Tinker Tailor Pty Ltd v Commissioner for Main Roads [1960] HCA 56

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto and Windeyer JJ. Tinker Tailor Pty Ltd v Commissioner for Main Roads [1960] HCA 56

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 11 Dixon C.J.

In my opinion the objections of the appellant to the validity of the proclamation dated 13th January 1960 resuming the land forming the subject of the suit fail for the reasons given in the judgment of Kitto J.

I think that the appeal should be dismissed.

McTiernan J.

In my opinion this appeal should be dismissed.

The attack made for the appellant upon the validity of the resumption is founded upon the reference in s. 49 of the Main Roads Act, 1924-1959 to the Public Works Act, 1912. It is argued for the appellant that the intention of s. 49 is that in order to resume land for the purposes of the Main Roads Act, the Executive should use the provisions of s. 42 of the Public Works Act, mutatis mutandis. I think that the power of resumption under s. 49 of the Main Roads Act remains a power independent of the Public Works Act, notwithstanding the provisions referring to the latter Act. Those provisions should not be given a construction making them in any way dependent upon s. 42 of the Public Works Act. Section 49 prescribes the method of resuming land for the purposes of the Main Roads Act. The method consists of a decision by the Governor to resume land made on the application of the Board, now the Commissioner for Main Roads, and a proclamation by the Governor vesting the whole or part of the land in the Commissioner. It is clearly within the authority which the Governor has under the section to notify or declare by proclamation that land is resumed and by the same proclamation to vest the land in the Commissioner. One matter which shows that s. 49 of the Main Roads Act is not subject to or affected by s. 42 of the Public Works Act is that the vesting of land resumed under that section depends upon s. 43, whereas land resumed under the former section may be vested by proclamation pursuant to a power conferred upon the Governor.