Grahamstown & Campvale Swamps Drainage Trust v Windeyer [1915] HCA 81; (1915) 20 CLR 653 (14 December 1915)

The Grahamstown and Campvale Swamps Drainage Trust Plaintiffs, Appellants; and Windeyer and Another Defendants, Respondents.

In my opinion this appeal should be allowed. It is not a matter for surprise that diverse views are held, because at first sight, and reading apart from their setting the words with which we are more immediately concerned, the first impression is that they lead to the result arrived at by the majority of the Supreme Court. But those words must be read in conjunction with all that accompanies them, both before and after, and after so reading them, I am carried to the conclusion that the view adopted by Ferguson J. was correct.

The matter appears to stand thus. Part III of the Water Act 1912 provides for the constitution of various kinds of water trusts, as for conservation, supply, irrigation, drainage, prevention of floods or control of flood waters. The present is a drainage trust. The Statute enacts that, in the case of such a trust, the Minister proposing to establish it and the necessary works shall first of all notify in the Gazette and in some newspaper circulating in the district affected by the works his proposal containing various particulars. Having thus given public notice to the inhabitants, landholders of the proposed district, eight weeks are allowed them to raise objections. If within that time a petition signed by at least one-third in number of the occupiers of Crown lands and owners of other land is presented to the Minister, objecting to the scheme, inquiry is directed before the trust is constituted. Now, so far the point to be noticed is that all the occupiers of land within the proposed district are considered interested, and plainly because every one of them is a possible ratepayer.

After the constitution of the trust, but before completion of the works, and, therefore, be it observed, before actual benefit to any particular land can be asserted, trustees are to be appointed, and the first election of trustees is directed to be made. Where the trust district consists wholly of land acquired under the Closer Settlement Act or unoccupied Crown lands, the trustees appointed shall hold office, as sec. 42 declares, "until half the land in the district is occupied by persons who are liable to pay rates to the trust." Now, this section is of the highest importance in construing the whole Part. What is meant by the expression "persons who are liable to pay rates"? Does it mean actual ratepayers, or does it mean, as I think it does, persons who are potential ratepayers, that is, actual occupiers of land within the trust district, whose lands may or may not be found to be benefited? The latter are, in my opinion, "liable to pay rates." If this were not so, then an impasse might be created at the very threshold. By the argument no one is liable to pay rates until his lands are in fact benefited by the works, and, inasmuch as the works are possibly not yet constructed, therefore no one is liable to pay, and therefore, also, sub-sec. 2 of sec. 42 could not operate. The appointed trustees would then have to proceed until the works had reached the condition when at least half the landholders were in fact benefited. So "persons liable to pay," unless that extraordinary result is to follow, must mean simply occupiers of land within the district. Sec. 44 enables the first rolls of electors to be compiled by the Minister placing on the list those persons who "in his opinion" will be liable to pay rates to the trust. The words "in his opinion" are inserted because that is final. Subsequent rolls are to be of persons "liable to pay," and the trustees' opinion is not final, because the Police Magistrate may revise the list. But as he is to determine who are in fact "liable to pay rates to the trust," we have again to ask whether he is to consider the persons whose lands are in fact benefited, or simply whether a person is a potential ratepayer in the sense of occupying land.

In my opinion, at that stage the inquiry does not involve the question of actual benefit. If it did, then, independently of the possible non-completion of the works, the gradation of voting power would not be placed on the sole question of acreage.

Sec. 47 provides that any person entitled to vote may, with a certain exception, be elected as trustee. Again, that must mean a potential ratepayer, otherwise if his land were found not to be actually benefited the year's rating might be challenged at its source.

Sec. 55 declares that trustees shall have certain duties and powers. Observe it is their duty, supported by the necessary attendant power, to fix and levy rates to provide for the maintenance and management of the works and for interest, charges and sinking fund, and to pay interest and sinking fund to the Treasury.

