The Commonwealth v Milledge [1953] HCA 6

High Court of Australia Dixon C.J. Webb and Kitto JJ. The Commonwealth v Milledge [1953] HCA 6

ORDER Appeal allowed. Verdict and judgment of the Supreme Court set aside. Order that a new trial be had between the parties. Costs of the former trial to be dealt with by the order of the court determining the action upon such new trial. No order as to the costs of this appeal.

Cur. adv. vult.

The following written judgments were delivered:—

March 6, 1953 Dixon C.J. and Kitto J.

This appeal is brought by the Commonwealth against a judgment given by Mayo J. in the Supreme Court of South Australia in an action in which the respondent sued the Commonwealth for compensation in respect of a resumption of land effected under the Lands Acquisition Act 1906-1936 Cth..

The land to which the action related consisted of three allotments having a total area of ten and three-quarter acres of which the plaintiff had been the owner in fee simple, and two parcels having a total area of 340 acres of which the plaintiff claimed to have been the lessee.

No question now arises concerning the value of the 340 acres. As regards the ten and three-quarter acres, partial agreement was reached at the trial. The sum of £3,700 was treated by consent as covering all but two of the items for which the plaintiff claimed that allowance should be made in fixing the compensation. One of the items left outstanding was the unimproved value of the three allotments which the plaintiff owned in fee simple. For this the plaintiff had claimed £3,150, and the learned judge allowed £2,800. The other outstanding item was described as business disturbance, for which the plaintiff had claimed £3,011 10s. 0d. and his Honour allowed £1,000. The Commonwealth's appeal relates to both these items.

In relation to the unimproved value of the three allotments, a general submission was made that the learned judge had arrived at an excessive figure in consequence of an approach to the problem which ought not to be considered satisfactory. The rule has been consistently applied in this Court that on a question of valuation an appellate tribunal is not justified in substituting its own opinion for the opinion of the court below unless it is satisfied that the court below acted on a wrong principle of law or that its valuation was entirely erroneous: Commissioner of Succession Duties v. Executor Trustee & Agency Co. of South Australia Ltd. [1] ; The Commonwealth v. Arklay [2] . In this case the Commonwealth submits that in several respects the learned trial judge erred on points of principle, and that his valuation ought not to be allowed to stand.