Wood v Little [1921] HCA 50

High Court of Australia|1921-07-01|Before: Starke JJ, Hrcorss J

woop... Le eee Appeuiast; Derenpanr, axv LITTLE pee Respoxpesr, Pramstier,

H.C. or A. Coniract - Iegality - Publie policy - Councillor of municipally - Agent for sale of

land to Closer Settlement Board - Duty to advise Closer Selilement Board - = Exoneration - Prohibition against voting where councillor has pecuniary inlera Metnoune, - - Discharyed Soldiers Settlement Act 1917 (Vict.) (No. 2916), see. 35 - Dit Oct. 11,12. charged Soldiers Settlement Act 1918 (Viet) (A = Soldiers Setilement Act 1919 (Viet) (No. Syoxer,

Act 1915 (Viet) (No, 2686), se, 181. Nov. 21. f Me ni

aa 'The defendant, who owned land in a certain municipality, employed the igen and plaintiff, a land agent and a member of the council of that municipality, ta Sr sell his land to the Closer Settlement Board under the provisions of the Diacharged Soldiers Settlement Acts 1917 to 1919 (Viet. There was

no stipulation in the contract of agency that the plaintiff should use his

Position oF influence as shire councillor to push the sale. The plant

submitted the land to the Board, but took no further part in relation to

the proposed sale, and shortly afterwards resigned his postion of member of

the council. What the plaintiff had done, however, was the effective camse

of the sale to the Board which subsequently took place. Under the Dis-

charged Soldiers Settlement Acts the plaintiff, a8 a member of the count,

t be called upon to advise the Roard in connection with the parchase BF

the Board of land within the municipalit recover from the defendant commission on the sale,

'ela, that the private interest ofthe plaintiff under his agreement with he defendant had a tendency to interfere withthe proper discharge by the pint

that, on the authority of Horne v. Barber, 27 C.L.R., 494, the agreement gas illegal and void as being against public policy. 'Horne v. Barber, 27 C.LLR,, 494, doubted by Higgins and Starke JJ.

'Hd alto, that see. 181 of the Local Government Act 1915 (Vict.), which any councillor from voting upon or taking part in the discussion of

_gaymatter before the council in which he has directly or indirectly any pecuniary interest, and imposes a penalty upon any councillor who knowingly offends 'gainst the section, does not enable a councillor to acquire a pecuniary interest ina matter in which, apart from the section, the acquisition of such an interest by him would be illegal as being against public policy, and, therefore, afforded

'Decision of the Supreme Court of Vieturia': Little v. Wood, (1921) VLA 153; 42 ALT, 159, reversed.

Area from the Supreme Court of Vietoria. "Anaction was brought in the County Court by Frederick Joseph "little against Herbert' Edward Wood to recover £131 8s., being commission alleged to be due in respect of the sale of the defendant's "Imnd to the Closer Settlement Board of Victoria, One of the 'telences was that the contract sued on was illegal and void as being against public policy, in that the plaintiff was at all material times "member of the Council of the Shire in which the land was situated aad that his duty as such regarding purchases by the Closer Settle- 'ment Board under the Discharged Soldiers Settlement Acts of 1917 '101819 conflicted with the duties which he owed to the defendant, The County Court having given judgment for the plaintiff for the 'mount claimed, the defendant appealed to the Full Court of the Supreme Court, The Full Court dismissed the appeal: Little v, Wood (1) . From that decision the defendant now, by special leave, appealed to the High Court,

The other material facts are sufficiently stated in the judgments hereunder,

Ham and Joske, for the appellant. This case falls within the 'ecivion in Horne v. Barber (2), and the Supreme Court found that vould be so except for the provisions of see. 181 of the Local 2H VLR, 153; 42 Aten, 159. (2) 27 CLR, 494,

public duty under the Discharged Soldiers Settlement Acta, and there- H.C. or A.

Government Act 1915, But that section does not touch the question of the legality or illegality of a contract made by a councillor. It merely imposes a penalty on a councillor who votes upon a matter in which he has a private interest, but does not exclude the principle of law which avoids a contract which has a tendency to interfere with the proper discharge by one of the parties to it of a publie duty cast upon him (see Aberdeen Railway Co. v. Blakie Bros. (1); Mellise v. Shirley Local Board (2) ).

