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Downey v Pryor [1960] HCA 49; (1960) 103 CLR 353 (9 August 1960)

CATCHWORDS

HEARING

DECISION

2. The words of s. 215 on which the appellant relied to authorize the inspection which he sought are as follows: "Any elector may at the council's office inspect the books of account and the report of the auditor or of an inspector of local government accounts without fee as prescribed". No provision has been made pursuant to the words "as prescribed" by ordinance or otherwise. The question arises whether, nevertheless, s. 215 gives a complete right to inspect books of account and the report of the auditor or of the local government inspector. The word "prescribed" is defined by s. 4 of the Act to mean "prescribed by or under this Act". Section 4 provides also that the words "'By or under' or 'under', in relation to an Act, includes any ordinance, regulation, by-law, proclamation, notification, or order made under the Act". No such instrument has been made pursuant to the words, "as prescribed", in s. 215. (at p358)

3. The section is the first of three sections under the heading: "Right to inspect and make objections". The right dealt with is that of an elector. Section 215 relates to the right to inspect. Section 216 relates to the right of an elector to make objections before the mayor or president and the council's auditor. This section says "Any elector may make any objection . . . before the mayor or president and the auditor". It does not say that he may make any objection "as prescribed". No such qualification is put upon the right to make these objections. The third section under the abovementioned heading is s. 217. It penalizes a member or servant of a council only if he refuses to allow an elector to make an inspection authorized "by or under this Act". Looking back to the definition in s. 4 of "By or under", s. 217 applies only to any inspection which is authorized by ordinance, regulation, by-law or proclamation made under the Act. (at p358)

4. Section 215 and the two following sections occur in Pt. VII, Div. 6. of the Act. The heading of this Part is "Finance". Division 6 is headed "Accounts and Audit". There are in the Division the following sub-headings: "Keeping accounts"; "Charges against income and capital"; "Interim and annual statements"; "Audit and inspection"; "Right to inspect and make objections"; and "Ordinances". The only section under the heading "Ordinances" is s. 218. This section provides as follows: "Ordinances may be made for carrying this Division into effect, and in particular for and with respect to - . . . (m) the inspection by electors of the books of account and of the reports of auditors and inspectors of local government accounts". This clause clearly refers to the inspection which s. 215 says shall be "as prescribed". It has been mentioned above that the right to make an objection to the accounts, for which s. 216 provides, has no such addition made to it by the words of this section as that expressed by the words, "as prescribed", which are in s. 215. Another provision in Div. 6, the verbiage of which it is useful to compare with s. 215, is s. 212 (2). The words of this provision are: "An inspector of local government accounts may inspect the accounts of councils and the internal organization and management of the council's offices". (at p358)

5. In my opinion, the words "as prescribed" are an essential part of what s. 215 enacts for giving a right to an elector to inspect the books of account of the council and the reports mentioned in the section. I think that the intention of the section is to give him a right to inspect such books and reports in accordance with the provisions of an ordinance to be made under s. 218 (m) and that no complete right of inspection arises until the ordinance is duly made. This means in effect that s. 215 is only an inchoate enactment. (at p359)

6. I do not agree with the view that the intention of s. 215 is to give a right of inspection which, if no ordinance is made, the elector is intended by the section to exercise in a reasonable manner. What the legislature has enacted is that the inspection is to be made in the manner prescribed, not that there should be a reasonable right of inspection. It is not the intention of the Act, in my opinion, that a member or servant of a council should be liable to a penalty under s. 217, if an elector should seek in his own manner to make an inspection of the books of a council and a magistrate were to consider the manner as reasonable. The right of inspection which s. 215 gives is one to be exercised in the manner prescribed by or under the Act, not in a manner which a magistrate may find to be reasonable. (at p359)

7. Section 215 expressly makes an inspection of the books of a council by an elector free of any charge. It seems to me that s. 215, by using the words "as prescribed", contemplates that there would be rules dealing with the inspection. Those words preclude the view that the section intends that an elector would go about making the inspection in his own way and that a member or servant of the council, who considered that the elector was not behaving reasonably and on that account refused to permit the inspection, would do so at the risk of a court holding that in all the circumstances the conduct of the elector was reasonable. Clearly, the right of inspection is one the exercise of which involves co-operation between the servants of the council and the elector. (at p359)

