Ferrum Metal Exports Pty Ltd v Lang

For a proper understanding of the arguments advanced on behalf of the appellant it is necessary to mention that when its predecessor in business first commenced to use the land for the purposes mentioned there was in existence by-law No. 251 which was promulgated in the exercise of authority conferred by the Local Government Act 1928 Vict.. By this by-law the use of the land for those purposes was forbidden and was punishable as an offence. This by-law came into force on 7th July 1941 and the material provisions continued in operation until 1st January 1949 when they were repealed by by-law No. 289 which was made pursuant to s. 197 (1) (xxxviii) of the Local Government Act 1946. This Act had repealed so much of the Local Government Act 1928 as had not been repealed previously but s. 2 of the later Act provided, inter alia, that all by-laws in force at its commencement should continue in force until they should be "respectively repealed hereunder". In turn, by-law No. 289 continued in force until 3rd April 1958 when it was repealed by by-law No. 375, one effect of which, considered by itself, was to prohibit the use of the appellant's land for the purposes in question. But counsel for the appellant points to the provisions of sub-s. (7) of s. 197, of the Local Government Act 1946 which provided that no by-law made pursuant to the earlier provisions of that section should "preclude the continuance of the use of any land or any building for any purpose for which the same was used immediately before the coming into operation of the by-law". This provision, of course, was in force when by-law No. 289 came into operation on 1st January 1949 but on 6th December 1949 it was replaced by a new sub-s. (7) the relevant provisions of which were as follow: "(7) No by-law under sub-paragraph (a) of paragraph (xxxviii) of sub-section (1) of this section shall preclude - (a) the continuance of the use of any land or building for the purposes for which the land or building was lawfully used immediately before the coming into operation of the by-law;".

With these successive legislative provisions in mind the various steps involved in the appellant's argument may be set out seriatim:

(1) It is conceded that from July 1948 to 1st January 1949 the use made of the land by the appellant's predecessor in business constituted a breach of by-law No. 251 and was, therefore, unlawful;

(2) It is also conceded that the continued use of the land for the same purpose after 1st January 1949 was contrary to the generally declared prohibition contained in by-law No. 289;

(3) But, it is asserted, after that by-law came into operation on 1st January 1949 the continued use of the land for that purpose was not unlawful since, by reason of sub-s. (7) of s. 197, that by-law could not operate to preclude that continued use.

(4) It was, it is said, of no consequence that prior to 1st January 1949 the use made of the land was unlawful, for the condition of exemption prescribed by sub-s. (7) was immediately prior use, whether lawful or not, for the same purpose;

(5) Finally it is said that the enactment in December 1949 of the new sub-s. (7) did not adversely affect the company's position because, although, thenceforth, the condition of exemption from the operation of any by-law made pursuant to paragraph (xxxviii) of sub-s. (1) of s. 197 was a prior lawful use; (i) the provisions of the new sub-s. (7) did not apply to by-laws made prior to its enactment; and (ii) the repeal of by-law No. 289 on 3rd April 1958 resulted in its complete and absolute obliteration so that it could not thereafter be taken into account upon an inquiry to determine whether the use made of the land prior to its repeal was unlawful (see Bird v. John Sharp & Sons Pty. Ltd. [1] ).

It should be said at once that proposition (4) is denied by the decisions in Grozier v. Tate [2] and Nash v. Stielow [3] . These cases are clear authority for the proposition that a prior unlawful user was not sufficient to exempt the use made of the land by the appellant's predecessor from the general prohibition erected by by-law No. 289. These decisions were attacked by counsel for the appellant but since there are other and obvious reasons why the appeal must fail it is unnecessary for us to attempt to review them. It is, however, not intended that these observations should give rise to any doubts concerning their authority; it is sufficient to pass them by and to proceed to consider the other matters which arise in the case.

1. (1946) 64 W.N. (N.S.W.) 1. 2. (1950) V.L.R. 39.

At the outset it should be observed that sub-s. (7) of s. 197 does not, in terms, purport to qualify or play any other part in the definition of the by-law making powers given by the earlier provisions of the section. Both in form and substance it is a saving provision intended to restrain or exclude, in specified circumstances, the operation of by-laws made pursuant to par. (xxxviii). This is the view which was taken in Barnes v. City of Coburg [4] , then accepted in R. v. City of Moorabbin; Ex parte Kahn [5] , and there is no reason why we should depart from it. It is, of course, a view which is of some importance in the case for in the absence of any provision of that character there could be no question that the use made of the appellant's land was at all times unlawful. But it is of more immediate significance for it means that a by-law may be made in general terms pursuant to sub-par. (a) of par. (xxxviii) and that its field of operation will increase or diminish consistently with currently prescribed exclusions. This disposes of the suggestion somewhat boldly made that consideration of the terms of sub-s. (7) as it stood when by-law No. 289 was promulgated, should induce us to read down the general language of that by-law so as to make it, by construction, inapplicable to the cases which the sub-section purported to exclude from its operation.

