Widgee Shire Council v Bonney [1907] HCA 11

. Local Authorities Act 1902 (Qd.) (2 Edw, VIL. No. 19), sec. 182. 1907. A by-law which is primd facie within the powers of the authority enacting oy.

it is not rendered invalid by reason of its prohi Condi Se . without reference to guilty intention, nor by reason of its adding to the ~""" 99" previously existing law governing the same subject matter.

Griffith C.J. 'The question whether a by-law is unreasonable is not to be determined by 'Tsaacs and

reference to its expediency in connection with the particular subject matter "'8in*17- or place to which it is applied.

A by-law made by a local authority purporting to act under The Divisional Boards Act 1887 (Qd.), provided that "No person shall in any way injure or destroy the water-table, gutterway, or side drain of any road in the Division in any way whatsoever, either by crossing or driving along or into the same with any cart, dray, wagon, or other conveyance, or by casting or depositing, or causing to be deposited, therein any material calculated to impede or

obstruct the course of the waterflow." Held, that the by-law was valid.

Decision of Full Court, Widgee Shire Council v. Bonney, (1907) St. R. Qd., 38, reversed.

The appellant, a local authority in a country district, having power to make by-laws for, inter alia, the regulation of traffic, _ prevention of injury to roads by digging or otherwise, prevention of injury to works being the property of or under the control of

general good government of the Division, passed a by-law proh ibit ing any person from in any way injuring or destroying the w: , or side drain of any road in the Division b ng along or into the same with any cart, w

The road was two wide, but only twenty feet of the centre of the roadway formed and metalled, and this strip had a water-table or d along each side, over which respondent had driven his dray a caused some injury. The conviction was quashed by the Court on the grounds that the by-law was invalid because i made every infringement an offence without reference to g

Lukin, for the appellant Council. The Council had power t make these by-laws for the protection of the roads under control; and the by-law in question was valid and not um able. In considering the validity of a by-law on the footing of reasonableness, regard must be had to the circumstances. Shire Council in a sparsely settled district with no great ti cannot be expected to build and form the whole width of the under their control ; therefore they limit themselves to forn only part of the width as a road for traffic, and the by-law question was necessary and reasonable for the protection of part thus formed: Divisional Boards Act 1887, (51 Viet. No. see. 179, sub-sees. (2), (8), (16), (21), (29), (30), (32), (83), (39), 181, 182, 183, 185, 186, 187; Local Authorities Act 1902, (2 VII. No. 19), sec. 4, sub-see. (2), see. 182, Schedule 4, (Clause | 1 The offence charged was not a matter of inadvertence ; it done purposely, for a test case. A by-law is not to be const as unreasonable for the mere consideration that it may p be administered unreasonably; the proper way to col by-law is to assume that it will be reasonably admini Kruse v. Johnson (2); Hardcastle on Statutory Law, 4th ed., 285 ; Calder v. Lewis; Ex parte Lewis (3). a

(1) (1907) St. R. Qd., 38. (2) (1898) 2Q.B., 91, at p. 100, (3) 7 Q.LJ., 158.

(Hicers J. referred to Municipal Corporation of Toronto v. H.C. or A.

E. A. Douglas, for the respondent. These by-laws are not traffic regulations at all, and the Council had no power under the Act to make by-laws that were not traffic regulations: Tabra- galba District Board v. Goebel (2). This by-law is unreasonable and contrary to statutory law - Divisionul Boards Act 1887 (51 Vict. No. 7), sec. 179, in the proviso - in that it leaves no room for any accident. There is a common law right to use the whole width of the highway: Rex v. Wright (3). The road was so constructed with a narrow metalled crown and sloping sides that it was impossible for two wagons to pass each other without encroaching on the gutters.

(Griverra C.J. - The validity of the by-law cannot be affected by the shape of the road surface. ]

The by-law is bad in that it admits of no excuse of any sort, whereas intent is absolutely necessary: Criminal Code (Qd.) (68 Vict. No. 9), see. 469.

