenbury[7] and per Kennedy L.J.[8].) And to me the conclusion I have stated is irresistible.

Now, how does it operate? There are four possible cases, viz., (1) limitation holdings where on 9th March 1920 no determination has been made, (2) limitation holdings where on that date an actual determination had been made, (3) non-limitation holdings where no determination had then been made, (4) non-limitation holdings where on that date an actual determination had been made.

But that does not conclude the matter. Sec. 31 makes appealable a decision of the Court of one member (necessarily) "in respect of assessment of rent." On the whole, I think the Legislature meant to leave the matter to the judicial decision of the Land Court "with respect to the assessment of rent" in cases within par. (b). The Court, notwithstanding the informality of language, is directed to consider the assessment of the land as in fact existing, and, if it arrives at an opinion that the existing determination is sufficient, to hold its hand, and, if not, to proceed to say what the rent, in its opinion, ought to be. It is obviously, from the collocation of the words, the identically constituted Court which, in an appropriate case, both "considers, and determines afresh." I am unable to see any reason which could support the contrary view except some meaning to be found in the word "consider." But "considered" by a Court is equivalent to "adjudged" by the Court. The phrase "it is considered by the Court" was a very common form of judgment under the Common Law Procedure Act (see, for instance, Chitty's Forms, 10th ed., at pp. 64, 71, 503, 519, 521, &c.). Reading the enactment as a whole, I come to the conclusion that the Land Court, after hearing the evidence under par. (b), must decide, first, by stating what it "considers," as to the existing rent being sufficient or not, and, if in the affirmative, it leaves it untouched, but, if not, it proceeds to make a new determination. In either case there is a "decision" which under sec. 31 is appealable. So much in passing.

But on the main question, what is the force of the fresh determination? Is it to relate back to the earliest point of the period so as to take the place of the earlier determination entirely; or is it to replace the earlier determination from some point of time not earlier than the commencement of the new Act? I must say I can find no words which justify the Court from any standpoint in attributing the operative force of the fresh determination to 9th March 1920 as a starting-point. Determinations under the Act of 1910 do not relate back to the date of that Act; they relate back, if at all, to the beginning of the period for which they are made. If that is not the commencing point of the 1920 determination, then, it seems to me, the only other possible point is the date of the fresh determination itself. The words "the period" either mean the whole period, or they mean the portion of the period coincident with the existence of the fresh determination. The word "retrospective," whatever its meaning, does not avail to carry back the fresh determination to the date of the Act, because, among other reasons, the word "retrospective" is not used in sub-sec. 3 in connection with the "fresh determination." But if the fresh determination does not simply go back to the date of the Act but goes back to the date it was made, the reference to "arrears" is nonsense. I see no reason whatever for doubting the intention of Parliament to make the fresh determination entirely supersede the old determination, and to supersede it as the rent for the relevant period in the lease, and to regard the surplus liability as arrears, subject to consideration of grace as to time of payment. The expression "shall be" the annual rent is one not of futurity but of imperative command. I, therefore, on the main question agree with the opinion of the majority of the Supreme Court of Queensland.

(1)

The question of whether the conclusion of the Land Court as to the insufficiency of rent is an appealable decision. I have already said that, in my opinion, it is; but that is subject to one further consideration argued before us. It was said that "appeal" was impossible because the Crown had nothing to complain of, it having suggested 63s. an acre, and that had been "agreed to" by the tenant, and so determined by the Land Court. The contention was put in two ways. First, it is said, on the proper construction of sec. 31 the appellant must be "aggrieved" even if it be the Crown. That is not, I think, a tenable proposition. "The Crown" is one possible appellant; "any party aggrieved" is another. Then it was said that "appeal" in its inherent nature connotes failing to obtain something contended for in the Court below. But that is not my view of "appeal" in its essential nature. This question involves much more serious consequences than at first sight appear. It includes, for instance, the ambit of the word "appeal" in the Federal Constitution. I therefore desire to state as precisely as the present circumstances require how I regard the contention.

