Tinker Tailor Pty Ltd v Commissioner for Main Roads [1960] HCA 56; (1960) 105 CLR 334 (11 August 1960)

HIGH COURT OF AUSTRALIA

TINKER TAILOR PTY. LTD. v. COMMISSIONER FOR MAIN ROADS [1960] HCA 56; (1960) 105 CLR 334

Resumption of Land

High Court of Australia
Dixon C.J.(1), McTiernan(2), Fullagar(3), Kitto(4) and Windeyer(5) JJ.

CATCHWORDS

Resumption of Land - Proclamation under the Main Roads Act - Purported resumption of land for the purposes of the Main Roads Act and vesting of it in the Commissioner for Main Roads - Effectiveness - Purpose sufficiently stated - Whether resumption should be by notification - Single instrument sufficient to resume and vest land - Injunction - Public Works Act, 1912 (N.S.W.), Parts IV and V, ss.42*, 43, 44 - Main Roads Act, 1924-1959 (N.S.W.), s.49 (1).*

HEARING

Melbourne, 1960, June 10;
Sydney, 1960, August 11. 11:8:1960
APPEAL from the Supreme Court of New South Wales.

DECISION

August 11.
The following written judgments were delivered:-
DIXON C.J. In my opinion the objections of the appellant to the validity of of the suit fail for the reasons given in the judgment of Kitto J. (at p339)

2. I think that the appeal should be dismissed. (at p339)

McTIERNAN J. In my opinion this appeal should be dismissed. (at p339)

2. The attack made for the appellant upon the validity of the resumption is founded upon the reference in s. 49 of the Main Roads Act, 1924-1959 to the Public Works Act, 1912. It is argued for the appellant that the intention of s. 49 is that in order to resume land for the purposes of the Main Roads Act, the Executive should use the provisions of s. 42 of the Public Works Act, mutatis mutandis. I think that the power of resumption under s. 49 of the Main Roads Act remains a power independent of the Public Works Act, notwithstanding the provisions referring to the latter Act. Those provisions should not be given a construction making them in any way dependent upon s. 42 of the Public Works Act. Section 49 prescribes the method of resuming land for the purposes of the Main Roads Act. The method consists of a decision by the Governor to resume land made on the application of the Board, now the Commissioner for Main Roads, and a proclamation by the Governor vesting the whole or part of the land in the Commissioner. It is clearly within the authority which the Governor has under the section to notify or declare by proclamation that land is resumed and by the same proclamation to vest the land in the Commissioner. One matter which shows that s. 49 of the Main Roads Act is not subject to or affected by s. 42 of the Public Works Act is that the vesting of land resumed under that section depends upon s. 43, whereas land resumed under the former section may be vested by proclamation pursuant to a power conferred upon the Governor. (at p339)

3. The proviso to sub-s. (1) of s. 49 contains the word "notification": the method of acquisition under s. 42 is by "notification". It seems to me to be placing undue stress on this word in the context of the proviso to say that it manifests the intention that the Governor is bound by s. 49 to adhere to the provisions of s. 42 of the Public Works Act when resuming land for the purposes of the Main Roads Act. (at p340)

4. The proclamation contains a statement that the land is resumed "under" the provisions of the Public Works Act. The phrase used in s. 49 is "in accordance with". The question remains: what purpose does the insertion of the reference to the Public Works Act serve, if it does not make the power to resume land for the purposes of the Main Roads Act subject to the provisions of s. 42 of the Public Works Act? The Main Roads Act, unlike the Public Works Act, contains no provisions such as are in the latter Act which operate consequentially upon the acquisition of land. In my opinion the intention of s. 49 is that those provisions of the Public Works Act should apply mutatis mutandis in the case of a resumption of land under s. 49 to fill that gap in the Main Roads Act. The statement in the proclamation that the land was resumed "under" the provisions of the Public Works Act should be understood in that sense. (at p340)

5. In my judgment the proclamation conforms with the provisions of s. 49 of the Main Roads Act and there is no need for it to conform with the provisions of s. 42 of the Public Works Act, if it does not do so. My conclusion is that the proclamation operates by force of the Main Roads Act, 1924-1959 to resume the land of the appellant to which it applies and to vest that land in the respondent for the purposes of that Act. (at p340)

