Sandringham v Rayment [1928] HCA 13; (1928) 40 CLR 510 (7 June 1928)

The Mayor, Councillors and Citizens of the City of Sandringham Complainant, Appellant; and Rayment Defendant, Respondent.

The appellant sued the respondent in the Court of Petty Sessions to recover an amount alleged to be due in respect of the forming, paving, &c., of a street in the Municipality of Sandringham and obtained an order for payment of the amount claimed. The respondent obtained from the Supreme Court an order setting aside the order of the Court of Petty Sessions and dismissing the complaint. The appellant now appeals by special leave to this Court.

Division 11 of Part XVIII. of the Local Government Act 1915 deals with the making, &c., of streets or lanes at the cost of certain owners. By sec. 526 the Council is empowered to recover the cost of making certain streets from the owners of the premises adjoining or abutting thereon. It is not disputed that the street which was made in the present case was within the provisions of this section or that the respondent was the owner of premises abutting on the street so made. By sec. 529 (b) the Council is required to serve on every person intended to be made liable under sec. 526 a notice in writing setting forth that on a date therein mentioned and being not less than fourteen days from the service of such notice the Council will proceed to consider the scheme and the liability of such person in respect thereof.

In this case the notice given was defective inasmuch as the date named in it as that on which the scheme would be considered by the Council was less than fourteen days from the service of any of the notices served. The words of the section are plain and free from ambiguity and we see no reason for holding that the notice required by sec. 529 is to be regarded as a mere idle formality to be complied with or disregarded at the option of the Council, or that the requirement of not less than fourteen days' notice is satisfied by a notice of less than fourteen days. The object of this part of the statute is to enable the Council to impose a pecuniary liability on owners of property within the municipality and, in our opinion, the Council should be held strictly to the performance of the conditions on which it is authorized to exercise the power. We think the giving of a proper notice was a condition of the authority of the Council to execute the works at the expense of the property owners and that, as the notice given was insufficient, it is as if no notice had been given (see Bristol Corporation v. Sinnott[1]). But it was argued that the respondent was precluded by sec. 532 of the Act from relying on the insufficiency of the notice. That section provides that upon adoption of the scheme every person upon whom notice has been served shall be considered as having admitted that the Council has complied with all the requirements of the Act and also his liability to contribute.

We agree with Irvine C.J. in thinking that the "notice" referred to in this section means the notice required by sec. 529, and that for that reason sec. 532 has no application in this case.

The appellant contends that the respondent has waived the condition requiring fourteen days' notice to be given or is estopped by his conduct from asserting that that condition has not been performed. The respondent answers that the condition in question could not be waived by one of the persons on whom the notice should have been served, nor could he be estopped from relying on the fact that it had not been performed, and that in any event there is no evidence of any waiver by the respondent or of any such conduct on his part as would raise an estoppel against him. We agree with Irvine C.J. in thinking that the facts proved in this case do not establish either waiver or estoppel; and in this view it is unnecessary for us to express any opinion as to whether the condition imposed by that section could be waived by one of the persons affected or whether he could be estopped from relying on its non-performance.

In 1923, Bath Street, Sandringham—a street set out on private property—was in what the City Engineer in his evidence graphically described as being "a deplorable state." The Council determined to put the street into proper condition. It proceeded under sec. 526 and following sections of the Local Government Act 1915, which authorize councils in similar cases to do the work and charge it—not to the public, but to the private owners who ought, in the opinion of Parliament, to bear the cost of doing it, before throwing upon the general ratepayers the burden of maintaining the street. The clear policy of the Legislature is that those having or exercising the rights of private ownership in respect of the street—that is, the owners of the premises fronting, adjoining or abutting on the street, the successors of the private owner for the benefit of whose property the street was set out—ought in the first instance to pay for removing the public danger or menace to health that the street has occasioned. The work has been done at a cost of between £400 and £500, and the private owners have all the direct benefit of it. The Council has demanded from each his just proportion; but they all, including the respondent, refuse to pay anything, leaving the burden to be borne either by the general community (contrary to the declared policy of Parliament) or, possibly, by the councillors personally. The Council proceeded to recover the assessed proportions in the Court of Petty Sessions, and obtained a verdict. On appeal to the Supreme Court that was reversed. From that decision this appeal is made, and there have been two arguments in this Court. The outcome of this exhaustive and costly discussion is that no flaw whatever in the Council's proceedings or its right to recover exists, except one that is suggested, and this has given rise to a contention which I think may fairly claim to have reached almost the highwater mark of technical formality to the denial of plain justice.

The statutory directions contemplate that every one of the frontagers—as I may for brevity describe the private contributors—shall have "not less than fourteen days'" notice before the Council considers the scheme. All the frontagers had far more than fourteen days' notice before the scheme was considered and adopted, but the objection that is said to be fatal arises in this way:—After the Council had determined to consider the work, the Town Clerk prepared the usual notices to the persons "intended to be made liable," as directed by the statute. The notices were posted on 10th January 1924, and the date for consideration was mentioned therein as the 24th. The notices were posted on the 10th and delivered next day. Apparently the Town Clerk was not aware of the existence of some decisions which can easily be found by legal experts in Stroud's Judicial Dictionary and such like works, and which hold "not less than" so many days to be equivalent to so many "clear" days. On posting on the 10th a notice dated the 10th, the postal delivery of the notice being on the 11th, he evidently thought "not less than fourteen days'" notice would be given. He was, of course, wrong. True it is that, including the 11th as the first day, the 24th would be the fourteenth day. That, however, is not technically the same as fourteen "clear" days. And so, after three years, and long after the work was done, and after conduct utterly inconsistent with fair dealing, this slip—not a culpable error, but an honest error which in no way affects the merits, which was never relied on when it could have been cured, if necessary—is by forensic ingenuity brought forward as one of the defences—and now the only one—when legal proceedings are taken to compel this most just contribution.