(Grirrira C.J. - Then by-laws would be useless. If these by-laws are proper restrictions imposed by the local authority, unlawful intent is not necessary. ]

This was a bond fide claim to use the whole road as a highway. It would be reasonable to pass such a by-law to protect footpaths, if there were any on the road; but it is unreasonable to restrict the traffic on a road over fifty yards wide to a strip of ten yards, in derogation of the common law right to pass freely. Once the road is dedicated as of a certain width, the Divisional Board cannot restrict the right of highway along it to any less width : Attorney- General v. Shire Council of Toowong (4). Their power to "alter the width" of a road does not include a power to change or limit the extent of the highway along it. 'The Council have control of the road, subject to the ordinary right of the public: Rossi v. Edinburgh Corporation (5).

[(Grirrita C.J. - Surely they can pass by-laws to regulate the

2. 10 Q.LJ., 128. (5) (1905) A-C., 21. (3) 3B. & Ad., 681, at p. 683.

traffic, to set aside certain parts for pedestrians, and to protect the road formation.]

There is no power in the Council to make by-laws of this nature : Gentel v. Rapps (1). These by-laws cannot take away the declared right to do an act which was legal before the by-laws were passed; that was not the intention of the Local Authorities Act 1902. The Council was given power to make regulations, but not to make restrictions, or rather prohibitions. It cannot do indirectly what it must not do directly : it cannot indirectly prohibit vehicles from crossing the road gutter by making it an offence to injure the gutter by crossing it.

This by-law is also bad because it purports to prevent injuries y to property. That belongs to the general law and cannot be incorporated in or altered by a by-law. :

GrirritH C.J. The respondent was convicted by a Police Magistrate for a breach of a by-law made by the appellant, a local authority in a country district, which is in these words : - "No person shall in any way injure or destroy the water-table, gutterway, or side drain of any road in the Division in any way whatsoever, either by crossing or driving along or into the same - with any cart, dray, wagon, or other conveyance, or by casting | or depositing, or causing to be cast or deposited, therein any material calculated to impede or obstruct the course of the water- flow." The Supreme Court quashed the conviction on the ground - that the by-law was invalid, and this is an appeal from that decision. In considering the validity of a by-law, the first ques- tion is whether the by-law is within the ambit of the delegated legislative authority under which it purports to be made. By - the Divisional Boards Act 1887, which regulated local govern- ment outside of municipalities, divisional boards, now called shire councils, were established with powers and duties defined in E the Act. See. 142 was as follows : - * The Board shall be charged with the construction, maintenance, management, and control of all public highways, roads, bridges, culverts, ferries, wharves,

jetties, and other necessary public works within the Division,and H.C. or A.

may from time to time open new streets or roads, or divert any street or road, or alter or increase the width, or cause to be raised or lowered the soil, of any street or road, and may construct any bridge or culvert in or over any street or road, and may, for such purposes and for such time as is necessary, close any street or bridge."

By sec. 179 a Board was authorized to make by-laws for (among other purposes) the following: (21) Regulating traffic generally ; (29) The prevention of injury or obstruction to roads or other public places by digging or otherwise; (30) The preventiou of injury to bridges . . . . or other works, being the prop- erty of or under the control of the Board ; (33) The control and management of roads and reserves under the control of the Board ; (39) The general good government of the Division. Sections 181 and 182 prescribed formalities to be observed in passing by-laws, under which opportunity was given for objection by any person interested. Sec. 183 required that by-laws should be submitted for the approval of the Governor in Council, and that if approved by him, they should be published in the Government Gazette, and thereupon such by-law was to have the force of law in the Div

sion. Sec. 184 empowered the Governor in Council to repeal a by-law by Order in Council. See. 185 provided that a by-law might impose a penalty not exceeding £20 for a breach of it. See. 187 empowered the Supreme Court to quash a by-law on the ground of invalidity on proper proceedings taken for that purpose.

