The Commonwealth v Maddalozzo

High Court of Australia Barwick CJ Stephen, Mason, Aickin and Wilson JJ. The Commonwealth v Maddalozzo

ORDER Appeal dismissed with costs.

Judgment reserved.

May 15. Barwick CJ

In this appeal I have had the advantage of reading the reasons for judgment prepared by my brother Mason and those prepared by my brother Aickin.

I agree with my brothers' conclusion and with the reasons each gives for that conclusion.

It seems to me that, in this case, it was land which was acquired as distinct from some limited interest in land. In my opinion, land as the subjectmatter of acquisition is indistinguishable from an estate in fee simple in the described land. That estate is the largest estate which can be held in land and thus, in my opinion, is synonymous with land as the subject of acquisition. If an estate in fee simple is acquired within that description, the land is acquired. The interest in land to which s 10(1) refers is, in my opinion, some interest which is less than an estate in fee simple. The purpose of the definition of "land" is to include, as it seems to me, the acquisition of some interest in land which is less than an estate in fee simple. An estate in fee simple cannot, in my opinion, be an interest in the land as that expression is used in s 10(1) and in the definition of land in s 5. The Commonwealth cannot acquire the fee simple in the land and leave "unacquired" some interest in the land.

The purpose and effect of the reference to the fee simple in the notice of acquisition was to encompass the alienated land within the perimeters of the described land, and to do so without specific description of the parcels of land thus included.

In my opinion, the question in this case is really not whether the respondent's interest was acquired but rather whether, because the land was acquired, it was an interest which s 11 of the Act converted into a claim for compensation.