Norton v Taylor [1905] HCA 8

High Court of Australia|1905-07-01|Before: Pring J

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

,Special leave to appeal - Syiiney Corporation Act (N.S.W.), (No. 35 of H.C. oF A.

100), se. 24 - Disqualification of councillor - ° Interested in any contract . 1905. "with oF on Behalf of the council" - Sale of materials to contractor. - - _ Afirm of timber merchants of which the defendant was a member, gave to are a1. rmof manufacturers, who contemplated tendering for a contract with the "City of Sydney Conneil, a quotation of the prices at which they were prepared "tomupply them with timber for the purposes of the contract. 'Thetender was tilt oot

'seit in, and was accepted by the Council, of which the defendant had in the teatime been elected « member. Subsequently, while the defendant con- timed in the Council, his firm supplied timber at the prices quoted to the "contractors, who used it in carrying out their contract. 'The Supreme Court faving decided, on an appeal from a magistrate, that the defendant was not "interested" in the contract within the meaning of sec. 24 of the Sydney ion Act, 1902, the High Court, seeing no reason to doubt the correct- 'tes of that decision, refused to grant special leave to appeal

Rale lid down by Lord Watson in La Cite de Montréat v. Les Beclésiastiques duSeminaive de St. Sulpice de Montréal, 14 App. Cas., 660, at p. 662, as to fanting special leave to appeal, applied.

. gh Court from the decision of Pring J. (22 NSW. W.N., 36), refused.

S of the Act No. 35 of 1992 is tract, agreement, or employment, with

or on behalf of the Council, except as a aye jghetson who, while holding shareholder, but not being a director in leunderthis Act, continues any joint stock company, shall be liable ie diteotly or indirectly, to a penalty not exceeding one hundred ceomuttership with any other pounds, nor less than fifty pounds, at neged or aeeoNsoever know- shall be for three years thereafter dl orinterested in any con- . qualified from holding any civic office.

oe The defendant was proceeded against under see. 24 of Nomwx Sydney Corporation Act, 1902, before a magistrate, on an in

Act, and continuing to be or becoming directly or interested in a contract with the City Council.

From the evidence given at the hearing it appeared that ing the Council called for tenders for certain work in connection with an electric lighting plant for the city of Sydney. Henley'sCo.Lti, manufacturers of electrical apparatus and plant, who eoutemplatal tendering for the contract, obtained from a firm of timber we chants, of which the defendant was a member, quotations of prices at which they were prepared to supply timber to them jp be used in carrying out the contract, and subsequently sent in a tender. This was accepted by the Council, of which the defend ant had in the meantime been elected a member. The contract then carried out by Henley's Co. Ltd. and for that purpose a large amount of timber was supplied by the defendant's firm tothe contractors, and used in the work. The defendant continued inthe Council during the course of the work, and was elected mayor. also became chairman of the works committee of the Council, whoe duty it was to approve the timber and other material put into the works under the contract. There was no evidence of any contract between the defendant's firm and Henley's Co. Ltd,, nor of any stipulation that the payment for the timber by the latter should depend upon its being approved by the Council. The magistrate held that the defendant was not interested in

the contract within the meaning of sec. 24, and dismissed the information.

The complainant appealed from this decisionto th Supreme Court, by way of special case stated under the Justie Act, 1902, and Pring J., who heard the appeal, held that the decision of the magistrate was right (1). Both the magistrate and Pring J. held that the case was covered by Le Feuvre Lankester (2),

The complainant now moved for special leave to appeal.

