Boreham v Commonwealth [1953] HCA 56; (1953) 88 CLR 518 (17 September 1953)

HIGH COURT OF AUSTRALIA

BOREHAM v. THE COMMONWEALTH OF AUSTRALIA [1953] HCA 56; (1953) 88 CLR 518

Injunctions

High Court of Australia
Williams J.(1) In Chambers
Dixon C.J.(2), Webb(2), Fullagar(2), Kitto(2) and Taylor(2) JJ.

CATCHWORDS

Injunctions - For what purposes granted - To restrain commission of trespass to persons illegally on land or their goods.

HEARING

Sydney, 1953, September 10. 10:9:1953
Melbourne, 1953, September 17. 17:9:1953
APPEAL from Williams J.

DECISION

September 10.
The following judgment was delivered by:-
WILLIAMS J. This is an application for an interlocutory injunction by three and caravans on Bunnerong Park against the Commonwealth of Australia and Commonwealth Hostels Limited for an order restraining the defendants from ejecting the plaintiffs or any of them from that park. It appears that on 1st January, 1946 the Commonwealth entered into possession of the park and erected a large number of buildings there. It entered into possession pursuant to the powers conferred on it by reg. 54 of the National Security (General) Regulations. The Defence Transition (Residual Provisions) Act 1952 purports to keep reg. 54 still in force. But the defendants do not rely on that regulation in these proceedings. Since the cessation of hostilities the buildings in the park have been used to house immigrants and the defendant Commonwealth Hostels Limited has occupied the buildings for this purpose. On 4th December, 1936, the park which is situated in the Municipality of Randwick was dedicated for public recreation and playing fields. On 30th July, 1937, the council was appointed the trustee thereof under the Public Trusts Act 1897 (N.S.W.). The legal estate in the land is vested in the council. The Commonwealth notified the council that its occupation of the park under the National Security Regulations would cease on 31st December, 1949. Correspondence then passed between the Commonwealth and the council, its effect being that the council agreed that the Commonwealth should remain in possession of the park indefinitely upon the Commonwealth agreeing to pay the council 2,575 pounds per annum until the park was finally vacated. I was not referred to any provisions of any State Act authorizing the council to make such an agreement and it follows from the decision of this Court in R. v. Registrar of Titles (Vict.); Ex parte The Commonwealth [1915] HCA 59; (1915) 20 CLR 379 that the agreement could not derive any validity from the Lands Acquisition Act 1906-1936. Consequently any title the Commonwealth has to the land must be derived from the fact that it is in possession of the land. The general principle is that a person in possession of land, though wrongfully, has a title which is good against all the world except those who can show a better title. I felt some doubt whether this general principle applied in favour of a person or body who entered into possession of land vested in another person or body on trusts for the benefit of the public, but I can see no reason why the Commonwealth should not rely upon this principle to resist the present claim. The plaintiffs are not seeking to enforce any statutory public rights to use the park for the purposes of public recreation and playing fields. If they were, they would at least have to show that the interference with the public right also interfered with their private right or that in respect of the public right they suffered special damage to themselves from the interference with the public right: Naylor v. Stephen (1934) 35 SR (NSW) 71, at p 93; 52 WN 12; (1937) 37 SR (NSW) 127, at p 137; 54 WN 50 . The plaintiffs entered the park in the first instance to become lodgers in the hostel. When they were ejected from the hostel they commenced to camp in the area outside the buildings. They have never been in possession of any part of the park. The Commonwealth has been in possession throughout and it can rely on its possessory title to remove the plaintiffs from the park as trespassers. (at p520)

2. For these reasons I must dismiss the motion. (at p520)

3. From this decision the plaintiffs appealed to the Full Court. (at p520)

4. C.M. Collins, for the appellants. The plaintiffs are on land which is Crown land of the State of New South Wales. The Commonwealth asserts a right to evict them, a right it does not possess. It is submitted that when the Commonwealth is interfering without justification with any person, that person may approach this Court for the purpose of obtaining a declaration of right and an injunction following therefrom. That person may seek a declaration that the Commonwealth has no right to interfere with the occupation of such land. It is not necessary that any right of the appellants should be interfered with. The case is similar to Colonial Sugar Refining Co. Ltd. v. Attorney-General for the Commonwealth [1912] HCA 94; (1912) 15 CLR 182 . There, no right of the Colonial Sugar Refining Co. Ltd. was being interfered with, but the Commonwealth was asserting a power which it did not possess. (at p520)

