Twist v Randwick Municipal Council

In March 1974, the applicant, by summons in the Administrative Division of the Supreme Court of New South Wales, sought a declaration that the Council's order of 16th April directing the demolition of the building was invalid and unenforceable and a declaration that the Council's resolution of 9th November 1973, to enter the land and execute its order of 16th April was null and void and of no effect.

The learned judge of the Supreme Court who heard the summons dismissed it. The applicant now appeals to this Court against such dismissal. The ground of the application for declarations and of this appeal is that, before making the order under s. 317B, the Council was bound by the rules of natural justice to have given the applicant an opportunity to be heard on the question whether such an order should be made. That opportunity not having been afforded, it was submitted that the order and the consequential resolution of the Council were void.

The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal: see Cooper v. Wandsworth Board of Works [6] and R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920) Ltd. [1] . But the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However, if that is the legislative intention it must be made unambiguously clear. In the event that the legislation does not clearly preclude such a course, the court will, as it were, itself supplement the legislation by insisting that the statutory powers are to be exercised only after an appropriate opportunity has been afforded the subject whose person or property is the subject of the exercise of the statutory power. But, if the legislation has made provision for that opportunity to be given to the subject before his person or property is so affected, the court will not be warranted in supplementing the legislation, even if the legislative provision is not as full and complete as the court might think appropriate. Thus, if the legislature has addressed itself to the question whether an opportunity should be afforded the citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has, by its legislation, decided what opportunity should be afforded, the court, being bound by the legislation as much as is the citizen, has no warrant to vary the legislative scheme. But, if it appears to the court that the legislature has not addressed itself to the appropriate question, the court in the protection of the citizen and in the provision of natural justice may declare that statutory action affecting the person or property of the citizen without affording the citizen an opportunity to be heard before he or his property is affected is ineffective. The court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. Where the legislation is silent on the matter, the court may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice. In my opinion, this statement of relevant principle is in accord with the authorities, including particularly the case of Wiseman v. Borneman [2] .

1. (1863) 14 C.B. (N.S.) 180 [143 E.R. 414]. 2. [1924] 1 K.B. 171, at p. 205. 3. [1971] A.C. 297.

It is quite evident to my mind that, in enacting s. 317B, the legislature has provided an opportunity for the owner of a property to be affected by the Court's order to be heard before his rights are finally affected. It has been submitted that the procedures contemplated by s. 317B (5) are not such as universally to protect the citizen: e.g., it is said that the time for compliance with the order, though reasonable, may be less than the time within which an appeal to the District Court may be initiated. In that event, the council may enforce its order before the time for appeal has expired. But to this suggestion there are various answers. The owner need not delay his appeal till the last possible moment. Even if he is absent from Australia, communications are such in these times that he can cause an appeal to be lodged within the time fixed for compliance. Once the appeal is lodged the matter is under the control of the Court. The suggested possibility is largely theoretical: and, in any case, the adequacy of the statutory provision must not be tested by extreme and unlikely possibilities. But, perhaps more fundamentally, even if the legislature having take the matter in hand has not provided an adequate protection for the citizen in every possible situation, the Court has no warrant to amend the legislation or to supplement it by orders intended to fill the suggested deficiency.

Reliance was placed by the respondent upon the decisions of Vestry of St. James and St. John, Clerkenwell v. Feary [3] and Clark v. Young [4] , as authorities denying that a provision such as s. 317B left room for the intervention of the court to insist upon the council hearing the owner before making an order under the section. But the appellant submitted that, since the decision of the House of Lords in Ridge v. Baldwin [5] and Wiseman v. Borneman [6] , the earlier decisions ought not to be followed. In this connexion, it was said that the provision by the legislation of an appeal did not afford natural justice to the owner, it being said on the one hand that to appeal after the order has been made is much less advantageous than an opportunity to advance reasons against the making of the order before it has been made: and on the other hand that the existence of the appeal did not deter the intervention of the court in the circumstances of Ridge v. Baldwin [5] .

1. (1890) 24 Q.B.D. 703. 2. [1927] N.Z.L.R. 348. 3. [1964] A.C. 40. 4. [1971] A.C. 297. 5. [1964] A.C. 40.

