Kemp v Barber [1918] HCA 51; (1918) 25 CLR 229 (16 September 1918)

HIGH COURT OF AUSTRALIA

Kemp Defendant, Appellant; and Barber Informant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

16 September 1918

Barton, Gavan Duffy and Rich JJ.

Pigott (with him Ah Ket), for the appellant.

Barton J.

I do not suppose that if the informant were fully represented he could make much answer to this appeal. This is a case in which, under sec. 197 of the Local Government Act 1915, there is power in municipalities to make by-laws for "regulating traffic and processions." Under that power the municipality made a by-law for the purpose in which the definition of "footway" is as follows: "Footway includes every footpath, lane, thoroughfare or other public place within the City habitually used by pedestrians and not by vehicular traffic." Clause 33 of the by-law is as follows: "No person upon any street or footway shall to the obstruction or annoyance of any other person thereon give out or distribute to bystanders or passers-by any handbills, placards, notices, ... pamphlets, or papers, and no person shall litter any street or footway by scattering or throwing down handbills, placards, notices, ... pamphlets, or papers." The defendant was fined for distributing pamphlets in a "public place" called Flinders Park. I leave out of consideration the question of annoyance to the public, of which there appears to have been little, if any, evidence, and I come to the more material question: Is Flinders Park a public place in the sense of the by-law? The by-law must be construed within the limits of the power to make it. Flinders Park is not "habitually used by pedestrians" for traffic—in fact there is no traffic there. This by-law was made for the purpose of regulating traffic and processions; that is to say, it was made for giving orderly regulation to the use, in the broad sense, of thoroughfares for traffic, that is, for the public passing and repassing therein. Flinders Park is a flat piece of land adjoining Batman Avenue, which bounds it on the south side, the railway bounding it on the north side. There is no path or footway across it, and it is fenced in with a one-railed fence and is used as a public meeting place. Supposing that the evidence before the magistrates and submitted to the Supreme Court were limited to this statement of the facts, I do not think that the evidence established that Flinders Park is a public place within the meaning of the definition of a "footway" in the by-law. That definition would exceed the scope of the section itself if it dealt with something more than "traffic and processions." Not only, then, is the whole scope of the by-law restricted by the Act, but the restriction is visible from an inspection of the by-law itself. We find that the idea of regulating traffic is made plain in the by-law by such clauses as clause 10, "Every pedestrian upon a footway shall keep to his right hand side of the footway and shall when meeting or overtaking any person pass on the left side of such person," which shows that "footway" as defined means something which is at least definite in direction, and is obviously inapplicable to a place like Flinders Park; clause 20, "No person shall put, throw, or allow to fall and remain upon any footway the skin or peel or stem of any fruit or the leaves or any part of any vegetable"—if "footway" means places used for traffic that is intelligible, but not if it refers to places like Flinders Park; and clause 21, "No person shall wear or carry in any street or footway any pin or other article or any implement in such a manner as is likely to inflict injury by coming in contact with any other person," which, again, is quite applicable to a thoroughfare used for traffic where persons passing and repassing are liable to jostle one another but is quite inapplicable to Flinders Park. On the whole I do not think that Flinders Park can be considered to be a public place within the by-law; and therefore I think that the evidence did not bring the defendant within the scope and meaning of the by-law as one transgressing it, and that the appeal ought to succeed.

Gavan Duffy J.

I agree.

Rich J.

I agree.

Appeal allowed. Order of Supreme Court discharged. Conviction quashed. Appellant to have costs in Court of Petty Sessions and Supreme Court. Respondent to pay costs of appeal.

Solicitor for the appellant, B. J. Parkinson.