Hodge v R [1907] HCA 68

Hodge v R [1907] HCA 68 - HCA 1907 case summary — Zoe

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appointed shall be deemed to have been duly elected at such election." In the events that have happened five of the seven members of the Council of this shire resigned their seats, three on 23rd March, one on 30th March, and one on 4th April. The Chairman was not amongst those who resigned, but he was advised that he could not act as Returning Officer without a formal appointment by the Governor in Council, and as it was impossible to form a quorum, the local authority could not appoint any person to act in that capacity. It was therefore y, if an eleetion was to be held at all, for the Governor in Council to appoint a Returning Officer. Accordingly that was done on 22nd April, but the gentleman appointed was not notified of his appointment until 24th April. The time prescribed by rule 4 for giving notice of the election to fill extraordinary vacancies is, as I have pointed out, thirty days after the oceur- rence of the vacancy, so that the notice for the election to fill the vacancies created by the resignations of the three councillors on 23rd March could not be given later than 22nd April, the day on which the Returning Officer was appointed. The last day for giving notice of an election to fill the vacancies created by the resignations of the other two Councillors would have been a few days later. But for some reason, to which it is not necessary to refer, as we are dealing with a dry point of law, the Returning Officer failed to give any notice of election within thirty days after the occurrence of any of the vacancies. The last day on which a notice could have been given for the latest of them was 4th May. No election, therefore, was held. In point of law none could be held. Thereupon the Governor in Council, on 13th May, appointed five ratepayers, including the four appel- lants, to fill the vacancies. The objection now taken is that the Governor in Council, in the events which happened, had no authority to fill the vacancies. That depends wholly upon the meaning of rule 11, which pro-

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election, if there is no local authority, or no person is appointed by the local authority (which were the conditions in the present case) then such person as the Governor in Council appoints shall be the Returning Officer. On 22nd April the Governor in Council by Order in Council appointed H. N. Stevens Returning Officer to conduct the election of five members to fill the vacancies. By sec. 31, sub-sec. 8, the election in a shire is to be held at the time appointed by the Returning Officer, and by rule 4, paragraphs 2 and 4, on the occurrence of an extraordinary vacancy, public notice of the election shall be given by that officer within thirty days after the oceurrence of the vacancy, that is to say, a notice specifying a day of nomination not less than fourteen nor more than twenty-one days after the publication of the notice. By rule 8, if the number of persons nominated as candidates does not exceed the number of members to be elected, the persons nominated are to be declared duly elected by the Returning Officer, 'on the day of nomination ; and by rule 9, if the number of persons nominated as candidates exceeds the number of members to be elected, a poll must be taken on a day and at a place appointed by the Returning Officer, not more than thirty nor less than fourteen days from the day of nomination. Now, in the present case the Returning Officer, though appointed on 22nd April, did not receive notice of his appointment until 24th April. It is not necessary to inquire how it came about that it was so late, but the

required thirty days had expired as to three of the vacancies, om the Returning Officer pointed that out to the Department. He expressed the opinion that under the circumstances it would "be useless to conduct an election, and recommended the Minister to obtain an appointment by the Governor in Council to fill the vacancies, referring to the provisions of rule 11. Whether that advice was good or bad we need not now inquire. But the Governor i in Council, finding that the means adopted to fill all the vacancies had been abortive, appointed the four appellants and another gentleman, all of whom were ousted by the Supreme Court Queensland on the ground that no day had been appointed for election. This action of the Governor was taken under rule 11.