However, each statutory provision must be considered in the light of the principles to which I have referred. There is no rule which can provide in every case an answer by its mechanical application. The mere existence of an appeal may not in some circumstances satisfy the requirements of natural justice. But, in any case, the appeal afforded in Ridge v. Baldwin was not one in which the circumstances of the case were to be examined de novo and it was not an appeal to a court of law.

In the present case, the appeal to the District Court calls, in my opinion, for an examination of the facts and for the exercise of a primary discretion whether or not an order for demolition should be made. I have already pointed out that the power to make an order rests on objective facts. Thus the District Court must be satisfied by evidence duly given before it that the state of the building satisfies the prescription of the section. The Court cannot take anything from the fact that the council has made an order. Thereafter it must decide upon its own view of the actual facts whether an order should be made under the section, placing itself in the position of the council with its responsibilities to the local government area and its inhabitants. Any decision to the contrary would not be well decided and ought not to be followed.

Having regard to these considerations, the case of Vestry of St. James and St. John, Clerkenwell v. Feary [7] ought to be accepted as deciding that the terms of s. 317B leave no room for a declaration that the applicant was entitled to be heard before the Council made its order for the demolition of the building on his land. The decision of the primary judge in dismissing the summons was, in my opinion, correct. Further, his Honour's reasons for taking that course are, in my opinion, acceptable.

Before parting with the case, I ought to observe that, in my opinion, the Metropolitan District Court Rules allow the Court to extend the time within which to lodge an appeal against the making of an order under s. 317B notwithstanding the expiry of the time expressly fixed by the Rules of Court for the lodging of an appeal: see r. 428 of the Rules of 5th May 1952 and r. 2 of Pt 3 of the Rules of 1st July 1973.

Section 317B (1) of the Local Government Act, 1919 N.S.W., as amended, enables a council inter alia to order the owner of a building to demolish it "if" the building "is in such a dilapidated or unsightly condition as to be prejudicial to the property in or inhabitants of the neighbourhood". The sub-section confers a power which may be exercised once the preliminary condition stated is satisfied. But for absence of words conditioning the exercise of the power on the opinion or satisfaction of the council and the presence of a right of appeal to a District Court judge under s. 317B (5) from the making of an order, it could not be doubted that an intended exercise of the power would attract the rules of natural justice or the duty of fairness, thereby imposing an obligation on the council to give the owner a fair opportunity of presenting his case against the making or, perhaps, the enforcement, of an order. That this is so is clear from the long line of cases beginning with Cooper v. Wandsworth District Board of Works [8] , and including Delta Properties Pty. Ltd. v. Brisbane City Council [9] and Commissioner of Police v. Tanos [10] . This obligation attaches whether the authority is acting judicially or ministerially - Cooper's Case [11] ; Municipal Council of Sydney v. Harris [12] .

1. (1863) 14 C.B. (N.S.) 180 [143 E.R. 414]. 2. (1955) 95 C.L.R. 11. 3. (1958) 98 C.L.R. 383, at p. 396. 4. (1863) 14 C.B. (N.S.), at pp. 189, 194 [143 E.R., at pp. 418, 420]. 5. (1912) 14 C.L.R. 1, at p. 15.

Here the exercise of the power seriously and adversely affects the owner in his property and subjects him to a pecuniary liability for the costs of demolition (s. 317B (4)). And the provision certainly contemplates that the council will direct its attention to the condition of the building and only proceed to the making of an order if it considers that the statutory description is answered on the material before it, for it is not to be supposed that Parliament intended that the council should make an order without concluding that the preliminary condition was satisfied. Then there is the question whether an order should be made for demolition, for re-erection or for putting the building, or part of it, into a state of repair and good condition, the council being authorized by s. 317B (1) to make any of these orders (see Barringer v. Nyngan Corporation [13] ). And finally there is the question of fixing a reasonable time within which the order is to be carried out. There are therefore a number of matters which arise for consideration in connexion with the making of an order under s. 317B (1) and, in my opinion, it is for the council to direct its attention to them and come to a conclusion upon them before it makes an order.