It is contended for the respondent that the by-law now in ques- tion is not within the ambit of the powers enumerated in sec. 179 ; and that even if it is otherwise within them, it is unreasonable and therefore invalid. It is contended further that a by-law cannot prohibit an act simpliciter, because, it is said, this would be dispensing with the element of what is called mens rea in an offence. So far as this last objection is concerned it may be dis- missed with the observation that under the criminal law of Queensland, as defined in the Criminal Code, it is never necessary to have recourse to the old doctrine of mens rea, the exact mean- ing of which has been the subject of much discussion. The test now to be applied is whether this prohibited act was, or was not,

H.C. or A. done accidentally or independently of the exercise of the will o Bes: the accused person (sec. 23). The suggestion that a by-law n Wincre not add to the law is, of course, untenable, for in that view Sune power to make by-laws would be absolutely nugatory. It cai , be disputed that under the power to regulate traffic the local authority would have power by by-law to prescribe that certait forms of traffic, for instance, heavily loaded wagons, or indeed any wheeled vehicles, shall be confined to a prescribed portion of the width of a highway ; otherwise the power to control highway and make them safe and convenient for foot passengers would futile. Nor can it be disputed that, primd facie, the width the carriage-way is a matter for the local authority to determin Again, it is clear that if they thought fit to allow wagons or other wheeled vehicles to use the whole width of a highway, they might - impose a condition that they should not injure the water-tables or kerbs separating one part from another. It is equally plain that they might, under the power to make by-laws to prevent: injury or obstruction to works, prohibit the passing of a heavy vehicle from the carriage-way to another part of the highway, if doing so would be likely to injure the kerb or water-table. : The by-law now in question, which prohibits persons from injuring a water-table by crossing or driving into or along it with a vehicle, is not distinguishable. Iam therefore clearly of opinion that the by-law in question is primd facie within the ambit Be the powers of the Board. With regard to the objection that the by-law is unreasonable, I think that since the cases of Sluttery v. Naylor (1) and Kruse - y. Johnson (2) it is very difficult to make a successful attack on a by-law on this ground. In my opinion, the intention of the legislature, as evidenced by the section to which I have referred, - was to leave to the local authority in the first instance, and to the Governor in Council in the second, the decision of the questiot of the expediency of exercising the powers conferred on them. The existence of a power and the expediency of its exercise are quite different matters. The question of the existence of the power can always be determined by a Court of law. But, in my - opinion, the expediency of the exercise of a power is not a matter

for determination by a Court. What might be regarded by every- H. ©. or A.

one as a reasonable and proper by-law to make in a city or in a large country town might in the case of a small country township or sparsely-settled district (to all of which the Act in question applied) be regarded by some persons as unreasonable. But it is obvious that the question whether the cireumstances of the locality warrant the exercise of a power is one of expediency and not of competency. Otherwise the validity of a by-law would have to be determined upon extrinsic evidence as to the circumstances of the particular locality. I do not know of any instance in which such a doctrine has ever been suggested. In my opinion, the legislature has deliberately and intentionally made the local authority, subject to the approval of the Governor in Council, the sole judge of such matters, subject only to this qualification, that, if a by-law is such that no reasonable man, exercising in good faith the powers conferred by the Statute, could under any cir- cumstances pass such a by-law, it might be held invalid on that ground as being an abuse of the power, and therefore not within it. This view is in accord with the accepted rule that the exer- cise of discretion by local authorities will not be reviewed by a Court of law in cases where they are authorized to execute such works as may be necessary, (See the cases referred to in Local Bowrd of Health of Perth v. Maley (1)).

The learned Judges in the Supreme Court appear to have thought that the by-law in question might be construed as a prohibition of persons lawfully using a highway from obtaining access to the portion of the road lying outside the water-table, and also that it would apply to a gutter crossing the highway. I do not so construe it. I have said before to-day, and now repeat, that, in my opinion, when a by-law is open to two constructions,

on one of which it would be within the powers of the local

authority, and on the other outside of these powers, the former

construction should be adopted, ut res magis valeat quam pereat.

