Howarth v McMahon [1951] HCA 19

Dist. F727 WW PEL ALE APP. 35 £644.76.

442 HIGH COURT (1951.

[HIGH COURT OF AUSTRALIA.]

HOWARTH AND OTHERS . 'i a . APPELLANTS ; PLAINTIFES, AND McMAHON és : : i 5 . ResponpENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A. Resumption of Land—Statutory power of council—* Provide, control, and manage,

1951. or... subsidise . . . clubs for returned sailors and soldiers "—

a Notification of resumption—Stated purpose— Providing a club for returned

Sypey, sailors and soldiers "—Sale of the land by council to ex-servicemen's organization

April 13, 16, —Unauthorized purpose—Validity of notification—Hffect—Local Government

27. Act 1919-1948 (N.S.W.) (No. 41 of 1919—No. 44 of 1948), ss. 358 (1) (f), wipe ng 471, 532, 586—Public Works Act 1912 (N.S.W.) (No. 45 of 1912), 8. 42.

Webb es . The Local Government Act 1919-1948 (N.S.W.) provides, by s. 358 (1), that

G30 councils "may provide control, and manage, or may subsidise— . . .

67 BLE. (f) associations, institutes, and clubs for returned sailors and soldiers" ;

Ae and, by s. 532, that councils " may acquire land . . . for any purpose

3 (od. Soul) SR RSP! this Act by lease, purchase, appropriation or resumption in accordance with this Part". Section 536, in that Part, provides that if authorized the

fa- resumption shall be effected by Gazette notification under Div. 1 of Part V. 33 Cevs.uy.) $.0.S300f the Public Works Act 1912 (N.S.W.) and that upon notification that the land is vested in the council the land thereupon so vests. Section 42, Div. 1 of Part V. of the Public Works Act 1912, requires that a Gazette notifica- tion of the resumption of land, which may only be " for the purpose of carrying out any authorised work", must state the purpose of the resumption, and the purpose stated must be a public purpose.

Certain land was purported to be resumed under the provisions of s. 536 of the Local Government Act 1919-1948, and Div. 1 of Part V. of the Public Works Act 1912, and vested in a council, the purpose being, as stated in the Gazette notification, "' the purpose of providing a club for returned sailors