[Hrcorss J. referred to Dimes v. Grand Junction Canal (3)

Moreover, that section only applies to the operations of a council as a local governing body, and does not apply to the performance of duties cast upon a council by other statutes such as the Dis charged Soldiers Settlement Acts, Under sec. 35 of the Discharged Soldiers Settlement Act 1917 a duty is cast upon municipal councils to advise the Closer Settlement Board generally as well as to advise them in special cases. The principle is based on the general position of a trustee, and is d fortiori where the trustee is in a public position (Horne v. Barber (4), per Rich J.). (Counsel also referred to Cope v. Rowlands (5); Watson's Bay and South Shore Ferry Co v. Whitfetd (6).)

Pigott and Braham, for the respondent. In this case the question is as to the common law rule relating to contracts against public policy, and not as to the law relating to trusts, Under the various Acts no duty is imposed upon a municipal council except upon the request of the Minister for advice (see Closer Settlement Act 1915, sec. 22, as amended by the Closer Settlement Act 1918, sec. 10 (1), and the Discharged Soldiers Settlement Act 1919, secs. 16 (a), 17 (1) (14); Discharged Soldiers Settlement Act 1917, sec. 35). The tendency to interfere with the public duty of a person in a public position must be a real tendeney. Here there was no real tendency, for the Council had no statutory duty either generally or in reference to any specific case, unless requested by the Minister to give advice. Any such duty was cast upon the Council as a whole, and not on an individual councillor. He is not bound to vote on any particular

(1) 1 Macq. H.L.C., 461, at p. 475. (4) 27. CLR, at p. 501. () 16 O.8-D., 440° (5) 2M. & W., 149, at p. 157. (3) 3 HL, 759, at p. 770. (6) 27 CLR, 268, at p. 276.

ior incapable of taking part as a member of the council in 'advice as to a matter in which he has an interest. The relieves a councillor from the duty of taking part in the ssions of the council in the particular matter. 'The position the respondent here is not analogous to that of Deany in Horne er (1), for the latter had a duty to hold himself free to take at in discussing and voting on the particular matter, If the ris not one of public policy, then the contract of employment not void, but was only voidable. [Counsel also referred to y, Earl Brownlow (2).]

Kyox C.J. This was an action for commission alleged to be due the plaintiff on the sale to the Closer Settlement Board of Vietoria

'of certain land belonging to the defendant. By way of defence

and void as being contrary to publie policy, in that the plaintiff t all material times a member of the local Repatriation Com- or Shire Council and that his duty as such regarding pur- es by the Lands Purchase Board under the Discharged Soldiers ment Acts 1917 and 1919 conflicted with the duties which he d to defendant,

The action was tried before his Honor Judge Moule, who found he relevant facts to be as follows, viz. : - In October 1918 defendant. A the property in plaintiff's hands for sale and suggested that be offered to the Closer Settlement Board. This was done, but some negotiations with the Board the offer was withdrawn, Sth March 1920 defendant again placed the property in plaintiff's uns for sale, and the plaintiff again on the same day offered it the Board. Eventually on 30th June 1920 the Board purchased Property. From the year 1918 till 17th March 1920 plaintiff _%sa shire councillor for Jeetho and Poowong Shire, in which the

| See, 181 of the Local Government Act 1915 tenders a H.C. or A.

H.C. oF A. property was situate, During the first negotiations a sub-committee

of the Shire Council reported on the property. 'The plaintiff was not a member of the sub-committee. The report of the sub. committee was considered by the Shire Council at a meeting at which the plaintiff was present, but while this report was being considered the plaintiff withdrew from the table. The plaintif's work was the effective cause of the sale to the Board,

The learned County Court Judge having decided in favour of the plaintiff, the defendant appealed to the Full Court of the Supreme Court of Victoria, The appeal was dismissed by that Court, on the ground that by virtue of sec. 181 of the Local Government Ad 1915, which prohibits a councillor from voting upon or taking part in the discussion of any matter before the council in which he has directly or indirectly a pecuniary interest, the plaintiff might say in effect that he was not a councillor in so far as the Council dealt, with defendant's land, and that he was relieved from the embarrass ment of exercising any judgment on the matter from the moment he acquired an interest in it, 'The Court was of opinion that upon this ground the contract sned on was not contrary te publie policy. Against this decision the defendant, by special leave, appealed to this Court.