In my opinion this by-law does not refer at all to gutters or

waterways crossing a road ; and I do not inquire whether, if it

did, it could or could not be supported. So far as regards eross-

ing from the portion of the highway specially formed for the use (1) 1 G.L.R., 702,

H. C. or A. of wheeled vehicles to other parts, there is no prohibition, for

is obvious that a person desiring to do so could, by laying down a few pieces of wood in the water-table, attain his object wi ho offending against the by-law. And, even if he could not, by-law would not on this ground be any more open to objectic than a by-law which prohibited the use of a particular wooder bridge by vehicles carrying more than a specified load per whe which would obviously be valid, although it might have the effec of altogether prohibiting the use of that part of the highway | such vehicles. For these reasons I am of opinion that the appe must be allowed. But, in pursuance of the undertaking givi by the appellant on obtaining special leave to appeal, I thir that it should pay the respondent's costs.

Isaacs J. I am of the same opinion. Arguments have bee addressed to us with a view of showing the by-law to be un- reasonable, or, in other words, to prove that all proper a necessary protection to the roads could have been obtained b means of a by-law of a less stringent nature.

It has been assumed that whenever a by-law, under whatsoeve powers made, is challenged, it becomes the duty of a Court of law to form its own opinion as to the reasonableness of by-law, and, if the Court thinks it unreasonable, although actually within the scope of the powers granted to the law making authority, to set it aside as unlawful.

In my opinion that assumption is erroneous. Without dete mining the extent of the Court's duty and power in some of an altogether different class from the' present, it is plain thal a Court of law has no jurisdiction to usurp functions expres confided by the legislature to another body, specially created for that purpose, nor to disregard the distinct provisions of an Ae of Parliament. In the Divisional Boards Act 1887, under which the by-law was made, the legislature enumerated specific matter as to which a local authority might legislate, and used no word of qualification upon the discretion of that authority, stipul ting only that by-laws shall not be contrary to the Act itself or other law in force in Queensland. The interests of the gene public were protected by requiring approval of the central

administration which was also invested with the power of repeal, and is always subject to the supervision of Parliament. It seems to me that the legislature intended that, so long as the proposed local enactment was within the ambit of the powers conferred, the discretion and sense of reasonableness to be applied to it, that is to say, the extent to which the power should be exercised, should be that of the Board and the Governor in Council alone. No Court of law can be in as good a position to judge of the necessities of local traffic, the general local requirements of the country, or the practical difficulties of maintaining order and preserving public property as the local representatives, whose special duty it is to ascertain and provide for them, or the higher officials of the central government who are specially designated by Parliament to consider the suggested regulation from the standpoint of the public welfare. It can hardly be supposed that Parliament intended any Court of law, whether two justices of the peace, or the Supreme Court, to override the combined opinion of the Board and the Governor in Council on questions not of law but concerning the reasonable or necessary conduct of individuals in their daily relations to the various local communities of the country,

But, if any doubt in this connection could exist, the provisions of sec. 183 are decisive. After approval of the Governor in Council the by-law is to be published in the Gazette and there- upon such by-law "shall have the force of law" in the Division.

The legislature has thus definitely and in so many words

• declared its will that by-laws made, approved and published, with respect to the subjects enumerated, and not containing matter contrary to the Act or any other law in force in Queensland, shall have the force of law. How then can a Court go behind this provision and say that such a by-law shall not have the force of law? It is true that see. 187, now replaced by see. 188 of the Local Authorities Act 1902, provides a mode of testing the validity of a by-law. Any resident ratepayer may upon the prescribed conditions apply to the Court to quash the by-law for invalidity.

Even without resorting to that procedure a person charged

with contravention of a by-law may, as in this case, defen himself if he can demonstrate its invalidity.

But what is meant by invalidity? To my mind it me unlawfulness because made without the warrant of the Act on excess of or contrary to its provisions construed in the ordin manner. But the clear purpose of the Statute, expressed in th plainest terms, is that, if those provisions are complied with, th by-law shall have the force of law, and so be valid. See, does not weaken sec. 183, it merely affords a ready and eonvenien opportunity to test the conformity of the by-law with th requirements of the Act without running the risk of a contri vention of the by-law. The test of validity, assuming by-law to have been duly approved and published, is whether falls within the scope of authority given to the Divisional Board If it does it is valid, if it does not it is invalid.