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statutory power given by the rule. I am of opinion that it was. I think that the rule covers the case where steps have been taken to hold an election, and those steps have been abortive or have failed, so that without action by the Governor in Council there would be no representation of the local authority at all. I think that the prevention of such a state of affairs was the absolute purpose and design of rule 11, and it was in view of that that the appointments in question were made. The rule contemplates the case in which there has been a miscarriage or blunder, because it speaks of the vacancies which ought to be filled, as where duty has not been done, where efforts to hold an election have failed, so that no election has been held, or no candidates have been nominated, or a less number has been nominated than the number to be elected. There is in each of those cases a failure to fill a vacancy that ought to have been filled. Rule 11 was devised in order to enable the machinery of local government to go on working. Without it there would be a necessity for passing special legislation. The necessary consequence of Mr. MeGregor's argument would be to defeat the very purpose for which this rule has been framed. It has been urged for the appellants that the section as to ouster, sec. 23, does not apply to the case of an appointment by the Governor in Council. It is true that the section refers in terms to cases where members declared elected have been elected unduly or contrary to the Act, and it may be that there is some force in the argument that these words do not apply to the cases of persons not declared elected within the meaning of the section, or, rather, that the words do not cover such cases as the present, but I will not go into that question. In the view I take it is not necessary to decide it. But it seems to me that the view of the Chief Justice of Queensland, with reference to disqualification and the effect of irregularities or disqualifications upon the election by force of rule 11, might have been strongly tenable but for the concluding words of rule 11 irom "at such election" down to the end. That puts such persons, once appointed, upon the footing of persons duly elected, and seems to me to obviate all questions of the kind raised as to the validity of the proceeding taken by the Governor in Council - so long as at the time prescribed there have been no elections, or

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has been nominated, and the Governor in Council has in due form appointed a ratepayer or ratepayers to fill the vacancy or vacancies. 'There is nothing in rule 11 which appears to me to be new, or indeed anything more than a transcript from the Divisional Boards Act 1887, sec. 50. ' 'The meaning of the word "election" was the subject of con- siderable argument in this case, and Mr. MeGregor pointed out _ certain sections and rules in which that word could only mean the poll. In some cases it may mean nothing but the poll; but there are other cases in which it obviously means, or includes nomination, for instance, where the requisite number of candidates has been nominated, and none in ex And there ~ are cases where the word as obviously applies to the whole process adopted under this law for bringing about the result of an election. Now, where the words "holding an election" are used 'as they are in this rule, it seems clear that they contemplate the whole process of election, so that full effect may be given to the rule by the construction that, when the means adopted for ~ bringing about an election break down, and it becomes plain that the election cannot be held and the very consequence that must be provided against occurs, this rule may be brought into opera- tion for the purpose of preventing the proceedings from being altogether futile. I am therefore in accord with the view of the

eonstruction of rule 11 taken by the Chief Justice, and think it applies expressly and designedly to the present case, and that its provisions are sufficient for the purpose of preventing
the deadlocks that would otherwise occur. The construction : - contended for by Mr. McGregor has no doubt a good deal of support i in the literal signification of the words used in this and "other parts of the Act, but it is a construction which, if adopted, would result in there being a cass onvissus in the Act. That is a construction against which the Court will generally lean as strongly as it can within reason. Because it is not lightly to be assumed that a provision, either by design or forgetfulness, has been left out which would be only an ordinary provision for securing the proper and continuous working of the machinery of local government. There is certainly that construction open, and

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held, if that is both sufficient and essential, it is perfectly immaterial whether the cause of the failure was or was not the absence of candidates or the absence of a sufficient number of candidates, and, therefore, that construction would assume that the legislature was using expressions that were immaterial, unnecessary, and meaningless. So that, for what I may call a comparatively unimportant reason, there is already a difficulty in the path. I say comparatively unimportant reason because there is behind a very much more important matter, namely, the question whether it is absolutely necessary that the scheme of local government shall in certain instances fail beyond any power of being retrieved so long as the law stands as it is. If the words mean what is contended for by the respondent, then in such a case as the present the Governor in Council has no power whatever to mend the matter at any time or under any circumstances, because, as I read rule 10, although His Excellency might in a proper case extend the length of the notice of the day of nomination or of the day for taking or concluding the poll, that would not give him the power, and there is no other power existent in the Act, to allow that notice to be given beyond the period of thirty days from the occurrence of the vacancies ; it is made imperative by rule 4. So that, that time having passed with- out any notice being given by the Returning Officer, it means that, as far as the Shire of Rosewood is concerned, local government is atan end. That is a construction that a Court will not adopt if _ by any reasonable interpretation to be placed upon the words of the legislature another construction can be given to the rule. Thave never yet seen a case where the rule in Heydon's Case (1) is more necessary to be applied than the present, the rule that it is the office of the Court, having ascertained the mischief and defect for which the law did not otherwise provide, and the remedy Parliament hath resolved and appointed, and the true reason of