Lamb, for the applicant. The defendant had an interest in the Q) 2.N.8.W. WN., 36, @) SEL & BL, 530 ; 231.5.Q.B., 2

sé-within the meaning of sec. 24. 'The more timber Henley's

fa Lud required for the purposes of the contract, the more they sald be likely to order from the defendant's firm. 'The defend-

'yostion in which his interest might conflict, with his duty. {is the mischief which such provisions as this are designed to Nutton v. Wilson (1); Barnacle v. Clark (2), Although » isno evidence of a contract between Henley & Co, and the

'yould have justified the defendant in expecting a continuance "dforlers for timber. [He referred also to Yomphins v. Jolliffe 3); West v. Andrews (4); Towsey v. White (5); Hunnings v. iamson (6); Burgess v. Clark (7); Whiteley v. Burley (8); Ie Fewre v. Lankéster (9); Ex purte Anderson (10); In re Watson (11); Be parte Bowring (12); Ex parte Lansdown (13).]

Gurr C.J. Special leave to appeal in cases involving less thn the appealable amount will not be granted by this Court as : matter of course. It is not necessary now to mention all the "ulitions under which such leave will be granted. It is sufficient torfer to what was said by the Judicial Committee of the Privy aucil on an application for special leave to appeal to His bjsty in Council from the decision of this Court in the case of In

guent of the same Board, delivered by Lord Watson, in La lle de Montréal v. Les Eeclésiastiques du Seminaire de St. Silpice de Montréal (15). "A case may be of a substantial ter, may involve matter of great public interest, and may in important question of law, and yet the judgment from tish leave to appeal is sought may appear to be plainly right, WW 2QB.D., 744. (9) 3 EL. & BL, 530; 23L.J.Q.B,, 254.

or at least to be unattended with sufficient doubt to jusiy lordships in advising Her Majesty to grant leave to appeal?"

Assuming then, but not deciding, that this is a case of a sy, stantial character, that it involves matter of great publicint and raises an important question of law, we must yet whether the judgment from which leave to appeal is sought js attended with sufficient doubt to justify us in granting leave appeal. 'The learned Judge whose decision is now in questiy followed, or thought that he was following, the judgment oft Court of Queen's Bench, delivered in 1854, in Le Feuy Lankester (1), and a judgment of the Supreme Court of Ney South Wales, delivered in 1880, in the ease of Ex parte And (2), which dealt with practically the same point, that is to whether an alderman who supplies goods to a contractor for the purpose of carrying out a contract with the corporation 0 within the provisions of the Statute. The provision in this is in the following words: - [His Honour then read the and proceeded]: - The words under consideration in Le Fewmey, Lantkester (1), were substantially the same. They were "nor shill any person . . . . be qualified to be elected or to be a counellr of any such borough, during such time as he shall have dire or indireetly, by himself or his partner, any share or interest i any contract or employment with, by, or on behalf of the Counel/ &e.; and any person who offended against the section was mal liable to a penalty. In that case Lord Coleridge, in deliv the judgment of the Court, which consisted of himself, Wight J, Erle J. and Crompton J., a very strong Court indeed, (3): "It is quite obvious that this relation alone, no fraud found, and no previous contract or agreement, or any with the contractor being proved, and there being noll

the price of the articles which he sells, nor does it affeet h interest or right to receive that price in any way at all. Itw however, said, that it was within the mischief of the dl because, supposing there had been a question afterwards as to :.

(1) 3E). & BL., 530 ; 23 L.J.Q.B..254. (2) 1N.S.W. LR. (La), 338 3) 23 L.J.G.B., 254, at p. 258

yof the goods, the defendant himself, in the eapacity of ¥: atthe town Council, might have to determine on the matter,

¢ night fairly bring the ease within the mischief it is not to determine, unless it is also fairly brought within the All that can be said is, that the legisla~

reaming of the words. ire has not provided for such a case, and we must not strain a

-ynal cause from any consideration of consequences, Abundance "ifaw might be supposed in which a party might in that sense javean interest in a contract. Suppose the contract to be with '; mm's relation, such as his brother or his son, he might have a jason his mind to decide the question improperly, but no one

