Adelaide Fruit & Produce Exchange Co Ltd v Adelaide Corporation [1960] HCA 61; (1960) 105 CLR 428 (17 August 1960)

HIGH COURT OF AUSTRALIA

THE ADELAIDE FRUIT AND PRODUCE EXCHANGE CO. LTD. v. ADELAIDE CORPORATION [1960] HCA 61; (1960) 105 CLR 428

Resumption

High Court of Australia
Menzies J.(1)

CATCHWORDS

Resumption - Appeal to High Court - Competency of appeal - Determination of amount of compensation - Determination made by judge of Supreme Court - Whether made by Supreme Court - Whether a judgment or order of the Court - The Constitution (63 & 64 Vict. c. 12), s. 73 - Judiciary Act 1903-1960 (Cth), s. 35 - Compulsory Acquisition of Land Act, 1925 (S.A.) (No. 1724 of 1925), ss. 8 (1), 33.

HEARING

Melbourne, 1960, July 25;
Sydney, 1960, August 17. 17:8:1960
APPEAL from the Supreme Court of South Australia.

DECISION

August 17.
The following written judgment was delivered:-
MENZIES J. The matter for determination is whether an appeal to this Court Act, 1925 (S.A.) is competent. Upon proceedings under this section by way of originating summons, Ross J. determined that the amount of compensation payable by the Corporation to the Company in respect of the taking of a part of the Company's freehold premises in Adelaide was 37,100 pounds. The Company has filed a notice of appeal asserting that in reaching this assessment a deduction of 14,000 pounds for enhancement in the value of the Company's remaining land was made in error. The Corporation has given notice of objection to the competency of the appeal and a notice of cross-appeal expressed to be conditional upon its notice of objection being overruled, asserting that the assessment was in error both in that a sum of 7,000 pounds was allowed for injurious affection and that the deduction of 14,000 pounds for enhancement upon severance was too low. The objection to jurisdiction (which is all I am concerned with) is based upon a number of grounds which can, I think, be reduced to two : first, that the determination was not made by the Supreme Court of South Australia, and secondly, that even if it were, it was not a judgment, decree, order or sentence of that Court. The determination of both these matters depends primarily upon an examination of the provisions of the Compulsory Acquisition of Land Act. The first such Act in South Australia was The Land Clauses Consolidation Act, 1847 (No. 6) which was in essence a reproduction of the 1845 English Act of the same name (8 & 9 Vict. c. 18), providing (inter alia) that when the promoters of an undertaking "shall require to purchase or take" any land, compensation is to be made to persons sustaining damage "by reason of the execution of the works" (ss. 18, 68). Amended in a few respects by Act No. 26 of 1855-1856 (which provided, inter alia, for entry by the acquiring authority if no claim was forthcoming), the 1847 Act was again amended by the Lands Clauses Consolidation Act Amendment Act, 1881 (Act No. 202), the provisions of which were based on the alternative procedure for assessment found in the English Regulation of Railways Act 1868 (31 & 32 Vict. c. 119), ss. 41-44, and gave rise to the decision of this Court in C. A. MacDonald Ltd. v. South Australian Railways Commissioner [1911] HCA 14; (1911) 12 CLR 221 (to which I shall return later). Minor amendments were then made in 1911 (Act No. 1035), 1914 (Act No. 1163), 1917 (Act No. 1298) and 1918 (Act No. 1326) ; and finally the legislation was re-enacted in its present form (save for an amendment made last year which is not relevant here), which has in many respects diverged from the English legislation. (at p431)

2. The Compulsory Acquisition of Land Act, 1925, notwithstanding its title and some ambiguous references to the purchase or taking of land "under the provisions of this Act", does not confer power to acquire land for works or undertakings of a public nature. What it does generally is to regulate the exercise of such powers and provide for the payment of compensation for land acquired or injuriously affected by reason of the execution of works elsewhere authorized. The Acts containing such authorizations are referred to as "special Acts" and the persons authorized thereunder to undertake works and acquire lands are called "promoters". The "special Act" in this case is the Local Government Act, 1934 as amended, and both counsel agreed that the Corporation's power is here derived from s. 871a which, although introduced in 1941 by the same amending Act, has no special provision as to vesting such as is found in s. 871e. Part III of the Compulsory Acquisition of Land Act relates to a special subject, namely, the purchase of land and the determination of compensation by agreement, and it contains provisions authorizing persons under disabilities to sell and convey their land to promoters. For present purposes, it is only necessary to observe that in the case of persons under a disability, the compensation "shall, if it is not determined as provided by Part IV, be not less than an amount approved by any court in which an action for the compensation might be instituted, and shall be paid and applied for the benefit of the persons interested, as provided by Division IV of Part IV" (s. 17). (at p432)