If it appears to the Court that the by-law is "a merely fantast and capricious by-law, such as reasonable men could not make it good faith," to employ the expression of the Privy Council Slattery v. Naylor (1),then the by-law could not in any proper be regarded as covered by the powers conferred. Such a mi of the Act could never be contemplated by Parliament,and it wo form a ground of "invalidity" within the meaning of see. But, to quote again from Slattery v. Naylor (2) : - * It is qui different question whether a by-law can be treated as unreasonabl merely because it does not contain qualifications which commel themselves to the minds of Judges."

The by-law is certainly not open to the objection of caprice, ba faith, or abuse of power. It has been further argued that by-law is invalid because it transgresses the actual powers grant inasmuch as it is contrary to the general law of Queensland col tained in sec. 469 of the Criminal Code, the contention being the section referred to is to be considered as fully dealing ¥ the subject of injuries to property. A similar objection taken in the case of Edmonds v. The Master and Senior Ward of the Company of Watermen 'and Lightermen (3), viz.: - by-law was " inconsistent with the laws of this kingdom."

(1) 13 App. Cas., 446, at p. 452. (2) 13 App. Cas., 446, at p. 453. (3) 24 L.J.M.C., 124, at p. 128,

id to be inconsistent with the laws of this kingdom merely because it forbids the doing of something which might lawfully have been done before, or requires something to be done which there was no previous obligation to do; otherwise a nominal "power of making by-laws would be utterly nugatory."

Martin B. in The Queen v. Suddler's Co. (1) observed that a : by-law " must necessarily superadd something to the common law, otherwise it would be idle."

That a by-law should be contrary to a law in force in Queens- land it must be inconsistent with it. No provision of Queensland Jaw has been referred to which this by-law can be said to con- _travene, either by penalizing an act declared to be lawful or by legalizing what is forbidden.

There is no inconsistency that I can discover between sec. 469 of the Criminal Code and the by-law.

Agreeing with the judgment of the learned Chief Justice on ities and other points adverted to by him, I see no reason whatever for holding this by-law invalid.

Hicaiys J. In this case it is not disputed that the defendant

: "has injured the water-table or side drain of a road within the 'Shire of Widgee by driving his bullock-wagon across it. The

t ks made by the wheels would stop the water from flowing.

ere is a by-law of the Shire (No. 287) which provides that no son shall in any way injure or destroy the water-table, gutter-

ig or side drain of any road in any way whatsoever, either by sing or driving along or in the same with any cart, dray, 'agon or other conveyance, or by casting or depositing therein any material calculated to impede or disturb the course of the -waterflow, under penalty of not more than £5. The Court of Petty Sessions convicted the defendant, and fined him five shillings with costs; but the Full Court has quashed the conviction on the ground that the by-law is ultra vires of the Council. Now, 'under sec. 179 of the Divisional Boards Act 1887, the Council had power to make by-laws with respect to (inter alia) roads to the extent stated in the judgment of the Chief Justice. It is

mpbell L.C. answered that by saying : - " A by-law cannot be 4. C. oF A.

provided at the end of the section, that "no such by-law ¢ contain any matter contrary to the Act or any other law in in Queensland." The view taken by the Full Court seems t that, if this by-law is valid, the Shire Council could set ap strip of land for traffic, and prohibit people from using other part of the public highway, because it is said to be im sible to drive over a side drain without injuring it to ¢ extent; and the Full Court suggest an amendment o} by-law by adding the words "negligently or unnecessarily wantonly" to the words "crossing or driving." In the presi case, the highway is 2 chains (132 ft.) at least in width; | there is a metalled way in the middle about 20 ft. wide, a along each side of the metalled way there is a water-tab