It is practically free from doubt, and the Police Magistrate who heard the witnesses believed, that the respondent was present with others of the owners at the council meeting on the 24th. That finding cannot be shaken. As to the part he played, the evidence leaves no doubt whatever. It rests partly on the affidavit of his own solicitor, and partly on the answering affidavit of the solicitor conducting the case for the Council. According to long-established practice in cases of this kind, the latter, in case of conflict, prevails. The relevant facts are these:—Taking his own admitted testimony and his letter together, he admitted: (a) that he was present at three meetings of the Council and protested against the remaking of the street, clearly on another ground than that now relied on; (b) that he was the elected spokesman for the delegation, as he called it; (c) that no objection was taken by anybody that the notice was too short; (d) that he knew objections could be made. It was added in the answering affidavit that he told the Council what his objections were, and that neither he nor anyone else took an objection to the short notice. Irvine C.J. says in his judgment[2]: "I have no doubt that the Council have trusted to the fact that no objection of this kind was made, and have proceeded to construct the works, and have expended their money upon it." And again[3]: "The facts here show that the applicant" (the present respondent) "objected at the meeting of the Council on 24th January 1924 to the power of the Council to execute the proposed works, though only on the ground that the work had been done previously."

We have, therefore, two Courts concurrently finding the facts necessary for waiver or estoppel, if these be legally possible in view of the statute. Independently viewing those facts, I come to the conclusion that so far from the finding being demonstrably or convincingly wrong, as it ought to be before we could disturb it, there could not be a plainer case of waiver, if that is possible here. So that, apparently, he was quite prepared to contest, and did contest, his liability on another ground (now abandoned), and the only point raised by him and his fellow-contributors was one which the Council deferred for the opinion of its solicitors and its own subsequent consideration. The opinion was given; the subsequent consideration was bestowed upon it, and, there being no further objection taken, the scheme was adopted, the liability of the Council incurred and the work done. Then, when legal proceedings are instituted, this point is sprung on the Council.

If waiver is possible, there could not be a plainer case. It would be mere pedantry to cite authorities that every person is presumed to know the law, or, as it is sometimes put, that ignorance of the law is no defence or excuse. If it were otherwise, many a criminal would have an easy method of escape. There is no doubt the respondent knew the facts, and knew them as well as the appellant or its officers. In those circumstances there is not only the authority of this Court that "waiver ... is a conclusion of law when the necessary facts are established" (Craine v. Colonial Mutual Fire Insurance Co.[4]), but there is also the later authority of the Privy Council in Fuller's Theatre and Vaudeville Co. v. Rofe[5] to the same effect. Consequently, if waiver may take place, then beyond all doubt it has taken place. The respondent's conduct is equally open to be called estoppel, if that also is legally possible.

There is no doubt, as will be seen presently, the Council has acted throughout in perfect good faith and in the general interest; but it is said that this slip, trifling and unimportant, is irretrievable and nullifies the validity of all the Council has done. It is said that if all the frontagers expressly stated their intention to waive the deficiency of time since service, and so led the Council to do the work and incur the expense, that would be unavailing. I am unable to accept such an extreme argument. If, notwithstanding the conduct of the respondent and his fellow-frontagers, the manifest policy of Parliament is to be thus unjustly defeated, it seems to me the duty of Parliament is both plain and urgent. If by an unfortunate and hitherto unsuspected blunder, which after at least a quarter of a century of municipal administration has been suddenly unearthed, it has failed to express itself at once intelligibly and consistently, then, the sooner it does so, the sooner it can make its legislation beyond question what in my view it already is — a plain, just and workable scheme. In my opinion, both independently of waiver, and still more in presence of waiver, the respondent is liable.

The determination of this case really turns, in the first place, on the interpretation of a few words of sec. 531 of the Act. These words are: "Upon the date so fixed or on any date to which the consideration of the matter may be adjourned the council may," &c., adopt the scheme. The result depends, in the second place, and alternatively, on the construction to be placed on sec. 532 of the Act. Personally, I see no ambiguity and no difficulty in interpreting the words of sec. 531 in the sense contended for by the appellant. Full consideration has also convinced me that the appellant's construction of sec. 532 is correct. In the third place, there is the question of waiver, in which for this purpose I include estoppel, to which I consider the legislation undoubtedly open. But, even conceding ambiguity, there is a familiar principle of statutory construction which comes into play. It is that if an Act of Parliament is not intractable and can be read in either of two ways, the one consonant with reasonableness, justice and working effect, and tending to advance the public welfare, the other making the operation of the Act unreasonable, unjust, almost unworkable, and tending to defeat the public object of the enactment, the first is to be preferred.

