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[1961] HCA 19
High Court of Australia
1961-07-01
Fullagar JJ
Original judgment source is linked above.
High Court of Australia Dixon C.J. McTiernan and Fullagar JJ. Lynch v Brisbane City Council [1961] HCA 19
In a suit brought by the Brisbane City Council against two defendants who for some years have maintained a stall in a private laneway off Adelaide Street, Brisbane, Mansfield C.J. granted an injunction restraining the defendants by themselves their servants or agents from preventing or obstructing the Brisbane City Council by its duly authorized servants or agents in the taking down and/or removal of a "stall" within the meaning of Ordinance 33a of Chap. 23 of the Ordinances of the Brisbane City Council, which stall is that in the laneway. The defendants now appeal to this Court against the judgment.
Ordinance 33a has none of the merits of brevity: there can be no claim by its draftsmen that its obscurities arise from their labours to be brief. Its purpose and its policy were the subject of dispute. But one thing is clear enough and that is the prohibition contained in its opening words. It runs: "A person shall not use a stall on any land for the display or sale of goods unless there is a subsisting licence under this ordinance for that stall on that land". The private lane was doubtless land. No licence under the ordinance subsisted for that stall on that land. Yet the defendants had long been partners in persistently contravening the ordinance, despite protests of the Council, by maintaining in the lane a structure which fell within the definition of "stall". It is a definition outside which few things could fall if suitable or adapted to be used for the display or sale of goods. At all events the defendants' structure undeniably was a stall. They had continued to use and maintain it in the lane notwithstanding that the male defendant was convicted before a magistrate of using a stall on the land for the sale of goods, namely, fruit and vegetables, there not being a subsisting licence for the stall on the land. A small fine was imposed: perhaps the prosecution was regarded simply as a test. But the defendants did not accept the decision as concluding their rights. After they had gone on as before for some time a notification was sent to them that authority had been granted to the Council's officers to enter the lane and demolish the stall. Ordinance 33a contains a provision that the Building Surveyor is empowered to enter upon any land or premises, either by himself or by the agency of other persons, and to take down and/or remove any unlicensed stall found thereon. Directions are given as to the disposal of the stall or the materials. In due course the Building Surveyor authorized the Building Inspector and two carpenters to enter and remove the stall. The pleading of the City Council, the allegations of which are admitted, says that its agents did enter upon the land for the purpose of taking down and removing the stall but they were physically prevented from doing so by the male defendant and an employee of the defendants. The conflict was probably unaccompanied by violence; at all events no force seems to have been summoned to the aid of the Building Inspector and in due time the writ in this action was issued seeking the injunction, which in the result was granted, against obstruction to the Council and its officers in the removal of the stall. The respondent City Council has advisedly refrained from objecting that an appeal from such an injunction could hardly lie as of right, and on that matter nothing need be said. But there is a question raised on the part of the appellant as to its being a case for an injunction, that is to say, on the assumption that in other respects the City Council's claims are sustained. Section 52 (8) of The Local Government Acts 1936 to 1959 (Q.) provides that in any case in which the Attorney-General might take proceedings on the relation or on behalf of or for the benefit of a Local Authority for or with respect to enforcing or securing the observance of any provisions made by or under this Act (i.e. the Local Government Act) or any other Act conferring powers or imposing duties upon a Local Authority, the Local Authority shall be deemed to represent sufficiently the interests of the public and may take proceedings in its own name. Whether an injunction of the kind granted in the present action is one for which a suit would lie in the name of the Attorney-General is open to question, but however that may be it does not seem to fall directly or naturally within the description "proceedings for or with respect to enforcing or securing the observance of any provisions made by or under an Act". The injunction is not "to enforce" statutory provisions contained in the ordinance and only by a stretch and very indirectly could the injunction be treated as "securing their observance". This can be seen if it is supposed that although the injunction stood, no further steps were taken to remove the stall: the observance of the statutory provisions would not have been enforced or advanced. Section 52 (8) is not applicable. But the case seems to be in principle one where the Council of the City of Brisbane might obtain an injunction in its own right. What it is sought to restrain is the repetition of physical obstruction to its officers executing lawfully the directions of the Council in relation to a structure or thing affecting the city. The hypothesis is that the Building Surveyor as an officer of the Council has been and will be obstructed in lawfully exercising a power to remove a structure unlawfully upon a site in the city area. The council is empowered to deal with the matter through its Building Surveyor and to act physically: there is a physical obstruction already interposed by the defendants and the allegation upon the pleadings is admitted that the defendants "intend to prevent the plaintiff (Council) by its duly authorized agents from taking down and removing the said unlicensed stall unless restrained from doing so". The case is not covered by precise authority but threatened and repeated unlawful and forcible interferences with the exercise of rights, of course, always have been proper occasions for the invocation of the equitable jurisdiction to intervene by injunction and there seems no reason why a municipal authority exercising a lawful power of removing objects from a site where they unlawfully exist should not obtain an injunction for the protecting of its servants and agents from unlawful physical obstruction in the fulfilment of their functions. Once it is seen that jurisdiction exists to grant an injunction, there seems no reason to withhold it as a matter of discretion.