Now we come to sec. 55. The paramount financial duty of the trustees being to provide the necessary money by rates, they are told that they "may fix and levy rates upon the whole of the lands within the trust district as follows." Having regard to what I have pointed out, namely, that all the occupiers of land within the trust district are potential ratepayers, those words "upon the whole of the lands within the trust district" indicate the ambit of official consideration which the Legislature has specifically and directly assigned to the trustees; in other words, the sphere of trust jurisdiction and the limits of the trust district constitute the external boundaries of that jurisdiction. They are to take the whole of the lands of the district into their consideration, and then they are to fix and levy rates in respect of all those lands "as follows," that is, in the several sub-sections. What "follows" shows that the necessary elements of consideration required to carry out the directions of the Legislature cannot be preliminary or collateral to the statutory power of the trustees, but are part of the very process of official action which the Legislature has imposed upon the trustees as a duty, and unless some independent limit such as the maximum amount of rate be contravened, what the trust do cannot be regarded as beyond their jurisdiction. Using by analogy a term more appropriate to a judicial determination, those elements are parts of the res judicanda. I apply to this branch of the case the observations and illustrations found in my judgment in Amalgamated Society of Carpenters and Joiners v. Haberfield Proprietary Ltd.[1].

Having before them in review all the lands of the trust district, and having a definite lump sum to provide out of rates upon those lands, the trustees are told in effect to apportion that sum among the lands benefited at so much per acre, where it is stock supply, or so much per mile frontage, and, if the trust choose, they may adjust benefit and burden still more closely by varying the rate. If the purpose be domestic supply, then each tenement bears its share of the whole, equally or variably.

If, as in the present case, the trust be a drainage trust, they fix the rate at so much for every acre benefited, and they may, in so doing, vary the rate according to distance of the land from drains, and in proportion to the benefit received. In irrigation trusts, the rate is to be on the irrigable land, and a certain resulting right to water accrues. Then comes sub-sec. (e), which appears to me decisive. It runs thus: "In all cases not otherwise in this section provided for, a rate per acre of the land benefited, directly or indirectly, by the works shall be fixed yearly, and shall, as far as practicable, be in proportion to the benefit received as aforesaid." As the direction to make the rate proportionate to benefit is imperative, it is, on the face of it, an impossibility for the trust to fix the rate without considering the fact and extent of benefit. In other words, benefit or no benefit, and, if benefit, how much proportionately, is part of the function committed by Parliament in that instance to the trustees. If in that instance, why not in all others? Then in par. (f) it is enacted that, "in the case of a supply for more than one purpose, separate rates may be fixed, calculated on the basis set out for each such purpose." This affords additional light leading to the same conclusion. It contemplates, say, a supply for stock and a supply for domestic purposes and a supply for irrigation, all combined in one trust scheme, then the trust must, as a business proposition, set out separately the money basis representing each of those purposes, and fix separate rates "calculated" as to each set on its own basis. It is then an apportionment within an apportionment.

Having fixed the rate, and thereby necessarily assessing the amount of this liability, by considering the acreage of each individual liable within the district, and the fact, and, in some cases, the comparative measure of benefit he enjoys, he is primâ facie bound to pay. Sub-sec. 2 says "All such rates shall be payable by the occupiers of the lands."

But the Legislature, when enacting this new statutory liability, enacted with it, and as part of the code a specific mode of challenging liability. In the same section, 55, it is provided as follows:—"Any occupier aggrieved by the amount at which he is rated may appeal to the Police Magistrate having jurisdiction in the district, who shall hear and determine the matter, and may confirm or vary such amount."

This indicates a strictly judicial tribunal already existing, with known attributes, specially designated for the purpose, and which, according to the ordinary practice and procedure of that tribunal, is to "hear and determine the matter." Who is an occupier? I take it to mean any occupier of land who is called upon to pay a certain amount. What is "the matter"? It is the appeal of an occupier aggrieved by the amount at which the trust have rated him. What is the "amount" of the rate? It is the sum which an occupier is called on to pay and which results from the operation of the elements of acreage of actual benefit, in some cases of proportionate benefit, of the total amount to be received by the trust, and the number of acres or tenements, as the case may be, actually benefited.

How can the Police Magistrate determine the matter as to what amount of rate the particular appellant should bear, without ascertaining the extent of the benefit, if any, enjoyed by his lands? It cannot be said of the Police Magistrate that the existence of a benefit is a preliminary or collateral fact on which his jurisdiction depends. He must, in order to discharge the express duty cast upon him, investigate by legal evidence the relative amount of benefit accruing to the appellant's lands from the works. His finding on that point is not merely for the purpose of the day, but for the purpose of finally binding the parties. It is the height of absurdity to say that his finding as to the extent of benefit is binding in law, and yet that the law also leaves it open to another tribunal on prohibition or other original proceeding to say there was no benefit at all, absolute or relative. But that is involved in the argument that the Police Magistrate's decision must be based on quantum only, leaving actual benefit undetermined. Some difficulty may be occasioned by the laconic direction of sub-sec. 4. Still, it is a direction not only deliberately given by the Legislature, but one inserted by amendment. It must, therefore, be carried out according to the rules of practice usually followed in the Court, aided, where necessary, by the requirements of natural justice.

