Minister for Public Works (NSW) v Peisley [1922] HCA 53; (1922) 31 CLR 264 (14 December 1922)

HIGH COURT OF AUSTRALIA

The Minister for Public Works for New South Wales Applicant, Appellant; and Peisley and Others Respondents, Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

14 December 1922

Knox C.J., Isaacs and Gavan Duffy JJ.

Blacket K.C. (with him McDonald), for the appellant.

Alec Thomson K.C. (with him Small), for a large number of the respondents.

Knox C.J.

The question in this case turns on the construction of sec. 55 (4) of the Water Act 1912. That section was interpreted by my brother Isaacs in Grahamstown and Campvale Swamps Drainage Trust v. Windeyer[1], my brother Gavan Duffy concurring. If that interpretation be correct, the decision of the Supreme Court in this matter cannot be upheld. The judgment in the case to which I have referred was brought to the notice of the Supreme Court, and the reason given by the majority of that Court for not deciding according to the interpretation put on the section in this Court was that the observations of my brother Isaacs in that case were obiter and not binding upon the Supreme Court. Whether that portion of the reasons given was to be regarded as binding or not, I agree with the interpretation then put on sub-sec. 4 of sec. 55; and for that reason I think the appeal should be allowed and the rule nisi for mandamus made absolute.

Isaacs J.

I agree.

Gavan Duffy J.

I am by no means so sure of the meaning of sec. 55 (4) of the Water Act 1912 as I appear to have been when the matter came before me in the Grahamstown Case[2]; but I am in a somewhat peculiar position: my brother Isaacs stands firmly by the interpretation which he then placed upon the sub-section and in which I agreed, and the Chief Justice, who now intervenes for the first time, thinks that the view I then held was right, and that my present doubt is not justified. In these circumstances I do not think that I should depart from the opinion which I formed in the Grahamstown Case, and I assent to the judgment already pronounced.

Appeal allowed. Order appealed from discharged. Order nisi for mandamus made absolute.

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

Solicitors for the respondents, McIntosh & Best, Lismore, by M. A. H. Fitzhardinge.

[1] [1915] HCA 81; (1915) 20 C.L.R., 653.

[2] [1915] HCA 81; (1915) 20 C.L.R., 653.