Section 531.—This is the section, and the only section, giving the Council the power of "adoption" of the scheme. Sec. 529 is not the relevant section for that purpose: it refers only to the serving of the "notice" and what it is to state, together with a phrase which could not possibly refer to the contents of the notice, because it refers to an event occurring after service. It has, however, a bearing as context in determining the interpretation to be placed on the words quoted from sec. 531. I take first the words "the date so fixed." "Fixed" for what? For the Council's meeting to consider the matter. "Fixed" by what? Clearly, by the terms of the notice. These words must mean the same as "date therein mentioned" in sec. 529. The respondent contends that "the date so fixed" means the compound phrase "date so mentioned and not being less than fourteen days from the service of such notice." A little practical consideration ought to aid the normal meaning of the language to dispel that notion. The normal meaning of a "date fixed" is a definitely appointed date, and not a date varying according to future and yet unknown circumstances. Its primary purport here is as a "date fixed" for the councillors themselves, on which they are to assemble for the stated purpose, and therefore it must in itself be independent of any service on other persons. The normal meaning of the phrase "not less than fourteen days from the service" is any time after fourteen days after service, it may be one, ten, or fifty days—a wholly indeterminate date. To attach that phrase to the specific "date mentioned" is to unfix it. Then, as to the practical operation, suppose a notice mentioning a date, say the 24th of the month, is served on nineteen out of twenty persons "intended to be made liable" named in the scheme, but is not served at all on the twentieth person. And suppose the service effected is upon five persons on the 1st of the month, upon five on the 3rd of the month, upon five on the 5th of the month, and upon the remaining four on the 7th of the month: what is the "date so fixed"? According to the argument of the respondent there is "no date so fixed" because sec. 529 requires the notice to be served on "every" such person, and therefore, if the notice is faulty for one, it is faulty for all. So far only as that contention maintains the view that there can be only one "date so fixed" for the consideration of the scheme, I agree with it. The scheme is a unity. In any other aspect it is impracticable. To secure that unity, the Council is directed to serve "every person" with the same notice, which involves the same date mentioned. But it is not directed to serve everyone on the same day, and therefore the fourteen clear days may not terminate synchronously. The Council is directed to consider the scheme as a whole, which includes every person who ought to be served, that is, every person who at the time of adoption is named as contributor. It also requires the Council to afford each person fourteen clear days before the scheme is considered. But I do not agree with the contention that if notice to one be faulty as to service, it is faulty as to all. "Service" of a notice is quite distinct from the contents of the document. To say that faulty service of the notice prevents the date from being "fixed" by the notice is a patent mistake. If notices be served on "A" to "E" mentioning the 24th and on "F" to "J" mentioning the 25th, there is obviously no date "fixed," because no date is mentioned for the scheme as a whole and the mentioning of the date by the Council in the notice is its fixation. But if all the notices mention the same date, then the date is "fixed," although "J," for instance, should be served too late or even not served at all. The "date so fixed" is synonymous with the date mentioned in the notice, irrespective of service. For instance, if service be effected on nineteen persons on the varying dates previously mentioned, supposing them to be all the persons interested, the respondent would say "the date so fixed" was the 24th. But if the last four had been served on the 10th of the month instead of the 7th, what then is the date so fixed? Either, as the respondent consistently but, as I think, erroneously contends, no date is fixed, or else, in the alternative view suggested, it is fixed for fifteen persons only, which would throw the matter into confusion. And if the last five had also been served on the 10th, another fixation would have occurred, that is, for ten persons only. This shifting incidence of a fixed date for one scheme is beyond my comprehension. But if it be wrong, if there be no date fixed at all, it means that though nineteen out of twenty persons are properly served and the twentieth person gets his summons a day late but elects to go on without objection, and the Council does the work at great cost, all the private owners may openly repudiate their liability. I decline to think Parliament sanctioned this; and, though I freely admit that its intention must be judged of by its words, I find no words compelling me to attribute such an intention to Parliament. And in this connection it must be remembered that—except where lands are exempt altogether—Parliament has intended that the liability shall not be cast on the general community, and certainly not on the individual councillors, who, for all I know, may have to bear the responsibility as for a work done without authority (see, particularly, sec. 528 (4) and sec. 535). If the respondent's view be upheld, the injustice and unworkable nature of the provision are manifest.

