BRAITHWAITE V. COUTOUPES

C.12880/45

BE Dew, Gor. Print, Mtb

a

IN THE HIGH COURT OF AUSTRALIA

BRAITHWAITS

REASONS FOR JUDGMENT

Judgment delivered att Mo _- on. MONDAY, 6th December, 1948.

BRAITHWAITE COUTOUPES

JUDGMENT LATHAM C.Je

The respondent here is registered as proprietor of lands in Darwin under the provisions of the Real Property Act 1886 of South Australia, which has been applied by ordinance to the Northern

Territory.

'The Darwin Lands Acquisition Act 1945 provides that certain lands specified in the schedule to that Act may be acquired under the provisions of the Lands Acquisition Act 1906-36, which has been applied to the Territory by the Lands Acquisition Ordinance 1911-26. The land in question is included in the schedule. Section 3 provides that that land may be acquired and section 6 provides that land acquired in pursuance of the Act shall become

Crown land of the Territory.

The proceedings before the Magistrates' Court were brought under the Crown Lands Ordinance 1931, sections 118 and 119. In relation to section 118 complaint was made that the respondent was in possession and unlawful occupation of certain Crown lands, nemely, the lands of which he was the registered proprietor under the South Australian Real Property Act 1886 as applied to the Territory. He was charged also with the offence under section 119 of unlawfully occupying Crown lands. Under section 118 a warrant for possession of the lands was issued against him and under section 119 he was convicted of the offence thereby created and fined the sum of £10, Upon appeal to the Supreme Court of the Northern Territory the order and conviction were set aside upon the ground that they involved a decision as to whether the land in question was Crown land and therefore the Magistrate had determined a

question of title.

It has long been the law that a Magistrate exercising