Tau v Commonwealth [1969] HCA 62

High Court of Australia Barwick C.J. McTiernan, Kitto, Menzies, Windeyer, Owen and Walsh JJ. Tau v Commonwealth [1969] HCA 62

ORDER Question asked in the stated case answered, No. Costs of the case costs in the cause.

The judgment of The Court was delivered by Barwick C.J.:—

Barwick C.J., McTiernan, Kitto, Menzies, Windeyer, Owen and Walsh JJ.

The plaintiff sues in this case both personally and in a representative capacity for declarations that three ordinances, one made under the New Guinea Act 1920 Cth, another made under the New Guinea Act 1920-1926 Cth, and the third made under the Papua and New Guinea Act 1949-1964 Cth are invalid on the ground that they are laws providing for the acquisition of property and do not secure just terms for such acquisition.

These ordinances made some years ago provide generally for the vesting in the Crown or in the Administration of the Territory of Papua and New Guinea of minerals in that territory.

In order to facilitate an early resolution of a fundamental question involved in the litigation, at the request of the parties a special case was stated for the opinion of a Full Court upon the question whether an ordinance made pursuant to the New Guinea Act 1920 or to the New Guinea Act 1920-1926 or to the Papua and New Guinea Act 1949-1964 which provides for compulsory acquisition of property is invalid if it fails to provide just terms for such acquisition.

The whole Court has today heard the argument for the plaintiff presented by senior counsel who has recalled to our attention all the reported decisions which in his submission bear on the resolution of the question. Although this Court has not heretofore decided this question, the topic to which it relates is by no means unfamiliar to it. Accordingly, having the benefit of a full argument on behalf of the plaintiff and having heard again the passages from the decided cases which may be thought to bear upon the matter, we have been able to reach, without any doubt, a clear conclusion upon the question submitted without troubling the defendants for their assistance.