Heidelberg Shire v Green [1926] HCA 1; (1926) 37 CLR 363 (18 March 1926)

HIGH COURT OF AUSTRALIA

The President, Councillors and Ratepayers of the Shire of Heidelberg Complainant, Appellant; and Green Defendant, Respondent.

H C of A

18 March 1926

Knox C.J., Isaacs, Higgins, Gavan Duffy and Starke JJ.

Lowe (with him Eager), for the appellant.

Owen Dixon K.C. (with him Robert Menzies), for the respondent.

Eager, in reply,

The following written judgments were delivered:—

Mar. 18

Knox C.J.,

Isaacs J. and

Gavan Duffy J.

This is an appeal by special leave from an order of Weigall A.J. discharging an order nisi to review the decision of a Court of Petty Sessions in a case in which the appellant claimed to recover from the respondent the sum of £9 8s. 7d., money alleged to be payable to the appellant as one-half of the expense of asphalting the footway in front of land owned by the respondent in the Shire. The claim was founded on sec. 540 of the Local Government Act 1915, which, so far as relevant, is in the words following:—"(1) The council of any municipality in such manner as the council thinks fit may cause to be kerbed flagged paved or asphalted the whole or from time to time any portion of the footway or pathway in front of any house or ground along any street or private street within the municipal district. (2) Half the amount of the expense thereof in respect of any portion of such footway or pathway not previously kerbed flagged paved or asphalted by the council shall be borne and paid by the owner of such house or land." The Court of Petty Sessions found as a fact that the portion of the footway in respect of which the claim was made had previously, in the year 1905, been paved by the Council, and that by reason of this fact the respondent was not liable, and dismissed the claim. An order nisi to review this decision was obtained in the Supreme Court, but was subsequently discharged by Weigall A.J., and the appellant now appeals to this Court.

In our opinion the learned Judge was clearly right in discharging the order nisi. The finding of fact that the portion of the footway in respect of which the claim is made had been previously paved by the Council is not now challenged. That finding concludes the matter: for by sec. 540 (2) of the Act the right to recover from the owner a contribution to the expense of kerbing, flagging, paving or asphalting any portion of the footway in front of his premises is given only "in respect of any portion of the footway not previously kerbed flagged paved or asphalted by the council." If, as in this case, the council asphalts a portion of the footway in front of the premises which it has previously kerbed or flagged or paved, the sub-section confers no right to recover a contribution to the expenses of the second operation on that portion which had been previously dealt with. An illustration will serve to make our meaning clear. Suppose that the footway in front of the premises is 100 feet long and 10 feet broad, and that no portion of it has been either kerbed, flagged, paved or asphalted by the council. The council may, if it choose, kerb, flag, pave or asphalt the whole or any portion of the footway. If the council elect to deal at one operation with the whole 1,000 square feet of surface by kerbing, flagging, paving or asphalting, or partly by one of these methods and partly by another, it is clear that under sub-sec. 2 half the total cost of the operation can be recovered from the owner, because no portion of the area has been previously kerbed, flagged, paved or asphalted by the council. If the council elect to do kerbing only, say one foot wide, then for the 100 square feet occupied by the kerbing one-half the cost may be recovered from the owner. But that does not disentitle the council subsequently to flag or pave or asphalt the rest of the footpath, and to charge one-half the cost to the owner. Similarly, if the council elect in the first instance to flag or pave or asphalt a strip, say 3 feet wide or 300 square feet in all, without kerbing, flagging, paving or asphalting any portion of the remaining 700 square feet it can recover from the owner half the cost of the operation, but it cannot, in our opinion, at any subsequent time maintain a claim under sec. 540 (2) in respect of that area of 300 square feet, for it is impossible to assert that that area has not been previously kerbed, flagged, paved or asphalted by the council, though it can recover half the cost of any of these operations subsequently performed on any portion of the remaining 700 square feet which has not before that time been dealt with by the council in any of the methods specified. In order to recover under the section in respect of any given area, whether such area be the whole or a portion of the footway in front of the premises, the council must prove that the area in respect of which the claim is made has not been previously either kerbed or flagged or paved or asphalted by the council. The words of the sub-section seem to us clear and unambiguous.

In our opinion the appeal should be dismissed.

Higgins J.

If the true construction of sec. 540 is that found by the Magistrates, then the result is, in my opinion, clear—that if the council has once kerbed a footpath it cannot in after years asphalt it, or flag or pave it, recovering half the expense from the owner. For when the kerbing edge has been put to the footpath, the footpath is "kerbed"; and should the council want to asphalt it, the owner can allege and prove that it (the footpath, not a portion of it) has been "previously kerbed." When the section speaks of a "portion" of the footpath "not previously kerbed," it can mean nothing but a portion as measured along the length of the path; it cannot mean a portion measured by the depth. This result will tend to make councils hesitate about kerbing—the simple and inexpensive process of putting stones, &c., at the edge of the path so as to keep the earth in, to "curb" it. As a town develops, it is of course common to kerb first and flag or pave or asphalt afterwards. Paving or asphalting is brought in as an improvement on the earlier kerbing; and the lawyer who appeared for the Council very naturally urged that for the Court to say that if once the footpath were kerbed defendant could never afterwards be charged for asphalting would be obviously absurd. But we are thrown back on the words of the section. Substantially, it provides that half the expenses of kerbing, flagging, paving or asphalting, in respect of any portion of such footpath not previously kerbed, flagged, paved or asphalted shall be borne by the owner of the land which the operation fronts. Grammatically the words may mean that if any one of the processes has taken place before, the half of the expenses may not be recovered. The distributive sense for which the Council contends—that the owner must pay for kerbing if no kerbing before, must pay for flagging if no flagging before, must pay for asphalting if no asphalting before—is not favoured by anything in the context, apart from the probabilities of the case a priori. So the rule is applicable that, if the words of the Act would fairly admit of a meaning which does not impose the alleged burden on the owner, that meaning should be accepted. For this reason I concur with my learned colleagues that the appeal should be dismissed.

We have not been referred to anything bearing on the point in the history of the section.

Starke J.

I agree that upon the facts of this case the appeal should be dismissed.

Appeal dismissed with costs.

Solicitors for the appellant, Fink, Best & Miller.

Solicitors for the respondent, Maddock, Jamieson & Lonie.