Water Conservation and Irrigation Commission (NSW)
versus Browning

Judges: Latham CJ
Rich J
Starke J
Dixon J
McTiernan J

Subject References:
Statutes
Discretionary power
Mandamus
Statutory Commission
Purposes of statute
Policy of Commission
Transfer of lease of irrigation farm

Legislative References:
Irrigation Act 1912 (NSW) No 73 - section 8
Crown Lands Consolidation Act 1913 (NSW) No 7 - section 145A; section 241

Judgment date: 12 June 1947

Melbourne

Judgment by:
McTIERNAN J

I agree that this appeal should be allowed, but not without some doubt.

The matters affecting the social composition of the area which influence the rejection of the respondent's application approach, if they do not transcend, the line between the control vested by the Act in the appellant and the political responsibilities of the State. But I am unable to reach a clear conclusion that those matters were irrelevant in the consideration of the respondent's application, having regard to the extent and nature of the control and the powers and discretion vested in the appellant by the Act. The opinion expressed by the Commission that the person to whom the respondent applied to transfer his lease would be an unsuitable farmer in this irrigation area because he is an Italian, is likely to be received with incredulity by the uninitiated: but the suitability of a person to become a lessee is entirely within the province of the appellant, and if it makes an erroneous decision of fact on this question a court cannot intervene to control it unless, perhaps, its decision is not made in good faith. There is no charge of bad faith made in this case: the appellant has given its reasons for refusing to grant the respondent's application. It does not appear that it failed to consider the respondent's application according to law.