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the remedy, "to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inven- tions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico." Now the intent of the legislature here is transparent, and see. 31, sub-see. 1, is in these terms: [His Honor read the sub-section.] There can be no shadow of doubt that the legislature meant a vacancy to be filled in some way, and made somewhat elaborate provisions for filling it, and we cannot assume that they intended that there should be a means by which that intent should be frustrated. The question is whether, there- fore, the words of rule 11 are reasonably open to a construction which will effectuate the intention that has been declared by the legislature itself. The respondent's construction, of course, makes that intention fail utterly, as I have pointed out. During the argument I read a passage to which I will now only refer, from the case of The King v. Vasey (1), where Lord Alverstone OJ. adopted a passage from Maawell on Interpretation of Statutes, 3rd ed., p. 319. But I will quote a few words from the judg- ment of Fry LJ. in Curtis v. Stovin (2): - "If the legislature have given a plain indication of this intention, it is our plain duty to endeavour to give effect to it, though, of course, if the words which they have used will not admit of such an interpretation, their intention must fail. Do the words which they have used in this case present any insuperable difficulty?" And then further on his Lordship, after explaining one possible construction, said : - * The only alternative construe- tion offered to us would lead to this result, that the plain intention of the legislature has entirely failed by reason of a slight inexactitude in the language of the section. If we were to adopt that construction, we should be construing the Act in order to defeat its object rather than with a view to carry its object into effect." Now these are only some of the numerous authorities in which the Courts have not been merely careful but astute to see that the plain intention of the legislature did not fail by reason of some inexactitude, as it has been called, in the method of

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held" would lead to a difficulty in intrinsic construction, having regard to the other words which I have already quoted, I turn to the Act to see whether there is anything in its object which is adverse to the more liberal construction. I find in sec. 28, sub- sec. 2, the provision upon which the third Schedule depends, these words: [His Honor read the sub-section.] Now I cannot, I do not think anyone could, say that the legislature by the phrase used there, " elections held," wished to confine itself to the taking ofa poll. Ishould think that there, asin other places in the Act, the legislature has referred to the whole of an election as a com- bined process, a continuous process, consisting of a number of steps ending in the election of some representatives for local Councils. And that is borne out by other phrases frequently used, as for instance, in secs. 20, 29, 30 and 32, in which we find such expressions as "conclusion of an election," "conclusion of an annual election," "conclusion of such election," by which it is manifest that the legislature meant the final step, the taking of the poll, or declaration of election where no poll was taken, the conclusion of a combined process. Once you arrive at that point, rule 11 may be well approached in order to see whether it is not, not only reasonably, but better open to the more liberal construction than to the rigid one which would defeat the inten- tion of the legislature as manifested throughout the Act. Turning to the rule again, it seems to me that it means this, that if the time prescribed or appointed for holding an election, that is, if the point of time has passed, by which the Act requires some definite and assigned step to be taken for the purpose of holding an election, or in other words, for the purpose of this combined process, and one or other of three things is found to exist, then, in iy opinion, no election is held; that is to say, if no election at all is in course of being held, or if, though an election is in course of being held, no candidates are nominated when they ought to be nominated, or if, although some are nominated, an insufficient number is found to be nominated, then it is found that there is a failure, or that there must be a failure to have a valid election, and the Governor in Council may step in and appoint a ratepayer or ratepayers to make up the requisite number to fill the vacancies

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Before

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Judgment (69 paragraphs)