Fox v Allchurch [1927] HCA 40; (1927) 40 CLR 135 (25 October 1927)

HIGH COURT OF AUSTRALIA

Fox Defendant, Appellant; and Allchurch Complainant, Respondent.

H C of A

On appeal from the Supreme Court of South Australia.

25 October 1927

Isaacs A.C.J., Higgins, Gavan Duffy, Powers, Rich and Starke JJ.

Owen Dixon K.C. (with him Norris), for the appellant.

Hannan (with him Abbott), for the respondent.

Owen Dixon K.C., in reply.

Isaacs A.C.J.

In this case several grounds were advanced in support of the appeal. As to all but one they have been sufficiently dealt with in the course of the argument and I do not propose to say anything about them. There remains one ground, a ground of substance. The contention is that notwithstanding anything contained in the Botanic Garden Act 1860 the provisions of sec. 148 of the Crown Lands Act 1888 have to be given effect to, and that on its true construction sec. 148 vested the care, control and management of the Botanic Park at the time the by-law was made in the Commissioner of Crown Lands, and therefore excluded the care, control and management of the Board of Governors of the Botanic Garden and necessarily excluded the Board's right to make by-laws in respect of the Park Lands. Sec. 2 of the Act of 1860 may or may not govern the matter on the principle of generalia specialibus non derogant, but I express no opinion as to that. I assume that sec. 2 would not have that effect; and on that assumption I proceed. The Botanic Park was dedicated under the power conferred by either clause IX. or clause XI. of sec. 6 (d) of the Crown Lands Act for the purpose of the Botanic Garden. Now, that dedication being under sec. 6 of the Crown Lands Act, we have to read the concluding words of the sub-section: The Governor "may at any time after dedication grant the fee simple of such lands to secure the use thereof for the purpose for which the same were dedicated, and may, at any time before the grant of the fee simple of any such lands, resume the same wholly or in part, by proclamation." So that the first thing that strikes one in that connection is that the power to grant the fee simple is to secure the use of the lands for the purpose for which they were dedicated. Remembering that when we come to sec. 148, it is fairly clear that the provision that the care, control and management of the lands dedicated should be vested in the Commissioner during the interim between the dedication of the lands and the granting of them in fee was to keep the control of them in the hands of the Crown until they should be secured by a grant in fee for the purpose for which they were intended. Looking at the proclamation, it proceeded first of all to dedicate Crown lands as an addition to the Botanic Garden and to be called "the Botanic Park." At that point of time, on the assumption I have made, the Crown had, so to speak, two possible legal roads by which the purpose of that dedication could be effected:—It might have proceeded to exercise the powers in the Crown Lands Act of making a Crown grant, and then sec. 148 would apply until the grant was made. Or it might have taken the alternative course pointed out in the Botanic Garden Act of securing the same end by giving the consent of the Governor in Council to the Board of Governors augmenting the boundaries of the Garden, in which case, says sec. 5 of the Botanic Garden Act, a certain legal result shall follow, namely, that the Board is to "hold and retain all lands granted to, or now occupied by, or which may hereafter be granted to, or legally occupied by the said Botanic Garden." That land, or that part of the Botanic Garden, would then be legally occupied by the Board of Governors as soon as it exercised the power of augmenting, and then, says the Act, "unless any part thereof be diverted from such purpose by legislative enactment." In other words, sec. 5 gives in the cases mentioned a legal right to the Board of Governors to hold the lands which for the time being are legally occupied by the Botanic Garden free from any interference except it be authorized by some Act of Parliament. That is the result of the alternative exercise of power in this case. The legal consequence is that at the moment of the dedication the Crown had the care, control and management of the lands to which the proclamation referred, and even after the Governor had given his consent to the augmentation the Crown had that care, control and management. But after the Board of Governors had exercised its power of augmenting the boundaries, then, by force of sec. 5, those lands were no longer Crown lands which might be the subject of a Crown grant, because they were placed in the sole power of the Board of Governors until by some legislative enactment they were diverted from the purpose.

For these reasons I think that the objection is not tenable and that the appeal should be dismissed.

Higgins J.

I have come to the same conclusion as my brother Isaacs, but on a somewhat different ground. The only difficulty that I have seen from first to last is as to the relation between sec. 148 of the Crown Lands Act 1888 and the Botanic Garden Act 1860. The words of sec. 148 certainly literally fit this case: "The care, control, and management of all lands reserved or dedicated ... shall, in the interim between the reservation or dedication of such lands, and until the same shall be granted in fee, be vested in the Commissioner." It is not the land that is vested in the Commissioner but the care, control and management thereof. But one must look at the object of the section. It is simply to provide for the care, control and management of lands which otherwise might be left derelict or neglected until the purpose be achieved. The position is that lands dedicated and not granted would perhaps be overrun by rabbits or might be used for all sorts of uncleanly purposes, and the Legislature says "We must put the care and management of these reserves in someone," and it makes the Commissioner the caretaker. But the vesting of the care, control and management in the Commissioner is obviously to provide for the care, control and management where no care, control or management is otherwise provided. The provision was not intended to apply to lands where the care, control and management are provided for by statute; sec. 148 does not take away any existing statutory control. Moreover, when you look at the preamble of the Crown Lands Act you see that it was meant merely to repeal two Acts—the Crown Lands Consolidation Act 1886 and Crown Lands Amendment Act 1887—and to make other provisions in lieu thereof, that is, in lieu of those two particular Acts only. Then, by sec. 3, those two Acts are repealed. There is, therefore, no indication of an intention to repeal anything else. The Full Court decided this case upon the principle generalia specialibus non derogant; but I think this case goes even deeper. The Botanic Garden Act still stands unless it was repealed, and there can be no repeal of an Act of Parliament except by express words or necessary intendment. The result is, I should say, that sec. 148 does not apply at all to lands as to which the Legislature had already provided who is to have the care, control and management.

As to sec. 2 of the Botanic Garden Act, I do not think it has anything to do with title at all: it merely provides that whatever the Board holds it holds on a trust. Sec. 5 provides not only for lands granted in fee simple to the Board of Governors, but for lands "now occupied" or "which may hereafter be ... legally occupied" by the Botanic Garden. I have no doubt that the by-law, which applied when the boundaries had been "augmented," applied to the new part as well as the old. Then, as I take it, the proclamation gave such title as is involved in dedication, whatever it is, to the lands referred to; but it also gave augmented duties to the Board of Governors under sec. 5 of the Act of 1860. It extended the Board's duties to the Park Lands in the same way as if it had put more chickens under the wings of the Board. I think the by-law applies to any lands which are added to the Botanic Garden.

For these reasons I agree that the appeal should be dismissed.

Gavan Duffy J.

I agree that the appeal should be dismissed, and adopt the reasons of my brother Isaacs.

Powers J.

I agree that the appeal should be dismissed for the reasons given by my brother Isaacs.

Rich J.

I have had considerable doubt about the matter, but no good purpose would be served by expressing the reasons for that doubt.

Starke J.

I agree with the views expressed by my brother Isaacs.

Appeal dismissed.

Solicitors for the appellant, Donald Kerr & Co., Adelaide, by Hodgson & Finlayson.

Solicitor for the respondent, A. J. Hannan, Crown Solicitor for South Australia, by Snowball & Kaufmann.