There is nothing in the inherent meaning of the word "appeal" more than that contained in Lord Westbury's words in Attorney-General v. Sillem[9]: "An appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below." In that statement "error" is not confined to error in law or error appearing on the record. The distinction between an "appeal" in the full sense and the limited scope of a "writ of error" is well known. I do not think it is anywhere more tersely expressed than by Elsworth C.J. in Wiscart v. Dauchy[10], where it is said: "An appeal is a process of civil law origin, and removes a cause entirely; subjecting the fact as well as the law, to a review and retrial: but a writ of error is a process of common law origin, and it removes nothing for re-examination but the law." Since the Superior Court has to decide whether there is "error" or not, it follows that the right of entering it for the purpose mentioned depends on the nature of the claim presented to that Court, and not on how it should ultimately be determined. The pronouncement of Lord Westbury was in 1864, when the primeval juristic meaning, if I may so term it, of the word "appeal" had undergone transformation. Originally it was used ("appellum" and "appellare") to denote the bringing of a criminal charge against another (see, for instance, Brooke's Case[11]), the active party "appeals" (appellat) his adversary (Pollock and Maitland's History of English Law, 1st ed., vol. ii., at p. 570). But, as pointed out by the same learned authors (at p. 661), "in the twelfth century under the influence of the canon law Englishmen became familiar with appeals (appellationes) of a quite other kind; they appealed from the archdeacon to the bishop, from the bishop to the archbishop, from the archbishop to the pope. The graduated hierarchy of ecclesiastical courts became an attractive model. The king's court profited by this new idea; the king's court ought to stand to the local courts in somewhat the same relation as that in which the Roman curia stands to the courts of the bishops. It is long indeed before this new idea bears all its fruit, long before there is in England any appeal from court to court." As the learned writers observe, this "appeal" from "court to court" was not known to our common law, and did not take place until the fusion of law with equity in 1875. Equity Courts and admiralty Courts adopted it much earlier from the civil law, but common law Courts were confined to other methods, such as writs of error. The House of Lords, however, held an exceptional position; and in its famous declaration in 1675 it asserted and has since maintained its right (confirmed and regulated since by the Appellate Jurisdiction Act of 1876, sec. 4) as the delegate of the Sovereign to receive and determine "appeals" from inferior Courts, "that there may be no failure of justice in the land."

I apprehend from this short history of the subject there must here be given to the word "appeal" the full signification attributed to it by Lord Westbury. It shows also that in all but the ancient cases the right of appeal must depend on the grant of it by legislation, because it is not a common law right (per Lord Westbury in Attorney-General v. Sillem[12]). Any restriction may also be found in the context.