Then come the remaining words quoted from sec. 531. Those are the words which make the whole scheme workable by their elasticity. The Council, on the "date fixed," that is, the date mentioned in the notice, may see that some person has not been served, or not served in time, or even that no one was served in time. What is it to do? If someone was not served at all, the Council should, of course, not proceed then but should cause notice to be served on him. But there is no need to re-serve the others. It "adjourns the consideration of the matter" to a future date. So if one of a number has not been served in time—say, a day late—then, as the scheme is a unity, it should adjourn the consideration by resolution in open Council to a day that will enable all to have the contemplated time. It would be quite unworkable otherwise. It is said that to "adjourn the consideration," &c., implies that at the moment it would be lawful to enter upon that consideration and adopt the scheme. "Adjourn" means simply put off to another day. When used technically with reference to a Court adjourning a cause, it may in some cases be used more strictly. But in an Act of the nature we are dealing with, and with reference to a body and to functions such as those now in question, the word is used in a very broad and general sense. In Fitzgerald's Case[6] Mellor J., after stating in effect what I have just said, proceeded to interpret the word "adjourn" when used as to inquiries other than in a Court of Justice, and being such as holding a meeting of commissioners, which is very much the same as a meeting of councillors. The learned Judge says that in such context "the word adjourn must be taken as used in the popular sense of deferring or postponing the inquiry to a future day" (and so per Hannen J.[7]). "The consideration of the matter" means its consideration in whole or in part, according to circumstances. The cause of the adjournment may be such as properly to require the entire consideration to be postponed, such as occurred in the present case—if the directions of the statute are to be observed; or they may be such as to induce the council to do so in its discretion, or the consideration may be entered upon and then postponed. In short, the Legislature has trusted the Council to do what is right in the circumstances, and to nullify its proceedings is entirely foreign to the legislation. It was said in argument that to concede so much power to a council would enable it to impose liability on owners without any notice, or on a flagrantly insufficient notice. The answer to that suggestion is on the face of the matter. Mala fides would vitiate the attempt. But so long as the council is acting bona fide and within the bounds of reason which indicate the limits of good faith, a mere error in attempting to carry out the parliamentary directions is not fatal. That will be very plainly shown when I deal with sec. 532.

Section 532.—This section says: "Upon such adoption every person upon whom such notice has been served and whose name is included in such scheme as adopted shall be considered as having admitted that the council has complied with all the requirements of this Act," &c. The first and most essential thing to remember is that this section (with the rest of the group of sections of which it forms part) was passed in order to get rid of the technical and other difficulties arising under the previous law. That law was in sec. 234 of the Health Act 1890, which was substantially the same as the English statutory provision in 38 & 39 Vict. c. 55, sec. 150. Cussen J., in Abbott v. Shire of Moorabbin[8], pointed this out, and stated that "forms of notice" was one of the difficulties intended to be got over by sec. 532. I fully support that learned Judge's statement. It was a state of affairs generally recognized as most inimical to municipal government. In England the old law still exists, and the same difficulties exist, as is shown by Bristol Corporation v. Sinnott[9].

Now, coming to the terms of sec. 532 in order to apply it to the facts of this case, there are three points: first, the respondent is a "person"—that is, he is one of the class included in sec. 526 (Moorabbin Case[10]); next, his name is included in the scheme; thirdly, has he also been served with "notice"? I utterly fail to understand how a negative answer can be given. The "notice" served means a written document. That "notice" is the document described by sec. 529. The words "not being less than fourteen days from the service of such notice" cannot, by any stretch of imagination, be regarded as part of the description of the written notice itself. This, as it seems to me, is put beyond argument by the words of sec. 531 (2), "shall give ... a like notice at least fourteen days before such adoption." If the "notice" includes fourteen clear days' service, the words following "notice" would be unnecessary. The "like notice" means obviously notice fixing a specific date for a specific purpose, and the length of its service is as obviously matter extraneous to the notice. The respondent got the "notice" that the Council would consider the plans, &c., on 24th January. That is an unalterable fact, and cannot be changed merely because after service of the document fourteen clear days did not elapse by the 24th of January. Therefore, the third requisite of sec. 532 is established, and the respondent is taken to have admitted that all the requirements of the Act—which include the fourteen clear days—were complied with. If the rigid view of the respondent, prevails, and particularly if Bristol Corporation v. Sinnott[11] were adopted as a controlling precedent, some consequences are plain. The omission of the word "plans," for instance, would prevent compliance with sub-sec. 1 of sec. 529 and would vitiate the notice and the scheme. The omission from one notice of a line of any of the three sub-sections of sec. 534, which are required to be inserted in every notice, would have the same effect. Drainage schemes, to which the group of sections 529 to 542 are legislatively applied, would stand in the same perilous position. Clearly, legislation would be imperative to relieve the situation and make the schemes workable. But it is objected that unless that rigidity be maintained the council might, if it choose, act upon a single day's notice. The main answer has been partly given. It is that Parliament has trusted councils. It has looked upon councillors neither as objects of suspicion and likely to abuse their powers nor as expert jurists, but as a loyal and intelligent body of laymen, elected to local legislatures and executives, voluntarily giving their services, and not at all likely to be fraudulent or to make either wilful or egregious errors. Fraud or arbitrary conduct can be effectively checked by the Court.

Experience showed, as I have said, that with all the care given to the performance of their important functions of local self-government, technical difficulties occurred and litigation broke down many municipal arrangements and squandered public funds. The present legislation was to avoid that, and place in the hands of the councils the duty of public protection, with due regard to private rights, but, after that was done to the best of the council's ability, to leave the matter beyond such legal questionings as have wasted public and private means in the present case, with whatsoever result may eventuate. After all, the frontager at worst is asked to share with his fellow-frontagers the cost of a benefit to his property which is at the same time the removal of a public detriment for which he or his predecessor in title is responsible. And I have no doubt this reasoning weighed with the Legislature.

