Wheeler v War Veterans' Home [1953] HCA 29

High Court of Australia Taylor J. Dixon C.J. Webb and Kitto JJ. Wheeler v War Veterans' Home [1953] HCA 29

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgment was delivered by:—

May 20 Taylor J.

In this suit the plaintiffs, pursuant to s. 130 of the Re-establishment and Employment Act 1945-1952, seek an order invalidating certain "proceedings" taken with a view to the resumption of a parcel of approximately fifty acres of land of which they are registered under the provisions of the Real Property Act 1900-1940 N.S.W. as the joint proprietors for an estate in fee simple.

Section 130 (1) purports to validate proceedings taken in contravention of Pt. X of the Act, while sub-s. (2) is in the following terms:—"The appropriate court may, on the application of the Attorney-General or of any person interested, make an order that a transaction or proceeding entered into or taken in contravention of this Part shall be invalidated, but the court shall not make any such order if the court is satisfied that the effect of the order (if made) would be to prejudice the rights of a person in respect of, or arising out of, the transaction or proceeding which are acquired bona fide and without notice of the contravention." By sub-s. (3) this Court is an appropriate court and the plaintiffs seek an order to the effect already indicated.

The "proceedings", which were steps preliminary to the publication of a notification of resumption pursuant to s. 197 of the Crown Lands Consolidation Act 1913-1948 N.S.W., are claimed to have constituted contraventions of s. 118 of the Re-establishment and Employment Act. This section is in the following terms:—"Where power is conferred upon any person by or under any law of the Commonwealth or of a State or Territory of the Commonwealth to acquire land compulsorily for any purpose, that person shall not, without the prior consent of the Attorney-General, exercise the power, in relation to the acquisition of land which is owned by a member of the Forces, for any purpose other than a purpose in connexion with the defence of the Commonwealth or the efficient prosecution of the war, or do or commence or continue to do any act, or commence or continue any proceeding, for the purpose of or with a view to any such acquisition or obtaining possession of the land in connexion with any such acquisition." The protection afforded by this section is not given for an indeterminate time but is subject to the qualification introduced by s. 120 which limits the period of protection given to a member of the forces, after ceasing to be engaged on war service, to a period of four years, or a period equal to the period during which he was engaged on war service, which ever is the shorter. It is common ground that the male plaintiff, Alan George Wheeler, was a member of the forces within the meaning of this section and also that the period during which he was entitled to the protection afforded by s. 118 continued until 7th August 1948, when it expired.