Howarth v McMahon

High Court of Australia|1951-07-01|Before: Webb JJ, Isaacs J, Rich J

High Court of Australia Dixon, Williams and Webb JJ. Howarth v McMahon [1951] HCA 19

The Court delivered the following written judgment: -

This is an appeal from a decretal order made by Roper C.J. in Eq. whereby a suit instituted by originating summons was dismissed with costs. The originating summons sought injunctions against the defendant of a mandatory character. The purpose was to require the removal of large quantities of bricks from a parcel of land in the municipality of Redfern which, though at the time the bricks were deposited there it belonged to the defendant, had, according to the claim of the plaintiffs, since become the property of the latter. They claimed that, by a resumption notice published in the Government Gazette of 26th September 1947 the land had been resumed and vested in the Municipality of Redfern, which by a conveyance dated 22nd November 1948 had conveyed the land to the plaintiffs. The Gazette notice did in fact purport to vest the land in the council of the municipality and the conveyance to convey it to the plaintiffs. The notice stated that the council had made application that the land be appropriated or resumed for the purpose of providing a club for returned sailors and soldiers. The Governor in Council then went on to declare that the land was thereby resumed under Div. 1 of Part V. of the Public Works Act 1912 for the purposes aforesaid and the Minister for Public Works notified the vesting of the land in the council. In the conveyance the plaintiffs were described as the trustees of the Redfern Subbranch of the Returned Sailors, Soldiers and Airmen's Imperial League of Australia. It was recited that the council, described as the vendor, had agreed with them for the sale to them of the land at the price of £1,400, and it was witnessed that in consideration of that sum paid by them to the vendor (reading the word "vendor" as repeated as obviously was intended) the vendor as beneficial owner conveyed the land to the plaintiffs in fee simple.

Roper C.J. in Eq. inferred from the sequence of events that the council sought to have the resumption effected so that it could then sell the land to the sub-branch of the League and held that it had no power to adopt that course and further that the purpose, stated in the notice, of "providing a club" did not pursue the power of the council, the power being to provide, control and manage such a club. His Honour therefore decided that the purported resumption did not operate to vest the land in the council and on that ground dismissed the suit.

In considering the correctness of this conclusion it is necessary to turn first to the powers of resumption. These are to be found in Part XXV. of the Local Government Act 1919-1948. Section 532, which occurs in that Part, provides that the council may acquire land within or outside the area for any purpose of the Act by lease, purchase, appropriation, or resumption in accordance with the Part. Under the heading "machinery of resumption" s. 536 provides that the council proposing to acquire land by resumption may apply to the Governor through the Minister, that the Governor may authorize the resumption, that the Minister may thereupon resume the land by Gazette notification under Div. 1 of Part V. of the Public Works Act 1912 and notify that the land is vested in the council, that thereupon the land shall be vested in the council and that for the purposes of the Public Works Act 1912 such resumption shall be deemed to be for the purpose of carrying out an authorized work within the meaning of that Act. The opening words of s. 42, with which Div. 1 of Part V. of the Public Works Act begins, are "for the purpose of carrying out any authorized work". The section contains the procedure for notifying the resumption and laying it before Parliament. It is followed by other sections the effect of which it is unnecessary to state. The incorporation of these provisions by s. 536 of the Local Government Act 1919 is in order to provide machinery for the more complete fulfilment of the power of acquisition conferred by s. 532 and not to extend or enlarge the power of resumption. The better construction of the Local Government Act appears to be that their operation depends entirely on the substantive power becoming exercisable and that means, when the power is sought in s. 532, that it is an indispensable condition that the resumption shall be for a purpose of the Act.

In Criterion Theatres Ltd. v. Sydney Municipal Council [1] there are dicta by Isaacs J. and by Rich J. to the effect that similar provisions in other legislation give a conclusive operation, at all events in some respects, to the resumption notice in the Gazette . These dicta are entitled to great weight, but the place which s. 532 occupies in the present legislative plan seems clear. Unless the conditions that section expresses are fulfilled the authority to resume does not arise and the machinery has nothing upon which it ought to be regarded as operating. There is no sufficient justification for making the Gazette notice conclusive of the fulfilment of those conditions. The resumption must therefore be for a purpose of the Act.

