Case: Erubam Le (Darnley Islanders) #1 v State of Queensland [2003] FCAFC 227 ; (2003) 134 FCR 155
Outcome: referred to
In my view, a 'prior interest' must be one created before the making of the application. That is the meaning to be derived from the context. Both s 47A(1) and s 47B(1) dictate their application by reference to circumstances at the date when the relevant application was made. It would follow that their effect, if they apply, is to operate at the same point in time. Both s 47A(2) and s 47B(2), have as their introductory words '[f]or all purposes under this Act in relation to the application ...'. Those words further point to the extinguishing effect of those sections applying to interests which arose before the date of the application. In addition, as s 47(2)(b) refers to 'any other' prior interest, the interest referred to in s 47(2)(a) may also inform the meaning of 'prior'; it does so by identifying an interest which must have existed before the application was made. I do not see anything in the decision in Erubam Le (Darnley Islanders) #1 v State of Queensland [2003] FCAFC 227 ; (2003) 134 FCR 155 ( Erubam Le ) to the contrary. 906 I do not consider that s 47B(3) leads to any different conclusion. It preserves the validity of the creation of any prior interest, or the interest of the Crown in any public works. It does not thereby tend to support the view that s 47B generally applies to interests created after the application was made and before 30 September 1998. The contrary would appear to be the case by reason of the use of the term 'prior interest' which (as I have found above) refers to an interest created before the making of the relevant application. 907 The DCC was constituted as a body corporate under s 30 of the Local Government Ordinance 1954 (NT). The Municipality of Darwin was constituted and defined under s 8(1) of that Ordinance on 28 June 1957. The DCC is the municipal council for the Municipality of Darwin. 910 The DCC contended that s 47B does not apply within its municipal area. It also contended that, even if s 47B did apply, it does not cause the extinguishing effects of public works to be disregarded. It relied on Daniel [970] and Erubam Le respectively for those propositions. If s 47B does not so apply to its municipal area, or to those parts of its municipal area within the proclaimed Towns of Darwin, Sanderson and Nightcliff, any areas within those boundaries which have been subject to a previous exclusive possession act are, it contended, excluded from the application of s 47B so that it would not operate in those municipal areas to direct certain extinguishing acts to be disregarded. 911 Section 47B(1)(b)(ii) relevantly provides that the section applies only if, at the time of the application, the relevant area was not covered by 'a reservation, proclamation ... conferred by the Crown ... under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose'. 912 The proclamation of the Town of Darwin was made on 27 June 1927. The Town of Nightcliff was constituted and proclaimed on 10 March 1949 by proclamation under the Crown Lands Ordinance 1949 and also duly gazetted. The Town of Sanderson was constituted and proclaimed on 23 June 1972 by proclamation under that Ordinance and duly gazetted. Section 17 of the Acts Interpretation Act 1901 (Cth) would apply to remove any doubt that the three proclamations (and those extending the boundaries of the areas of those towns) are proclamations to which s 47B(1)(b)(ii) may apply.