8. On what days and during what hours would it be reasonable, consistently with the smooth running of the office, to allow an elector to inspect its books? How long would it be reasonable for an elector to take to make the inspection? What length of notice should he give of his intention to inspect? Could he bring an accountant with him? Where in the office would he be entitled to sit or stand while making the inspection? If more than one elector seeks at the same time to make an inspection, to whom is priority to be accorded? I take the view that the words "as prescribed" mean that the manner of inspection should be dealt with by the authority having power to make ordinances, not by a court. I do not think that s. 215 intends to allow an indeterminate sort of inspection, that is one to be made according to a manner chosen by the elector subject ot its reasonableness being upheld by a court in a prosecution under s. 217, if the inspection is refused by a member or servant of the council. (at p360)

9. For these reasons I think that the inspection which the appellant sought, and in respect of which he prosecuted the defendants, was not authorized by the Local Government Act, and as that is an essential element of the offence created by s. 217, the magistrate did not err by dismissing all the prosecutions. As regards the right to take notes, I think that as the right of inspection is not completely created by the words of s. 215, the question whether the taking of notes is an incident of it cannot be determined in advance of the making of an ordinance pursuant to the words "as prescribed". (at p360)

10. In my opinion all these appeals should be dismissed with costs. (at p360)

KITTO J. We have before us three appeals, each being an appeal by special leave from a judgment of the Supreme Court of New South Wales (Kinsella J.) upholding the dismissal by a magistrate of a summons issued upon an information alleging an offence under s. 217 of the Local Government Act 1919 (N.S.W.). That is a section which provides that any member or servant of the council (of an area) who does not permit any elector to make any inspection authorized by or under the Act shall be liable to a penalty not exceeding ten pounds. (at p360)

2. The informant in each case was the present appellant, who at the time of the alleged offence was an elector of the City of the Blue Mountains. The defendants, who are the respondents to these appeals, were servants of the council of that city, being respectively the Town Clerk, the Deputy Town Clerk and the City Treasurer. In each case the charge was that the defendant "did not permit" the informant "to make an inspection authorized by the Local Government Act, No. 41 of 1919, that is to inspect certain books of account". The provision of the Act upon which the informant relied, as authorizing inspection of the council's books of account, is s. 215. So far as material, that section provides: "Any elector may at the council's office inspect the books of account and the report of the auditor or of an inspector of local government accounts without fee as prescribed". There is a proviso, but it throws no light on the problem, and indeed it might more appropriately have been enacted as an independent section. (at p360)

3. The word "prescribed" is defined (by s. 4) to mean prescribed by or under the Act. But neither in the Act nor in the ordinances thereunder was there to be found, at the date of the alleged offence, any prescription in relation to the inspection of a council's books of account; and accordingly if the meaning of s. 215 is that only inspections in accordance with prescriptions made by ordinance are authorized, the section did not apply, in the state of affairs existing at the relevant date, to authorize any inspection at all. The informant submitted before the magistrate who tried the information that the words "as prescribed" do not make a prescription essential for the operation of the section, but the submission was overruled in all three cases. On appeals by case stated, Kinsella J. held that it was rightly overruled. (at p361)

4. In the cases of Woodward and Hunt the magistrate found that the defendants had refused to permit the informant to inspect certain books of account of the council - and by inference that the inspection sought was an inspection at the council's office - but he dismissed the information on the ground which has been mentioned. In the case of Pryor, the magistrate found that the informant was permitted to make a visual examination of the relevant books, but that the defendant refused him permission to take notes therefrom. The information was dismissed on two grounds, one being that which was upheld in the cases of Woodward and Hunt, and the other being the separate ground that the inspection referred to in ss. 215 and 217 did not include the taking of notes. (at p361)