On the argument before us the appellant relied on the decision in Horne v. Barber (1) as governing this case in principle. 1 agree with the statement in the judgment of the Supreme Court that the appellant has to establish that the agreement sued on has a tendency to interfere with the due discharge of a public duty imposed on the respondent. In my opinion this is the test laid down in Horne v. Barber. The Supreme Court found in the provisions of sec. 181 of the Local Government Act 1915 a ground of distinction between that case and this. 'That section seems to have been regarded by the Supreme Court as in effect conferring on a councillor a privilege to enter into transactions which he could not lawfully enter into apart from its provisions. I am unable to take this view of the enactment. In my opinion the object of the section is to prohibit under a penalty of £50 any councillor frem voting upon or taking part in the discussion of any matter before the council in which

interest in a matter in which, apart from the section, aisition of an interest by him would be illegal as being 4 to public policy. Consequently I think the reasoning on the judgment of the Supreme Court is founded affords no und of distinction between this case and the case of Horne er (1). phhintiff was under a public duty as a member of the Shire aneil to advise the Closer Settlement Board in connection with by the Board of the defendant's property. He was das agent for the vendor in making a sale of the land to Board and in obtaining on that sale as high a price as possible. jivate interest under the contract had a tendency to interfere the proper discharge of his public duty to join in advising the as to the purchase, and in my opinion it follows that he ot be allowed to recover on the contract by which he was to commission from the vendor on the sale of the property the Board. ould add that in my opinion the decision in Simpson v. Lord (2) in no way conflicts with the decision in Horne v. Barber or with the opinion which I have expressed in this case. I 'with the view expressed by Isaacs J. in Wilkinson v. Osborne hat the decisions in that case and in Earl of Shrewsbury v. North ardshire Railway Co. (4) are special exceptions to the rule that ate interests cannot be allowed to conflict with public duty. or these reasons I am of opinion that the appeal should be wed and judgment entered for the appellant. 'The respondent anild pay the costs of the action, of the appeal to the Supreme itt of Victoria and of this appeal.

avs J. 'The only question left for us to decide is this: Is Feontract of agency illegal as being against public policy? The 'far as they seem material, are as follows : - Wood, a land- ter in a certain shire, employed Little, a land agent in that tw offer his land to the Government Closer Settlement Board,

y interest, and not to enable a councillor to acquire H: ©: ov A.

H.C. or A. as being suitable for purchase for the repatriation of soldiers,

Little communicated with the Board on 5th March, enclosing particulars, At that time Little was a councillor of the shire, but on 17th March he retired from the Council. On 20th May the Conneil sent to the Board its replies to questions put by the Board as to the land ; and on 30th June Wood accepted an offer made by the Board. 5

It is not now contended that Little did not earn his commission as the effective agent for the sale; but it is urged that because on 5th March Little was a member of the Shire Council, and because, under see. 35 of the Discharged Soldiers Settlement Acts 1917 and 1918 the council of every shire became an advisory committee to the Board, having the power and duty to advise the Board on matters relating to the selection and purchase of land within the shire, the contract of agency is illegal as contrary to public policy.

