Minister for Public Works & Local Government v Duggan [1951] HCA 29

High Court of Australia Dixon, Williams and Kitto JJ. Minister for Public Works & Local Government v Duggan [1951] HCA 29

ORDER Appeals dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

June 8 Dixon, Williams and Kitto JJ.

This is a consolidated appeal by the defendants from a decree of the Supreme Court of New South Wales in Equity made on 7th December 1950 by Roper C.J. in Eq. restraining each of them from taking any further steps pursuant to resolutions passed by the defendant Council and the applications made by it to the defendant Minister to effect a resumption or resumptions of land belonging to the plaintiffs or any of them the resumptions of which are threatened in connection with what is called the Oatley Bay Improvement Scheme. The resolutions in question were passed by the defendant Council on 1st April 1946 and 17th February 1947. The first resolution was to the effect that the engineer's special report on the Oatley Bay Reclamation and Improvement Scheme be adopted and that the Town Clerk be authorized to negotiate with the various owners concerned for the acquisition of the required portions of their respective holdings. The second resolution was to the effect that steps be taken to acquire the lands required for the scheme and that the following procedure be adopted: (a) Each owner to be advised by letter of the Council's intention to acquire his land or a portion thereof, and an offer made to purchase same at the Valuer-General's estimated cost of acquisition, the Council to pay all legal costs. Such letters to contain an intimation that if any owner is desirous of securing an allotment in the area—after its improvement and re-subdivision—the Council will place to his credit the value (as determined by the Valuer-General) of his land or the part thereof to be taken and later allow him to choose a lot in the re-subdivided area and any difference between his credit and the value of the lot chosen (this value also to be determined by the Valuer-General) to be adjusted in cash either way; (b) In all cases where the Council's offer is not acceptable to the owner, such owner be given the prescribed notice under the Re-establishment and Employment Act, 1945, and notified that Council intends to make application for the Governor's approval to the acquisition of his land by the process of resumption; (c) In all cases where necessary application be made for the approval of the Attorney-General to acquire land from "Members of the Forces" by resumption; and (d) That in all cases where the owner is not prepared to accept the price offered, the Town Clerk be authorized (1) to make application, under the Council's seal, for the Governor's approval to the resumption of the required area; (2) to deposit with the resuming Department the estimated cost of resumption; and (3) to give Council's undertaking also under seal, to recoup the Department for any expenditure incurred in excess of the amount of such deposit.