To these factors may be added the circumstance that it is well established that in exercising other powers under the Act the council, notwithstanding its character as a municipal authority with a large volume of business to transact, is required to observe the duty of fairness by giving an owner an opportunity to present his case, as for example when it fixes a building line under s. 308 (Tiernan v. Newcastle City Council [14] ; see also Dunlop v. Woollahra Municipal Council [15] ). Consequently, were it not for the considerations already mentioned the grounds for holding that the council is obliged to give the owner an opportunity to present his case would be irresistible.

1. (1954) 19 L.G.R. (N.S.W.) 313, at p. 319. 2. [1975] 2 N.S.W.L.R. 446.

Does the existence of the right of appeal, taken in conjunction with the terms of sub-s. (1), satisfy in full the duty of fairness, or does it sufficiently indicate a legislative intention that the duty of fairness has no application to the council when it decides to act under s. 317B (1)? This, according to the appellant, is the question to be decided. It is a question which could be easily disposed of if the appeal were less than a full and comprehensive appeal from council's order. In that event it could scarcely be said that a limited right of appeal on the part of the owner is an adequate safeguard for him or that it constitutes an indication that the duty of fairness is displaced. The owner might find that certain matters were irrevocably decided against him by the council without its having the benefit of representations on his behalf.

However, the appeal is not restricted in any way. It is a full appeal on facts and on law in which the appellant is entitled to call evidence. The appeal extends to such elements of discretion as may enter into the making of the order as well as to the existence or non-existence of the conditions which are to be satisfied before an order can be made. There is nothing in the language of the section to preclude the court from considering afresh for itself these discretionary elements. There being no obligation on the council to give reasons for its decision, it cannot be suggested that the court's function is limited to an examination of the propriety of the exercise of discretion by the council. I entirely disagree with the suggestion implicit in Fitzgerald v. Sydney City Council [16] that a District Court judge may allow an appeal only if he considers the council's decision unreasonable or that it imposes an unfair burden on the owner.

Even so, at first sight it is not easy to see why the appeal provides a clear indication of legislative intention that the council is under no duty to give an opportunity to the owner to present his case. The duty which the law imposes is not displaced by statute in the absence of express words or by necessary implication. There is no mutual inconsistency between the imposition of such a duty on the council and the existence of the appeal. In some cases the existence of an appeal to a court or judge from an administrative decision or order may be an indication that the administrative authority is under a duty to hear a person who will be adversely affected by its decision. This is because cases which lend themselves to ultimate judicial determination are those which require for their satisfactory resolution a hearing or at least a consideration of the contentions of the opposing parties. So in Cooper's Case [17] no member of the Court regarded the existence of the appeal from the district board to the metropolitan board under s. 211 of the Metropolis Local Management Act, 18 & 19 Vict. c. 20 as displacing the duty cast by the law on the district board to afford the plaintiff an opportunity to present his case. Willes J. said [18] :

Nothing can be more clear than that the legislature thought that the matters which might come before the board upon appeal, that is, the same matters which came before the local board of works in the first instance, were proper, not only to be determined, but also to be heard; and, if fit to be heard upon an appeal, a fortiori fit to be heard in the first instance, before a wrongful decision can make an appeal lie. The appeal to the metropolitan board was not an appeal to a court and all the judges considered that the district board could comply with the requirements of natural justice by hearing the owner before giving him notice to carry out the work or by giving him notice of the order and thereby giving him the opportunity of then having the notice withdrawn or qualified. 1. (1863) 14 C.B. (N.S.) 180 [143 E.R. 414]. 2. (1863) 14 C.B. (N.S.), at p. 193 [143 E.R., at p. 419].

A similar view was taken in Vestry of St. James and St. John, Clerkenwell v. Feary [19] . There the existence of an appeal to the County Council was held not to displace the obligation of the vestry to comply with the rules of natural justice. But it was decided, in conformity with Cooper's Case [17] , that the vestry might hear the respondent before making the order or by notice of the order give him an opportunity to question its propriety. This it did by giving him notice to execute the work, thereby enabling him to object to the order or appeal to the County Council against it.

1. (1894) 24 Q.B.D. 703. 2. (1863) 14 C.B. (N.S.) 180 [143 E.R. 414].