The decision of Roper C.J. in Eq. in Motor Wheel & Tyre Co. Ltd. v. Commissioner for Railways [2] turns entirely on the Public Works Act 1912. His Honour, in the course of his reasons, rejected a contention that s. 34 (2) of the Government Railways Act 1912-1950 was the source of the power there in question. Having done so, his Honour placed the case entirely under Part V. of the Public Works Act 1912. Having found that the notice of acquisition complied with the requirements of s. 42 of that Act, his Honour then decided that s. 43 accomplished the vesting of the land notwithstanding that upon the facts behind the acquisition he was of opinion that the works contemplated did not in truth form an authorized work within the meaning of s. 42. The distinction between the present case and Motor Wheel & Tyre Co. Ltd. v. Commissioner for Railways [2] , as will be seen, lies in the fact that in the latter case the whole question came within ss. 42 and 43 of the Public Works Act. In the present case the Public Works Act 1912 does not apply unless and until it is, so to speak, drawn in by a proper use of the Local Government Act. For the reasons already given, the Public Works Act is not drawn in by the Local Government Act unless the conditions stated by s. 532 are fulfilled and here they are not fulfilled. It is therefore not proper in the present case to express any opinion about the correctness of the conclusion that in a case exclusively under Part V. of the Public Works Act the facts behind the notice of acquisition are not examinable.

(1950) 50 S.R. (N.S.W.) 205; 67 W.N. 166. 2. (1950) 50 S.R. (N.S.W.) 205; 67 W.N. 166.

Section 477, which occurs as the first section in Div. 2 of Part XXIII., headed "Various powers", provides that the council may purchase or resume land within or outside the area in any case where the council deems it expedient to acquire or hold land in the interests of the area. The vagueness of the expressions employed in this provision affords no warrant for giving it a more generous scope than s. 532. On the contrary, it suggests that it is an incidental power depending upon specific powers the exercise of which calls for the acquisition of land. No machinery is supplied outside Part XXV. for acquiring land when s. 477 is invoked. But, as the Gazette notice in this case resorts plainly enough to s. 536 and s. 532, it is unnecessary to consider s. 477 further. The view already expressed that the power of resumption rests upon the existence of "a purpose of this Act", within the meaning of s. 532, is not compatible with the contention of the appellants that the Gazette notice under s. 42 of the Public Works Act and s. 536 (4) of the Local Government Act is conclusive in favour of the council. Whatever may be the position under other Acts, under the Local Government Act the cardinal provision is s. 532 and that makes the existence of the requisite purpose essential. Thus the inquiry is remitted to the question whether the purported resumption of the land of the defendant respondent was for a purpose within the power of the municipality.

For the power which the plaintiffs appellants claim sufficed to enable the council to resume, reliance is placed upon s. 358 (1) (f). Paragraph (f) was added to pars. (a) to (e) of sub-s. (1) of s. 358 by s. 10 (c) (ii) of Act No. 41 of 1928, the Local Government (Amendment) Act 1928. Section 358 (1) had provided that the council might provide, control and manage or might subsidise (a) schools of arts, (b) literary institutes, (c) mechanics institutes, (d) art galleries and (e) museums. Paragraph (f), which was then added, contained the incongruous words "associations institutes and clubs for returned sailors and soldiers". The conception of a council providing, controlling and managing an association is strange and the incongruity is not lessened by its being an association of returned sailors and soldiers. To provide a club would be understood prima facie as establishing and equipping a club house and a similar meaning may be applied to providing an institute, but it is not so easy to treat an association as a place or an institution. However, the governing words are "provide, control and manage or subsidise". The first three expressions "provide, control and manage" describe a composite authority or power to which the power to subsidise is evidently an alternative. It may be true that the council must begin by "providing" before it can "control and manage". But clearly enough it was never intended to control things enumerated under pars. (a) to (f) established by private or independent enterprise, things with which the council had no connection. Further, it can hardly be doubted that the power was designed to enable a council to provide and maintain under its authority things considered to be for the general advantage and for that reason enumerated in the sub-section. The council is to be and remain responsible for what is provided. The phrase "provide, control and manage" occurs in a number of sections and speaking generally the manner in which it is used shows that the power the words are intended to confer is pointed at the establishment or procurement for the area by the council of some facility or advantage in which the council will continue to be concerned. But the legislation is inartistically conceived and unskilfully expressed and the amendments that have been made in it are not always distinguished for care, consistency or precision in the use of language. It is a mistake to place much reliance on the way phrases are used in different contexts in such an instrument. Now in the present case the council obviously never intended to build or cause to be built or otherwise to provide upon the land any club or other facilities for returned sailors and soldiers, still less to do so as a thing over which the council would exercise control and management.

The inference drawn by Roper C.J. in Eq. was plainly right: indeed it was an inevitable conclusion from the simple facts. All that has happened is that the council decided to acquire compulsorily a piece of land in order to sell it to the sub-branch of the League. This is wholly outside the contemplation of s. 358 (1) (f).

For these reasons the appeal should be dismissed with costs.

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