FULLAGAR J. The appellant company is the registered proprietor of an estate in fee simple in certain land near Sydney, and is also a sublessee in possession of certain other land in the same vicinity. By a proclamation dated 13th January 1960, and published in the Government Gazette on 22nd January 1960, the Governor purported to acquire and to vest in the Commissioner for Main Roads both pieces of land, and by notices dated 26th January 1960 the Commissioner demanded possession. On 1st April 1960 the appellant commenced by originating summons a suit in the Supreme Court of New South Wales, whereby it sought an injunction restraining the defendant Commissioner from acting in pursuance of the proclamation. The suit came on for hearing before Jacobs J. The appellant maintained that the proclamation was not authorized by law and did not effectively vest the land in the Commissioner. His Honour rejected this contention and dismissed the suit. An appeal to the Full Court, which was heard by Evatt C.J. and Herron and Sugerman JJ., was dismissed (1960) SR (NSW) 228; 77 WN 332 , though the reasons given by their Honours for dismissing the suit were not precisely the same as those given by Jacobs J. The company now appeals to this Court. (at p341)

2. The case turns on s. 49 of the Main Roads Act, 1924-1957 and s. 42 of the Public Works Act, 1912 as amended. It will be convenient to begin by stating the terms of the relevant statutory provisions so far as material, and then to set out the challenged proclamation. (at p341)

3. Section 49 of the Main Roads Act, so far as material, provides: "(1) The Governor may, on the application of the Board, resume or appropriate land for the purpose of this Act, and may be proclamation vest the whole or part of such land in the Board, and may by the same or any subsequent proclamation declare the whole or part of such land to be a public road or public reserve, and may, if the Board so recommends, place it under the control of the council. Such resumption or appropriation may be made in accordance with the provisions of the Public Works Act, 1912 (and any Acts amending that Act), mutatis mutandis, and for that purpose the Board shall be the 'Constructing Authority', and shall take the place of the Minister for Public Works. . .". (at p341)

4. The "Board" referred to in s. 49 is the Main Roads Board, a formerly existing body corporate, whose powers and functions have by statute devolved on the Commissioner for Main Roads, and it is common ground that the references to "the Board" must be read as references to the Commissioner for Main Roads, who is the defendant in the action and the respondent on this appeal. (at p341)

5. Part IV of the Public Works Act, which contains ss. 39, 40 and 41, is headed "Preliminary Conditions relating to the Acquisition of Land". The effect of Pt IV is to authorize the acquisition of land for what are called "authorised works" and for certain other works which do not fall within the definition of "authorised works". Part V of the Act is headed "Methods of Acquisition of Land", and Div. 1 of Pt V is headed "The acquisition of land by Gazette notification". One of the sections comprised in Div. 1 of Pt V is s. 42. Section 42, so far as material, provides: "For the purpose of carrying out any authorised work, if Governor directs that any land required for such work shall be taken under this Division of this Act, he may by notification to be published in the Gazette and in one or more newspapers published or circulated in the police district wherein is situated the land the subject of such notification declare that the land described in such notification has been appropriated (if Crown land) or resumed (if private property) for the public purpose therein expressed." (at p342)

6. What was published in the Gazette was headed "PROCLAMATION" and was in the following terms: "I, Lieutenant-General Sir ERIC WINSLOW WOODWARD, Governor of the State of New South Wales, with the advice of the Executive Council and by virtue of the provisions of the Transport (Division of Functions) Act, 1932-1956, and in pursuance of the provisions of the Main Roads Act, 1924-1959, do, by this my Proclamation, declare that so much of the land hereunder described as is Crown Land is hereby appropriated, and so much thereof as is private property is hereby resumed under the provisions of the Public Works Act, 1912, for the purposes of the Main Roads Act, 1924-1959, and that the said land hereunder described is hereby vested in the Commissioner for Main Roads. Signed and sealed at Sydney, this thirteenth day of January, 1960. By His Excellency's Command, P. H. HILLS, Minister for Highways. GOD SAVE THE QUEEN]" The only reason for referring to the Transport (Division of Functions) Act is that it was that Act which substituted the Commissioner for the Board. For present purposes nothing turns on any provision of that Act. (at p342)