5. The lastmentioned ground may be disposed of at once. Kinsella J. held that a right to take notes of the contents of the books of account was incidental to the right of inspection, and he referred to the judgement of Lindley L.J. in Mutter v. Eastern and Midlands Railway Co. (1888) 38 Ch D 92, at p 105 Accordingly if there had been no other point in the case his Honour would have allowed the appeal. I entirely agree in his Honour's view, and I see no advantage in elaborating the point. (at p361)

6. But on the main question, the question which is common to all three appeals, I think, with respect, that the construction which his Honour and the magistrate placed upon s. 215 ought not to be upheld. No doubt the introduction, into a provision conferring a right, power or authority (it will suffice to speak of an authority), of words requiring that in exercising the authority a prescribed method (to use the word in a comprehensive sense) shall be observed, may have either of two results. Upon consideration of the words themselves, the context, and the nature of the provision, the intention may appear that a prescribed method is of the essence of the authority, so that there is no authority capable of exercise at any given time unless at that time a valid prescription of a method is in force: see, for example, Cameron v. Deputy Federal Commissioner of Taxation (Tas.) [1924] HCA 12; (1924) 34 C.L.R. 8; Gramophone Co. Ltd. v. Leo Feist Incorporated [1928] HCA 23; (1928) 41 CLR 1; Browne v. Commissioner for Railways (1935) 36 SR (NSW) 21; 53 WN 1; and Ex parte Greenfield; Re McCulloch (1951) 51 SR (NSW) 305; 68 WN 161 But on the other hand the meaning may be that the authority is to be subject to a power in the Executive to regulate its exercise and that in the reference to the prescribed method the words "if any" are to be implied: see Commissioners of Inland Revenue v. Joicey (No. 1) (1913) 1 KB 445, at p 451 In the latter class of cases, a person exercising the authority must observe any method which is prescribed for the time being; but if none is prescribed the authority is exercisable by any appropriate method. Illustrations of this kind of provision may be found in Commissioners of Inland Revenue v. Joicey (No. 1) (1913) 1 KB 445 and Moate v Dartnell (1947) 65 WN (NSW) 9 (at p362)

7. In my opinion the provision made by s. 215 is of the latter description. The broad intention clearly appears that a council's books of the kinds referred to shall be open to inspection by the electors. To the Executive is committed the responsibility of regulating the right of inspection, by making such provisions by ordinance as may seem proper. But there is no definable category of matters to be covered by ordinance, and the section can hardly mean that provided some aspect of inspection, however insignificant, is governed by a prescribing ordinance the right exists, and, save on that one aspect, is exercisable at large, but that unless there is some prescription there is no right of inspection at all. The view seems much sounder that the function of the expression "as prescribed" is to link an authority which the section intends by its own immediate operation to confer on electors with the power elsewhere entrusted to the Executive to regulate the exercise of that authority. The availability of a council's books for inspection by electors is so potentially important a feature of the system of local government which the Act sets up that nothing but the clearest language could justify the conclusion that Parliament intended that the Executive not only might decide whether and how the right of inspection should be regulated but might, by preferring silence, deny to the section all operation. (at p363)

8. It has been argued for the defendants that "as prescribed" must be given some force in the section, and that it cannot be intended to be the source of power to regulate the right to inspect, for s. 218 (m) specifically includes, among the subjects upon which the Governor is empowered (by s. 575) to make ordinances, the inspection by electors of the books of account and of the reports of auditors and inspectors of local government accounts. Both propositions may be conceded; but the informant's contention does not treat the expression either as meaningless or as creating a power of prescription: it treats it as requiring compliance with any prescription that there may be. (at p363)

