Hazlett v Presnell [1982] HCA 58

High Court of Australia Gibbs C.J. Mason, Murphy, Wilson, Brennan and Deane JJ. Hazlett v Presnell [1982] HCA 58

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Oct. 22 Gibbs C.J., Mason, Murphy Wilson, Brennan and Deane JJ.

Some 20 kilometres down the River Murray from the Victorian city of Swan Hill, the waters divide into two streams. Each stream follows a meandering course in a general westerly direction. They convolve more than 4 kilometres to the west. The land between them is called Beveridge Island. It has long been regarded as part of the territory of Victoria. It is convenient to distinguish between the two streams that flow around Beveridge Island by referring to them as "the northern stream" and "the southern stream".

Under the Water Act 1958 Vict., it is an offence to take water from the River Murray, for the irrigation of land in Victoria, without a licence or permit granted or issued by the State Rivers and Water Supply Commission. The appellant, William Arthur Hazlett, has been charged in the Magistrates' Court at Swan Hill with having illegally taken water from the southern stream at Beveridge Island for use in irrigation of the island. By way of defence to that charge, the appellant submitted in the Magistrates' Court that Beveridge Island, which he holds, and has for some years held, on lease from the Crown in right of the State of Victoria, was, in truth, part of the State of New South Wales. The learned Stipendiary Magistrate ruled against Mr. Hazlett on that submission and adjourned the proceedings to enable the question to be tested by way of action for declaratory relief in the Supreme Court of Victoria. Proceedings seeking declaratory and injunctive relief were instituted in the Supreme Court. They were heard by Crockett J. who held that Beveridge Island was part of Victoria and dismissed the claim [1] . The present appeal is brought by Mr. Hazlett from that decision. The respondents to the appeal are the learned Stipendiary Magistrate (Mr. Presnell S.M.), the State Rivers and Water Supply Commission, the Minister of Lands (Vict.) and the State of Victoria. Upon the hearing of the appeal, the State of New South Wales intervened to argue that Beveridge Island forms no part of its territory.