7. Jacobs J. held that the first sentence of s. 49 of the Main Roads Act - "The Governor may . . . resume or appropriate land for the purpose of this Act" - was effective by itself to enable the Governor by proclamation to resume or appropriate land independently of anything in the Public Works Act. But it seems to me that, if s. 49 were intended to provide its own machinery for resumption or appropriation, there could be no reason for referring to the Public Works Act at all, and I agree with the view which I understand to have been taken by the Full Court. (at p342)

8. A power to resume or appropriate is one thing. The method by which, or the manner in which, that power is to be exercised is another thing. So far as resumptions or appropriations under the Public Works Act alone are concerned, the power is given by Pt IV of that Act, which lays down what are called in the heading "Preliminary Conditions". The power is defined by reference to purposes. But Pt IV says nothing about the method by which the resumption or appropriation is to be effected. That matter is dealt with in Pt V, which is headed "Methods of Acquisition". Two such methods are prescribed. One method - the method with which we are concerned - is the method of acquisition by notification in the Gazette, which is provided by s. 42. The publication of the notification has the effect, under s. 43, of vesting the land forthwith in the "Constructing Authority" a term which is defined by s. 3 of the Act. (at p343)

9. When we come to the Main Roads Act, we see that the power to resume or appropriate is given by the opening words of s. 49. Those words correspond in effect with Pt IV of the Public Works Act: they are the source of the power, which is defined (albeit very generally) by reference to purpose. They are followed by words conferring powers to do further things, which are logically subsequent to actual resumption or appropriation. Then comes the provision for the method by which the power to resume or appropriate is to be exercised. The word "may" is used in this provision, but I think that the method prescribed is, because no other method is prescribed, the only method which will be effective in law. This provision corresponds to Pt V of the Public Works Act in that it does not give a power but only prescribes the method by which a power already given may be exercised. What it does is to incorporate mutatis mutandis the provisions of Pt V of the Public Works Act, the only presently relevant provision of that Act being s. 42 thereof. Section 42 applies, by its own direct force, only to resumptions or appropriations for the purposes of the Public Works Act itself, and in such cases the effect of the "notification" is prescribed by s. 43. But, when the resumption or appropriation is made for the purposes of the Main Roads Act, the notification is effective to resume or appropriate by virtue of s. 49 of that Act, and thereupon the resumed or appropriated land may be proclaimed to vest in the Commissioner, declared to be a public road or public reserve, or placed under the control of the local council. And I can see no reason why any two or more of these ends should not be achieved by a single instrument, or why a resuming or appropriating instrument should not proclaim or declare what is authorized by s. 49 to be proclaimed or declared. (at p343)

10. It is in the light of these considerations that the argument for the appellant must be considered. Dr. Louat denies the effectiveness of the proclamation on what are, in effect, three grounds. (at p343)

11. It is said, in the first place, that s. 42 requires that a specific public purpose shall be stated in the instrument published. Section 42 does require the "public purpose" of the notification to be "therein expressed". The proclamation actually published says that the resumption and appropriation are "for the purposes of the Main Roads Act, 1924-1959". This follows the wording of s. 49 of that Act. It is true that that section uses the singular - "purpose", whereas the proclamation uses the plural - "purposes", but no point was, or, as I think, could be, made of this. The argument is that what s. 42 requires is a statement of the specific use which it is intended to make of the land acquired. The general statement of purpose which appears in the proclamation is, it is said, not enough. (at p344)