But the cardinal matter upon which the appeal turns is the validity of the ordinance. The defendants appellants deny its validity and say it is ultra vires. The respondent City Council affirms that it is within the ordinance-making power but says that it does not matter if it goes beyond that power because once an ordinance is laid before Parliament and within due time no resolution has been passed against its continuance in force, then by s. 38 (4) of The City of Brisbane Acts it is to be deemed to have been duly made and to be within the powers of the Council. The source of the authority claimed for the ordinance is s. 36. That is a long old-fashioned provision although it is divided into seven sub-sections. It is perhaps as well to mention at once the seventh because that reverts to all of the topics mentioned in the six previous sub-sections: "Notwithstanding anything to the contrary contained in this Act and without limiting the generality of the power and duty conferred on the Council by this section, the Council shall have, and is hereby declared to have always had, full power to make ordinances in relation to the matters mentioned in this section." The possible importance of this provision lies in the fact that although sub-s. (2) confers a power to make ordinances for purposes expressed in very general terms, sub-s. (1), without referring to ordinances, charges the Council with the government of the city and the control of the working and business of such government, and sub-s. (3) without mentioning the word ordinances or any other method of exerting power engages in a long and jumbled enumeration of subjects "in relation to" which "the Council shall have and possess express powers".
Under sub-s. (2) ordinances may be made "for promoting and maintaining", among many other objects "the peace, comfort, welfare, convenience of the City and its inhabitants" and "for the general good government of its inhabitants". Subjects mentioned in sub-s. (3) include "subdivision of land and use and occupation of land; buildings and use and occupation of buildings". The enumeration ends with the words "and generally all works, matters, and things in its opinion necessary or conducive to the good government of the City and the wellbeing of its inhabitants". Ordinance 33a which is supported by reference to the powers arising from some or all of the passages already quoted, deals with many details which it would be tedious as well as pointless to set out. It is perhaps best for present purposes to attempt to state in summary form what appears to be the substantial effect of the ordinance. Its leading provision is the prohibition of a stall on land for the sale and display of goods without a licence from a Board set up elsewhere by the Council. Only the owner or a tenant of the land can obtain a licence and the licence must be for the specific land. The owner or a tenant who obtains a licence may delegate the exercise of the licence and with the Board's approval the licence may be transferred. The licensee must cause a sign to be displayed showing that the stall is licensed and the number of the licence. A stall is not to be licensed if it is less than thirty feet back from the road alignment or if it has not an adequate carriage way for access and egress or if it has not an adequate space for cars of patrons so that the cars may stand off the public streets.
It seems difficult to support this very full provision controlling the use of stalls as an ordinance with respect to the "use and occupation of land". As a matter of logic anything a man does, unless he is at sea or in the air, must involve him in an activity in which he relies on the support of the soil so that he "uses" land in a very wide sense. But the ordinance is not "in pith and substance" directed at the use made of land but at the control and supervision of "stalls". Further, the description "subdivision of land and use and occupation of land; buildings and occupation of buildings;" in a collection of subjects of local governing power, seems rather to point to the purpose to which land is applied rather than to the control of the activities of the inhabitants of Brisbane simply because the activities must have a locus. Counsel for the appellants reduced his argument on this head to the short statement that the use of land means doing something to or with the land. Distinctions of this kind no doubt are elusive and cannot be precise and avoid questions of degree. But the foregoing brief statement seems to point to what the words mean in s. 36 (3). There is, however, much else to support the ordinance. It is to be found in the expressions set out above from s. 36 (2) but there are also the concluding expressions quoted from s. 36 (3). The words "the peace, comfort, welfare, convenience of the City and its inhabitants" and "the general good government of its inhabitants" are wide and indefinite and so are the words "generally all matters and things in the Council's opinion necessary or conducive to the good government of the City and the wellbeing of its inhabitants". But they cannot be dismissed for that reason as if they were meaningless or ineffective. No doubt they are expressions of a kind which in such contexts have caused courts difficulty for a very long time. Just a century ago the Supreme Court of Victoria held that they must be restrictively construed by reference to the ejusdem generis principle: Re Kyneton; Ex parte Gurner [1] . But in s. 36 there is no genus beyond that which appears to belong to local government. It would seem from the note [2] that this Court was not prepared to accept the very wide interpretation that the Full Court of Victoria placed upon the like words in Williamson v. City of Melbourne [3] . But Martin C.J. expressed for the Full Court of New South Wales the opinion that under them the use of the public streets and the behaviour of vehicles could be regulated: Ex parte Pritchard [1] . They have been considered, in New South Wales, to extend to the regulation of blasting operations: Ex parte O'Neill [2] ; and in South Australia to the prohibition of keeping bees within or close to a town: Bremer v. Echunga [3] ; and by Griffith C.J. to keeping traction engines off the roads unless specially permitted to travel: President etc. of the Shire of Tungamah v. Merrett [4] . These examples are very far away from the regulation of stalls for selling goods. But they serve to show that a power to make by-laws for the good rule and government of a municipality is capable of a diversity of applications and is an effective power of control by ordinance. In fact it