With these matters in mind it is convenient to consider the contention that the new sub-s. (7) did not apply to by-laws promulgated before its enactment. More particularly the question is, of course, whether that sub-section applied to by-law No. 289. In our opinion it is clear to the point of demonstration that it did. The amending Act, which expressly was to be read as one with the principal Act, substituted a new and carefully worded sub-s. (7) which, in terms, provided that "No by-law under sub-s. (a) of par. (xxxviii) of sub-section (1) of this section" should preclude the continuance of the use of any land in the specified circumstances. There can be no doubt that it was intended to apply to all by-laws made under sub-par. (a) of par. (xxxviii) and not only to some of them, that is to say, those made after the passage of the amending Act. The form of the provision admits of no other conclusion but if confirmation were needed it might be found both in the character of the provision itself and the changes which it was designed to effect. It should also be added that if it did not apply to by-laws made before the enactment of the amending Act the appellant would find itself in no better case for, on the view expressed earlier concerning the general character of sub-s. (7), by-law No. 289 would, after 6th December 1949, have been left free to operate without restriction of any kind. That any such result was intended is out of the question and this is a further indication, if any be necessary, that the new sub-s. (7) applied to all and not only to some of the by-laws made under sub-par. (a) of par. (xxxviii).

The result of these observations is that even if the appellant's predecessor might, prior to 6th December 1949, have justified the use of the land for the purposes of his business by pointing to a use, though unlawful, immediately prior to the promulgation of by-law No. 289, neither he, nor at a later stage the company, could at any time after 6th December 1949 have pointed to any legal justification. After that date the condition of exclusion was, of course, a lawful use for the same purpose "immediately before the coming into operation of the by-law", that is to say, immediately prior to 1st January 1949.

Accordingly, the use made of the land by the appellant during the period in respect of which the charge was laid was in breach of by-law No. 375 unless the appellant's ultimate argument should be accepted. This is, that upon the repeal of by-law No. 289 it was obliterated completely and absolutely and that in those circumstances it cannot now be said that the use which was made of the land prior to the promulgation of by-law No. 375 was unlawful. But this argument, which rests upon the effect at common law of a repealing statute, is fallacious for the condition of exclusion is that there shall have been a prior lawful use for the purpose in question and the plain words of the new sub-s. (7) remit us in making this inquiry to the law as it stood at the relevant time.

The argument for the appellant in this case was clearly put, but there is, in my opinion, no substance in it.

The information alleged the commission of an offence on 5th May 1958, and the offence charged was (to put it shortly) the carrying on of a business within a prescribed residential area contrary to by-law No. 375 of the City of Melbourne, which came into force on 3rd April 1958. If s. 197 (7) of the Local Government Act 1946 (as to which see Barnes v. City of Coburg [1] ) had remained unamended, the appellant might have argued that he was protected from the operation of by-law No. 375, because it was in fact carrying on its business at the same place immediately before the coming into operation of that by-law. He would indeed, in order to maintain that argument, have had to ask the Court to overrule Nash v. Stielow [2] . But in truth the argument was not open to the appellant, because, long before the coming into operation of by-law No. 375, a new sub-section had been substituted for s. 197 (7) by s. 5 (d) of the Local Government Act 1949. That Act commenced on 6th December 1949, and the new sub-section would, of course, apply to all by-laws made after that date. That new sub-section protected only the lawful carrying on of a business immediately before the coming into operation of a residential area by-law. And the appellant's carrying on of its business immediately before the coming into operation of by-law No. 375 on 3rd April 1958 was clearly not lawful. It was in breach of by-law No. 289, which was in force from 1st January 1949 until it was repealed by by-law No. 375 itself.

1. (1928) V.L.R. 334, at pp. 338, 339. 2. (1950) V.L.R. 39.

It was indeed argued for the appellant that the carrying on of its business in the residential area, though unlawful so long as by-law No. 289 remained in force, could not be considered unlawful after the repeal of by-law No. 289. In effect, it was said, it became retrospectively lawful. The argument founded itself on the common law rule as to the effect of the repeal of a statute, but I think that two learned Chief Justices would be very surprised indeed if they could know that their words had been quoted in support of it.

The statements of the rule which are most commonly cited are those which are found in Surtees v. Ellison [3] and in Kay v. Goodwin [4] . In the former case Lord Tenterden C.J. said: "It has been long established that, when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed" [5] . In the latter case Tindal C.J. said: "I take the effect of repealing a statute to be, to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law" [1] . But these statements mean for present purposes no more than that, at common law, after the repeal of by-law No. 289, the appellant could not have been prosecuted for an offence committed against that by-law while it was in force. Here the question is whether a particular act was lawful on a particular day - the day before by-law No. 375 came into operation. Obviously that question must be answered by reference to the law in force on that day, not by reference to the law in force when the question arises.