Waiver and Estoppel.—It is a well-known principle of law that a man may by his conduct waive a provision of an Act of Parliament intended for his benefit. This principle has been affirmed by the Privy Council in Wilson v. McIntosh[12]. There Davey L.J., speaking for a very powerful Board, affirmed that principle, even though the Court had no jurisdiction in the absence of the waiver. It is, therefore, needless to cite less binding authority for the principle itself. But it is necessary to cite some further illustrations in view of some arguments addressed to us. I put aside those cases where no waiver is ever possible. I refer to want of jurisdiction, even of subject matter, where a party may waive it. The cases of Davies v. Price[13] and Ringland v. Lowndes[14] are authorities for the position that if a party proceed before an arbitrator under protest that he has not been properly appointed, that is, having taken the specific point, he does not waive his objection, if, as Cave J. in Boissière & Co. v. Brockner & Co.[15] said, "the point is decided against him." The case of In re Morphett[16] is the converse, and is decisive of this case. There Coleridge J. said[17], where a party had "handed in a protest on a totally different ground, I think he must be held to have waived the objection." Putting the matter into plain terms, it is equivalent to saying "I object on this ground and on no other."

It is quite beside the point that, as was urged, this particular objection is not one of those contemplated by the statute—if such be the case. If it be so contemplated, then the jurisdiction to proceed and consider is necessarily assumed; if it be not so contemplated, then it is the general law that gives the opportunity to raise that objection, and also provides the consequences of waiver or of estoppel, by which I mean conduct which misleads another to act to his prejudice. Why is not the principle to operate here, where the case is stronger, inasmuch as the municipal Council had jurisdiction over the subject matter (see Moore v. Gamgee[18]), as is conceded if the notice had been served in time? That is, it had jurisdiction contingently. It is not as if by some principle of law it could never have jurisdiction over such a case, as, for instance, the Commonwealth Arbitration Court where there is no inter-State dispute. Now, if it had jurisdiction contingently and waiver is possible, it is a departure from the doctrine of Wilson v. McIntosh[19] and other Privy Council authority to be mentioned, to ride off on the ground that fourteen clear days are a condition precedent to jurisdiction. So far as this point is concerned, he allowed the Council to make the determination—adoption—permitted to it by the statute. This stands at the threshold of the question. The Act does not expressly say that the length of service is an inexorable condition of jurisdiction. If it be so held, it is by implication only. But even apart from the doctrine just stated, how can the implication arise when sec. 532 treats an admission as conclusive? And if admissions are permissible, what is there to exclude an admission, express or by conduct, as to notice? The provision for notice is entirely for the benefit of the frontagers, and without overruling the principle followed in Wilson v. McIntosh, I am unable to give effect to the contention.

Another reason, rather adumbrated than suggested, was the judgment of the Court of Appeal in Bristol Corporation v. Sinnott[20] I cannot find in that case any support for the view suggested. In the Court of first instance, the judgment of Neville J. is openly opposed to it. The head-note of the appellate decision correctly states it thus:—"Held, that the notice was bad in not specifying a reasonable time for the execution of the works, and that the local authority could not recover the expenses from the frontagers. Held, also, that the frontagers, in standing by and doing nothing, had not waived their rights under sec. 150, nor estopped themselves from objecting that the notice was bad." The head-note correctly represents the essence of the judgment. It is true that the learned Lord Justice (Swinfen Eady), who delivered the judgment of the Court, said the notice was insufficient, and added[21]: "As there was no sufficient notice it is as if no notice had been given, and they" (the local authority) "are not entitled to charge the frontagers with the amount." But I would not do the Court that so held the injustice of laying down as a universal principle, and for all statutes or even all similar statutes, that an insufficient notice is always fatal and incapable of waiver or incapable of waiver by conduct before legal proceedings instituted. In addition to what has already been said on the subject, it is desirable at this point to make reference to another case of supreme authority. It is Toronto Corporation v. Russell[22]. It would be difficult, indeed, to imagine a decision at once of greater authority and more direct application. The Toronto Corporation caused the respondent's lands to be sold for taxes and itself purchased them. By the statute in force, the Assessment Act 1897, sec. 184, sub-sec. 3, the Corporation, before it could purchase, was required to give a notice of its intention to purchase the lands. No notice whatever was served on the respondent of that intention; such a notice was only published in newspapers. But the Privy Council held that the notice was required by the statute to be given to the owner of the lands. There was, therefore, an absolute failure to give him any notice whatever. Then their Lordships proceeded to consider (1) whether that defect could be waived; (2) how it could be waived, and (3) whether in fact it had been waived. As to (1), they held it could be waived, on the principle that the purpose of the notice was for his benefit; and they referred to a recent case in the House of Lords in which that principle was applied to a statute, and in which what I call waiver was treated as a renunciation of the benefit provided for the person renouncing it. As to (2), their Lordships said that it was sufficient to show that the person consented to dispense with the notice—and that was what was meant by waiving it. As to (3), it is valuable here in view of the argument, because in substance their Lordships held that there had been waiver by inaction, which, of course, requires an inference of fact as to intention before the law can be applied. Their Lordships found that the respondent knew all the necessary facts and remained silent but gave no explanation why he remained quiescent while matters went on as if the same were valid. If there had, as here, been positive acts as if the sale were valid, without at all events raising the specific objection, the doctrine of Fuller's Theatre and Vaudeville Co. v. Rofe[23] would have at once applied. Intention is judged by acts rather than by words. Non quod dictum est, sed quod factum est, in jure inspicitur is a trite legal maxim. Certainly the doctrine of estoppel by conduct would have applied. The present case, it will be recognized, is an a fortiori case. One observation is important. The Judicial Committee, it will be noticed, held that waiver of the statutory provision took place, not in Court, but before any legal proceedings to enforce liability were instituted. The Bristol Corporation Case[24] is in no way inconsistent. On the contrary, it really follows it in principle; but in different circumstances there arose a different result. The Court was dealing with a notice under the particular Act before it, a notice which called upon the frontagers to make good about 1,450 feet of street in one month from service. Having regard to the circumstances, Neville J., in the Court of first instance, said the notice was "grossly insufficient," and the Court of Appeal held it to be "an illusory notice."

