MCKAY V. THE COMMONWEALTH OF AUSTRALIA AND ANOTHER 20/1952

fd. 90 of Ip 58 wy

IN THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

en on__WEDNESDAY, 15th OCTOBER, 1952.

ens

McoKAY

YEE COMMONWEALTH OF AUSTRALIA AND ANOTHEt

JUDGMENT FULLAGAR J.

I

McKAY

THE COMMONWEALTH OF AUSTRALIA AND ANOTHER

JUDGMENT FULLAGAR J.

The posi

ion with regard to this building at 300 King Street is highly unsatisfactory from every point of view, but as far as the present application is concerned, I think, on the whole, that I ought to grant an interlocutory injunction.

I was disposed yesterday to think that what the defendants were doing amounted to no more than exercising rights of possession which they obtained by virtue of the warrant which I signed in November, 1950. However, I decided to inspect the premises, and, looking at the evidence in the light of what I saw, I have considerable doubt as to whether that warrant authorised the placing of the Commonwealth in possession of the drive or carriage-way, as I prefer to call it. It is described as an "inner lane" in the plaintiff's affidavit. It is not at all clear to me that that drive or carriage-way is part of the ground

floor.

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There is evidence on which I think I could find that the Commonwealth did, in fact, enter into possession of the drive or carriage-way and was, in fact, in possession in January, 1952. The plaintiff, however, alleges that de facto possession, if it exists, is wrongful as against the person whom he claims to be his landlord. Litigation is at present proceeding between that person and the Commonwealth as to the validity of the acquisition by the Commonwealth of the whole of the premises. The Commonwealth has the carriage of that litigation, and to that extent is master of the situation.

The attack upon the validity of the acquisition seems to be based upon two main grounds.

The first relates to the form of the notification in