Williamstown Town v Box [1919] HCA 6; (1919) 26 CLR 103 (27 March 1919)

HIGH COURT OF AUSTRALIA

The Mayor, Councillors and Burgesses of the Town of Williamstown Plaintiffs, Appellants; and Box Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

27 March 1919

Isaacs, Higgins and Gavan Duffy JJ.

H. I. Cohen, for the appellants.

Schutt, for the respondent.

H. I. Cohen, in reply.

March 27

Isaacs and Higgins JJ.

This is an appeal from a decision of the Supreme Court directing a judgment for the respondent. The appellant Municipality sued the respondent to recover moneys alleged to be due under the Local Government Act. The Municipality had two alternative claims, one being rested on a scheme of distribution under Part XVIII. of the Act and the other on a special improvement charge under Part XXXVI. The action was originally tried in the County Court, where judgment was given on the first alternative claim, the learned Judge holding also that there was an agreement which in the events that had happened barred the second alternative claim. The present respondent, Box, appealed to the Supreme Court, which held that the agreement extended to both claims and barred both.

After considerable argument in this Court, the parties have very wisely, both for themselves and for others concerned, agreed, if the Court thinks there is no binding agreement as alleged, to settle the litigation between themselves on the terms to be presently stated. And as there are somewhere about 120 to 130 persons against whom similar claims may be made, and in view of the great desirability of ending litigation and disputes that have been extending over several years, we think it is our duty to express authoritatively the definite opinion we have formed on the question of the agreement. There have been two different findings by the two Courts, and the real meaning and effect of what took place with regard to it has been so much a matter of controversy and doubt that we feel it would be an encouragement to further litigation if we were to refrain from expressing authoritatively our view, seeing how thoroughly and exhaustively it has been contested and argued.

In our opinion there was no binding agreement at all. The whole arrangement, though very sensible and expedient from the standpoint of not launching one hundred and thirty actions at once before the position could be ascertained in one or two, was nothing more than a loose practical business arrangement. Not a word was said about the Council being bound. No doubt the owners felt desirous, and perhaps expressed their intention, of accepting individually the result of one thoroughly fought action. But as for the Council being bound, there is not a trace of any such expression in the evidence. The whole transaction was of the most informal character. No legal advice was taken as to the legality or form of such an agreement. No statement was made as to the points in dispute, whether total liability was denied, or whether the objection was to formalities. No questions were asked as to the authority to bind the various owners given by them to the members of the Committee who met the Finance Committee of the Council. It does not appear even now that all the owners were members of the Committee, or would be bound if the decision of Spear's Case had been the other way: and, worse than all, the one condition on which the supposed bargain rested, namely, what test action or actions should be brought, is of the most unsatisfactory and diverse character. As a basis for a loose business arrangement leaving room for subsequent consideration, it is understandable; as a strict condition for a most unusual and questionable bargain, it is extraordinary. The Town Clerk says he never heard of such a bargain. The witnesses for the defence give very vague testimony on the subject:—Lydiate says the arrangement was to take one or two from each street. Box says it was to summon one or two. Hoyle says it was to summon two, one only in each street. Bliss says it was to take one or two to represent the whole of the residents. Roger says it was one from each street, and make that do for the decision of the rest.

The report of the Finance Committee was made on 15th September 1914, and is found in Exhibit No. 8, and is as follows:—"The Committee report that a deputation consisting of Messrs. Box, Hoyle, Lydiate and Bliss waited upon them, and asked that, instead of prosecuting all the property owners in River Street and Home Road for the recovery of charges for constructing the streets, one case only be taken, when the result would be accepted by all. The Committee decided that at least two cases should be proceeded with, one in Home Road and one in River Street, and that a ballot of all the names should be taken to determine the persons to be proceeded against." Speaking of the property owners, it will be observed that it says they desired that "one case only be taken, when the result would be accepted by all"; but that the Committee decided that "at least two cases" should be proceeded with, one in Home Road and one in River Street. This recommendation, which is that "at least two cases" be proceeded with, was adopted by the Council; and this is the only pretence for saying the Council made the alleged contract. It is clear that to resolve that "at least two cases" be taken without even using or adopting the expression "test cases" does not support the defence set out.

The adoption of the report took place on 22nd September 1914, and it was decided to select the favoured objects of litigation by drawing names from a hat. Only one drawing took place, no distinction being made as to streets. It was—as it now appears—Spear's good fortune to have his name drawn. Another name was also drawn, but, as that was the name of a widow, she was not proceeded against. What then seemed her good fortune is now, to say the least, questionable. In the end, Spear's was the only action gone on with. Having regard to the evidence adverted to, and to the newspaper report of 25th September 1914, it seems very clear that there was no intention of making a binding contract, but merely of coming to some interim businesslike and inexpensive way of dealing with the situation. What was done would enable the position to be cleared up sufficiently as to all aspects of both streets, and to enable everybody to come to a definite understanding or course of action. But that course of action was not finally determined beforehand. There was no such agreement as is set up.

The finding as to agreement being cleared out of the way, there remains only the question of liability, on the facts that occurred. As to this the parties have consented to the following order: (1) That the appeal be allowed; (2) that the judgment of the County Court be varied by substituting the second alternative and entering judgment in that Court for the amount claimed and interest under the claim in respect of the special improvement charge; (3) that each party shall bear its and his own costs respectively in all Courts. That renders it unnecessary to express any opinion on the many questions of law raised on the appeal.

Gavan Duffy J

. read the following judgment:—

I assent to judgment being entered in accordance with the agreement of the parties. I shall say nothing more, because I do not desire to express an opinion which would have no judicial force.

By consent, appeal allowed; judgment of County Court varied by substituting the second alternative and entering judgment for the amount claimed and interest under claim in respect of the special improvement charge; each party to abide its and his own costs respectively in all Courts.

Solicitor for the appellants, James Hall.

Solicitors for the respondent, D. H. Herald & Son.