For the purposes of waiver, the English Act and the Victorian Act are at opposite poles. The Victorian Act creates the council a tribunal to hear before determining as to doing the work, and how to do it, and further as to the persons liable to share the expense. Some objections are distinctly pointed to; others depend, as in other cases, upon general principles, of which waiver is one. Waiver or estoppel is, therefore, possible from the beginning, and before the council undertakes the work and so incurs the expense, and on the way apportions the individual liability. In England, on the contrary, the Act gives no opportunity whatever to the frontagers to contest the notice or the doing of the work at that stage, or, indeed, until after the corporation has done the work and demands the apportioned payment. In the Bristol Corporation Case[25] the frontagers did object at the beginning by correspondence, and added that if the Corporation would purchase part of their land, they would acquiesce in the notice. The negotiations fell through, and they again wrote objecting. The next step was that the Corporation, with its eyes open and in the face of the objection, did the work and demanded payment from the frontagers. Then, for the first time, did the law afford them a means of contesting their liability, or the right of the Corporation to do the work. They presented a memorial to the Local Government Board, and raised, inter alia, the very objection they had insisted on all through, and on which the Court ultimately decided in their favour. Both in law and in its circumstances, that case—in point of waiver and estoppel—is entirely different from the present case. Had the Bristol decision been a quarter of a century earlier, it would have had some relevance on that point to the law of Victoria. At present it has none. All that is relevant in that case is that the learned Lords Justices felt compelled to go on and deal with waiver and estoppel, although the notice could hardly be said to be what the notice in this case is—something provided for the benefit of the ratepayer. After stating what I have quoted, they said[26]: "Then a second question was raised," as to an order of the Local Government Board. They found there was none, and then said[27]:—"In any case, there is no waiver. There is no estoppel, and there is no order by the Board." So the frontagers, said the Court, were not prevented from raising their defence of the insufficiency of the notice. Obviously, the language as to waiver and estoppel is the same as with respect to the order of the Board. In each case it means that there was nothing in fact, not that there could be nothing in law. And consequently, on this point, the case is really a strong authority for the present appellant. But in view of the Privy Council decisions it is not necessary.

In my opinion the decision of the learned Chief Justice of Victoria was right (1) as to the effect of sec. 532 of the Local Government Act 1915 and (2) in holding that there is no ground for treating the defendant as being estopped from pointing out the insufficiency of the notice or as having waived any objection on the ground of such insufficiency.

The power of the Council to impose the payment for the making of the street rests entirely on statute: there is no power unless so far as the statute confers it. It is conceded that sec. 529 (b) was not in fact obeyed so far as regards the notice therein mentioned; for the notice to the ratepayers must state "that on a date therein mentioned and being not less than fourteen days from the service of such notice the Council will proceed to consider such specifications" &c. "and other particulars and the liability of such person in respect thereof"; and the day specified for consideration was 24th January, being less than fourteen days from the service of the notice (11th January). Then, under sec. 532, upon the adoption of the scheme by the Council, "every person upon whom notice has been served and whose name is included in such scheme as adopted shall be considered as having admitted that the Council has complied with all the requirements of this Act and also his liability to contribute to the work in the proportion adopted by the Council and be finally bound and concluded by all the matters aforesaid." That is, the scheme does not bind the ratepayer unless notice has been served on him (and unless he is named in the scheme). To my mind, the answer to question 1 turns wholly on the meaning of the word "notice" in sec. 532—does it refer to the fourteen days' notice prescribed by sec. 529 (b)? It must refer to that fourteen days' notice. The very words of sec. 532 which bind the ratepayer to pay his proportion for the scheme adopted follow precisely the words of warning which, according to sec. 529 (d), have to be inserted in the notice prescribed by sec. 529 (b). As my brother Powers pointed out during the argument, under sec. 531 (2), when a man's name has to be added to the scheme or a variation of the scheme is proposed, every person affected has to get a like notice "at least fourteen days before... adoption." There is no other notice to which sec. 532 can refer. Counsel for the City contend, indeed, that any notice whatever, however short, would be sufficient to satisfy sec. 532—even a notice that reaches the ratepayer a day, or an hour, or a minute, before the time fixed for the consideration of the scheme. But this is to reduce the Act to an absurdity: why should a notice so ineffectual be required at all? Counsel for the City also admit that the requirement of notice to the ratepayer is a condition precedent to his liability to contribute. This admission is obviously right; and when the requirement of the section is a condition precedent, all arguments to the effect that it is to be treated as directory, not imperative, become futile. Courts cannot ignore a condition precedent imposed by the Legislature; and as the scheme is binding on those only "upon whom notice has been served," this defendant ratepayer is not bound. This position is clearly put by Maxwell (Interpretation of Statutes, 6th ed., pp. 647-648), who cites, with other cases, the case of Jolly v. Hancock[28] There, the deed of a married woman was, under a statute, to take effect "when" a certificate of acknowledgment had been filed. It was contended that acknowledgment was the essential act that made the deed valid, and that, as there was an acknowledgment in fact, the deed was operative; but the Court rejected the argument.