It is not contended that the contract: of agency contained any stipulation, either express or implied, that Little was to use his position or influence as shire councillor to push forward the sale If there had been such a stipulation or undertaking, secret or open, it seems clear that the contract ought to be treated as against public policy and therefore illegal (Montefiore v. Menday Motor Com- ponents Co. (1) ). Tt is not even contended that the questions of the Board came to the Shire Council before Little retired, or that Little in the slightest degree used his position or influence as eoun- cillor in aid of the sale, Wood knew, in employing Little, that Little was a member of the Council; but there is no evidence that he would not have employed Little, as a local agent, whether Little was a councillor or not. There is a provision in the amending Act of 1919 for the appointment by the council of " valuation sub- committees," for the purposes of the Acts; but Little was not a member of any such sub-committee, and, in short, did not take part in any of the deliberations of the Council or its committees with

regard to the land. Does the mere fact that Little could have misused his position

make the contract or agency itself illegal? According to Shearman J,, im his judgment in the Montefiore Case (2), " a contract may be () (1918) 2 KB, 241. @) (918) 2 K.B., at p 2.

valor from the nature of the consideration " - that is to say, it

vis on the terms of the contract. There is nothing against in the actual promise of Little in this case, or in the for the promise. If there were a promise to use his sence as councillor, then it would be no answer on the part of cay that the influence used by him was little or nothing ; the tendency of such a promise that is to be regarded. 'There en no case cited to us from the English reports in which a of agency has been treated as contrary to public policy on the mere ground that the position of one or both t parties rendered it liable to abuse in the fulfilment; and yet he long course of English law the interest of agents must fre- have conflicted with their duty.

may be that the Board, on finding that one of its official ws (even though he did not advise) was the agent for the making profit from the sale, could have refused to carry the main contract of purchase, or could have got the contract But it is not every contract that the Courts of equity to enforce, or will order to be rescinded, that is illegal against public policy. The contract of purchase here is 'not illegal, for the Board could elect to affirm the contract tanding Little's double position, and compel Wood to and yet, if the contract were illegal, neither party could it (Smith v. White (1) ). If the main contract is not illegal, to see how the subsidiary contract of agency can be treated

analogous case of solicitors - who are agents of another itis quite a common thing for one solicitor to act in the same maction for vendor and purchaser, for mortgagor and mort- for lessor and lessee, and even for different parties or classes fis in the same action. It is a practice which the Courts 4s valid (see Doe d. Peterv. Watkins (2)); and, although function often leads to breach of duty to one or other secliets, I know of no case in which the solicitor has failed in

policy either from the nature of the acts to be per- H- C. oF A.

his action for costs on the ground that his duty to one client con. ficted or might conflict with his duty to the other.

Unless the fact that the purchaser here is a public Board makes the contract to be contrary to public policy, it seems clear that this defence cannot stand. In Salomons v. Pender (1)) am agent for sale of land sold it to a company of which he was a director and shareholder. He sued his principal for the commission, and the action was dismissed. It was dismissed, not because of any public policy, but because he had not carried out his contract, for the contract meant that he should act for his principal only, and not for the purchaser. In this case, Little carried out his contract of agency precisely. In Aberdeen Railway Co. v. Blakie Bros. (2) a fim of ironfounders, of which Blakie was a member, sued the company for the fulfilment of a contract to accept goods, Blakie was 3 director of the company acting when the tender was accepted. The House of Lords decided against the firm, pointing out that the contract was not illegal - that at common law it would be no defence to plead that one of the plaintiffs was a director. 'The decision rested on equitable grounds only, equity refusing to enforce a con tract made under such circumstances.

It is not every contract unenforceable or liable to be set aside in equity that can be treated as illegal, tainting and infecting every contract or transaction based upon it. 'Therefore, also, if trustees depart from the strict letter of their trust on getting a covenant of indemnity - as is quite common - the covenant is valid and enforoe able; as when trustees pay (on the faith of such a covenant) money to a beneficiary before the proper time, on the chance that he will live to become entitled, and he fails to live to that time. On other hand, a covenant to pay a man £10,000 "if he commit + murder" would be invalid. The latter covenant is " illegal"; former is not. j

We have been referred to no case (with the possible exception of Horne w. Barber (3) ) in which a contract has been treated as illegal 'on the mere ground of conflict between the interest and the duty of one of the contracting parties - even where the duty is duty to

(1) 3H. &C,, 639. (2) 1 Macq. H.LC., 461. @) 27 CLR, 494.

