Pye v Renshaw [1951] HCA 8

High Court of Australia Dixon, Williams, Webb, Fullagar and Kitto JJ. Pye v Renshaw [1951] HCA 8

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Oct. 8 Dixon, Williams, Webb, Fullagar and Kitto JJ.

This is an appeal from an order made by Roper C.J. in Eq. in a suit in the Supreme Court of New South Wales. The defendants to the suit as finally constituted were John Brophy Renshaw (the Minister for Lands of the State of New South Wales), the Commonwealth of Australia, Arthur William Fadden (the Treasurer of the Commonwealth) and Roy Walter Strong Kelly (a "nominal defendant" appointed under s. 3 of the Claims against the Government and Crown Suits Act 1912 N.S.W.). The object of the suit was to prevent the resumption of certain country lands owned by the plaintiff. The relief sought by the statement of claim as finally amended was of a somewhat remarkable character. The plaintiff claimed (a) injunctions restraining the defendant Renshaw, and the Executive Council of the State of New South Wales and each member thereof, from procuring or advising His Excellency the Governor to issue or publish in the Gazette a proclamation resuming the plaintiff's lands, and (b) an injunction restraining the defendant Fadden as Treasurer of the Commonwealth from paying out of the funds of the Commonwealth any moneys for the purpose of (i) acquiring the plaintiff's lands at a price based on their value as at 10th February 1942, or (ii) developing those lands, or (iii) settling thereon persons who were formerly members of the defence forces of the Commonwealth.

The original citation in the suit was issued on 10th July 1950. On 18th August 1950 there came before Roper C.J. in Eq. a motion by the plaintiff for an interlocutory injunction and a motion by the defendant Renshaw that certain paragraphs of the statement of claim as originally drawn be struck out. Leave was given to amend the statement of claim, and certain amendments were made. The defendants Renshaw and Kelly then demurred ore tenus to the statement of claim. On 24th August 1950 Roper C.J. in Eq. made the order which is now under appeal. By that order the Court (a) upheld the demurrer, (b) ordered that the two motions be dismissed, (c) gave leave to the plaintiff to amend his statement of claim within 21 days, and (d) ordered that, if the statement of claim were not amended within that period, the suit should be dismissed. Notice of appeal to this Court was given on 14th September 1950, which was the last day for giving such notice. The statement of claim had not in the meantime been amended, but on 1st September 1950 a proclamation purporting to effect the resumption of the plaintiff's lands had been published in the Gazette .