12. When an acquisition is made in exercise of the powers conferred by the Public Works Act itself, I would agree that the public work or purpose for which the acquisition is made must be specified in the Gazette publication. The public purposes for which land may be acquired under that Act are of the widest variety, as is seen by reference to s. 41 of the Act. The land may be required for sewerage works, for a lunatic asylum, a lighthouse, a school, a wharf, a cemetery or an abattoir - to name but a few of the possible purposes of an acquisition under the powers given by the Public Works Act. The point is that the power is given by reference to specific undertakings, and the instrument which exercises the power must specify the undertaking for which the power is exercised. But, when the machinery provided by s. 42 is used not in exercise of any of the powers given by the Public Works Act but in exercise of the power given by s. 49 of the Main Roads Act, the position is different. The power given by s. 49 is not given by reference to specific undertakings, but by reference simply to "the purpose of this Act", i.e. the Main Roads Act. It is natural enough that this statement of purpose should be regarded as sufficiently definitive, because the scope of the Main Roads Act is very narrow in comparison with that of the Public Works Act. The power being given by reference simply to "the purpose of the Main Roads Act", the instrument exercising the power need do no more than refer to "the purpose of the Main Roads Act". When the former section is used in exercise of the power conferred by the latter section, we must substitute the words "For the purpose of the Main Roads Act" for the words "For the purpose of carrying out any authorised work". We must also substitute the words "required for such purpose" for the words "required for such work", and the words "the Main Roads Act" for the words "this Division of this Act". It does not seem necessary to make any substitution for the words "for the public purpose therein expressed", because the "public purpose" will be sufficiently expressed in the instrument by the words "for the purpose of the Main Roads Act". (at p344)

13. For these reasons I am of opinion that the first argument of the appellant fails. (at p344)

14. The second ground on which the validity of the proclamation is attacked is that it is neither in form nor in substance a "notification". It is true that s. 42 of the Public Works Act requires a "notification" of acquisition. It does not speak of a "proclamation," and the instrument published in the Gazette is, both in form and in substance, a proclamation. But I can see no reason for saying that this fact affects in any way its validity or legal effect. I can see no reason why the notification should not take the form of a proclamation. The objection seems to me to amount to no more than saying that the notification is of a more formal character than was necessary. (at p345)

15. The last objection taken by the appellant is that the instrument published in the Gazette does not contain a declaration that the land has been resumed or appropriated, but purports to operate by its own inherent force to effect a resumption and appropriation. It is true that s. 42 requires an instrument which "declares that the land described . . . has been appropriated . . . or resumed." And it is true that what the proclamation declares is that land "is hereby appropriated" and "is hereby resumed". But again it does not appear to me that htis departure from the literal terms of s. 42 can affect the validity of the instrument published in the Gazette. Section 42 speaks of a "direction" by the Governor "that . . . land . . . shall be taken", and, if s. 42 were read alone, it might perhaps be argued that it was this antecedent "direction", and not the publication of the "notification", that effected the actual resumption or appropriation. But I would think it clear, as a matter of law, that it is the publication of the notification in the Gazette that effects the actual resumption or appropriation. The proclamation, therefore, states the position in substance correctly, and the proclamation is not invalidated by the fact that it uses the present tense and not the perfect tense. (at p345)

16. For the above reasons, which are in substance, I think, the reasons given by the learned judges who constituted the Full Court of the Supreme Court, I am of opinion that this appeal should be dismissed. (at p345)

KITTO J. This is an appeal from an order of the Supreme Court of New South Wales (Full Court) (1960) SR (NSW) 228; 77 WN 332 affirming a decretal order made by Jacobs J. in the equitable jurisdiction of that Court. The decretal order dismissed a suit in which the present appellant, as the registered proprietor of an estate in fee simple in certain land under the provisions of the Real Property Act, 1900 (N.S.W.), sought an injunction restraining the respondent from acting in pursuance of a proclamation by which the Governor of New South Wales had purported to resume the land and vest it in the respondent. The appellant's case for the injunction was that for a variety of reasons the purported resumption and vesting were void. (at p346)

2. The proclamation was headed "Transport (Division of Functions) Act, 1932-1956 - Main Roads Act, 1924-1959 - Proclamation". The body of it was in the following terms: "I, Lieutenant-General Sir ERIC WINSLOW WOODWARD, Governor of the State of New South Wales, with the advice of the Executive Council and by virtue of the provisions of the Transport (Division of Functions) Act, 1932-1956, and in pursuance of the provisions of the Main Roads Act, 1924-1959, do, by this my Proclamation, declare that so much of the land hereunder described as is Crown Land is hereby appropriated, and so much thereof as is private property is hereby resumed under the provisions of the Public Works Act, 1912, for the purposes of the Main Roads Act, 1924-1959, and that the said land hereunder described is hereby vested in the Commissioner for Main Roads". Then followed a description of the land referred to, a description which included the appellant's land. (at p346)

3. Of the three statutes to which the proclamation refers, it will be convenient to turn first to the Main Roads Act, 1924-1959. The relevant provisions of that Act are contained in s. 49, the first sub-section of which requires detailed consideration and therefore must be quoted in full. It reads as follows:

"(1) The Governor may, on the application of the Board,
resume or appropriate land for the purpose of this Act, and
may by proclamation vest the whole or part of such land in
the Board, and may by the same or any subsequent
proclamation
declare the whole or part of such land to be a public road
or public reserve, and may, if the Board so recommends,
place it under the control of the council.