3. The title of Pt. II of the Act is "Compensation" and the leading provision of this Part is s. 8 (1), which is in these terms : "If any land is purchased or taken under the provisions of this Act or the special Act by the promoters for the purposes of the special Act, or is injuriously affected by reason of the execution of the works, every person interested in the land shall, subject to the provisions of this Act and the special Act, be entitled to compensation for the same from the promoters." The title to compensation for land depends, therefore, upon the purchase or taking of that land. A major difficulty in the interpretation of the Act is to determine when land "is . . . taken", but it seems clear to me that land may be taken in advance of either the assessment of compensation or the passing of the title. This is apparent from sections such as ss. 12, 28, 29, 30 and 31, which provide in various ways for determining the amount of compensation payable that the owner becomes entitled to before any transfer of the land. From these provisions I infer that when proceedings are taken to determine a disputed claim for compensation, then those proceedings are in respect of land which already has been taken for the purposes of s. 8. It is to be observed that by implication from s. 25, once proceedings are commenced for determining a claim for compensation, a notice to treat cannot be withdrawn. In other words, the acquisition must proceed unless those concerned otherwise agree. (at p432)

4. Part IV of the Act is entitled "Taking of Land and Determination of Disputed Compensation". By this Part it is provided that promoters authorized by special Acts to take land shall give notice to treat (ss. 21-23). The ordinary procedure thereafter is for the owner to deliver notice of claim, and, indeed, s. 24 standing alone requires this. The procedure upon delivery of such a notice is for the promoter to give notification that it admits or disputes the claim or to offer what it considers to be reasonable compensation. In the event of an offer, the claimant must within twenty-one days notify the promoter whether he does or does not accept the offer (s. 26). If the promoter gives notice that it disputes the claim or if the owner does not accept the amount offered within twenty-one days, then there is a disputed claim for compensation (s. 27). The determination of a disputed claim for compensation is dealt with by Div. II of Pt. IV which, apart from settlement by agreement, provides for determination by arbitration (s. 29), by action for compensation by the owner against the promoter (s. 30), or by a proceeding in court on the application of the promoter (s. 31). Although counsel for the Corporation was not concerned to argue whether a determination by the Supreme Court of South Australia pursuant to either s. 30 or s. 31 resulted in a judgment or order of that Court, I think it necessary to reach a conclusion upon this matter as a preliminary to consideration of s. 33. My view is that it is reasonably clear that an action under s. 30 or an application under s. 31 is a proceeding in a court to determine the compensation to which an owner has become entitled, and that any such proceeding in the Supreme Court of South Australia would result in a judgment or order of that Court. It is true that there is in s. 47 (2) special provision for the recovery of costs, but this is expressed to be "without prejudice to any other method of recovery" and does not, I think, militate against an order for costs being regarded as an order of the court. If it is relevant, it appears that s. 47 (2) has been taken from a similar provision introduced in England by the Acquisition of Land (Assessment of Compensation) Act, 1919, s. 5 (7) - and this has been done without thought to the substantial changes in the procedures for assessing compensation, effected by the 1925 Act. It is also true that there are in Div. IV of Pt. IV special provisions as to the payment of compensation in particular cases, but if and in so far as these provisions do apply to compensation determined under s. 30 or s. 31, I see no reason why they should be regarded as inconsistent with the determination constituting a judgment or order of the court. (at p433)