represents a tradition from the days of borough charters conferring in such characteristic terms powers to make by-laws. Indeed, speaking of the City of London in Vanacre's Case [5] Holt L.C.J. said: "This privilege of making bye-laws and ordinances is vested in the city by common right, if not by custom, for it concerns the good and better government of the city, and every city and town corporate may, by an essential power inherent to their constitution, make bye-laws for the advantage of the government of that body politic". [6] In the report of Elwood v. Bullock [7] there may be seen an example. It is an extract from a patent granted by James I to Bury St. Edmund's which gives the common council "full power and authority to make and constitute and ordain from time to time good, wholesome, profitable, honest and necessary laws, statutes, constitutions, decrees and ordinances reasonable in writing whatsoever, which to them according to their discretions should seem to be for the good regimen and government of the borough". The Municipal Corporations Act 1835 (5 & 6 Wm. IV c. 76) s. 90 expressly conferred power on the Council of a borough "to make such by-laws as to them shall seem meet for the good rule and management of the borough" etc. It did not stop there but the powers granted were framed at large. By what is now s. 197 of the Local Government Act 1958 (Vict.) power to make by-laws is conferred upon municipal councils for purposes enumerated in paragraphs forty-five in number. All the purposes but the last are specified in more or less particular terms but the last completes the list in the extensive if traditional words "generally in maintaining the good rule and government of the municipality". In Leslie v. City of Essendon [8] the effect of the power in such a setting was considered very fully by O'Bryan, Sholl JJ. and Coppel A.J. in learned judgments giving the history of the subject which will repay study. Their Honours were of opinion in that context the power must be construed restrictively. O'Bryan J. said: "I do think, however, that a power to make by-laws for one purpose only, viz., for the good rule and government of the municipality or practically for that purpose alone will be interpreted in a very different way from a power expressed in like language but which is preceded by a power to make by-laws for thirty-two separate and distinct purposes, all or most of which are concerned with the good rule and government of the municipality. Apart from any authority, I would think that it is impossible as a matter of ordinary interpretation to give to clause (xxxiii) its full and natural meaning as though it appeared in a statute without any specific powers preceding it." [1]
In s. 36 the context is very different. Sub-section (3) which states the "express powers" of the Council begins with the words "Without limiting the generality of its powers". It is needless to repeat what has been already said about the manner in which s. 36 is constructed but the course the legislature has taken does not authorize the Court to read the wider words of sub-s. (2) down severely as if they were a vague and almost nugatory " et cetera ". They give a power to lay down rules in respect of matters of municipal concern, matters that have been reasonably understood to be within the province of municipal government because they affect the welfare and good government of the city and its inhabitants. The words are not to be applied without caution nor read as if they were designed to confide to the city more than matters of local government. They express no exact limit of power but, directed as they are to the welfare and good government of a city and its inhabitants, they are not to be read as going beyond the accepted notions of local government. In the present case, strong in some aspects as the ordinance may appear to be, its provisions do not go beyond the true range of sub-s. (2) of s. 36 and the final words of the first paragraph of sub-s. (3). It was argued that by forbidding the use of stalls without a licence the ordinance necessarily went beyond any of the powers given by s. 36. Reliance was placed upon decisions which distinguish between a power to regulate a subject matter conceived as otherwise subsisting and continuing and a power to prohibit, to suppress or perhaps to restrain a subject matter or course of conduct. But sub-s. (2) of s. 36 contains nothing amounting to a limited power to regulate stalls on the footing that they subsist and continue. By means of Ordinance 33a stalls are controlled and regulated even if in certain sites or places they are disallowed but it is done by licensing under an ordinance depending on a general power.
The ordinance should be upheld as a valid exercise of the power conferred by s. 36 (2) and portion of (3) combined with (7). This conclusion is independent of s. 38 (4). But in any case the strong words with which that sub-section concludes probably governed the matter; at all events that is the effect of the decision of the Supreme Court in Brisbane City Council v. Barnett [1] , which has recently been considered in the Supreme Court in Reg. v. Brisbane City Council; Ex parte Mackay [2] . What the final words of sub-s. (4) of s. 38 require after the expiration of the period for the Parliamentary disallowance of an ordinance purporting to have been made under The City of Brisbane Acts is that the ordinance should be deemed to have been duly made and to have been within the powers of the Council. It may be that an ordinance the object and operation of which, ascertained from its contents and the known facts to which it would apply, are found to lie altogether outside the province of the Council as a subordinate legislative body could not gain the benefit of the conclusive presumption which sub-s. (4) provides. That might be because such a measure ought not to be considered to purport to be made pursuant to the Act or it might be because of the general principles governing the interpretation of an enactment like sub-s. (4). But Ordinance 33a is not of such a description. It is no doubt true that all that is to be "deemed" under s. 38 (4) is "due making" and "no excess of power". If other grounds of invalidity are discoverable s. 38 (4) does not reach them. But in the present case invalidity is put simply on want of power. However, independently of s. 38 (4), the ordinance appears to be valid.
I agree in the order proposed by the Chief Justice and in his reasons and I have nothing to add.
In this case I agree with the judgment of the Chief Justice, and have nothing to add.
Lynch
Brisbane City Council