Such resumption or appropriation may be made in accordance
with the provisions of the Public Works Act, 1912 (and any
Acts amending that Act), mutatis mutandis, and for that
purpose the Board shall be the 'Constructing Authority',
and shall take the place of the Minister for Public Works:
Provided that when deemed necessary the notification shall
state the depth below the surface to which the land is resumed
or appropriated."

Sub-section (2) adds that the Board may (inter alia) cause land to be resumed. (at p346)

4. The reference to the Board is to the Main Roads Board of New South Wales established under the Act: (s. 3). The relevant powers and functions of that Board, however, have been transferred to the respondent, the Commissioner for Main Roads, by s. 6 of the Transport (Division of Functions) Act, 1932-1952, (N.S.W.); and that is the significance, and the only significance, of the references to that Act in the heading and the body of the proclamation. (at p347)

5. The third of the Acts mentioned is the Public Works Act, 1912. In that Act, the appropriation of Crown land and the resumption of land which is private property are dealt with in Div. 1 of Pt. V as the two kinds of acquisition which may be effected by Gazette notification. (There is also provision for acquisition by notice to the parties interested, but that is dealt with in Div. 2.) It is necessary, however, to look first at Pt IV, which prescribes preliminary conditions to be satisfied before the power of acquisition arises, conditions which differ according as the acquisition is or is not for an "authorised work". The expression "authorised work" means a work as to which a procedure for which the Act provides, culminating in a sanctioning Act of Parliament, has been observed: see ss. '34-37. In the case of an authorized work, the conditions are laid down in s. 39. They are that the Governor is of opinion that the land is required for the work, and that he directs that it be acquired either by taking it under the provisions of Div. 1 of Pt V or under the provisions of Div. 2 of that Part. The section adds that thereupon the land may be acquired in the manner directed, and that the compensation shall be ascertained pursuant to the provisions of the Act applicable in either case respectively. In the case of a work other than an authorized work, the preliminary conditions are laid down in sub-s. (1) of s. 40. They are (a) that the Legislature has appropriated money out of the Consolidated Revenue Fund for or towards any of a list of public works or undertakings contained in s. 41 (which does not mention roads), or (b) that the Governor has sanctioned the carrying out of any such work or undertaking for or towards which public funds are available, or (c) that the Governor has sanctioned the acquisition of any lands for school sites or sites for public offices or public buildings. Whenever one of these conditions is fulfilled the sub-section provides that the land required may be "acquired or resumed", and the compensation shall be ascertained and dealt with as if the Governor had directed under s. 39 that the land should be "acquired or resumed" under the provisions of Div. 1 of Pt V, and that every provision of the Act applicable upon such direction of the Governor shall apply unless it relates exclusively to authorized works. One of the provisions of sub-s. (2) of s. 40 should also be noted. It is that in the application of the provisions of the Act to the "acquisition or resumption" of land under s. 40, the expression "the Constructing Authority" in any such provision shall mean the Minister for Public Works (except in certain cases which there is no need to mention here). And sub-s. (3) goes on to apply in such a case the provisions of s. 4 which make the Minister a corporation sole. (at p348)

6. It will be observed that the power exercisable under s. 39, that is in the case where the Governor has directed acquisition by taking under Div. 1 of Pt V, is a power to acquire in that manner; and the power exercisable under s. 40 is a power to acquire as if a direction had been given under s. 39 for a taking under the same Division. Similarly when one turns to Div. 1 itself, one finds no separation of the power from the machinery for its exercise: s. 42 empowers the Governor, if he directs that land be taken under the Division, to declare by notification published in the Gazette (and in newspapers) that the land has been appropriated (if Crown land) or resumed (if private property) for the public purpose therein expressed; and ss. 43, 44 and 45 attach to a declaration so made the legal consequences which are to amount to appropriation or resumption. The consequences are that the land vests in the Construction Authority (the Minister empowered to carry out the authorized work: s. 3), and he takes it as a trustee on behalf of the Crown for the purpose of the Public Works Act; the appropriation of Crown land withdraws it from any lease or licence, or promise thereof, and cancels any dedication or reservation under the authority of the Crown Lands Acts; and the resumption of land which is private property converts the estate and interest of the persons entitled into a claim for compensation in pursuance of later provisions of the Act. (at p348)

