Rosenbaum v The Minister [1965] HCA 65

High Court of Australia Barwick C.J. Kitto, Taylor, Menzies and Windeyer JJ. Rosenbaum v The Minister [1965] HCA 65

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 2 Barwick C.J.

I agree with my brother Kitto, whose reasons for judgment I have had the advantage of reading, that the view expressed by Isaacs J. in Harris v. Minister for Public Works N.S.W. [1] as to the effect the provisions of the Public Works Act, 1912 N.S.W. there in question is to be preferred to that of Griffith C.J. expressed in that case. In my opinion, in so far as that case is any authority for the proposition that the tribunal assessing compensation for land taken under the Public Works Act should fix one sum to represent the value of a fee simple in possession in the land acquired, leaving it to the persons claiming estates and interest in that land to litigate as a separate question in what proportions or in what amounts they should share such compensation, it should be overruled. Rather it should be decided that upon the true construction of the Public Works Act each person having any estate or interest in the land, including a termor or tenant, has a separate and independent claim to compensation for the value of the interest which is taken from him by the acquisition of the land under the Public Works Act. Each such person should as to his own interest be regarded as an owner within the meaning of that word in s. 101 (1) of the Public Works Act. Accordingly, the principal contention of the appellant in this appeal should for that reason be rejected. Consequently, it should be held for that reason that the Supreme Court was not in error in law in treating the question before it as the assessment of compensation for the taking of the estate in the land which the appellant in law had, namely, an estate in fee simple in reversion upon the weekly tenancies which she disclosed in her claim for compensation.