Criterion Theatres Ltd v Municipal Council of Sydney [1925] HCA 9; (1925) 35 CLR 555 (4 May 1925)

HIGH COURT OF AUSTRALIA

Criterion Theatres Limited Plaintiff, Appellant; and The Municipal Council of Sydney Defendant. Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

4 May 1925

Knox C.J., Isaacs, Higgins and Rich JJ.

Flannery K.C. (with him Davidson and Weston), for the appellant.

Hooton, for the respondent, was not called on.

The following written judgments were delivered:—

May 4

Knox C.J.

For the reasons given by the Chief Judge in Equity, now Chief Justice of New South Wales, I am of opinion that his decision and that of the Full Court of the Supreme Court are correct.

In this view of the case it is not necessary to consider whether or to what extent the provisions of secs. 19 and 20 of the Sydney Corporation Amendment Act of 1905 affect the power of the Court to restrain the Municipal Council from dealing in accordance with the provisions of the Sydney Corporation Acts with land vested in it by force of sec. 19.

In my opinion the appeal should be dismissed.

Isaacs J.

The recent decision of the Privy Council in Municipal Council of Sydney v. Campbell[1] relieves us from considering how far the Governor in Council is constituted by the Legislature the statutory tribunal to examine and determine whether a proposed resumption by the City Council is required or not, and how far an affirmative decision of the Governor in Council can be overriden by a Court, so far as sec. 16 of the Act is concerned. But, starting from the position that the jurisdiction exists and must in a proper case be exercised, I shall assume the second resolution stated in the published notice of resumption to be invalid for the reasons stated in Campbell's Case. Nevertheless, in my opinion, the appeal fails on two grounds. The first is that, after discarding the second resolution, there is left a perfectly valid ground for supporting the resumption. It is not disputed that the first resolution is good; and that carries the part of the land required for widening Park Street. The balance of the land and the part so required, added together, constitute what is described in sec. 16 of the Act as "lands of which those required for such purposes form part." This is a ground entirely independent of, and is unaffected by, the failure of the second resolution. The second ground on which the appeal fails is found in sec. 19, which is untouched by Campbell's Case. The publication of the notice of resumption and description referred to in that section having taken place, the statutory consequence follows, namely, the vesting of the described land in the Council for the purposes of the Act. When Parliament declares that result in unequivocal terms, a Court cannot dispute it. A Court can examine the matter to ascertain whether the conditions prescribed by Parliament have been fulfilled; if they have, there is an end of the matter. And that is the case here.

Higgins J.

In my opinion, this appeal must fail. The error in the resolution for resumption, an error which has been carried on into the notice of resumption published in the Government Gazette and newspapers, does not affect the validity of the resumption or prevent the vesting of the plaintiff's land in the corporation. Looking at sec. 16 of the Sydney Corporation Amendment Act 1905, we find there is power for the corporation to resume all lands required for the purposes (inter alia) of widening, enlarging or extending of public ways, and all lands of which those required for such purposes form part, and any land required for carrying out improvements in, or remodelling, any portion of the City. The plaintiff's land lying along Park Street was included in the resolution for resumption (3rd April 1924). The back portion of that land was not required for the widening of Park Street; but, as the words of sec. 16 show, the corporation had power to take that portion with the rest of the plaintiff's land. The resolution stated, however, that part of the land was required for the purpose of widening Park Street, and that the remainder of the land was required for carrying out improvements in and remodelling that portion of the city in the vicinity of the street. Both purposes are legitimate grounds for resumption; but it is clear on the evidence that the purpose of improvements and remodelling was not within the intention of the councillors who voted for the resolution. The exact origin of the mistake has not been fully traced, but it is clearly due to the confusion resulting from the long-continued struggle as to Park Street between two parties in the Council. Probably the words were in previous resolutions, and no one pointed out that they should be deleted. But the fact remains, whatever was said as to the purposes of the resumption, that there was power under the Act to resume the whole of the plaintiff's land for any or all of the purposes mentioned in sec. 16, and it was in fact resumed for one of those purposes. Under sec. 18 the Council may with the approval of the Governor (in Council) cause a notice of the resumption of any lands together with a description of the land to be published in the Gazette and four Sydney newspapers, and a plan of the land resumed is to be deposited for public inspection. Under sec. 19, "upon the publication of such notice and description, the land described shall, for the purposes and subject to the provisions of this Act, be vested in the council for an estate in fee simple."