7. It is with all this in mind that we must approach the construction of s. 49 of the Main Roads Act. In form, it appears to separate the power to resume or appropriate land from the method by which the power may be exercised. In form, again, it appears not only to separate the power to resume or appropriate land from the powers to vest land in the Board and to declare public roads and public reserves, but also to make the latter powers, that is to say the powers of vesting and declaring public roads and public reserves, exercisable only after a resumption or an appropriation has been made. The appellant's argument on this appeal so reads the section. It treats the opening words as if they were dissociated from the rest of the first paragraph, and as deriving their content wholly from the second paragraph. In that view, a resumption or appropriation for the purpose of the Main Roads Act is assimilated to a resumption under s. 40 of the Public Works Act, so that the power which is created is a power to acquire under Div. 1 Pt V by means of a Gazette notification conforming to s. 42 by declaring that the land has been appropriated (if Crown land) or resumed (if private property) for the public purpose therein expressed. On the other hand, those responsible for the proclamation which was made in the present case have evidently construed s. 49 differently. They have proceeded on the view that the first paragraph should be read as a connected whole, and therefore as creating a power to resume or appropriate by means of a proclamation which shall achieve the necessary vesting by its own terms, operating to do so by virtue of s. 49 itself; and their understanding of the second paragraph has evidently been that it incorporated the resumption and appropriation provisions of the Public Works Act with such modifications that no other notification than the proclamation is required, that there is no necessity for the formula of a declaration that the land has been resumed, and that, while an acquisition must be for the purpose of the Act, the requirement that a particular public purpose shall be expressed in the instrument does not apply. (at p349)

8. Assistance in the task of deciding between these competing views is obtained by observing the behest of s. 4, that the Act shall be read with the Local Government Act, 1919 (N.S.W.). The Local Government Act, as it stood when the Main Roads Act was passed in 1924, provided by s. 238 that any land required for the purpose of carrying out the provisions of Pt IX (dealing with public roads) might be acquired under the provisions of the Public Roads Act, 1902 (N.S.W.) or under the provisions of the Local Government Act itself. The latter were contained in s. 536. Sub-section (1) of that section enabled a council to apply to the Governor for the acquisition of land, and sub-s. (4) provided that the Minister for Public Works might (a) appropriate or resume the land by Gazette notification under Div. 1 of Pt V of the Public Works Act, and (b) notify that the land was vested in the council. Thereupon the land would vest in the council (sub-s. (5) ). Paragraph (a) of sub-s. (4) must have meant that the Minister for Public Works might take the steps necessary to bring about the publication of a Gazette notification by the Governor. Sections 43 and 44 of the Public Works Act would then operate to vest the land in the Minister for Public Works as the Constructing Authority, as if he were empowered to carry out an authorized work in relation to the land. But it seems clear that the notification under par. (b) vesting the land in the council was to be a notification by the Minister for Public Works made after the appropriation or resumption had vested the land in him. Indeed, in the predecessor of s. 536, s. 16 of the Local Government (Shires) Act, 1905, the word "thereupon" was used to introduce the provision which later became par. (b). So the land reached the council by two stages. (In passing, it may be mentioned that the Local Government Act now contains quite different provisions on the subject, provisions which vest land in a council without an intermediate vesting in the Minister.) (at p350)