1. (1829) 9 B. & C. 750 [109 E.R. 278]. 2. (1830) 6 Bing. 576 [130 E.R. 1403]. 3. (1829) 9 B. & C., at p. 752 [109 E.R., at p. 279]. 4. (1830) 6 Bing., at pp. 582, 583 [130 E.R., at p. 1405].

The appellant was charged with having used certain land on or after 5th May 1958 for the purpose of the business of a scrap metal dealer, contrary to the provisions of by-law No. 375 of the City of Melbourne. The by-law had been made under sub-par. (a) of s. 197 (1) (xxxviii) of the Local Government Act 1946 (No. 5203) of the State of Victoria. The power which the paragraph confers is to make by-laws prescribing areas as residential areas and prohibiting or regulating within the whole or any part of any such residential area the use of any land for the purposes of such classes of trades, industries, manufactures, businesses or public amusements as are specified.

On and after the date charged, the area in which the appellant's land was situated was a prescribed residential area, and the appellant was using the land for the purpose charged. Such a use of it was contrary to a general prohibition contained in by-law No. 375, and was not within any exception or exclusion which the by-law made from the prohibition. The question raised by the appeal is whether, notwithstanding the prohibition, the use was saved from being unlawful by a provision in sub-s. (7) of s. 197. That provision was enacted, in substitution for an earlier provision, by the amending Act No. 5443 which was assented to on 6th December 1949. It was that no by-law under sub-par. (a) of s. 197 (1) (xxxviii) should preclude the continuance of the use of any land for the purposes for which the land was lawfully used immediately before the coming into operation of the by-law. By-law No. 375 under which the appellant was prosecuted came into operation on 3rd April 1958. Immediately before that date the appellant's land was being used for the purpose of the business of a scrap metal dealer. Whether s. 197 (7) protects the continuance of that use depends upon whether it was a lawful use.

The only ground upon which the respondent suggests that the use was unlawful is that it was contrary to a former by-law made under sub-par. (a) of s. 197 (1) (xxxviii), namely by-law No. 289, which had commenced on 1st January 1949 and was still in force immediately before by-law No. 375 came into operation. It was expressed in terms which, considered by themselves, forbade the use in question; but it was repealed by the by-law No. 375, and the appellant contends that the consequence in law of its repeal is that it must be put entirely out of account as if it had never existed. Unfortunately for this argument, s. 197 (7) positively requires consideration of the state of the law immediately before the by-law currently in force came into operation; and that means, as applied to by-law No. 375, immediately before the repeal of by-law No. 289. The hypothesis demanded is that by-law No. 289 was still in existence; and it is idle to argue that the common law rule as to the effect of a repeal applies in the face of so plain a statutory requirement.

Failing in that argument, the appellant falls back upon another. Conceding that the use being made of the land immediately before 3rd April 1958 was unlawful according to the terms of by-law No. 289, the appellant contends that nevertheless it was not unlawful, because an overriding statutory provision prevented that by-law from applying to it. At the date when the by-law came into force, 1st January 1949, the amending Act No. 5443 had not yet been passed, and sub-s. (7) of s. 197 was in a different form. It provided that no by-law under sub-par. (a) should preclude the continuance of the use of land for any purpose for which the same was used - it did not say lawfully used - immediately before the coming into operation of the by-law. The appellant's land was being used for the purpose of the business of a scrap metal dealer immediately before by-law No. 289 came into operation. Its use for that purpose was unlawful, for it was contrary to an earlier by-law, No. 251, which had been made in 1941, before the use of the land for the business of a scrap metal dealer commenced. But that, the appellant says, does not matter: the land was being used de facto for the purpose, and that was enough to attract the protection of the old sub-s. (7). It is unnecessary here to decide whether the reference to use in that sub-section is a reference to lawful use only. Let it be assumed that even a use contrary to law would suffice. There is still a fatal flaw in the argument, for it wrongly assumes that the operation of the sub-section was to restrict or qualify the by-law making power, so that by-law No. 289 must be construed, if it is to be held valid, as not extending to the appellant's land. The true operation of the sub-section, however, was not to affect either the validity or the construction of a by-law expressed, as by-law No. 289 was expressed, in the terms of a general prohibition; it simply provided, so long as it continued in force, a shield protecting existing uses from any precluding effect of the by-law. To repeal the sub-section was to remove the shield and expose the existing uses to any prohibition which an existing by-law might be found to contain. The amending Act which came into force in December 1949 did exactly that. It removed the shield and replaced it with another; and even if the old shield protected a use which was unlawful immediately before by-law No. 289 came into operation, the new shield certainly did not. Accordingly from that time onwards, at least, the use of the land for the purpose of a scrap metal dealer's business was unlawful.

In my opinion the appellant had no valid defence to the charge, and Sholl J. was right in holding that the magistrate should have proceeded to a conviction [1] . I would dismiss the appeal.