side drain, 3 ft. 6 in. wide. The crown of the road is than the bottom of the drain by 2 ft., or perhaps 3 ft.; and said to be 9 ft. 4 in. wide; but there is no pretence for say that two wagons, six or even seven feet wide, could not pass 0 another if they met. I can see no sufficient reason for hold that this section of the by-law is beyond the powers of t Council. It is true that a power to regulate traffie do enable a Council to prohibit traffic ; just as a power to hawkers does not enable a Council to prohibit hawking. power to regulate traffic involves a power to prohibit except in accordance with regulations; just as in a city the v may be forbidden to move on footpaths, It is to be notit this case that wagons are not even prohibited from crossing | water-tables ; they are merely forbidden to injure them in er ing. Even as to these two narrow strips of 8 ft. 6 in. each, road 132 ft. wide, there are simple, well-known devices by heavily-laden wagons could cross them without doing ii The restriction, such as it is, is designed for the general the public who use the highway ; and it seems to me to be cle within the spirit and the words of the power conferred, 1 expediency of the particular regulations in each case is a m for the judgment of the Council, not for the judgment Court. The members of the Council are responsible to the 1 payers in the exercise of their judgment; and there is further check on the Council, that the by-laws have to

the scope and object of the powers conferred, it is valid ; and the 'question whether it is reasonable or unreasonable, so long as it is

• within the powers, is not for the Court. I think that many of the difficulties which have arisen with reference to the validity "of by-laws would not have arisen but for the unhappy phrase- ology which has been so often used in Courts - not, I must admit, by the Full Court - that a by-law is not valid if it be unreasonable. Questions as to the validity of by-laws really come under the ordinary principles applicable to powers : and when it is said that a by-law is unreasonable, and therefore invalid, what is really meant is that the provisions in the by-law cannot reasonably be regarded as being within the scope or ambit or purpose of the power. The language used in Courts of equity with regard to powers seems to me to be more appropriate, and to conduce to greater clearness of thought. : Then, the fact that this section is placed in a by-law headed _ "yelating to injuries and obstructions to roads and reserves " does -not make the section invalid, even if it should be shown (I do

not say that it has been shown) that the power numbered 29

does not cover the case - provided always that the by-law is otherwise within the competence of the Council. Mr. Douglas, in his argument, laid special stress on the final words of see. 179, which Ihave already quoted, to the effect that the by-law shall not contain any matter contrary to the Act or to any law in force in Queensland. But a by-law does not contain matter contrary to an Act, or to the general law, for the mere reason that, in pur- _ suance of the Act, it contains provisions adding to the restrictions imposed by the terms of the Act itself or by the general law. Every by-law necessarily puts restrictions on the freedom of action of individuals for the benefit of the general public. As was said in Gentel v. Rapps (1), a by-law is "not repugnant to the general law merely because it creates a new offence, and says that something shall be unlawful which the law does not say is unlawful. It is repugnant if it makes unlawful that which the general law says is lawful." Here, no Act of Parliament or other law prescribes that the injuring of the water-table shall

proved by the Governor in Council. If the by-law is within H.C. oF A.

H.C. or A. be lawful; and, on the contrary, the Act in question allows

1907. Divisional Council to say that such injury shall be unlaw Wincer Smire Appeal allowed. Order appealed Covneu. 4 fis

Higyinn repay costs already received. Apy lant to pay respondent's costs of | appeal, which it may set off pro against costs payable by respondent.

Solicitors, for the appellant, Stephens & Tozer for V. H. . (Gympie). Solicitors, for the respondent, Chambers & Macnab. Cons N.G.P. Bc Ace Gar: (HIGH COURT OF AUSTRALIA.] CULLEN (EXECUTOR OF LASCELLES) . App

WELSBACH LIGHT COMPANY OF AUS- TRALASIA LTD. : y : . REspot PLAINTIFFS,

Freee VICTORIA, 1907.

• • • Patent - Infringement - Validity of patent - Prior publication - Prior uaer- MELBOURNE, person other than inventor - Prior sale of product of invention - Product Feb. 27, 28 ; discloses process of manufactwre - Statute of Monopolies (21 Jac. I. c. 3), Ta iE 48,

A patent was obtained in Victoria for " an improved hood for ine:

iniean gas burners," the specification for which described the mode of man Barton, of the hood, and the claim therein was for a hood " prepared as d

Higgins, JJ. The Court having found on the evidence that hoods manufactured