Howden (1) the defendants contracted with H., who was a peer Parliament, that if a certain railway Bill were passed they would iy him £5,000 ; the Bill was passed ; H. sued for the £5,000 ; the of illegality was raised and rejected. It was pointed out by Tords that there was no promise on the part of H. to vote for the | that the money was not promised as a consideration for H.'s and that H. had a right to bargain in his individual character

for the injury to his property. Yet there is no doubt that the tended to interfere with the duty of H. as a legislator. It 'annot be that there is one law for property owners and another Jand agents. The law is not a respecter of persons, "A land- cannot be restricted of his rights because he happens to be amember of Parliament " (arl of Shrewsbury v. North Staffordshire Bailway Co, (2)). Why should not this principle be applied to a Jind agent as well as to a landowner? So long as H. - so long as. Iittledid not promise to use his position and influence in further- "mee of the transaction, there was no illegality in the contract ; "and it is the contract. alone that we are asked to declare illegal The case of Egerton v, Earl Brownlow (3), on which so much stress has been laid in this Court, was a case of a condition in a will being treated as against public policy and illegal. 'The condition itself was

'ental functions; and the question whether the tendeney

'ould operate in greater or in less degree had, of course, nothing to do with the case. But the important matter to observe is that 'what was treated as illegal was the condition contained in the instrament, just as here we must find something illegal in the tontract. As the Supreme Court has said in this very case (4), "it 'SSonly when the contract itself necessarily imposes shackles on the discharge of a public duty that the principle applies which is invoked this case" (and see Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co. (5)). The utmost care is needed in applying a

(4) (1921) VoLAR., at p. 102. (5) (1894) A.C, 585, at p. 554.

lie Board or to the public. On the other hand, in Simpson v, H.C. or A.

where Parliament has not enacted illegality ; as a false course once taken, any deviation from the old track will lead to much confusion and injustice.

a member of Parliament, and in making a contract with a retailer for the future delivery of goods promises te use his vote and influence for or against the increase of the tariff on such goods, the contract would no doubt be properly treated as illegal ; but if there be no such promise or understanding, are we to say that the retailer can lawfully refuse to accept the goods because of the possible conflict - or the actual conflict between the interest of the vendor and his duty as member?

If a wheat buyer is a member of Parliament, and make a contract for purchase under circumstances which make it his interest to vote for a Bill for a wheat-pool, can the farmer who sells him the wheat refuse to deliver it on the ground that the interest of the wheat buyer tends to conflict with his duties as a legislator - even if the wheat buyer vote against his own interest? If a policeman be

found to have agreed in effect with a motor-car owner to overlook the latter's conduct in driving, the agreement would be, of course, illegal, and any action for the money would fail; but if the police. man hire a motor for himself to drive, can it be that he can refuse payment of the hire on the ground that, as driver, he tends to become more compassionate towards offenders against the regulations, and less likely to prosecute ?

In Wilkinson v. Osborne (1) this Court treated as being against public policy and illegal a contract made by two members of Parlia ment to use their pressure on Ministers to purchase certain land The members were promised a share of commission, but the Court Tefused to enforce the promise. I can well understand this decision. But in the more recent case of Horne v. Barber (2) the landowner and the agent agreed to use one Deany, who was a member of Parliament, as an intermediary for the sale to the Government. 'The Court was prepared to find, if necessary, that Deany was to be employed in order that he might use his pressure on the Govern- ment ; but the Court disclaimed any intention to base its decision on 'this ground. 'The words of my learned brothers Knox C.J. and Gavan

Daf J. were (I): fopinion that both parties to the contract intended that the

ves contracted for were to be rendered by Mr, Deany, a member ifthe Parliament of Victoria ; that the object of the employment of hintiffs was the sale of the defendant's property to the Govern- sat of Victoria; that Mr. Deany had a pecuniary interest in the ransaction, being entitled to share in the commission payable to