The facts in the present case are not distinguishable from those in Jr Feuvre v. Lankester (1). It appears that the defendant is amember of a firm of timber merchants, and, before the contract 'inquestion was entered into another member of the defendant's n gwe Henley's Co. Ltd., the contractors, a quotation of the at which they were prepared to supply timber. There isno evidence that there was any contract that the defendant's fim should supply any timber at all at those or any other ies; there was merely a statement of the prices at which ley actually supplied it. 'The defendant's firm was not bound 'ly those quotations ; it was open to them at any moment to alter

ther prices, or to say, when the contractor came to ask for timber

matall. There is no further evidence as to any contract except: the defendant's firm from time to time supplied timber Henley's Co. Ltd., which was used in carrying out the contraet mith the Council. If there were any other facts we do not

Mow them; these were the only facts before the magistrate 'ul tefore us. All, therefore, that can be said is that the

i the purpose of carrying out a contract with the corporation. Hsefacts seem to me to bring the case exactly within the decision (1)3 El. & BL, 530; 23 L.J.Q.B., 254.

{ that he might thus have an indirect interest. Now, whether - Noxrow

of Le Fewore v. Lankester (1). That ease was followed in Bp y Anderson (2), decided by the Supreme Court of New South Wa in 1880. If there were no more in the ease, the fact that aca, interpretation had been put upon these words by the Sup:

opinion, compel us to hold that the interpretation already pl upon those words was the one now to be attributed to them, if we entertained a different opinion ourselves.

Reliance was placed by the applicant on the ease of Nutton Wilson (3), in which the words of the Statute under consideratig were: "Anymemberwho . . . . in any manner is conom in any bargain or contract entered into by such board, or parti pates in the profits thereof, or of any work done under the autho of this Act in or for the district, shall + + Cease to be such member, and his office as such shall thereupon become vacant; and another section imposed a penalty upon any person who acl

the Act. It appeared that the alderman in question in that cas was "concerned" in a contract to this extent, that he, by his servant actually performed the work under the contract, as agent of the contractor or sub-contractor. The Court of App thought that, as the performance of the contract by the servatt

was a performance by the master himself, that amounted to " concerned" in the contract with the Council. But that wasav

decision in the case of Le Fewvre v. Lankester (1). I do not so. The case was not referred to, and up to that time had m been questioned in any way. Reference was also made by Me Lamb to a later case in 1900, Barnacle v. Clark (4), which ws a decision upon a Statute of the same kind, in whieb it was helt that a person who supplied materials to a contractor was "6m cerned in the profits or work done" under a contract made with a school board. It is sufficient to say that the words of the

B., 254. (3) 22Q.B.D., 74, @ 1 NSW.LR. (L.), 338. {

ome awe But, even if they were, that case can hardly be set

ston authority of equal weight with Le Fewore v. Lankester } This ae was followed by Me Justice Pring. His decison ves my opinion, unattended with sufficient doubt to justify vein granting special eave to appeal from it.

Birrox J. Iam of the same opinion. I cannot distinguish broad facts of the present case from those of Le Fewvre v. ulester (1), and consequently I think that the same principle

" (oxxor J. Tam of the same opinion. I can see no evidence Jtever in the case put before us, to show that the defendant "interested" in the contract with the Council, within the eming of the Statute. The word "interest" as there used 'mst in my opinion mean pecuniary interest. I can well under- tand that evidence might in such a case as this be given which ould establish that the defendant had some such interest in the 'atract, for instance, that he was not to be paid for the timber it should be accepted by the Council, and that the accept- -ieof the materials supplied to the Council by the contractor iepended upon the certificate of the engineer of the Council. Thder such circumstances as those there might be some grounds holding that the defendant: w Bit there was no evidence of that kind. 'The only evidence given

rs, that. the latter had of the contract at lose prices from time to time, and that the defendant's firm had ipplied the timber in the ordinary way of business. It appears star to me therefore that the defendant has not been shown to on interest in the contract with the Council, within the 'waning of see. 24, and that leave to appeal should be refused.

Saicitors for the applicant, Westgarth & Nathan, GALW.:

then under consideration are not the same as those in the H.C. or A.

At a glance

Court

Decision date

Before

Source

Judgment (49 paragraphs)