What I have said, however, is not inconsistent with a party losing the benefit of his right of appeal, where he is competent to do so, by in effect destroying the subject matter of appeal or complaint; and this I shall presently indicate. But, apart from that, and apart from any condition attached by law to the right of appeal (as, for instance, certain restrictions on the right to a writ of error or the provision in the Common Law Procedure Act 1854, sec. 32, as to agreement), a party is not, in my opinion, competent to restrict, any more than to enlarge, the jurisdiction of a statutory tribunal authorized to dispense the King's justice or to perform a public duty. Irregularities and often grave ones may be condoned, contractual obligations may be defined by agreement as the parties please; but the law, as I understand, is clear that no agreement can close the doors of a public Court on either of the parties. Spurrier v. La Cloche[13] states the position most distinctly. How could such an agreement be given effect to? In Doleman & Sons v. Ossett Corporation[14] Fletcher Moulton L.J. said:—"Speaking generally, it was not the practice of the Courts of common law to compel the specific performance of a contract. A party to a contract might break it subject to the liability to pay damages, i.e., to give full pecuniary compensation to the other party for the loss he suffered from the breach. To obtain specific performance application must be made to Chancery. But Chancery would only specifically enforce certain types of contract, of which a contract to refer to arbitration was not one. Hence a party to a contract containing an arbitration clause might refuse to perform it, and the sole remedy of the other party was an action for damages for the breach. The bringing of an action in respect of a dispute under the contract is such a breach, and the sole remedy under the common law was an action for damages, and it would still be so were it not for the provisions of sec. 4 of the Arbitration Act 1889. If for any reason the action is not stayed by the Court, the dispute must be decided by it. There were two competent tribunals, the Court and the arbitrator. The plaintiff contracted to choose the latter. He has in fact taken the former, and must pay the damages, if any, caused by his breach of contract. But that does not affect the fact that the dispute is before the Court and that it can and must decide it." Statutory provisions cited to us, to the effect that consent orders shall not be appealable without leave, do not weaken, but, on the contrary, strengthen what I have stated. When the dispute, however, comes before the Court, it may appear that the party appellant has nothing to appeal about. I do not mean that his contention with regard to the subject matter is erroneous, but that there exists no longer that subject matter to enter upon. A private individual, for instance, may ordinarily so deal with his rights as to abandon them or destroy them. For instance, a compromise of a private right by counsel in the Court of first instance might be equivalent to the destruction of any claim to more; that is equivalent to a reconstitution of substantive rights. In In re West Devon Great Consols Mine[15] Cotton L.J. said: "Every compromise involves an undertaking not to appeal, it therefore cannot be beyond the authority of counsel to undertake that his clients shall not appeal." Then the Lord Justice, as to the point raised whether after a decision had been given on the merits such a result could follow, observes:—"As to the other point the counsel in fact says: The Judge has given a decision adverse to my client, and in consideration of his receiving his costs I undertake that he shall not appeal against it. That is a compromise. The undertaking, therefore, is primâ facie binding." Now, that seems to show that the undertaking not to appeal was only looked at for the purpose of seeing whether in the circumstances it was an element in a "compromise," that is, a compromise of substantive rights. If so, it is "binding." But an agreement to arbitrate is also binding, and still does not exclude jurisdiction. The effect of the binding compromise is dependent on the function of the Court of appeal. The matter is very well stated and illustrated by Miller J. in Dakota County v. Glidden[16].

The answer to the question now dealt with (No. 1) is, therefore, that the decision of the Land Court was appealable, leaving to question 3 the consideration of two other matters, namely, the power of the Crown to compromise as to rent, and the duty of the Land Appeal Court in an appeal of this nature.

(2)

Then there is a question, No. 3, in the Hamilton Downs case, in these terms: "Was the Land Appeal Court right in holding that the duty of the Land Court to determine rent is a statutory duty which cannot be restricted or affected by contract between the Crown and the lessee or by conduct of either or both, and that for the purposes of an appeal the Land Appeal Court has the same powers as the Land Court?" The meaning and extent of every question in a case stated under this Act is necessarily controlled by the case as stated. If the question is found not to be a question of law or jurisdiction, the Supreme Court or this Court cannot answer it. Sec. 36 (1) of the Land Act must be observed, and so must sec. 38. I read these questions as asking whether what sec. 36 (1) calls the "grounds of decision" in clauses (5) and (6) of par. 27 of the case, were correct. The "contract" and the "estoppel" set up were said to be an implied contract, and an implied representation intended to be acted on, and in fact acted on, that no appeal would be taken. The Land Appeal Court did not decide whether in truth such a contract existed, or whether the representation was in truth made or relied on. That Court said in effect that even if there were such a contract, or such a representation acted on, it was immaterial because the Land Appeal Court had its duties prescribed by statute, and nothing done by the parties could relieve it of those duties. I entirely agree, and think it would be idle to say more as to that.