But the direction so given indicates beyond any reasonable doubt the intention of the Legislature. It indicates that the total amount fixed by the trust as their financial requirement must be adhered to, and must be borne by the persons rated in such proportions as the trust fix, or by such of those persons in such proportions as on appeal the Police Magistrate determines. He cannot add to the list of contributors, and he cannot diminish the rating so as to produce an aggregate less than the sum the trust have fixed.

But if he reduces the amount claimed from an appellant, he must do so on the principle that his true proportionate share is less than such amount. This connotes that the true proportionate contributory share of others is greater, and should be increased accordingly. The onus lies on the appellant to establish this, and that requires the presence of the others affected. So that in ordering the proper reduction of one, the Magistrate is in a position of making the corresponding increase in respect of another ratepayer or ratepayers. It may be that the appellant can thus reduce his contribution to a very small amount, or can show that he is not benefited at all, and that as between him and the others he ought not to be a contributory at all. So much is clearly within the power to "hear and determine the matter."

The section starts with the assumption of a fixed required sum and affords the means of "providing" the money, and it concludes with a direction to maintain the provision for that sum in its integrity. It follows that either the Legislature has treated the trust's conclusion as to the fact of benefit as final, leaving quantum only to be revised by the Police Magistrate, or—as I think preferably—it has accepted as final the determination of the trust that the area of benefit does not extend beyond those persons they have rated, and that the sum must be found by those persons either equally whatever their relative shares of benefit may be, or in proportion to their respective benefits, which in a given case may be nothing.

This all assumes that the lands are within the district, and that no extra-territorial jurisdiction is assumed; it also assumes that the other external requirements of the Act as to maximum rate, shall be observed. It concerns itself only with the internal working out of sec. 55, and the practical application of the various sub-sections of sec. 55 to the circumstances of a given trust district is only an internal working out of the section.

The fact that part of the mechanism of that section is the determination of a competent Court of Justice completely answers any objection that explicit words are necessary to deprive a person of a right to litigate an objection to liability. The specific right is given, in a particular mode, with respect to a new statutory obligation, and that method must be followed. The principle of Pasmore v. Oswaldtwistle Urban District Council[2] is applicable. No reason can be assigned for refusing to the Police Magistrate the power under sub-sec. 3 which it is claimed is given to him by sec. 72.

The meaning of the section, in my opinion, is that the trustees' fixation, so far as it is confined to the district, and conforms to other external legal conditions, is to be taken as the legal rate unless altered by the process mentioned in sub-secs. 3 and 4. When sued for under sec. 72, the objection that in fact no benefit from the works attaches to the land rated is not a competent objection, and the tribunal before which the claim is made is not the tribunal intended to determine that fact.

In my opinion, therefore, the appellants are entitled to succeed. I would only add as to Mooney's Case[3], that the Privy Council appear to have left open the question as to the result of not exercising the prescribed right of appeal.

In my opinion the conclusion arrived at by Ferguson J. was correct. I consider that the defendants were not entitled to set up the defence that the subject land was not in fact benefited. Within the area committed to them the finding of the trustees as to the fact of benefit is final, subject to an appeal to the Police Magistrate as to the amount of the rate.

Appeal allowed. Order appealed from reversed. Appeal from District Court allowed. Judgment for plaintiffs in the District Court. Parties to bear their own costs in all Courts.

Solicitors, for the appellants, T. A. Hill, West Maitland, by Weaver & Allworth.

[1] [1907] HCA 37; 5 C.L.R., 33, at pp. 52 et seqq.

[2] (1898) A.C., 387.

[3] [1907] UKPCHCA 1; (1907) A.C., 342; 4 C.L.R., 1439.

High Court of Australia

Grahamstown & Campvale Swamps Drainage Trust v Windeyer [1915] HCA 81; (1915) 20 CLR 653 (14 December 1915)

HIGH COURT OF AUSTRALIA