9. It has been contended also that on the informant's construction of the section what is authorized is inspection in or out of office hours, on working days or holidays, whether the books are at the moment required for council meetings, audit or anything else, and, in short, without any limit whatever. Attention was drawn in argument to the fact that the immediate predecessor of s. 215, which was s. 183 (3) of the Local Government Act 1906 (N.S.W.), gave a right of inspection "at all reasonable times"; and the submission was made, in effect, that when those words were omitted and the words "as prescribed" were inserted the intention must have been that the latter expression should be, as the former had been, definitive of the right provided for. At first blush the contention has some attraction, but I do not think that it should be accepted. The change in language reflects nothing more than a decision by the legislature to subject the right of inspection to a general power of regulation, instead of leaving it unregulated save by the vague stipulation as to reasonableness of time. There is nothing improbable about giving a general right of inspection - which may indeed be subject to some implied limitations, e.g. as to exercise within ordinary office hours - when by the same Act the Executive is given a power to regulate, as seems proper from time to time, the times, manner and conditions of its exercise. (at p363)

10. The conclusion to which I come, therefore, is that the elliptical expression "as prescribed" means "observing any regulatory provisions which may be contained in the ordinances for the time being in force". (at p363)

11. For the reasons stated, I would allow the appeals with costs and set aside the orders of the Supreme Court. In lieu thereof I would make an order in each case that the appeal to the Supreme Court be allowed with costs; that the determination of the magistrate be set aside; that the question in the case stated, namely whether the magistrate's determination in dismissing the information was erroneous in point of law, be answered: Yes; and that the matter be remitted to the magistrate for determination accordingly. (at p364)

WINDEYER J. The question here is whether the legislature of New South Wales intended to give electors of local governing bodies in the State a right to inspect their accounts; or whether it intended only that the Government might permit them to do so if it chose. (at p364)

2. In my view the words "as prescribed" that appear, somewhat clumsily, in s. 215 of the Local Government Act 1919 do not make that section depend for its effectual operation on something being prescribed. This is not, it seems to me, a case where a prescription of something pursuant to a statute is necessary to complete a statutory right. It is rather a case of the statute recognizing that a right given by it may be further defined, or its exercise regulated, by ordinance. The distinction between the two classes of cases is clear. But sometimes, as here, a question can arise as to which result the language of a particular enactment produces. Where it is said that something is to be done in a prescribed manner, and there are several ways in which that very thing can be done, then, prima facie, the enactment is ineffectual until one of those ways be prescribed (Browne v. Commissioner for Railways (1935) 36 SR (NSW) 21; 53 WN 1; Cameron v. Deputy Federal Commissioner of Taxation (Tas.) [1924] HCA 12; (1924) 34 CLR 8) In such cases life and vigour is only given to the statute when what is to be prescribed has been prescribed - for example, a prohibition against travelling at a speed greater than the prescribed maximum could not be contravened until a maximum had been prescribed. There are several provisions of the Local Government Act in which the words "as prescribed" have that result - for example s. 90 (1), which requires a council to appoint an engineer, "who shall hold a certificate as prescribed". But that does not mean that wherever the words "as prescribed" appear in the Act in connexion with a right or duty, no right is created or duty imposed until something be prescribed. For example, s. 425 (3) provides that when an animal is impounded "the poundkeeper shall give such notices by post, exhibition, or advertisement as shall be prescribed, and shall feed and care for such animal as prescribed". If, in fact, nothing were done to prescribe what notices should be given, then the poundkeeper might have no obligation under the statute to give any notice; but, in my view, he would be under a statutory obligation to care for and feed the animal even if nothing about this were prescribed: cf. Graham v. Fennell (1862) 1 SCR (NSW) 243 (at p365)

3. The argument for the respondents that under s. 215 the right of an elector to see the books of account is established only when something in relation to it is prescribed may be tested by asking what would have to be prescribed - the manner in which the books or report were to be inspected, it was said. But there is really only one way to inspect a document, that is by looking at it, examining it visually. What the argument really meant was that conditions or circumstances in which the right of inspection might be exercised must be prescribed. But what? Would an ordinance prescribing that a person wishing to make an inspection should give his name and address and satisfy the town clerk that he was entitled to be an elector bring s. 215 to life? Would an ordinance imposing a penalty upon any elector who during an inspection should mark or deface any book do so? (at p365)

