ongers v imetty Pet vaae Baran SC

ongers v imetty Pet vaae Baran SC - [1910] HCA 25 - HCA 1910 case summary — Zoe

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In that case an administrative duty of the justices was under consideration, and there are many cases in which the same prin- ciple has been applied in determining whether public bodies hay discharged their duties. The London County Council's power issue licences for places of public amusement comes within that principle. In illustration of this several instances were cited during the argument: R. v. London County Council, Ex parte Altkersdyk (1); R. v. London County Council, In re Empire Theatre (2). Confusion I think has been caused in some state- ments of the law by use of the word " judicial." The Council are not for the purposes of the application a judicial tribunal, nor are they exercising judicial functions, and many restrictions on the exercise of discretion by Courts and safeguards against bias in judicial tribunals have no application to cases such as this. But the discretion conferred on public bodies in the discharge of merely administrative functions must in many cases be exercised in what some Judges have described as "a judicial spirit." What is meant by that phrase is explained by Lord Halsbury LC. in Sharp v. Wakefield (3) in these words : - An extensive power is" confided to the justices in their capacity as justices to be exercised judicially ; and 'discretion' means when it is said that something - is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke's Ouse (4); according to. law, and not humour, It is to be, not arbitrary, vague, and fanci- ful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself: Wilson v. Rastall (5). So in Reg. v. Boteler (6), where justices thought proper not to enforce the law because they considered that the Act in question was unjust in principle, the Court of Queen's Bench compelled them by a pe emptory order to do the act which nevertheless the Statute hi

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exercise of their discretion.' But the interests of the publicarein many matters entrusted to them by the Statute, and in my opinion - they are entitled in exercising their discretion to give effect to any views they may honestly and reasonably hold as to what is or what is not in the public interest in respect of any of those matters. It is clear that in the granting of licences to public amusement grounds they may consider that it is in the best interests of persons within the municipality that public amuse- ments should be carried on in an orderly fashion, that nothing should be allowed to take place in or in the neighbourhood of public amusement grounds that would be offensive or shocking to ordinary notions of decency and good order. The fact that an_ hotel carried on by the applicant adjoined the ground in which football would be played and watched by crowds, probably by excited crowds, and the facilities afforded for drinking and the likelihood of drunkenness in the crowd under these cir. cumstances, were clearly facts and considerations which might properly influence the exercise of the discretion. But there was another matter which entered into the discussion, namely, - the advisability of refusing to license an amusement ground carried on for private gain which would compete with the - Council's own public amusement ground. I take the view that there is no reason why that aspect of the question might not be e legitimately taken into consideration. It might not unreason- - ably be thought to be more in the public interest of the ratepayers that public amusements should be held on the ground which the municipality controlled and which was formed and maintained by the ratepayers' money than on a competing ground conducted for private gain by an hotel-keeper in the immediate neighbourhood of his own hotel. But it is in reality not necessary to decide that question. The Council undoubtedly _ took into consideration the public interests in relation to the orderly and decent carrying on of public amusements within the municipality and the conduct of crowds attending them. That was in itself quite a sufficient ground for exercising their disere- tion in refusing the application. If the other reason which I have mentioned operated also, even assuming it was not proper to be considered, the action of the Council should not in this case

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and in the honest belief that the granting of such application would not be in the best interests of the said Town of North- cote." This is a sufficient answer to the order nisi, if true. As in the case of trustees, so also in the case of councillors, they must exercise their powers "bond fide for the end designed"? Aleyn v. Belehier (1); Hodgson v. Halford (2); Wainwright y. Miller (3). A councillor has merely to apply his mind to carry out his duty according to the councillor's oath (see. 54) - "faithfully and impartially according to the best of my skill and judgment execute all the powers and authorities reposed in me." If (to revert to the arguments expressed by individual councillors) one councillor is dominated by a theory - even a fad

as to the advantages of municipal undertakings; if another believes that the application should be refused on mere financial grounds - because his ground would be a dangerous competitor to the public park, and leave the park and its debt as a burden on the ratepayers; if another thinks that the proximity of the applicant's hotel to the applicant's ground would lead to drink, disorder and vice ; if another thinks that young men play better football when they have not easy access to beer; these beliefs, these prepossessions, may possibly be all wrong, but the councillors are elected to act "according to the best of" their "skill and judgment" - not the skill and judgment of others. It has been said that every man is a bundle of prejudices ; and councillors are not expected to be immune from prejudices when they approach the Council table. Even anger or resentment against objects of a power will not vitiate the exercise of the power: Vane v. Lord Dungannon (4). I have tried to find whether there is any and what limitation to be implied in the words"may . . . . if the Council see fit"; and I can find none, except that the discretion conferred must be exercised honestly with a view to the public interest. This limi- tation is to be implied from the nature of the position - the position of men elected by the public to manage public concerns, exercising public functions, raising rates from the public and spending public money. There is, moreover, a section expressly forbidding councillors to vote when they have any pecuniary

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Decision date

Before

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Judgment (99 paragraphs)

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Cited By (4)