Tunnock v Victoria [1951] HCA 55

High Court of Australia Dixon, McTiernan, Williams, Webb and Kitto JJ. Tunnock v Victoria [1951] HCA 55

ORDER Demurrer allowed. Suit dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 8 Dixon J.

I have not been able to understand how in point of principle the plaintiffs could obtain any foothold for their claim in this suit for relief. As reliance was placed by the plaintiffs upon the decision of the Court in P. J. Magennis Pty. Ltd. v. The Commonwealth [1] , a decision in which I was unable to agree, it is satisfactory to find that no member of the Court considers that either as a result of that decision or otherwise the plaintiffs are able to make out any title to relief.

1. (1949) 80 C.L.R. 382.

In my opinion the demurrer should be allowed and the suit dismissed with costs.

McTiernan J.

In my opinion the demurrer should be allowed.

The foundation of the Court's jurisdiction to entertain this action is that there is a matter arising under the Constitution or involving its interpretation, Judiciary Act 1903-1950, s. 30. The matter is the question of the validity of the War Service Land Settlement Agreement 1945. The Court has already decided that this Agreement is void (P. J. Magennis Pty. Ltd. v. The Commonwealth [1] ).

1. (1949) 80 C.L.R. 382.

In the present case the defendants have not argued that Magennis' Case [1] was wrongly decided; but they have demurred to the statement of claim, at the same time accepting the position that the Agreement is void, as the Court decided in that case. In order to support the demurrer they draw distinctions between the purpose of the acquisition which was the subject of Magennis' Case [1] and the purpose for which the acquisition in the present case was made; also, between the legislative powers which would have been available to make the acquisition of the land of the plaintiff in that case, and the legislative powers under which the acquisition in the present case was made.