But it was argued further that the Court should have regard to such a contract or such conduct as affecting the parties themselves in the proceedings before the Land Appeal Court. Contrasting sec. 43 (i.) with sec. 43 (ii.), the scheme of the Act is to take out of the hands of the Crown the function of fixing the rent for the second and subsequent periods, either ex mero motu or by agreement with the tenant. For the public land, there must be paid for the second period the amount of rent determined by the Court or Land Appeal Court. No agreement will relieve that tribunal of its public duty, and no conduct on the part of the Crown can abridge the Court's duty. And further, as the Crown cannot in the first instance make a binding agreement contrary to the provisions of the Act, so neither can it convert an invalid agreement into a valid one by consenting, expressly or impliedly, to a decision based on it.

In Great North-West Central Railway v. Charlebois[17] Lord Hobhouse for the Judicial Committee said: "It is quite clear that a company cannot do what is beyond its legal powers by simply going into Court and consenting to a decree which orders that the thing shall be done." And their Lordships held that a judgment on an ultra vires contract was, though consented to, of no more validity than the invalid contract on which it was founded. That does not mean that a compromise is always impossible. Lord Hobhouse added: "If the legality of the act is one of the points substantially in dispute, that may be a fair subject of compromise in Court like any other disputed matter." That, of course, refers to a Court having jurisdiction to determine such a question.

In strict law the argument of the appellants is not sustainable. The Parliament of Queensland has, by sec. 6 of the Act, made every Crown lease subject to the Act. By sec. 43 it has prescribed how the rent shall be determined: and for the second and each succeeding period the rent "shall be determined by the Court"—that is (sec. 4), the "Land Court," constituted by one member, from whom an appeal lies to the Land Appeal Court of a Judge and two members of the Land Court other than the member appealed against (secs. 31 and 35). The Land Appeal Court hears the appeal as a rehearing (sec. 35 (8)); and by the Act of 1916 a very large power is conferred on the Appeal Court, including what is in effect original incidental jurisdiction, and by sub-sec. 9 its mode of taking evidence and its general power for the purposes of the appeal are the same as those of the Land Court. It is manifest, therefore, that, if either party is dissatisfied with the fixation of rent by the one member constituting for the purpose the Land Court, the Act places on the Land Appeal Court, more amply constituted, the very responsible duty of determining the rent for itself. Now I apply the decisions quoted, and particularly the last, in this way. It was quite open to the Crown to agree that the evidence to be laid before the Land Court should be limited to certain statements; and the Land Court, if satisfied that reliable figures were placed before it, would be quite justified in accepting and acting upon it. But that would not in the least in point of law prevent the Land Appeal Court from hearing the Crown's appeal if lawfully presented. Nor, since the Land Appeal Court has to hear the case as a rehearing, could the evidence before the Land Court bind it. The question for the Land Appeal Court is whether the decision of the Land Court was right on the real facts of the case, not whether it was right on the facts as they appeared before the Land Court; and so the Land Appeal Court must discharge its statutory duty.

But I wish to add this: though I am clear the way is quite open for the Land Appeal Court to decide notwithstanding what the Crown has said or done, yet what is said or done by either party may have a very important influence on the result. In Dent v. Moore[18] reference is made to a decision of the Privy Council there cited (Rani Chandra Kunwar v. Chaudhri Narpat Singh[19]), where Lord Atkinson, referring to and approving of Slatterie v. Pooley[20], after saying that although admissions made by a party, if not an estoppel, may be rebutted so as to show the admission is not true, proceeds to add: "but unless and until that is satisfactorily done, the fact admitted must be taken to be established." Now, though this may not apply technically to the Land Appeal Court, because it has to determine what in verity is the fair rent, yet when the Crown has, in relation to the Land Court, fixed a certain sum and suggested to the tenant to accept it, and this is done, the Land Appeal Court may well require a very satisfactory explanation why the figure so acted on is afterwards departed from. In this way—the moral burden of explanation—the contract or conduct may have an important effect. But in the main sense in which the Land Appeal Court, as I think, meant the question, it seems to me that Court was quite right.