4. The respondents' view appeared to be that an enlivening ordinance would have to lay down the times when an inspection might be made. But this seems to have been induced because the section that in the Local Government Act 1906 corresponded with the present s. 215, and indeed the corresponding provisions in all Acts since the Municipalities Act of 1867 s. 181, referred to inspection "at all reasonable times". Suppose an ordinance prescribed that inspection might be had during the hours when the council's office is open, except when the book be actually required by the council's staff or by the auditor. That would really do no more than express what surely would otherwise be implicit in a right to inspect at the council's office. Grave difficulties were suggested if no express conditions as to time and so forth were prescribed. But these were, in my view, unreal imaginings. Under the New South Wales Companies Act 1936, ss. 369 and 187 (3), for example, documents filed with the Registrar-General are open for inspection by any person. But that does not mean that anyone can insist on seeing them at midnight or while someone else is actually inspecting them. It is worth noticing that no express limitation of the hours during which an elector may exercise his rights to inspect election documents is provided for in s. 73 (5) of the Local Government Act. (at p365)

5. In short, although counsel for the respondents contended that before a right of inspection under s. 215 could be availed of by an elector some conditions of its exercise would have to be prescribed, the argument did not reveal what sort of conditions these must be. My conclusion from this is that which my brother Kitto reaches in his judgment which I have had the advantage of reading. I also agree with him that the words "as prescribed" in s. 215 and the provisions of s. 218 (m) are complementary rather than tautological. (at p366)

6. The prosecution was under s. 217, which makes any member or servant of the council who does not permit an elector to make any inspection authorized by the Act liable to a penalty. Whether a person does not permit an inspection is a question of fact. Merely requiring an elector to come at a convenient time is not necessarily a refusal of permission: compare R. v. Wilts and Berks Canal Company [1834] EngR 782; (1835) 3 Ad & E 477 (111 ER 495), but the suggestion in that case that a person desiring to make an inspection must state his object is, as Chitty J. held, in Holland v. Dickson (1888) 37 Ch D 669, incorrect. Indeed if a person has a right of inspection he may exercise it whatever his motive for doing so: Mutter v. Eastern and Midlands Railway Co. (1888) 38 Ch D 92; Davies v Gas Light and Coke Company (1909) 1 Ch 708 A right to inspect a book of account is a right to see the whole of the entries in it. For, as Chitty J. put it in Holland v. Dickson (1888) 37 Ch D 669, "the right . . . is to have access to the book, and the directors of the company are wrong in saying that plaintiff shall have access to part only of the book when the right of access is not so limited by the statute" (1888) 37 Ch D, at p 672 The right of an elector to see the council's books of account is an important safeguard of the integrity of the system of local government. And, speaking generally and not in relation to this particular case, its importance would be much diminished if it enabled an elector to ascertain only that certain sums of money had been collected and disbursed. The public value of the safeguard may lie in electors being able to ascertain to whom funds in the control of a council have been paid. (at p366)

7. I agree with Kinsella J. that a right of inspection carries by implication a right to take copies or extracts. This is established by the judgment of the Court of Appeal in Mutter v. Eastern and Midland Railway Co. (1888) 38 Ch D 92 Mr. Rath suggested that that decision could be distinguished because of the contrast made in one passage in Lord Lindley's judgment, between a section that there imposed a penalty and one that did not. The same argument was addressed to Stirling J. in Nelson v. Anglo-American Land Mortgage Agency Company (1897) 1 Ch 130 and decisively rejected - I respectfully think rightly. A right to take copies does not accompany a right of inspection if it be impliedly excluded by express provisions in the statute enabling copies to be had on payment: In re Balaghat Gold Mining Company (1901) 2 KB 665 But that is not the case here. A right of inspection need not ordinarily be exercised personally. A person having the right may ordinarily appoint an agent, such as an accountant, to make the inspection for him: Norey v. Keep (1909) 1 Ch 561; Dodd v. Amalgamated Marine Workers' Union (1924) 1 Ch 116; R. v. Bedwellty U. D. C.; Ex parte Price (1934) 1 KB 333; Edman v. Ross (1922) 22 SR (NSW) 351; 39 WN 86 (at p367)

8. I would allow the appeals. I agree with the order proposed by my brother Kitto. (at p367)

ORDER