Lake Macquarie Shire Council v Aberdare County Council

High Court of Australia|1970-07-01|Before: Windeyer JJ

High Court of Australia Barwick C.J. Menzies andWindeyer JJ. Lake Macquarie Shire Council v Aberdare County Council [1970] HCA 32

ORDER Appeal dismissed with costs. Barwick C.J.

We have on this appeal listened to a full argument on behalf of the appellant but I find no need to ask for the assistance of the respondent's counsel nor to reserve my opinion. The matter I think can be adequately disposed of at once.

The respondent did not exercise nor, apparently, consider the exercise of, the power given by the proviso to s. 572B (1). The appellant's complaint is the respondent gave no consideration to the question whether or not any of the loans in respect of which the assessment was to be made would be of special benefit to a portion only of the county district.

It is said on behalf of the appellant that some of the loans in respect of which the assessment was to be made were for the benefit of part only of the county district. This submission of fact I find unnecessary to deal with because of the view I have formed of the case. Not having given that question, that is to say the question whether any loan would be for the benefit of part only of the county district, any consideration, the submission is that the respondent could not decide as in the submission it ought, whether or not to exercise the discretion given by the proviso. Therefore, it is said, the assessment was not authorized by s. 572A which requires that the assessment shall be made in the manner prescribed by s. 572B.

The appellant adds to this submission its claim that the respondent acted under the direction of the Department of Local Government and points to the letter dated 21st November 1966 by the Secretary of the Department of Local Government advising the respondent of the availability of a loan of $80,000 on conditions, which included the assessment of the councils constituting the county district in the amounts for which they were ultimately assessed by the respondent.

But unless the respondent was under a duty to consider whether an opinion should be formed as described in the proviso to s. 572B (1), its duty under s. 572B (1) was to do what was in fact done if a decision was made not to levy a loan rate; that is to say, this was the respondent's duty whether or not the Department desired an assessment of that sort.

In my opinion s. 572B (1) does not impose upon the county council a duty to consider whether or not a loan in respect of which an amount is to be included in the assessment to be made under s. 572A and 572B of the Act, would be of special benefit to a portion only of the county district. All that the proviso does in my opinion is to give to the county council the power which at its own discretion it may or may not exercise to depart from the ratable assessment of each constitutent council as provided in the principal paragraph of s. 572B (1). If the county council does not consider whether or not a loan would be of special benefit to a portion only of the county district, its assessment upon each of the constituent councils, ratably to the unimproved capital value shown in the valuations furnished under s. 571 will, in my opinion, be nonetheless valid. It is, in my opinion, an unwarranted construction of ss. 572A and 572B to qualify the duty to assess under the first paragraph of s. 572B (1) by the performance of a prior duty to consider whether or not an opinion should be formed as described in the proviso, so that it could be decided whether the discretion given by the proviso should or should not be exercised. No doubt it may be proper for the county council to consider whether or not there is occasion to exercise that discretion, but the legislature has left the whole question to the county council and has not imposed any duty on the county council in that respect.

Accordingly, in my opinion, the appellant's principal attack on the assessment fails.

The appellant made another submission, namely, that, as according to the appellant, the respondent had no power to supply liquid petroleum gas and the pipes, fittings, apparatus and appliances referred to in s. 418 (1) (l) no loan obtained for the purpose of the supply of such gas or the provision of such fittings etc. could be the subject of an assessment or included in the loans in respect of which an assessment was made under s. 572A and 572B. The assessment which was in fact made was made in respect of a number of loans, some of which were in respect to the supply of liquid petroleum gas and the provision of equipment for its supply and use.

Section 564 in Div. 4 of Pt XXIX of the Act gives a county council power to undertake any function delegated to it in accordance with the Act for the joint benefit of the areas included within the county district. The Governor in Council may proclaim the delegation, see s. 564, sub-s. (3). In this instance the relevant proclamation was made on 13th August 1958, and amongst other things, delegated to the respondent - "all powers and duties under sections 416 to 419 of the Act relating to the supply of gas and the supply and installation of gas fittings and appliances". This delegation followed the words of s. 418 (1), par. (b).

By s. 8 of the Liquefied Petroleum Gas Act, 1961 N.S.W., a further paragraph was inserted in s. 418 (1), namely par. (l) in the following terms -

The supply of liquefied petroleum gas as defined in section two of the Liquefied Petroleum Gas Act 1961, and the supply and installing of pipes, fittings, apparatus and appliances used for or designed for use in the conveyance or consumption of such gas.

The appellant's argument is that gas in s. 418 (1) par. (b) and in the Governor's proclamation of 1958 means and is confined to coal gas. This result is said to follow from a consideration of earlier statutes in which it is submitted the word "gas" means only coal gas. In this connexion we were referred to the Municipal Gas Act of 1884 (48 Vict. c. 20), the Municipalities Act of 1897, particularly Part XV thereof and the Local Government Act, 1906, s. 109.

