67.
of immense value, the right to control virtually absolutely the use to which the area in question would be put."
The Commonwealth drew attention to passages in various cases which it contended were adverse to the proprietors' interests in this regard[1]. Not all of those passages were directed to the precise point. The Commonwealth did not show that the point was in controversy in any of those cases. What Deane J said in the Tasmanian Dam Case has not only been approved, it has not hitherto been explicitly overruled.
A passage to the same effect as the reasons of Deane J in the Tasmanian Dam Case appears in the reasons of Deane and Gaudron JJ in Mutual Pools & Staff Pty Ltd v The Commonwealth[2].
"For there to be an 'acquisition of property', there must be an obtaining of at least some identifiable benefit or advantage relating to the ownership or use of property. On the other hand, it is possible to envisage circumstances in which an extinguishment, modification or deprivation of the proprietary rights of one person would involve an acquisition of property by another by reason of some identifiable and measurable countervailing benefit or advantage accruing to that other person as a result." (emphasis added and footnote omitted)
That passage concluded in a footnote reference to the passages from Deane J's judgment in the Tasmanian Dam Case quoted above. It was quoted with approval by three Justices in ICM Agriculture Pty Ltd v The Commonwealth[3]. The concluding sentence was also quoted with approval by another Justice in the ICM Agriculture case[4]. It has been referred to with approval in other cases[5].
- ↑ R v Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 159 CLR 636 at 653; [1985] HCA 84; Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480 at 499–500, 527 and 528; [1993] HCA 10; ICM Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140 at 145, 179 [81], 180 [84], 196 [132], 202–203 [152]–[153] and 215 [190] (there was no argument on this point: see n 324).
- ↑ (1994) 179 CLR 155 at 185; [1994] HCA 9.
- ↑ (2009) 240 CLR 140 at 179–180 [82] per French CJ, Gummow and Crennan JJ.
- ↑ (2009) 240 CLR 140 at 233 [228].
- ↑ Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 35 [77] n 123 per Gaudron J; Phonographic Performance Co of Australia v Commonwealth (2012) 86 ALJR 335 at 352 [109] n 75; 286 ALR 61 at 83 per Crennan and Kiefel JJ.
