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[40] The appellants then instituted proceedings , claiming,
inter alia, specific performance of the contract which they
alleged existed to grant them the leases. The issue of law
before the Privy Council turned on the power of the Crown to
dispose Crown land, by lease. It was submitted on behalf of
the Crown that it could not contract for the disposal of any
interest in Crown lands unless under and in accordance with
power to the effect conferred by statute. Lord Wilberforce
agreed with the Crown contention and at page 533 said;
“.... 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. From this in turn it must follow that the freedom of the
Minister or officer of the Crown responsible for implementing the
statute to make his decisions, or use his discretions, cannot
validly be fettered by anticipatory action and if the Minister or
officer purports to do this, by contractually fettering himself in
advance, his action in doing so exceeds his statutory powers”.
[41] The Privy Council in that case approved what Rich J
said in State of New South Wales v Bardolph (1934) 52
CLR 455, 496. Rich J. said:
“When the administration of particular functions of government
is regulated by statute and the regulation expressly or impliedly
touches the power of contracting, all statutory conditions must
be observed and the power no doubt is no wider than the statute
contemplates”.
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