It may be granted that "gas" in these statutes denoted coal gas. In the earlier of three Acts, that clearly appears from the various provisions of the Acts themselves; and no doubt in 1906, gas denoted coal gas, because no other form of gas for lighting and heating was in common use. Nonetheless the connotation of the word "gas" may not be so described. The Act here speaks of "gas", not of coal gas. In my opinion, it thus selects the genus, and not any particular species of gas.

I can see no reason why, whilst the connotation of the word "gas" will be fixed, its denotation cannot change with changing technologies. Indeed, in my opinion, it would be odd that in granting trading powers, including the power to supply gas for heating and lighting, the Act should intentionally close the door on access by the local government bodies to developing methods of trading in gas for heating and lighting.

But in my opinion the question need not be resolved on any such general considerations. It is to my mind plain that the word "gas" in the paragraph in s. 418 cannot be limited in its denotation to coal gas; nor could it be so confined in s. 420 (1) (c); nor could it be so confined in the proviso to s. 418 (1).

In my opinion, throughout the reference in s. 418 (1) (b) and the proviso is to the genus gas which will apply to them as new species of gas are made available. That meaning is not to be altered, in my opinion, by the addition of par. (1) which, it seems to me, was simply inserted for more abundant caution.

I agree with the conclusions to which the learned primary judge came. Further, for the reasons given, I do not accept the appellant's submission as to the trading powers of the respondent, a matter with which his Honour did not specifically deal.

Lastly, I cannot accept the submission that the assessment is invalid because it does not assess separately a sum for each loan in respect to which obligations exist in the year in question.

In my opinion, the respondent, in the circumstances of the case, satisfied the requirements of ss. 572A and 572B by taking the total of the loan obligations for the year and determining a sum in respect thereof estimated not to be recovered by the income of the year and the grant to be given by the State Government.

This, in this case, seems, in my opinion, sufficiently to deal with each loan without distributing the overall income to each loan for the purpose of making a series of assessments, this being a case in which there was no intention to exercise the discretion given by the proviso to s. 572B.

So far as there were any other submissions of the appellant, I think they were sufficiently dealt with in argument. In my opinion the appeal should be dismissed.

I agree. It appeared to me that apart from the argument based upon the construction of s. 564 of the Act, the contentions for the appellant were based upon supposition that the proviso to s. 572B (1) required the county council in making an assessment in accordance with ss. 572A and 572B to consider in respect of each loan whether the work for which it was required would involve special benefit to a portion only of the municipal district. That, of course, was the fundamental proposition in relation to the first contention, but it seemed to me that it was also implicit in the other contentions apart from that based on s. 564.

I agree with what the Chief Justice has said that that supposition is incorrect and that the county council has a power which it can determine, as it were as a matter of general policy, not to exercise but rather to proceed in accordance with the first part of s. 572B.

I also agree with what the Chief Justice has said about the meaning and application of s. 564.

Accordingly, I come to the same conclusion as he has, for the same reasons as he has given.

I have had some misgivings and doubts on one aspect of the matter. That is the extent of the denotation of the word "gas" where it is used in s. 418 (1) (b) of the Local Government Act along therewith the words "gas fittings and appliances". I think that the phrase "the supply of gas" in its context in the Act of 1919 probably means the thing that it had meant in the forerunners of that Act, earlier statutes of New South Wales dealing with the powers of local governing authorities. That thing was coal gas. The word is not limited to gas for heating and lighting appliances. Therefore it must be read, it seems to me, as meaning either all types of chemical gases or as limited, as it was previously limited, to coal gas. Other types of gas can be bought and sold in containers; and if the power is a general power to provide gas of any sort and the supply of gas means any sort of gas I see no reason why it should not include petroleum gas. Whether gas be supplied in containers or in some other way is not, I think, a decisive consideration. The powers which the council has under s. 418 are to supply a variety of things by way of business and trade. They vary from ice to gas to motor bus services. I am not myself persuaded that the question here is one of a generic word as distinct from a specific word. It seems to me that only one species of gas was being spoken of when the phrase "the supply of gas" was used in the Act, having regard to the use of the word in other statutes, in pari materia, and to the common use of the phrase "gas supply" in 1919 and before then.

However, I do not wish, because of my doubts and on that single and particular aspect, to dissent from the decision of this case that the Chief Justice proposes. I confess that I say that partly because of the inconvenient situation which my view, if it were correct, would produce - it would mean as Mr. Jenkins agreed is implicit in his argument, that the existing activities of the county council in selling petroleum gas in containers has been unlawful, not within the powers conferred upon it and all its expenditure thereon was an improper use of its funds. That might have rather alarming consequences. So, sacrificing what seems to me to be the true interpretation of the word "gas" to considerations of expediency in the more general aspects of the case, I prefer not to press my view especially as we have not heard what the respondent's counsel would say about the matter, and the learned primary judge did not say anything about it.

On the other matters argued I agree in what the Chief Justice has said.

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