5. In the course of his argument, Mr. Travers did rely upon the decision of this Court in C. A. MacDonald Ltd. v. South Australian Railways Commissioner [1911] HCA 14; (1911) 12 CLR 221 , and this, I think, is the place to deal with that decision, becaue if it were applicable to the Compulsory Acquisition of Land Act, 1925, it seems to me that it would apply particularly to a determination by the Supreme Court under s. 30 or s. 31 to show that a determination by the Supreme Court under either of these sections is not a judgment or order of the Supreme Court for the purposes of the Commonwealth Constitution, s. 73, or the Judiciary Act, s. 35. The decision there was that the procedure for determining compensation by trial of an issue in the Supreme Court, provided for by the amendments to The Lands Clauses Consolidation Act, 1847 (S.A.) effected by the Lands Clauses Consolidation Act Amendment Act, 1881 (S.A.), did not result in a judgment of the Supreme Court within s. 73 of the Constitution. The basis of the decision was that the amending Act was concerned with proceedings of the same character as the original Act and did not confer jurisdiction upon the Supreme Court of South Australia, but upon a Judge of that Court as persona designata. In reaching this conclusion all the members of the Court relied substantially upon s. 10, which was as follows : "The verdict and judgment upon any issue tried under the provisions of this Act shall, as regards costs and every other matter incident to or consequent thereon, have the same operation and be entitled to the same effect as if that verdict and judgment had been the verdict of a jury and the judgment of a Judge, Commissioner, or Sheriff upon an inquiry conducted upon a warrant to the Sheriff issued by the promoters of the undertaking under The Lands Clauses Consolidation Act". As to this conclusion, O'Connor J. said : "The effect of that section is broadly this. The judgment is not capable of enforcement in the ordinary way in which a judgment of the Supreme Court may be enforced. The fruits of it can be obtained only by bringing an action upon it. Again, the costs of the judgment can be enforced only by a special proceeding before a magistrate. It does, indeed, seem a contradiction in terms to say that a completed judgment is a judgment of the Supreme Court, but yet is not to be enforced by the processes of that Court. That being the case, s. 10 indicates quite clearly to my mind that it was the intention of the legislature, by the Act of 1881, to afford to litigants, in cases of compensation coming within the meaning of that Act, all the benefit of proceedings in the Supreme Court - the benefit of the guidance of the Supreme Court in settling the issues, and in laying down the principles on which compensation should be assessed" (1911) 12 CLR, at p 237 . The absence in the 1925 Act of any provision corresponding with s. 10 and the introduction by ss. 30 and 31 of proceedings in "any court of competent jurisdiction" by action or application render the decision upon the earlier legislation entirely inapplicable to the present legislation. (at p434)

6. It was argued by reference to Holmes v. Angwin [1906] HCA 64; (1906) 4 CLR 297 and Webb v. Hanlon [1939] HCA 8; (1939) 61 CLR 313 that notwithstanding the fact that the powers of determination are given to the Supreme Court by name, nevertheless because such proceedings do not constitute part of the Court's ordinary jurisdiction, any ensuing order is not a judgment or order of the Supreme Court for the purposes of s. 73 of the Commonwealth Constitution. It is not, I think, necessary to consider the election cases here, because of the special footing upon which they stand : Patterson v. Solomon (1960) AC 579 . More assistance is to be had from the decision of this Court in Medical Board of Victoria v. Meyer [1937] HCA 47; (1937) 58 CLR 62 , in which it was pointed out that where a statutory jurisdiction is added to the jurisdiction of a court and is made exerciseable in virtue of its character as a court, the exercise of that jurisdiction results in an order of the court, and when that court is the Supreme Court of a State, an appeal lies to this Court: see particularly per Dixon J. (1937) 58 CLR, at p 97 . (at p435)

7. This brings me to s. 33 of the Act. The proceedings with which I am concerned were brought by the Corporation under this section and Rules of the Supreme Court, O. LXVIII, by originating summons whereby the Corporation claimed "an order pursuant to s. 33 of the Compulsory Acquisition of Land Act, 1925 determining the amount of compensation payable by the said The Corporation of the City of Adelaide to the said The Adelaide Fruit & Produce Exchange Company Limited in respect of all matters referred to in a certain notice to treat dated 20th April 1950 for the purchase of" the land in question. (at p435)

