Case: Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520
Outcome: considered
At a later stage in these reasons, I will refer to the decision of the Privy Council in Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 and that of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355. Both decisions address the effect of irregularities in the exercise of statutory power. However, in considering the consequences of any failure by the council to give notices pursuant to paras 6(1)(b) and (c), it is not necessary to have recourse to those decisions. In my view, the absence of notification is of no significance. Pursuant to subs 9(2) of the Land Holding Act, upon the council approving the Pollards' application, they became entitled to the grant of a lease in perpetuity over Lot 13, and the Governor-in-Council was authorized to grant such a lease. Pursuant to subs 10(1) the title to Lot 13 thereby divested from the council, and the land became Crown land. However, pursuant to subs 10(3), the Crown could only lease it in perpetuity to the Pollards. Nothing in the Land Holding Act supports the proposition that the rights conferred by subs 9(2) were liable to divesture in the event of non-compliance by the council with its obligations pursuant to paras 6(1)(b) and (c). 26 In the course of the hearing, I referred counsel to the decision of the Judicial Committee of the Privy Council in Cudgen Rutile (supra), where their Lordships said, concerning the power of the State of Queensland to alienate Crown land: 'As a starting point, their Lordships accept as fully established the proposition that, in Queensland, as in other states of the Commonwealth of Australia, the Crown cannot contract for the disposal of any interest in Crown lands unless under and in accordance with power to that effect conferred by statute. In Queensland the legal basis for this power, and for the limitations upon it, is to be found in the Constitution Act of 1867, of which section 30 provides for the making of laws regulating the sale, letting, disposal and occupation of the waste lands of the Crown, and s 40 vests the management and control of the waste lands of the Crown in the legislature. Numerous pronouncements in the courts in Australia have given effect to this principle ... . It follows as a logical consequence that when a statute, regulating the disposal of Crown lands, or of an interest in them, prescribes a mode of exercise of the statutory power, that mode must be followed and observed: and if it contemplates the making of decisions, or the use of discretions, at particular stages of the statutory process, those decisions must be made, and discretions used, at the stages laid down.' 27 No attempt has been made to distinguish this case upon the basis of any subsequent constitutional changes. My concern was that by parity of reasoning the only power to deal with land pursuant to the Land Holding Act would be by proceeding in accordance with the terms of that Act, and that both the council and the State were obliged to act on that basis. This would raise for consideration the question of whether or not any departure from that procedure, such as those to which I have referred, would invalidate the process leading to the issue of a lease. It was submitted that the decision in Cudgen should be limited in its application to the alienation of Crown land, strictly so described. It was submitted that Lot 13 is not Crown land. However I see no material distinction for present purposes. In any event, s 10 contemplated the relevant land becoming Crown land before the creation of any instrument of lease.