tlsintifs; and that the services rendered by Mr. Deany were recause of the sale. We think it unnecessary to determine sther Mr. Deany undertook to use his position as a member of ment for the purpose of procuring a sale of the defendant's 4" I thought at first that this must mean that the parties ved Deany because he was a member of Parliament, with all iat the fact implied, but I am assured that this is not the meaning nied to be conveyed. If, then, that case decides that the mere of the agent's double duty, to purchaser as well as to vendor - although there was no abuse of that duty in fact or promise to abuse de the contract between the vendor and the agent illegal, I not say that the same principle ought not to be applied here, 'though there certainly are some differences of detail. The case Horne v. Barber (2) has not been impugned before us, and must accepted as law. But it is right for me to say that but for Horne Barber I should give my judgment in favour of Little. Lconcar with my leamed brothers in their opinion that see. 181 the Loeal Government Act does not prevent a contract which would

ise be illegal as against public policy from being illegal, or er a contract enforceable which would otherwise be unenforce- hat the " prohibition " in sec. 181 does not, as stated by the Court, "cover the whole field of action." It is simply a additional safeguard provided by Parliament for the purposes stloeal government, but it does not in the slightest degree repeal law as to contracts against public policy or the equitable rules aiinst the enforcement of contracts made by persons in breach their fiduciary duties, In the case of Aberdeen Railay Co. v. ie Bros. (3), already cited, there was a provision in the

(27 CLR, at pp. 498-499. @) 27 CLR, 494. (@) 1 Macq. H-LC., 451

"It is sufficient to say that the learned Judge H.C. or 4.

Companies' Clauses Consolidation Act to the effect that a diectorot a company who votes in a matter in which he is personally inte. ested shall vacate his seat, and the Scottish Judges held that this was the only penalty. But the House of Lords reversed the decision, pointing out that the enforcement of the contract was forbidden on fundamental equitable principles, apart from this Net,

Srarke J. The argument for the appeliant was rested upon the proposition that any transaction is unlawful in which the personal or private interest of one of the parties to the transaction conflict, or tends to conflict, with the due performance of any publie duty, Apart from authority I should have felt considerable difficulty in assenting to so far reaching a proposition, But Wilkinson v. Osborne (1) and Horne v. Barber (2) in this Court establish, it is said, the proposition contended for. There are expressions in the judgments in Wilkinson v. Osborne that favour the contention, but the case was decided on a much narrower and safer ground, namely, that the contract there involved was one to exert polite influence or pressure upon thé Government. Horne v. Borbr might have been decided on the same ground, namely, that the contract was one to exert political influence upon a Minister of the Crown or the Closer Settlement Board (see p. 498), or even on the ground that the position of the agent was such that political influence or pressure must necessarily be exerted in dealing with the Minister or the Board - that the agent could not effectively divest himself of the influence and pressure attaching to his position and made no attempt to do so (see p. 499). However this may be, I am satisfied that the learned Chief Justice is right in saying that the case was decided upon a broader principle namely, that the contract was unlawful because the personal of private interest of the agent conflicted or tended to conflict with the due performance of his public duty. 'Thus, at _p. 499, the Chief Justice said: "It" (thats, the agreement) " had 'tendency to interfere with the proper discharge of the duties of Deany as a member of Parliament, and was consequently oppose to the public good" ; and, at p.'500, "the decision of Mann J, () 2 CLR, 89, (2) STOR, 496

fayn J. had said (Horne v. Barber (1)): - *'The reason for that » (Wilkinson v. Osborne (2) ) "was that the agreement had tendency to interfere with the proper and faithful discharge of public duties of a member of Parliament Al themembers of the Court in Wilkinson v. Osborne relied upon the 'fet that the agreement in question in that case raised a conflict the interest of the plaintiffs and the duty they were under members of Parliament of considering whether the purchase be approved." The opinions of my brothers Zsaacs and Rich in Horne v. Barber are rested entirely upon the conflict, or the tendency to a conflict, between the private or personal interest of the agent and the proper discharge of his public duty (see Isaacs Jat p. 500, Rich J. at p. 502). It is not for me to canvass that decision but to accept it and apply the rule of law so laid down to the present case, Under the Discharged Soldiers Settlement Act 1917, sec. 35, the vuncil of every municipality was for the purposes of the Act an alvisory committee to the Lands Purchase and Management Board, and had the power and duty of advising the Board generally on matters relating to the selection and purchase of land within the municipal district. The plaintiff in this case was authorized to Iegotiate with the Board for the sale and purchase of certain land rithin the municipal district of the Shire of Jeetho and Poowong, and he was to receive the ordinary agent's remuneration if he ected a sale. Unhappily for him he was also a member of the Council of the Municipality of Jeetho and Poowong, and it might so happen that the Council, in accordance with its statutory duty, ould feel called upon or be required to advise the Board in con- mction with the land in the hands of the plaintiff as an agent for sale. A conflict of interest and duty might arise. 'The tendency the agreement might cause the plaintiff to prefer his private interest to the advice that he ought to persuade the Council to _ tender to the Board or to fail in attendance upon the Council rather than sacrifice his private interest. It is of no importance, as I