As to question 6, the answer is Yes. The valuation is intended as an assistance to the Court, not as a limitation to its powers. To suggest that it is a pleading, providing a limit to the claim of the Crown, would be not only to invent a proceeding not to be found in the Act, but it would, in effect, be enabling the Crown to do indirectly what it cannot do directly (see Madden v. Nelson and Fort Sheppard Railway Co.[21]), namely, bind itself to accept a limited rent, and bind the Court not to go beyond it.

As to the question referring to Arnold's evidence, the proper answer is Yes. The evidence given is that of a skilled person, and there is substantial material stated the weight and reliability of which is matter for the consideration of the Land Appeal Court.

As to the general question no error in law is disclosed.

The appellant Company holds a pastoral lease granted by the Crown under the Land Acts of Queensland for 28½ years from 1st January 1905 to 30th June 1933. The term of the lease is divided into three periods: 10 years 1905 to 1915, 10 years 1915 to 1925, 8½ years 1925 to 1933. Under sec. 43 (ii.) of the Land Act 1910 the rent payable for the second and third periods has to be determined by the Land Court. In determining the rent, the Land Court must pay no regard to any increase in value attributable to improvements.

The land was granted under the Land Act 1902. Under that Act (since repealed) there was the same provision as to periods in the term of the leases, but there was no limitation put on the power of the Land Court to increase the rent for the second or third period. But in sec. 43 of the Land Act 1910—passed, of course, after the Company took the lease—there was a proviso inserted that "with respect to all pastoral holdings mentioned in the Second Schedule, except when otherwise expressly stated in the said Schedule, the annual rent for each period after the first shall not exceed the annual rent payable for the next preceding period by more than one-half of the annual rent payable for such preceding period." This lease of 1905 had the benefit of this proviso added to it by virtue of the Act of 1910. The limitation of the power of the Court to 50 per cent. increase in the rent operated so as retrospectively to benefit the lessee who had taken the lease without any such limitation. But an amending Act was passed in 1920. This amending Act repealed all the provisoes to sec. 43, as well as certain words in the Second Schedule to the Act of 1910 which became unnecessary; and it enacted (sec. 2 (3)): "The amendments of the said section forty-three and Schedule II. hereby made shall have effect with respect to every pastoral holding, whether the annual rent thereof has or has not been actually determined by the Court under the said section forty-three at the passing of this Act, and to this extent this enactment shall have retrospective operation."

I understand "every pastoral holding" to mean simply every pastoral holding. It is true that there was no need to apply the amendment to holdings which were already excepted from the benefit of the proviso to sec. 43; but the fact that the amendment was unnecessary, otiose, as to these holdings does not affect the operation of sub-sec. 3 as to the holdings which had the benefit.

I take it also that the words "shall have effect" are purely future—the effect is future; the repeal of the proviso to sec. 43 is as to the future. But it has to be remembered that both proviso and amendment are concerned, and concerned only, with the powers of the Land Court. The meaning is that as from 9th March 1920, the date of the passing of the amending Act of 1920, the power of that Court to determine the proper rent for the second or third period is not fettered by the proviso—the Court is not prohibited from determining the proper rent by the provision against exceeding the previous rent by more than one-half. But inasmuch as this sec. 2 (3) applies even to cases where the rent for the second or subsequent period had been actually determined already, the sub-section adds the words "and to this extent this enactment shall have retrospective operation."

Up to this point of sec. 2 (3), the intention seems clear—the land Court is not to be restricted to an increase of one-half on the previous rent, whether the rent for the period in question has been already determined or not.

But there comes a proviso to sec. 2 (3). It has been already set out in full in the judgment of the Chief Justice and Gavan Duffy J. In effect it says with respect to holdings the rent whereof has been determined, and whether any appeal is pending or not, (a) the Governor may by Gazette notice declare that the annual rent of any specified holding is a sufficient rent for the period, and in such case the Court shall not determine afresh any rent; and (b) that in all other cases the Court must consider whether the rent "for the period" is less than a sufficient rent, "and if the Court considers that such rent is less than a sufficient rent the Court shall determine afresh such annual rent; and the annual rent so determined afresh shall be the annual rent for the period for which the rent is to be determined"; and the pastoral tenant must pay any arrears of rent due under the fresh determination. In plain English, the Court may increase the rent if it is too low, but may not decrease it if it is too high.