9. The Main Roads Act as originally passed contained in s. 49 (1) quite a short provision as to acquisition: "The Governor may on the application of the board resume land under the Public Works Act, 1912, for the purposes of this Act, and may vest the whole or part of such land in the board or proclaim the whole or part to be a public road or public reserve, and place it under the control of the council, as the board may recommend". No person was made the Constructing Authority. There was no Minister empowered to carry out an authorized work, and s. 40 of the Public Works Act could hardly apply so as to make the Minister for Public Works the Constructing Authority. Consequently it was, to say the least, difficult to see how the vesting provisions in ss. 43 and 44 of the Public Works Act could have any application. The vesting in the Board, or the creation of a public road or public reserve, could not be, as the vesting in a council under the Local Government Act had been, the result of a dispositive act on the part of a Minister: it was to be brought about by an act of the Governor. Was not the intention, then, that the instrument of resumption should itself effect the vesting of the land? The vesting in the Board might, it is true, be of a part only of the land appropriated or resumed. What did the section mean as to the rest of the land? The answer is to be found, I think, by referring again to the provisions of the Local Government Act. Section 4 of that Act defined "public road" to mean (inter alia) any road proclaimed as a public road under the authority of any Act, and s. 232 operated to vest every public road in fee simple in the council. As to public reserves, s. 344 gave the Governor power (inter alia) to place such reserves under the care, control and management of a council and to determine whether any land came within the operation of the section; and s. 345 empowered the Governor by proclamation to charge the council with the care, control and management of any public reserve in its area (including, as appears from s. 344 (1), a public reserve vested in a body or persons other than the council); and it added that thereupon all trustees appointed under the authority of a statute should be removed and that their property should be the property of the council. These provisions being borne in mind, the intention of the second portion of the original s. 49 (1) of the Main Roads Act seems to have been that the resumption which was authorized should be under the Public Works Act but subject to the qualification that the land should not vest in a Minister on behalf of the Crown as a trustee for the purpose of the Public Works Act, but should vest, as the Board might recommend, in the Board itself for the purposes of the Main Roads Act, or in the local council for the purposes of a public road or of a public reserve, or partly in one way and partly in another, or partly in each of the three ways. (at p351)

10. In 1929, this obviously inadequate provision was replaced by a new sub-s. (1), which (subject to one minor amendment) is the provision now in force. It is a sorry piece of work, but the reasons for some of the changes it embodies may be discerned. In the first place, the provision in the second paragraph that the Board shall be the "Constructing Authority" removes the obstacle to the application of many provisions of the Public Works Act (such as those of Pt. VII and Pt. VIII), and so enables the mutatis mutandis application of the Public Works Act to have the wide effect which Nicholas C.J. in Eq. ascribed to it in H. T. Seymour Pty. Ltd. v. Commissioner for Main Roads (1942) 43 SR (NSW) 226, at p 229; 60 WN 24, at p 26 . The addition of the words "and shall take the place of the Minister for Public Works" seems to show that the reference to the provisions of the Public Works Act includes s. 40. But the intention of s. 49 in making the Board the Constructing Authority cannot have been to enable the vesting provisions of the Public Works Act to apply, for the subject of vesting was covered by the first paragraph. In other words, the section cannot mean that a notification shall be published in accordance with the Public Works Act and that the provisions of that Act shall produce a vesting in the Board; for if it meant that, a vesting by the Governor in the Board by proclamation, prominently provided for though it is, would be a sheer redundancy. The provision that the Board is to be the Constructing Authority is limited, be it noticed, by the words "for that purpose"; and "that purpose" is not the precise application of the provisions of the Public Works Act, but their application mutatis mutandis. (at p351)

11. One other change was made in the drafting of the new s. 49 (1). Its predecessor had specified proclamation as the method of dealing with public roads and public reserves, but had not provided any method for the vesting of land in the Board. The new provision made proclamation the method to be used for all three purposes. By so doing, it provided the one procedure for the vesting of the whole of the land resumed or appropriated. The change makes it even clearer than it was under the original s. 49 (1) that the intention is not to prescribe one act of the Governor which shall effect a resumption or appropriation and a separate and subsequent act of the Governor which shall effect the vesting of the land in the proper authority. Much the better view is that it prescribes a single act, and that a proclamation, which is to effect the resumption or appropriation by vesting the land in one, or two, or all three, of the ways provided for. So to read the first paragraph of s. 49 (1) is not by any means to deprive the second paragraph of useful operation. But it does give the words mutatis mutandis a wide application. They cover the substitution of an application by the Board for the conditions precedent to acquisition which are prescribed by ss. 39 and 40 of the Public Works Act, the substitution of proclamation for notification, and the substitution of the purpose of the Main Roads Act for a public purpose within the ambit of the Public Works Act. (at p352)