5. (KITTO J. The company owned the books, did it not?) (at p520)

6. Yes, but it was only called upon to produce them, not to hand them over to anyone. Both the High Court and the Privy Council took the view that in this situation an injunction was an appropriate remedy. (He referred to Colonial Sugar Refining Co. Ltd. v. Attorney-General for the Commonwealth, per Griffith C.J. (1912) 15 CLR, at pp 192-193 ; Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. Ltd. [1913] UKPCHCA 4; (1913) 17 CLR 644 ; and to the Judiciary Act 1903-1950, s. 31.) (at p520)

7. (TAYLOR J.) Is there any authority to justify the granting of an injunction to preserve a position which has been unlawfully taken up?) (at p520)

8. There is no direct authority, but it is submitted that the principle of Colonial Sugar Refining Co. Ltd. v. Attorney-General for the Commonwealth [1912] HCA 94; (1912) 15 CLR 182 applies. While the Commonwealth may be in occupation of the land it has no title thereto and is only in occupation as a trespasser. The Commonwealth has no power under the Constitution or by any Act to acquire land except under the Lands Acquisition Act 1906-1936. Under s. 5 of that Act there is excluded from the meaning of the word "land" any public park vested in a municipal council which has been reserved for public purposes. The Commonwealth is accordingly going outside its province in asserting that it has possession of the land, and should, for that reason, be restrained. While a court might be reluctant to stand between two trespassers who are private individuals, the situation is different when one trespasser is a government which is going outside its province. (at p521)

9. J.D. Holmes Q.C. (with him R. Else-Mitchell), for the respondents. The Commonwealth of Australia is in de-facto possession of the land, and can defend its possession against the appellants who are trespassers. The land is outside the scope of the Lands Acquisition Act 1906-1936. On the facts the Commonwealth has either a lease or a licence in respect of the land. Assuming that s. 519 of the Local Government Act 1919-1952 (N.S.W.) empowers the municipal council to grant a lease to the appellants, it has not granted one. The appellants do not assert a right to use the land for the purposes for which it has been reserved. If they did, then the proper plaintiff in the present proceedings would be the Attorney-General for the State of New South Wales. The appellants have no sufficient interest in the land to justify the granting of an injunction. They are committing a continuing offence against cl. 10(a) of Ordiance No. 48 under the Local Government Act 1919-1952 (N.S.W.), which forbids persons occupying any public reserve except in accordance with the purposes or objects for which such reserve is held. (at p521)

10. C.M. Collins in reply. (at p521)

The following judgment of the Court was delivered by:-
DIXON C.J. This matter comes before us by way of appeal from an order of

Williams J. made on Thursday last refusing an interim injunction. It may be that in the course of the argument it has come to include an application to us to grant an injunction as an exercise of our original jurisdiction, but that I pass by. On either view, we think that the application should be dismissed. (at p521)

2. The plaintiffs, who are the appellants, are actually upon a public reserve. In remaining upon that public reserve and residing there, they are committing a continuing offence against State law. The purpose of the injunction is to prevent the Commonwealth from ejecting them from the place where they are. (at p522)

3. The Commonwealth claims to be in possession of the public reserve and has been exercising de-facto possessory rights over it for some time. The claim of the Commonwealth is that the plaintiffs are trespassers against its possession. (at p522)

4. The plaintiffs deny that the Commonwealth has obtained or could obtain any right - proprietary or possessory - to occupy the reserve or to exclusive occupation or possession. They maintain that if the Commonwealth carries out its purpose of ejecting them it will be committing a tort. In fact, if the Commonwealth carries out its intention of ejecting them, the result of their ejection will be that they will no longer be committing a continuing offence against State law in remaining there. But that, the plaintiffs say, is an irrelevant consideration. (at p522)

5. We think that this is not a case for the intervention of a court of equity to grant an injunction or to investigate the exact right of the Commonwealth to carry out its intention, considered positively. The fact is that to grant an injunction would be directly to maintain the plaintiffs in a completely illegal position and it is not the function of a court of equity to do that, under the guise of restraining the commission of a tort, whether that tort be trespass to the person or trespass to property. The plaintiffs are left to their common law remedies if such a tort is committed. (at p522)

6. The appeal will be dismissed and the application refused. (at p522)

ORDER

Appeal dismissed and application refused with costs.