In this case, the Land Court on 7th November 1917 determined the rent for the second period 1915-1925 at 60s. per square mile per annum—being one-half more than 40s., the rent payable for the first period. Under sec. 43, as it stood at that date, the Land Court could not fix a higher rent than 60s.

After the passing of the amending Act of 1920, on 27th April 1920, the Land Court, acting through one member, considering that the rent of 60s. per square mile already determined for the second period, was less than a sufficient rent, purported to determine the rent afresh at 63s. There was an appeal on the part of the Crown from this fresh determination to the Land Appeal Court; and on 22nd October 1920 that Court allowed the appeal and determined the rent afresh at 80s. per square mile per annum. A special case was stated by the Land Appeal Court for the opinion of the Supreme Court of Queensland; and the Supreme Court, by a majority, dismissed the appeal, stating its opinion as to the various questions raised by the special case in a formal judgment, 21st July 1921. From the judgment of the Supreme Court an appeal is made to us.

This appeal is against the whole of the judgment of the Supreme Court, on the ground that it is all contrary to law; but during the argument Mr. Macrossan, for the appellant, abandoned the appeal as to the opinions of the Supreme Court on questions 4, 5 and 7 of the special case.

(1)

In my opinion, the Supreme Court was right in holding that an appeal lay from the Land Court to the Land Appeal Court from the fresh determination of rent given by the former Court on 27th April 1920. Under sec. 27 (1) the Land Court must hear and determine all matters which by the Act or any other Act are required to be heard and determined by the Court, and by sec. 2 (3) (b) the Court is required to determine afresh the annual rent if it consider that the annual rent already determined is less than sufficient. Under sec. 31 the powers and duties conferred and imposed on the Court must be carried out by one member thereof "in respect of" (inter alia) "assessment of rent"; and "the Crown or any party aggrieved may appeal from the decision of such member in the manner hereinafter provided." The manner provided is that prescribed in sec. 35—to the Land Appeal Court consisting of a District Court Judge and two members of the Land Court other than the member who pronounced the decision.

It is urged that the appeal provisions apply only to original determinations of rent—not to "fresh" determinations under sec. 2 (3) (b); although the words of sec. 31, giving the powers of the Land Court to the single member, allow an appeal from his decision "in respect of ... assessment of rent ... where the amount is under this or any other Act to be determined by the Court." The Act of 1920 (sec. 2 (3) (b)) uses the words "determine afresh"; and, in the absence of plain indication to the contrary, the provisions for appeal from the decision as to assessment of rent in the Principal Act apply to any decision in respect of the same matter under the amending Act.

But it is urged that the Crown cannot appeal unless it be "aggrieved," and that the Crown's representative before the Land Court on 27th April 1920 either requested or consented to or made no objection to the determination of 63s. as the rent. There is no finding of fact by the Land Court as to such request, consent or attitude of the Crown's representative, and there is certainly no recital to such an effect in the formal decision of the Land Court, 14th May 1920; and by the Act the Supreme Court is precluded (sec. 36 (1)), from deciding anything that is not a question of law or jurisdiction. As a matter of construction of the words in sec. 31, "the Crown or any party aggrieved," the word "aggrieved" does not grammatically apply to the words "the Crown"; and as a matter of principle, it is, in my opinion, the duty of the Land Appeal Court to ascertain the proper rent to be paid whatever the parties or advocates before it may say. Any consensus of opinion at the Bar would naturally have weight with members of the Land Court, but it does not absolve them from their duty to make up their minds as to what is the proper rent to be paid, in justice to the public. The proceedings before the Land Court are not in the nature of a private litigation, in which the private persons may waive or give up their private rights; the proceedings are more like those of a royal commission appointed to ascertain and state the truth on a given subject for the benefit of the public.