8. Section 33 authorizes a promoter to apply to a court of competent jurisdiction to determine the amount of compensation payable to a person who, having been served with a notice to treat, has not within six months delivered a notice of claim - i.e., a person who has not complied with s. 24. The duty of the court to which the application is made is to hear it and "determine the amount of compensation payable". Sub-section (4) is substantially the same as sub-s. (4) of s. 31 and is in these terms: "The determination of the court shall be final and conclusive and without appeal, and shall be binding on all persons having any right to compensation in respect of the land referred to in the notice to treat, whether represented before the court on the hearing of the application or not, but such determination shall not affect or prejudice in any way the respective rights of such persons as between themselves." (at p435)

9. As I have stated, the first question to decide is whether the determination made by Ross J. upon these proceedings was a determination of the Supreme Court. I think it was. The application (No. 1144 of 1957) was made to the Supreme Court in accordance with s. 33 (2) and the Rules of Court and the papers were properly headed -

"South Australia
In The Supreme Court
No. 1144 of 1957." (at p435)

10. The determination, which took the form of a court order, was authenticated as follows -

"By the Court
(Sgd.) George H. Walters
Deputy Master."

There are in the Act numerous references to the Supreme Court which are clearly enough references to the Supreme Court itself and not to "a new and separate tribunal, consisting of a Judge of the Supreme Court as a persona designata", to use the language of Griffith C.J. in Holmes v. Angwin (1906) 4 CLR, at p 304 . I have already expressed the conclusion that proceedings under ss. 30 and 31 are proceedings of the Supreme Court and there is no reason for not giving the words "the Supreme Court" in s. 33 the same meaning as they must bear in some other provisions of the Act and as I think they bear whenever used. It may perhaps be added that the fact that under s. 33 an application may be made to a local court of full jurisdiction as well as to the Supreme Court seems to me to increase the difficulties of treating the section as referring to some new tribunal different from the Supreme Court or a local court. (at p436)

11. This brings me to what I regard as the most difficult part of the case, namely, whether the determination that Ross J. made is a judgment or order of the Supreme Court of South Australia. If the Company was entitled to compensation before the application was made so that the proceedings were for determining the amount of compensation to which it was entitled, I would see little difficulty in regarding the determination as what it professes to be - i.e., an order of the Court. This has been the course taken with regard to decisions under the Lands Acquisition Act of the Commonwealth, by which this Court has been empowered to determine the compensation in an action or other proceedings after land has been acquired by compulsory process. The difficulty is, however, that until the Corporation lodged its application, nothing had occurred beyond the service of a notice to treat in accordance with ss. 21-23. It was a notice that could be withdrawn by the Corporation because, there having been no notice of claim and no proceedings, no implication preventing withdrawal could be derived from s. 25 and there was nothing else to prevent it. In other words, the land was not then land that "is . . . taken" within the meaning of s. 8; it was land "to be taken" - to use words to be found in a number of sections of the Act. I have, however, reached the conclusion that the only determination open under s. 33 was for compensation payable for land taken, and that in obtaining such a determination the Corporation committed itself to the taking of the land. When the determination was made, therefore, it was for land that "is . . . taken" for the purposes of s. 8. I derive this, not from s. 25, but from s. 33 itself and the scheme of the Act as a whole. The application under s. 33 was "to determine the amount of compensation payable"; the determination of that amount was expressed to be final and conclusive; although the determination is expressed to be "binding on all persons having any right to compensation in respect of the land referred to in the notice to treat, whether represented before the court on the hearing of the application or not" and not upon the Corporation, it is clear that the reason for the express provision was to bind persons not before the court, and not to distinguish between the Corporation on one hand and the persons having a right to compensation on the other. It was common ground upon the application that the land was to be valued as at the 20th April 1949 - i.e., twelve months before the service of the notice to treat - in accordance with s. 12 (2), which is a provision relating to a "case where land is taken". This was, I think, a proper recognition that a determination under s. 33 follows the taking of the land. It would, I think, be inconsistent with the character of the proceedings under s. 33 to regard a promoter who takes such proceedings as being at liberty to withdraw its notice to treat after a conclusive determination of the amount of compensation payable. Reference to the Corporation's points of claim and the Company's points of defence shows clearly that the matter for determination was the amount of compensation to be paid in respect of the acquisition of land. That is the determination that the Corporation sought and by its points of defence the Company claimed 50,000 pounds for the land together with further sums for severance, injurious affection and the like. Indeed, the Corporation's claim went further than perhaps it should have in recognizing that there was an acquisition: see pars. 11 (b) and (c). It was argued that s. 25, by implication, authorizes the withdrawal of a notice to treat in all cases except where proceedings have been commenced after notice of claim. This I reject, and, to take an obvious example where a notice could not be withdrawn notwithstanding no proceedings had been commenced, I instance another unequivocal act on the part of the promoter, viz., the giving of a notice under s. 26 (1) (a). I have already indicated affirmatively the implications of s. 25. (at p437)