More recently it was pointed out by Lord Reid in Ridge v. Baldwin [20] , that if a body under a duty to hear a person threatened with dismissal against whom a charge has been made fails to hear him, it may rectify the breach of natural justice by giving him a full and fair hearing de novo, in which event it is the later, not the earlier, decision that is effective. There the right of an appeal from the watch committee to the Home Secretary was not regarded as absolving the watch committee from an obligation to comply with the rules of natural justice. But an appeal to a minister involves special considerations and it is not to be expected that he will conduct a hearing himself. Consequently the existence of an appeal was no answer to the defect found to have existed in the proceedings of the watch committee.

What was said in Cooper's Case [21] and Vestry of St. James [19] needs to be read in the light of all that has been decided since in connexion with the audi alteram partem rule. In like circumstances more emphasis would now be given to the duty of the authority to consider the case of the person affected before it proceeds to the making of an order. Even so, it would be recognized, in conformity with Lord Reid's observations inRidge v. Baldwin [20] , that if there was a failure to accord natural justice in the first instance, the authority might cure the defect by according a full and fair hearing subsequently.

1. (1863) 14 C.B. (N.S.) 180 [143 E.R. 414]. 2. (1894) 24 Q.B.D. 703. 3. [1964] A.C. 40, at p. 79.

Further, the earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness. The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have "cured" a defect in natural justice or fairness which occurred at first instance. Certainly this view has been taken in a number of cases - notably by the Privy Council in De Verteuil v. Knaggs [22] ; Pillai v. Singapore City Council [23] and by the Supreme Court of Canada in Re Clark and Ontario Securities Commission [24] and King v. University of Saskatchewan [25] ; cf. Denton v. Auckland City [26] and Leary v. National Union of Vehicle Builders [27] where the contrary view was taken. In this conflict of authority my preference is for the approach taken by the Privy Council and the Supreme Court of Canada: first, because the party affected has elected to treat the administrative decision as a valid, though erroneous decision, by appealing from it, in preference to asserting his right to a proper performance by the authority of its duty at first instance; and secondly, because in some cases the court will be compelled to take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business and balance that interest against the countervailing interest of the individual in securing a fair hearing - in appropriate cases that balance will be achieved if the individual secures a fair hearing on his appeal.

1. [1918] A.C. 557. 2. [1968] 1 W.L.R. 1278, at p. 1286. 3. (1966) 56 D.L.R. (2d) 585. 4. (1969) 6 D.L.R. (3d) 120. 5. [1969] N.Z.L.R. 256. 6. [1971] Ch. 34.

With all this in mind I return to the specific question which has arisen here where the appeal provided for is an unrestricted appeal to a court involving a hearing de novo. The decision from which the appeal may be taken is one affecting public amenity and in some circumstances one affecting public safety. Sub-section (2) recognizes that there may be an element of urgency in securing compliance with the council's order by providing that in the event that the order is not obeyed "the council may with all convenient speed enter upon the building and the land upon which it stands and execute the order".

Having regard to the subject matter of the section, the nature of the order which the council is empowered to make, the degree of urgency which may attend the execution of the order and more particularly the comprehensive nature of the appeal to a District Court judge, I am of opinion that s. 317B (5) should be read as providing the exclusive remedy available to an owner who wishes to challenge the validity or correctness of an order made under s. 317B (1).

It would conform with this conclusion to say that the council is under no duty to give the owner an opportunity to present his case before proceeding to the making of an order. Perhaps this conclusion could be supported on the footing that sub-s. (1) makes no reference to the opinion or satisfaction of the council, thereby suggesting that the council is under no duty to make a determination of a kind which would impose upon it an obligation to hear the owner. Although it is unnecessary to express a concluded view upon the question I should prefer to say that the function entrusted to the council imposed upon it a duty to act fairly, that in the circumstances this might well involve the council in giving the owner the opportunity to present his case before proceeding to the making of an order. However, as the only redress is by way of appeal, that is an end of the matter.

In this case, although the appellant owner was not given an opportunity to present his case before the council resolved on 3rd April 1973 to make an order for demolition of the dwelling house or before the notice dated 16th April 1973 was served upon him, he failed to appeal against that order within the time limited. No other relief is available to him and his appeal against the order of the Supreme Court of New South Wales dismissing his suit for declaratory relief must be dismissed.