(0) 0919) VLR, 558, at pp. 562-563; 41 ALT. 56, at p. 58. @) TOLER, 86.

the reasons given by him for that decision, were correct." H.C. or A.

understand the authorities, that the parties had no cornpt or sinister intent or that a conflict of interest and duty was unliay to arise and never did in fact arise. 'The rule of law is cleat andi is rigid. The agreement to employ the plaintiff and to pay him the usual commission for his services as an agent tended to bring his interest and his public duty into competition. Tt was inimical to the State, and therefore unlawful.

'The learned Judges of the Supreme Court did not, I think, dispute the rule, but rather denied that the public duty contended for rested upon the plaintiff. In sec. 181 of the Local Government Adt they found a provision that no councillor should vote upon or take part in the discussion of any matter in or before the council in which such councillor had directly or indirectly by himself or his partners any pecuniary interest, under a penalty of not more than £50, 'The section, so it was said, debarred the councillor from, ot relieved hin from the embarrassment of, exercising any judgment on any matter in which he had a personal interest, or operated as a resignation pro tanto of the position of advisor. A similar argument might, pethaps have been used in Horne v. Barber (1), based upon the wel known provision in the Constitution Amendment Act of Vietoria, sec. 24; but it isnot mentioned. I do not place any reliance upon : this, for the Constitution Act is expressed in words differing from those used in sec. 181 of the Local Government Act, which 7 account for the fact that see. 24 was not referred to.

'The view taken by the learned Judges of the Supreme Court is, in my opinion, wholly untenable. The section does not save patties from the consequence of entering into agreements which the law treats as unlawful, It puts a further sanction upon the public representative, and inflicts a penalty upon him if he knowingly votes or takes part in the discussion of any matter in which he has any pecuniary interest, The view of the Supreme Court would lead to most dangerous consequences. Many cases might easily arse in which the mere penalty would be trifling as compared with the pecuniary gain which would accrue to the councillor if the matt in which he was interested were pushed through the council by his vote or influence. ;

Appeal allowed. Judgment entered for defen- dant. Respondent to pay costs of the

action, of appeal to Supreme Court and of this. appeal.

itors for the appellant, Parkinson d Wettenhall. itors for the respondent, Boothby & Boothby.

COMMISSIONER OF TAXES FOR ) VICTORIA . : J Appruuanr;

giteSlatute - Interpretation - Consolidating statute - Aleration of Tai

Aministration and Probate Act 1915 (Vict.) (No. 2611), secs. 122, 128, 143- M6,

Ss 148.0) of the Administration and Probate Act 1915 (Viet) provides that

'conveyance or assignment gift delivery or transfer of any real or onal property, whether made before or after the commencement of this Att, porporting to operate as an immediate gift inter vivos whether by way tt transfer delivery declaration of trust or otherwise shall - (a) if made within twelve months immediately before the death of the donor; or (6) i made "at any time relating to any property of which property bond fide possession td enjoyment has not been assumed by the donee immediately upon the

a1gih 19 this case, see now the Administration and Probate Act 1921 (Viet.) 315) Ed. OLR.

Duly (Viet.) - Gifts inter vivos - Rate of duty - Aggregation of several HC, oF A.

At a glance

Court

Decision date

Before

Source

Judgment (92 paragraphs)