(2)

This question is the most important presented. Under sec. 2 (3) (b), the Court has to consider whether the annual rent for the holding is less than sufficient "for the period"—that is, the whole period—in question, and if it is less than sufficient, then to determine afresh "such annual rent"; "and the annual rent so determined afresh shall be the annual rent for the period for which the rent is to be determined." The pastoral tenant has then to pay the arrears of rent due by reason of the increase. The words of the clause in themselves afford no foundation that I can see for saying that the increase of rent is to be operative from the determination only; and the reasons given by Shand J. seem to me to be so unanswerable that it is unnecessary for me to say more. This provision for a fresh determination, and for increase of rent if it is not sufficient, and for payment of arrears for that part of the period which has expired, probably operates harshly in some cases—particularly in cases where the lease was accepted by the lessee after the 1910 Act and before the 1920 Act—accepted on the faith of the proviso to sec. 43 which has been repealed by the 1920 Act; and Lukin J., who gave judgment for himself and for the Chief Justice of Queensland, was evidently deeply impressed by this harshness, and accordingly made some strong observations as to the duty of Courts not to treat Acts as retrospective if the words used can admit of any other construction. In my opinion, the words noted do not admit of any other construction than that the rent is to be determined afresh as for the whole period in question. Where the Legislature intends in the Act that increased rent, on a redetermination, shall be payable for the remainder of the term only, and not for the whole term, it uses appropriate words to that effect; as in sec. 126: "If during the term of a pastoral holding ... any public works are executed, or extensive mineral developments occur, on or near the holding, and by reason thereof the value of the lease is, in the opinion of the Minister, enhanced, the Court ... shall redetermine the rent ... and the rent so determined shall thereafter be payable for the remainder of the term." Moreover, the proviso to sec. 43, while it remained in force, was a mere limitation of the powers of the Land Court, and, when it was repealed, there was no longer any such limitation of the powers of that Court; and the presumption against retrospective operation does not apply to such case, even where the alteration made is disadvantageous to one of the parties. "When an Act alters the proceedings which are to prevail in the administration of justice, and makes no provision that it shall not apply to suits then pending, it shall apply" (Wright v. Hale[22]; Kimbray v. Draper[23]; and see Weldon v. Winslow[24]; The Ydun[25]).

This Company—the South Australian Company—cannot, indeed, point to any harshness so far as regards an alteration in the terms of their contract after it was made; for the lease was accepted by the Company while there was no such limitation on the powers of the Court. The lease was accepted in 1905; the Legislature enacted in 1910 the limitation of the powers of the Court to one-half more rent than in the previous period; and in 1920 the limitation was repealed. What the Legislature added to the privileges of the existing lease has been taken away by the Legislature. But I admit that this Company is entitled to make use in argument as to the construction of the Act any harshness that may be involved to other lessees by the Crown's construction.

(3)

I do not think that the answer No. 3 of the Supreme Court can be sustained in its present form. The Supreme Court here states that the Land Appeal Court would have been right if it held &c. There has been no finding in fact of any contract or conduct on the part of the Crown as alleged by the appellant here; and although the Supreme Court treats the allegation of contract or conduct as if it were dealing with a demurrer, I do not feel justified in saying that the duty of the Land Court to determine rent can in no possible case be affected by contract or conduct. I do not feel called on to express an universal negative. It is sufficient for the purposes of the case to say that the duty of the Land Court cannot be restricted or affected by anything that has been in this case found or alleged.

(6)

In my opinion, the Land Appeal Court was not bound to treat the valuation furnished to the Court under sec. 29 on behalf of the Minister as showing the maximum rental under any fresh determination (see my answer as to finding). This was determined in the same way in the Queensland case, Australian Pastoral Co. v. The King[26]. As Lukin J. put the matter during argument of that case[27], "May not the Land Court itself assess the amount which is correct, irrespective of the opinion of the litigants? Is not that the duty of the Court as an independent tribunal determining the rent to be paid for public lands?"

