Katoomba Municipal Council v The Katoomba & Leura Gas Co Ltd [1917] HCA 39; (1917) 23 CLR 292 (23 August 1917)

HIGH COURT OF AUSTRALIA

The Council of the Municipality of Katoomba Appellants; and The Katoomba and Leura Gas Company Limited and Another Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

23 August 1917

Barton, Isaacs and Rich JJ.

Leverrier K.C. (with him Hammond), for the appellants.

Knox K.C. and Watt, for the respondent Company, were not called on.

Barton J.

In this case the Supreme Court dismissed a rule nisi for a mandamus to a Police Magistrate to settle a dispute as to the amount of the fair rental charge made by the appellants, in assumed pursuance of sec. 209 of the Local Government Act 1906, in respect of the pipes of the respondent Company, which dispute he would have had jurisdiction to settle if the matter had properly come before him. The Supreme Court held that to use its discretion in favour of granting a mandamus would be a useless, in fact a futile, act in view of the decision of this Court in the case of the Australian Agricultural Co. v. Newcastle Municipal Council[1], for they held that the present case is concluded by that decision. On this appeal it was first argued on behalf of the appellants that this Court should with a fuller Bench reconsider that decision. I see no reason for doing so. The question remains whether that decision can be distinguished. I do not think it can be, or at any rate that it has been, distinguished, and, notwithstanding some expressions in the judgment of O'Connor J. which point the other way, it is enough to say that the judgments of the learned Chief Justice and of my brother Isaacs are quite sufficient to cover this case, and I have no doubt of the concurrence of those two judgments. If they are accepted as covering a case like this, where parliamentary authority has been given by a private Act before the institution of the particular municipal council, it seems to me there is no more to be said, except this, perhaps, that Mr. Leverrier has called attention to the words "who have laid or erected" in sec. 209 and has said that there is nothing for them to operate upon if the view taken by the Supreme Court is adopted, or, rather, that the necessity for giving some force to those words has not been fully considered. I think that those words do not stand in the way of a judgment for the respondents in this case. In sec. 175 of the Municipalities Act 1897, the concluding part of the first paragraph gives a sufficient field of operation to the words of sec. 209 to which I have referred. On the whole, therefore, I think that the appeal should be dismissed with costs.

Isaacs J.

I am of the same opinion. I do not desire to add anything to the reasoning that is found in my judgment in the Australian Agricultural Co.'s Case[2]. That case has stood now for several years and Parliament has not thought fit to alter the law as it was there declared. I would add that if Mr. Leverrier were right this result would follow:—By sec. 2 of the Katoomba Lighting Act the promoters are authorized and empowered from time to time to make and erect certain plant, &c., for supplying gas, and for such purposes to open and break up streets within the municipality and to lay gas-mains and pipes thereunder. That is a standing parliamentary authority to lay down gas-pipes, and is not in any way qualified by the Local Government Act 1906, and for that purpose the Company do not require the permission of the Council. Not only is it clear that they could put down gas-pipes after 1906, but it appears that they have done so and without the permission of the Council. For the pipes laid down after 1906, the Company would manifestly not be liable under sec. 209. Is it to be supposed that they are made liable for the pipes laid down before that time under precisely the same authority? As I said in my judgment in the previous case, the spirit of the thing would rather tell in favour of a decision preserving their freedom for pipes laid down before that time. That consideration seems to strengthen the former decision very much.

Rich J.

I agree.

Appeal dismissed with costs.

Solicitors for the appellants, Hughes & Hughes.

Solicitor for the respondents, C. A. Coghlan.

[1] [1910] HCA 17; 10 C.L.R., 391.

[2] [1910] HCA 17; 10 C.L.R., 391.