Dunning v The Commonwealth [1960] HCA 83

High Court of Australia Kitto, Menzies and Windeyer JJ. Dunning v The Commonwealth [1960] HCA 83

ORDER Appeal dismissed with costs. Cross-appeal allowed with costs. Judgment of the Supreme Court of South Australia varied by deleting the provisions therein contained as to interest in respect of each of the plaintiffs, and by inserting in the order as to costs after the date 17th day of October 1958 the words but only up to and including the 19th day of November 1958

Cur. adv. vult.

The Court delivered the following written judgment:—

Nov. 23 Kitto, Menzies and Windeyer JJ.

Each of the appellants brought an action against the Commonwealth in the Supreme Court of South Australia, pursuant to ss. 36 and 37 of the Lands Acquisition Act 1906-1936 (Cth), for compensation for the compulsory acquisition of lands. The parcels of land acquired from them respectively were contiguous with one another and lay to the west of the present Adelaide Airport. They were acquired for the purposes of the airport. The notification of acquisition was published in the Gazette on 5th December 1946, and as a consequence the value of the land for compensation fell to be assessed as at 1st January 1946: s. 29.

The actions were consolidated, and the consolidated action was tried by Piper J., who valued Dunning's land at £2,970, Charlick's land at £3,000, and the land of the Mile End Trading Company Limited at £5,750. His Honour ordered that judgment be entered for these respective amounts, together with interest at the rate of three per centum per annum (the rate fixed by s. 40) from 5th December 1946 until payment, but with certain allowances for payments which the Commonwealth had made on account. His Honour ordered the Commonwealth to pay the full amount of the plaintiffs' taxed costs, overruling a submission that they should not be allowed any costs after the first day of the trial because on the previous day the Commonwealth had made an offer to each of them to consent to judgment for an amount which turned out to be greater than the compensation determined. From the reasons for judgment it appears that if the offers had expressly included the statutory interest in addition to the sums offered for compensation, his Honour would have upheld the submission. The appellants now appeal against the determinations of compensation, and the Commonwealth cross-appeals both against the inclusion of interest in the judgment and against the order made as to costs.