I concur with the judgment of the Supreme Court as to its findings (8), (9) and (10).

I understand that our judgment in this case of Hamilton Downs lease will be a sufficient guide to the parties in drawing up our judgment in the other three cases—with the exception of one point arising in the Dagworth case (Law Debenture Corporation v. The King). It appears that in the Dagworth case, on an application made to the Land Court under the Act of 1920, that Court gave this decision: "The Land Court considers that the annual rent determined for the second period of the lease of Dagworth holding Gregory North district is a sufficient rent and accordingly determines afresh such annual rent at the rate of 52s. 10½d. per square mile per annum." This rent of 52s. 10½d. was the rent as already determined. I concur with the opinion of the Supreme Court that this decision involves a finding on the part of the Land Court that the rent already determined is not "less than sufficient," for the purposes of sec. 2 (3) (b) of the Act of 1920; and that an appeal lies from such a "decision" to the Land Appeal Court under sec. 31 of the Land Act 1910.

I have had the opportunity of reading and considering the judgment of my brother Isaacs, and I concur in it and have nothing to add.

In South Australian Land Co. v. The King and Taylor and Another v. The King —Order of the Supreme Court varied by substituting for the answer to Question 3:—"The Land Appeal Court was right in holding that the duty of the Land Court to determine rent is a statutory duty, and that the Land Court was not restricted in the performance of that duty by the facts proved before it, and alleged in such Court on the part of the appellants to constitute an agreement, or by the conduct of either or both of the parties in such Court. The Land Court was nevertheless at liberty for the purpose of arriving at what in fact was the proper amount of rent to consider the facts aforesaid as part of the circumstances of the whole case and relevant to the proper performance by the Court of its abovementioned duty. The Land Appeal Court has the same powers as the Land Court for the purposes of an appeal." Order affirmed in other respects. Case remitted to Land Appeal Court with the opinion of this Court.

In Law Debenture Corporation Ltd. v. The King and Manifold and Others v. The King —Appeal dismissed with costs.

[1] (1921) S.R. (Qd.), at p. 222.

[2] (1920) S.R. (Qd.), 73.

[3] (1911) 2 Ch., 1, at p. 12.

[4] (1916) 21 C.L.R., at p. 375.

[5] (1892) 3 Ch., at 421.

[6] (1911) 2 Ch., at p. 11.

[7] (1911) 2 Ch., at p. 12.

[8] (1911) 2 Ch., at p. 15.

[9] (1864) 10 H.L.C., at p. 724.

[10] [1803] USSC 1; (1796) 3 Dall., 321, at p. 327.

[11] [1687] EngR 120; (1587) 2 Leon., 83.

[12] (1864) 10 H.L.C., at p. 720.

[13] (1902) A.C., 446, at p. 451.

[14] (1912) 3 K.B., 257, at pp. 269-270.

[15] (1888) 38 Ch. D., 51, at pp. 54-55.

[16] [1885] USSC 39; (1885) 113 U.S., 222, at pp. 225-226.

[17] (1899) A.C., 114, at p. 124.

[18] [1919] HCA 11; (1919) 26 C.L.R., 316, at p. 325.

[19] (1906) L.R. 34 Ind. App., 27, at p. 35.

[20] [1840] EngR 227; (1840) 6 M. & W., 664.

[21] (1899) A.C., 626, at pp. 626-627.

[22] [1860] EngR 1191; (1860) 6 H. & N., 227.

[23] (1868) L.R. 3 Q.B., 160.

[24] (1884) 13 Q.B.D., 784.

[25] (1899) P., 236.

[26] (1920) S.R. (Qd.), 73.

[27] (1920) S.R. (Qd.), at p. 77.

High Court of Australia

South Australian Land Mortgage & Agency Co Ltd v Taylor [1922] HCA 17; (1922) 30 CLR 523 (4 May 1922)

HIGH COURT OF AUSTRALIA