Moorabbin Shire v Abbott [1914] HCA 18; (1914) 17 CLR 549 (26 March 1914)

HIGH COURT OF AUSTRALIA

The President &c. of the Shire of Moorabbin Defendants, Appellants; and Abbott Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

26 March 1914

Griffith C.J., Isaacs, Gavan Duffy, and Powers JJ.

Hayes, for the appellants.

A. H. Davis and Owen Dixon, for the respondent, were not called upon.

Griffith C.J.

Notwithstanding the able argument of Mr. Hayes and the dissenting view of Hood J., I confess that I cannot feel any difficulty in coming to a conclusion as to the true interpretation of this Act. The question arises upon the provisions of the Local Government Act 1903 for making the owners of land benefited by the formation of new streets contribute towards the cost of formation. The scheme is contained in a group of sections, beginning with sec. 526, and being Division 11 of Part XVIII. of the Act, which is headed "Making, &c., streets, lanes, &c., at cost of certain owners." Sec. 526 provides that "(1) In case—(a) Any street lane yard or passage or other premises formed or set out on private property, ... whether the same respectively is dedicated to the public as a highway or not, ... is ... not formed ... to the satisfaction of the council of the municipality, such council may form ... the same ... to their satisfaction and may either before or after so doing recover the cost of so doing from the owners of the premises fronting adjoining or abutting upon such parts thereof as may require to be formed ..." I will refer next to sec. 528, which provides that "(1) Only such of the owners of premises fronting adjoining or abutting on any street lane or passage as by themselves or their tenants have the right to use or commonly do use the same shall be liable to pay any portion of the cost of any works executed by the council of any municipality under the powers contained in this Division with respect to such street lane or passage. (2) The owner of premises which do not actually front adjoin or abut upon any street lane or passage shall be liable to contribute to the cost of works executed by the council of the municipality with respect to such street lane or passage if such owner by himself or his tenants has the right of using or commonly does use such street lane or passage as a means of access to or drainage from such premises and the same is in the opinion of the council for his advantage or benefit. (3) Any person shall be liable as owner under this section who would be liable as an owner either under the provisions of any Act for the time being in force relating to local government or to public health."

An illustration of the effect of sub-sec. 3 is that under the Health Acts an agent in receipt of the rents of land is liable as owner.

The effect, therefore, of sec. 528 is to qualify the class of owners mentioned in sec. 526 in three respects: first, it limits the class to such owners of land fronting, adjoining or abutting on the particular street, &c., as commonly use it, or have a right to use it; secondly, it enlarges the class by including certain owners of premises which do not front, adjoin or abut on the street; and, thirdly, it includes another class of persons. Those owners only who come within sec. 528 are struck by sec. 526.

I will next refer to sec. 527, which provides that the council shall cause to be prepared such specifications, maps, plans, &c., as they think necessary, and an estimate of the cost and a scheme of distribution setting forth the names of "the persons intended to be made liable," and approximately the sizes of the pieces of land "of which they are the owners respectively," and the amounts chargeable to each. That provision certainly suggests that the council is limited in selecting the names of the persons intended to be made liable or persons who are the owners of the land, particulars of which are to be set forth in the notices. The council has the power to include certain persons owning land not fronting the street, but are precluded from including persons who have no right to use, and do not commonly use, the street. I think that sec. 527, on a fair construction, entitles the council to select, but limits the selection to such persons within the class as they think ought to be charged.

In the present case the respondent was the owner of land fronting two streets, but had not either by himself or his tenants any right to use and did not commonly use them at the time when the proceedings were taken. He did not, therefore, fall within the class described in sec. 528.

Sec. 529 requires notices to be served on "every such person intended to be made liable." The reference is to sec. 527. The notice is to set out that the specifications, &c., have been prepared and are open for inspection; that the council will on a named day proceed to consider, amongst other things, "the liability of such person in respect thereof;" that he may appear and object; that in default of objection the scheme will be adopted and "all such persons will be considered as having admitted that the council have complied with all the requirements of this Act and also their respective liabilities as appearing by the said scheme and will be in all respects then finally bound and concluded thereby." Such a notice was served upon the respondent, and he at once informed the Council that he was not an owner liable within the meaning of sec. 528, because neither he nor his tenants had a right to use or did commonly use either of the streets. The Council disregarded his objection, and he paid no further heed to their notice. They proceeded to adopt the scheme, and thereupon came into operation sec. 532, which provides that "Upon such adoption every person upon whom notice has been served and whose name is included in such scheme as adopted shall be considered as having admitted that the council have complied with all the requirements of this Act and also his liability to contribute to the work in the proportion adopted by the council and be finally bound and concluded by all the matters aforesaid." The section does not say that the person shall be taken to have admitted his liability to contribute to the work in the abstract, but to contribute to the work "in the proportion adopted by the council." In my judgment that provision must be limited to persons upon whom the council had the right to serve the notice. If the words had been "to contribute to the work and in proportion" &c., of course we should be bound to give effect to them. But the legislature has not said so, and it would seem very strange if the legislature, after first rigidly limiting the class of persons over whom the council had any authority, should then, by language which at best is ambiguous, give the council authority over other persons not within the class if they did not object. The result in such a view would be that a person who under sec. 528 is not liable, would be made liable, if the council thought he ought to be liable. If the section means that, the council can inquire into the facts. It may be that the street so far from being a benefit to the person sought to be charged is injurious to him, that he has never used it and has no right to use it. But if the council think that he has used it, contrary to fact, or that he has the right to use it, contrary to law, he is to be bound, and the exception contained in sec. 528 would be nugatory. That construction is so improbable that if the words are open to another meaning we should adopt it. So far from the words being capable of more than one meaning, I have come to the conclusion, after hearing the arguments, that the plain meaning of the Act is that, in order that a person may be made liable, he must come within the class of persons from whom, under sec. 528, the council have the right to select, and all that is conclusive is the council's apportionment of liability between persons who fall within that class.