12. Upon a survey of the Act as a whole, I have, therefore, reached the conclusion that the determination by Ross J. was what it purports to be, namely, an order of the Supreme Court of South Australia. This conclusion, based in the first instance upon the language of the Act without more, finds some support, I think, from persuasive authority. The English provisions in the Lands Clauses Acts (mainly the 1845 Lands Clauses Consolidation Act, 8 & 9 Vict. c. 18), were affected by the Acquisition of Land (Assessment of Compensation) Act, 1919 (9 & 10 Geo. V. c. 57), which, besides modifying the procedure and principles of assessment of compensation, makes provision for costs in disputed compensation cases; and in s. 5 (2) adds a rider concerning the requirements of a proper notice of claim, giving power also to withdraw the notice to treat at any time up to six weeks after receipt of the notice of claim (cf. s. 25 in the South Australian Act). Where there is no notice of claim, it was not till 1949 (The Lands Tribunal Act, s. 5 (2)) that there was a statutory power expressly given to withdraw the notice to treat, and the time limit provided is six weeks after the "final decision" of the Lands Tribunal; and by s. 5 (4) of the 1949 Act, the acquiring authority is not compellable to take the lands in question while it has power to withdraw the notice to treat. Long before that first statutory power to withdraw was given in 1919, however, the English decisions had made it clear that on proper construction of the Lands Clauses Acts, a notice to treat alone, while not establishing the relationship of vendor and purchaser for all purposes and while not effecting a conversion of the owner's interest in the land, did create "an inchoate statutory contract of purchase and sale" and did at least fix the land in question and the time at which compensation was to be reckoned, and bound the promoter of the undertaking to take and the landowner to give (subject to his being paid compensation) the land specified in the notice: see, for instance, Haynes v. Haynes (1861) 1 Dr & Sm 426, at p 450 (62 ER 442, at p 451) ; Tiverton and North Devon Railway Co. v. Loosemore (1884) 9 App Cas 480, at pp 503, 511 ; Mercer v. Liverpool, St. Helen's and South Lancashire Railway (1903) 1 KB 652, at pp 661, 662 . Such decisions, without being directly in point, do lend some support for the conclusion I have reached on the construction of the Act in the instant case; it seems to me that what was inchoate because the Corporation was not committed became fixed by the time the Corporation obtained a final and conclusive determination of the compensation payable: see also Minister of Education v. Bosworth (1950) SASR 145 where the English cases are referred to. (at p438)

13. Mr. Alderman relied upon a line of cases starting with Spencer v. The Commonwealth (1907) 5 CLR 418 and finishing with The Commonwealth of Australia v. Arklay [1952] HCA 76; (1952) 87 CLR 159 where the High Court had entertained appeals from the decision of a single Justice determining compensation under the Lands Acquisition Acts of the Commonwealth, including s. 39, which he claimed corresponded with s. 33 of the South Australian Act. The correspondence is, however, incomplete because, as I have already pointed out, the Commonwealth section relates to a case "where . . . land has been acquired by compulsory process". My difficulty in this case has been to determine whether, under the Act with which I am dealing, there has been an acquisition of land - and the Commonwealth cases can be regarded as authoritative only when that question has been determined affirmatively. (at p439)

14. It was common ground that if the determination of Ross J. is a judgment or order of the Supreme Court of South Australia within the meaning of s. 73 of the Constitution, then s. 33 (4) of the South Australian Act could not bar an appeal to this Court. (at p439)

15. For the foregoing reasons I consider the objection to the competency of the appeal should be overruled. (at p439)

ORDER

Objection to competency of appeal overruled with costs.