12. It should here be added that the only later amendment of s. 49 (1), made in 1936, enacted the present proviso in place of an earlier proviso which contained nothing of assistance in the interpretation of the main provisions. All that need be said of the new proviso is that no significance seems to attach to the use of the word "notification" instead of "proclamation". (at p352)

13. If s. 49 (1) be construed in the manner I have indicated, the several submissions of which the appellant's argument consists may be disposed of briefly. They may be recapitulated: (1) that there was in the present case no "notification"; the proclamation was an instrument differing both in its general nature and in its particular intention from a notification; (2) that in any case, the proclamation did not declare that the land which it described had been resumed; it stated that the land was thereby resumed; and (3) that the proclamation did not express any particular purpose as being that for which the resumption was made; to say that a resumption is made "for the purposes to the Main Roads Act" is not to express a purpose with the degree of particularity which s. 42 of the Public Works Act requires. (at p352)

14. A sufficient answer to the first contention is that, even if it be agreed that a proclamation is not such a notification as will satisfy s. 42 of the Public Works Act, s. 49 of the Main Roads Act evinces the intention that in the mutatis mutandis application of the Public Works Act provisions proclamation is to be considered as prescribed in place of notification. (at p352)

15. The answer to the second contention must be that the resumption which s. 49 authorizes is a resumption by the proclamation of a present vesting, and that the provisions of s. 42 of the Public Works Act must be applied with any modification which that fact requires. It may, indeed, be doubted whether any modification is necessary. The provision for a declaration that the land which is the subject of it "has been resumed" would no doubt be satisfied by a declaration in those precise words, but it does not commit the absurdity of requiring that the resumption which the notification effects shall be declared to have taken place at an earlier time: all it appears to mean is that the resumption shall be declared as complete. (at p353)

16. To answer the third contention it is necessary to return once more to the fact that there is to be not a precise application of the provisions of the Public Works Act, but an application mutatis mutandis. The provisions of that Act which are to be adapted are provisions conferring a power of resumption limited to resumptions for the purpose of carrying out particular works which have been either authorized by Parliament or sanctioned in one of the ways referred to in s. 40. In such a context, the provision that the instrument of resumption shall express "the public purpose" for which the resumption is made is not complied with unless the purpose of the resumption is stated with a degree of particularity sufficient to achieve the evident object, namely to show that the purpose is, or is within, the purpose of a work so authorized or sanctioned. The Main Roads Act notionally transfers the provision to a different context, relating it to a power which is limited not to resumptions for the purposes of particular authorized works, but to resumptions "for the purpose of this Act". A general Parliamentary approval being thus given to all resumptions for the purpose of the Act, the object of having an expression of purpose in the resuming instrument is fully served if the purpose of the resumption is stated simply as the purpose of the Main Roads Act. The appropriate adaptation of s. 42 of the Public Works Act is, therefore, to regard the provision for the expression of the public purpose as converted into a provision that the purpose shall be expressed as the purpose of the Main Roads Act. (at p353)

17. In my opinion, none of the grounds upon which the appellant challenges the resumption in this case can be upheld, and the appeal should therefore be dismissed. (at p353)

WINDEYER J. I agree that for the reasons given by Kitto J. this appeal must be dismissed. The difficulty in construing s. 49 of the Main Roads Act arises largely from the uncertain scope of the expression mutatis mutandis. That phrase cannot properly be used to make precise what is imprecise, or to complete the sense of an incompletely expressed provision. But it may have a wide application. Here its effect in relation to the Public Works Act is, in my view, that stated by Kitto J. Dr. Louat's careful argument that the proclamation was not effective to resume the appellant's land therefore fails. The contention that the purpose of a resumption must be sufficiently stated is correct. But what has to be stated is that the land is being taken for the purpose of a particular Act authorizing the carrying out of works and the taking of land for that purpose, or that it is being taken for the purpose of a work authorized under the Public Works Act. In other words, the purpose that must appear is a purpose for which Parliament has authorized the Crown to resume private land or appropriate Crown land. But the particular structure or part of a structure to be erected upon a particular piece of land need not appear. (at p354)

ORDER

Appeal dismissed with costs.