I think, therefore, that the opinion of the majority of the Supreme Court is right, and that the appeal fails.

Isaacs J.

I quite agree with what has been said by the learned Chief Justice, and my difficulty is to see any real doubt as to the construction of these provisions. Division 11 of Part XVIII. is headed with words which are a part of the Act, for sec. 1 divides the Act into Parts and Divisions. The heading is "Making, &c., streets, lanes, &c., at cost of certain owners." That is a very good key to the meaning of the whole Division. The idea which runs through this Division is that in the case of streets, lanes, yards and passages which are on private property or are in fact a means of back access to, or of drainage from, property adjacent to them, they may get into such a condition as to be a public danger because they are not properly formed, drained, paved, or otherwise made good. Then there are two alternative methods provided by this Division of removing that danger. One is under sec. 526. The council may do the work and may require the owners of premises which front, adjoin or abut upon those pieces of land to pay for doing it. For a moment I pass over the intermediate sections and point to alternative methods. That is provided by secs. 537 and 538. Sec. 537 provides that if any street, lane, &c., 33 feet wide at least is once formed, levelled, &c., or made good and has been dedicated to the public, then it shall thenceforth be under the care and management of the council, "and such owners shall cease to be under the liability imposed by this Division with respect thereto." Sec. 538 provides as to streets, &c., less than 33 feet wide or not dedicated to the public, that the council may repair them, &c., at the expense of the owners of the premises fronting, adjoining or abutting. So that the owners of land, according to its nature, have two methods of meeting their liability. We are only concerned with the first, and I only mention the second because it throws light upon the first. In sec. 526 the description of owners of premises fronting, adjoining or abutting on a street, though it indicates the persons upon whom this liability may justly be cast, is not a complete description. Sec. 527 enables the council to prepare specifications, plans, &c., and an estimate of the cost and a scheme of distribution setting forth the names of "the persons intended to be made liable." The persons whose names are to be set forth are to be "the owners." Besides them other persons may be interested in or affected by the work, and they, by sub-sec. 2, have power to inspect the specifications, plans, &c., and the estimate. It is contended that the words "persons intended to be made liable" may be wider than "owners."

But then comes sec. 528, which is almost a proviso upon sec. 526, and by sub-sec. 1 of it the legislature in effect say: "Although we have just used very large words in sec. 526 to indicate the persons who are to be liable for the cost of the works it must be remembered that, in the first place, only such of those persons we have mentioned as have the right to use the street or commonly use it are to be liable to pay at all." Then sub-sec. 2 provides for the persons who get the advantage of the work but are not within sec. 526, not being persons whose premises front, adjoin or abut on the place to be improved. There may, for instance, be the well known foot between their land and the street on which it abuts, and although they got all the advantage of the work they would have none of the responsibility. That would not be fair; and therefore the legislature completes its plan of making those who get the advantage of the work pay for it, by providing that if such an owner commonly uses the street or has the right to use it, and if in the opinion of the council the street is for his advantage or benefit, then he may be included as an owner. This single reference to the "opinion" of the council as to persons liable is notable. Sub-sec. 3 only defines the persons meant by "owners," but the other conditions have to be complied with in order to make them liable.

Sec. 529 is a machinery section. I quite agree that the discretion of the council is absolute as to whether the work should be done, how much it should cost, how it is to be done, which of the possible persons liable are to be actually liable, and how the total cost is to be apportioned among them. But it is only a discretion that is absolute provided that the council act within their jurisdiction. They cannot enlarge their jurisdiction; and, if I am right in saying that the central idea of the scheme is to make those owners who are getting the advantage responsible, the council may think that some of those persons are not getting the advantage of the work and may leave them out. But if only those are to be responsible who are getting the advantage, I cannot see how the words in sec. 527 could include persons who are not getting the advantage. It would not only be an injustice to them but it would pro tanto relieve those who are getting the advantage. Whichever way it is looked at, the argument for the appellants is beset with a great many difficulties of construction and reasons of fairness.

I should add that in sec. 536 the use of the word "owner" seems to me to add to the improbability of the appellants' argument being correct.

For the reasons I have given I agree in the conclusion at which the learned Chief Justice has arrived, and I think the judgment of the majority of the Full Court is correct.

Gavan Duffy J.

I agree in the result at which the Chief Justice has arrived, for the reasons stated by him.

Powers J.

I agree.

Appeal dismissed with costs.

Solicitors, for the appellants, Toohey & Wimpole.

Solicitors, for the respondent, Abbott & Beckett.