I agree that the appeal should be dismissed. The relief which was sought was a declaration that the order of the respondent Council made on 16th April 1973 was invalid and unenforceable and a declaration that a consequential resolution of 9th November 1973 to enter upon the appellant's land and execute the order was null and void and of no effect. The ground upon which the declarations were sought was that the respondent did not give the appellant the opportunity to be heard by the respondent before it resolved to make the order of 16th April 1973.

The relief sought depends upon two conditions, first, that under s. 317B the appellant had a right in natural justice to be heard before an order under sub-s. (1) was made; and, secondly, that a failure to observe that right resulted in the order being void. Whether or not the appellant had a right in natural justice to be heard before the order was made depends upon an examination of the section in the light of the principles of fairness and justice which the courts have not lightly held to be excluded in legislative provisions of this kind, even when some rights of appeal are conferred. But even if it be concluded that the right to be heard before the making of the order is not excluded by the section, the second question still remains to be answered - does the denial of the right make the order void so that action by the respondent under sub-s. (2) is simply a trespass under the common law? The answer to this question, like the answer to the first question, depends ultimately on the legislative intention. But it likewise is a legislative intention which must be discovered by a court against a background of the principles of natural justice developed by the courts themselves. No doubt in many, if not most cases, an affirmative answer to the first question will be followed by an affirmative answer to the second question, but this consequence does not inevitably follow. Just as the legislature could explicitly provide that the consequence should not follow, so the courts in determining the implicit legislative intention against the background of principles of natural justice can conclude that a consequence of total invalidity was not intended. The rules which the courts have devised in order to ensure natural justice, provided that their application is consistent with legislative intention, are not so inflexible.

In my opinion, the section makes provisions of a kind which required the respondent to give to the appellant an opportunity to be heard before it made an order under s. 317B (1). The argument to the contrary must depend largely upon the rights of appeal conferred by sub-s. (5). This right of appeal gives to the Disttrict Court a right of the broadest kind to determine at the date of the hearing of the appeal whether the conditions precedent to the making of the order existed at the date of the council's order and continue to exist at the date of hearing of the appeal and whether any, and if so what, order should be made "having regard to this Act, the ordinances, the circumstances of the case, and the public interest". The word "appeal" does not limit the inquiry before the District Court. It merely describes the initiation of the process of determination before the District Court for which the section provides. I find no need to add more to what has been said hereon by Barwick C.J. and Mason J.

Nevertheless, although an appeal has been given in these wide terms, I cannot conclude therefrom that the legislature intended to exclude the right of an owner in natural justice to be heard by a council on the question whether an order ought to be made in the first instance. I see no reason why it should. The nature of the matter before the council is not altered by the fact that a wide right of appeal is given and the matter is one upon which a right to be heard is most appropriate. I see no reason why a mandamus should not go to a council requiring it to hear an owner before it makes an order or, if no prior hearing has been given and request has been made and refused, to hear him after notice of the order has been given on the question whether the order should be rescinded or varied or the time for compliance extended. Natural justice requires one or the other.

However the second question remains. Is an order made without giving any opportunity to be heard invalid, that it to say, void and a nullity? Whether or not an order made without an opportunity to be heard will be wholly invalid depends on the legislative provision read in the light of the nature of the subject matter and the provisions for review. Though the nature of the subject matter would tend to support an intention of total invalidity, I regard the wide provision for appeal in sub-s. (5) as indicating a contrary legislative intention. The appeal is to a judicial body in the fullest sense of that term. The determination must be made upon the evidence before the District Court. I do not think that it would at all accord with the legislative intention that an owner should be able to ignore rights of appeal of the kind given by sub-s. (5) and instead rely on an absolute invalidity in the order which a council had made. A different view might be open if the appeal were to anything less than a court of the wide jurisdiction and consequent legal standing possessed by the District Court; but in my opinion it was not the legislative intention that an order under the section, subject to appeal to the District Court, should, without any resort to the right of appeal, be able to be treated for all purposes as void and of no effect upon the ground that the principle of natural justice had not been observed. It is still open to the respondent to hear the appellant upon the question whether its order should be rescinded or varied and in my opinion it ought, at the request of the appellant, so to do. I conclude however that the declarations sought were rightly refused.