As the order giving special leave has now been enlarged in scope, we are now under a duty to consider the other points raised in the Court below: Is this ratepayer estopped by his conduct from relying on the objection that the requisite notice had not been served, or is he to be treated as having waived the objection? The best way of meeting these points is to get a clear grasp of the facts. I shall assume that the finding of the Police Magistrate was right, as to defendant being present on 24th January when the scheme was first to be considered. So far as appears, he and other ratepayers concerned, though present, said nothing. They listened to one Gray who urged that the street had been made before, by the Council of Moorabbin Shire, before alteration of boundaries. The defendant, and another ratepayer called Wilson, swore (and there is no contradiction) that they did not know at the time of the meeting that they were entitled to fourteen days' notice. Where, then, is the estoppel? Where is the waiver? The facts proved are quite consistent with defendant's appearing merely to watch what was being done, in ignorance of the fact that the Council had failed to give a sufficient notice. Probably he thought that the Council would not have acted without obeying the Act as to notice, and addressed his mind to the concrete proposition to be discussed. He did not in any way represent that the Council had given a sufficient notice. The defendant made no representation at all—a fortiori, no representation that he intended the Council to act on (see Freeman v. Cooke[29]; Pierson v. Altrincham Urban Council[30]). Indeed, I am strongly inclined to think that the only objection allowed by the Act to be taken on 24th January was an objection to the scheme—not an objection to the sufficiency of the notice; but this point is not necessary for my opinion.

Then, as for the alleged waiver, it is a mistake to suppose that such a case as Grimble & Co. v. Preston[31] (which was cited) is an authority in favour of the appellant. That case was not a case where a condition precedent to liability was involved but merely proceedings in Court; and the defendant knew of the informality. The Sale of Food and Drugs Act provided that in any prosecution there must be served along with the summons a copy of the analyst's certificate obtained on behalf of the prosecutor. There was a summons without such a copy. When the summons came on to be heard, after part hearing it was adjourned at the request of the defendant so that he might procure an analysis. At the adjourned hearing, the justices convicted. On the appeal the defendant contended that the proceedings were bad as no analyst's certificate had been served with the summons. But the Court held that this objection did not go to jurisdiction—that such an informality in procedure might be waived by express words or by conduct. As Atkin J. said[32], a person who, knowing of the informality, waits until after cross-examination before taking the objection, waives it. This case is no authority for a position where there is no jurisdiction to enforce liability unless the condition precedent to liability has been fulfilled, or where the defendant did not know of the informality before proceeding with the hearing. (See also Lynch v. Commissioners for Sewers of the City of London[33]; and Masters v. Fraser[34].) The case of Toronto Corporation v. Russell[35] does not, in my opinion, help the appellant. That case adopts the dictum of Bowen L.J. in Selwyn v. Garfit[36] that "waiver is consent to dispense with the notice"; and there can be no consent to waive a defect in the notice without knowledge of the defect. In that case there had been a subsequent remedial Act expressly curing such defects as failure to comply with the requirements of the principal Act. The remedial Act is not treated as applying to the failure to give any notice whatever to the respondent; but it is clear where the Council's remedy lies. It is for the Legislature to amend the Act, not for the Courts to strain the existing Act from its natural meaning.

