State Electricity Commission (Vic) v McWilliams [1954] HCA 28

High Court of Australia Dixon C.J. Webb and Kitto JJ. State Electricity Commission (Vic) v McWilliams [1954] HCA 28

ORDER Appeal allowed with costs. Cross-appeal dismissed. No order as to the costs of the cross-appeal. Discharge so much of the order of the Supreme Court of Victoria dated 14th May 1953 as follows after the first declaration therein contained. Vary the said declaration by omitting the words and were not for any purposes of the State Electricity Commission Acts and are invalid and illegal and by substituting therefor the words by reason of the absence of any prior direction by Order in Council under s. 15 of the State Electricity Commission Act 1928 . In lieu of so much of the order as is discharged as aforesaid order as follows:—

(1) Order and adjudge that the plaintiff in respect of the defendant's entry and trespass upon the lands mentioned in par. 3 of the statement of claim on and from 3rd March 1950 until 26th September 1951 rendered unlawful by the absence aforesaid of such prior direction do recover from the defendant damages to be assessed.

(2) Direct that such damages be assessed by a judge of the Supreme Court.

(3) Refer it to the Taxing Master of the Supreme Court:—

(a) to tax the costs of the plaintiff of the action up to the date of this order of the High Court except so far as they are increased by the inclusion therein of causes of action and claims to relief other than the cause of action in respect of the defendant's said entry and trespass on and from 3rd March 1950 until 26th September 1951 rendered unlawful as aforesaid by the absence of such prior direction and the claim for damages for such entry and trespass,

(b) to tax the costs of the defendant of the action up to the date of this order of the High Court so far as they are occasioned by the inclusion of such causes of action and claims to relief.