Neither sec. 18 nor sec. 19 makes a statement of the purpose or purposes of resumption essential to the validity of the resumption. As soon as the fact of resumption, with the approval of the Governor in Council, and with a description of the property resumed, has been published in the Government Gazette and the four newspapers, the land resumed vests in the Council without conveyance. Probably it is expedient to state the purposes of the resumption in order to get the Governor in Council to approve of the resumption and of the notice (secs. 16, 18); but, as a matter of law, I do not see why a mere statement of resumption under the powers would not be enough to vest the land. Nothing is to be found in the Act that makes an accurate statement of the purposes of resumption essential to the validity of the resumption and vesting; though, if the purpose stated, or one of the purposes stated, were not sanctioned by the Act, it might be very difficult to support the validity of the resumption.

The case of Municipal Council of Sydney v. Campbell[2] has been misunderstood. That is, to put it briefly, a case of fraud on a power—not fraud in any criminal sense, but an attempt to use for purpose B a power conferred for purpose A. The position as expressed by the Judicial Committee[3] was as follows: "A body such as the Municipal Council of Sydney, authorized to take land compulsorily for specified purposes, will not be permitted to exercise its powers for different purposes, and if it attempts to do so, the Courts will interfere." There the Council was attempting to resume lands not needed for any legitimate purpose of extension "solely for the purpose of appropriating the betterments arising from the extension"—an illegitimate purpose. In support of this finding, the Judicial Committee pointed to the fact (inter alia) that no plan of improvement or remodelling was at any time before the Council. But it would be a mistake to think that the Judicial Committee held that a plan of any sort was a condition precedent to the validity of any resumption under sec. 16, or that the Courts are bound to weigh the amount of information which the Council has acquired, or the inquiry which it has made, before it attempts to resume (cf. Marquess of Clanricarde v. Congested Districts Board for Ireland[4]).

Rich J.

In March 1924 the Council resolved to take the subject land. The approval of the Governor was asked, and he was informed that part of the land was required for the widening of Park Street and the rest of it for carrying out improvements in and remodelling the City in the vicinity of Park Street. He had then a statutory power to exercise, and the Governor there means Governor in Council, i.e., the Ministry of the day. With these purposes before him the Governor in Council approved of the resumption for those reasons and also approved of the publication of the resumption. The publication was about to follow, but was stopped by these proceedings until after the Full Court dismissed the appeal from the Chief Judge in Equity refusing the injunction. On 6th June 1924 the publication was made in the Gazette and on or about the same time in four daily Sydney newspapers. When this appeal came before this Court originally the case of Municipal Council of Sydney v. Campbell[5] was pending before the Judicial Committee. Very serious questions presented themselves to us at that time as to whether sec. 16 of the Sydney Corporation Amendment Act was really on all fours with cases in England where statutory bodies had been held not to have exercised their powers bona fide. There the Court necessarily entertained the question. But in the New South Wales Act statutory provision is made for controlling the conduct of the Municipal Council. That control is placed in the hands of the Governor in Council. The function of the Governor in Council could not be exercised without examining the whole matter anew; that is to say, there must be two independent opinions expressed as to whether the land is required for the alleged purposes or not. If the Governor in Council thinks for any reason that approval should be withheld, it is withheld. It may be because the Governor in Council thinks that the purpose is not sufficiently great, or that financial considerations forbid resumption, or that the Municipal Council has not properly considered the matter. If approval is given, it must be because the Governor in Council affirmatively decides that it is proper in the public interest to carry out the work. That a Court can afterwards cover the same or a great deal of the same ground, and come to a different conclusion which is to prevail notwithstanding the Governor in Council's decision, is very serious. Moreover, if the Court can revise the Council's proceedings, why can it not revise the proceedings of the Governor in Council by finding that that body did not properly apply its mind to the same questions as the Municipal Council is expected to do? However, this case was adjourned, and the judgment of the Privy Council finally answers those questions by deciding that the Governor in Council's approval is no obstacle to the inquiry by the Court. The objection raised in this case to the second resolution is therefore open. But, whatever may be said as to the invalidity of the second part of the resolution, the first part of the resolution was not attacked. That includes the appellant's land fronting Park Street. The inclusion of the remainder of such land is not left to implication as in Galloway v. Mayor of London[6], but falls within the express provisions of sec. 16 as part of the land effectively taken by the first part of the resolution. Moreover, all conditions precedent to vesting under sec. 19 were fulfilled and, the statutory vesting having taken place, this Court is unable to canvass it. The appeal therefore fails.

Appeal dismissed with costs.

Solicitors for the appellant, W. H. Drew.

Solicitors for the respondent, Dawson, Waldron, Glover & Edwards.

[1] (1925) A.C. 338.

[2] (1925) A.C. 338.

[3] (1925) A.C., at p. 343.

[4] (1914) 31 T.L.R. 120; 79 J.P. 481.

[5] (1925) A.C. 338.

[6] (1866) L.R. 1 H.L. 34.