Bath Street is a street formed or set out on private property, and the defendant is an owner of property fronting or abutting on it. The street was not formed or made good to the satisfaction of the Council. Accordingly the Council, pursuant to sec. 527 of the Local Government Act 1915, caused to be prepared specifications and plans of the work it deemed necessary in Bath Street, an estimate of the cost, and a scheme of distribution setting forth the names of the owners (including the defendant Rayment) intended to be made liable. On 13th December 1923 the Council adopted the apportionment and resolved that notices be served. The notices referred to, were those required by sec. 529 of the Act, which is in the following terms: "The council shall cause to be served on every such person intended to be made liable notice in writing setting forth (a) that such specifications maps plans ... estimate scheme" &c. "have been so prepared and are open for inspection and the estimated amount of such person's liability; (b) that on a date therein mentioned and being not less than fourteen days from the service of such notice the council will proceed to consider such specifications maps plans ... estimate scheme" &c. "and the liability of such person in respect thereof; (c) that any such person may appear on such date before such council to raise objections thereto; (d) that in default of any person so objecting the same will be adopted and all such persons will be considered as having admitted that the council has complied with all the requirements of this Act and also their respective liabilities as appearing by the said scheme and will be in all respects then finally bound and concluded thereby." Notices were prepared pursuant to this section and 24th January 1924 was mentioned therein as the day on which the Council would proceed to consider the specifications, plans, estimate, scheme, &c. The notice to the defendant was only posted on 10th January 1924 and the day therein mentioned was not, therefore, a day "being not less than fourteen days from the service of such notice." On 24th January 1924 the Council met and proceeded, pursuant to the Act and the notice, to consider the specifications, plans, &c. Several persons attended this meeting and the Council ultimately resolved that the matter be referred to the solicitor for opinion, and that the further consideration be deferred pending receipt of the same. On 14th February 1924 the solicitor's opinion appears to have been received, and it was resolved that the matter be referred to the Sandringham Ward councillors and the surveyor for report. On 27th March 1924 this report was received, and the Council resolved that tenders be asked for the construction of Queen's Square (which included Bath Street) and that Susan Street be relieved for all time from the payment of road-making. On 22nd May 1924 a tender for the construction of Bath Street was accepted, and the work was then executed. Proceedings were subsequently taken in the Court of Petty Sessions at Sandringham to enforce the defendant's liability to contribute to the work in the proportion appearing in the scheme of the Council, namely, the sum of £47 14s. 3d. The magistrates before whom the case was heard found as a fact that the defendant was present at the meeting of 24th January 1924, that he had an opportunity of objecting to the length of the notice given to him but did not do so. They also found that the Council adopted the specifications, plans, estimate and scheme at its meeting on 27th March 1924. This finding has not been challenged though the Council's minute of 27th March 1924 does not support it. The minute, however, is not given exclusive authority as an instrument of evidence and does not exclude independent proof of facts (see Phipson on Evidence, 5th ed., pp. 540-541). Robert Chisholm, a councillor, had sworn that it was omitted from the first part of the minute that the plans be approved. The Act, sec. 532, provides that upon such adoption every person upon whom notice has been served and whose name is included in such scheme as adopted shall be considered as having admitted that the Council had complied with all the requirements of the Act and his liability to contribute to the work in the proportion adopted by the Council and be finally bound and concluded by all the matters aforesaid. The magistrates, founding upon this section, ordered the defendant to pay £47 14s. 3d. Upon appeal to the Supreme Court Irvine C.J. reversed the decision, and in the course of his judgment said[37]: "There are two conditions to its operation which the section" (532) "requires; one is that notice has been served, and the other that the name of the person served has been included in the scheme as adopted." No doubt the omission to serve a proper notice is an objection upon which a person included in the scheme can rely. The notice is a condition precedent to liability, but is it so absolute, essential and indispensable a condition to the authority of the Council under sec. 526 that it must follow the precise form and duration prescribed by sec. 529? That depends upon the construction of the Act, and the purpose of the notice. The requirement of the notice in sec. 529 is introduced for the protection of the persons upon whom the liability may be thrown and serves no other purpose. Quilibet renunciare potest juri pro se introducto. Thus, in my opinion, any person intended to be made liable may, if he choose, waive the precise length of the notice required by that section (Bristol Corporation v. Sinnott[38]; Grimble & Co. v. Preston[39]). Support for this view is found, I think, in the procedure directed by the Act. Sec. 530 provides that any person interested in or affected by the proposed work may appear before the council on the date mentioned in the notice or on any date to which the consideration of the matter may be adjourned. Sec. 531 provides: "(1) Upon the date so fixed or on any date to which the consideration of the matter may be adjourned the council may—(a) if no person ... objects adopt the ... specifications," &c.; "(b) if any person objects to such specifications," &c., "the council shall thereupon or at some future date inquire into and consider the matter ... and after hearing the objections (if any) then made if it appears to the council expedient so to do may adopt the said specifications," &c. (2) If at any time before such adoption the council considers it necessary to add the name of any other person to such scheme or to make any variation in such specifications, &c., "the council shall be at liberty so to do but it shall give to every person affected by such addition or variation a like notice at least fourteen days before such adoption." This power to defer or postpone the consideration of the matter to a future day is essentially for the purpose of perfecting the scheme whether by variation of the specifications, &c., or by the addition or deletion of the names of persons to be charged, or by the correction of notices in point of form or in duration. The provision in sec. 530 that it shall not be necessary for the council to give notice of any adjournment of such consideration indicates the intention of Parliament to free the procedure before the council from excessive formalism and to leave it very largely in the control of the council. It has been said, however, that the Council did not adjourn the consideration to any named day. That is true: all it did was to reserve its decision on the whole matter, and that decision was given on 27th March by the adoption of the plans. In my opinion, there was nothing contrary to law in this procedure if the defendant waived the length of notice prescribed by the Act, nor was there anything which necessarily invalidated the adoption of the specifications, &c., of the proposed work. Consequently, in my opinion, the liability of the defendant in this case depends upon the question whether he waived the duration of notice required by the Act or is estopped from relying on that as his objection (cf. Craine v. Colonial Mutual Fire Insurance Co.[40]). The defendant attended the meeting of the Council on 24th January 1924. Apparently a solicitor for another party objected that Bath Street had been already made; but the defendant, as far as the evidence goes, took no part in the discussion, and remained quiescent. He attended, it is true, some meetings of the Council after the adoption of the scheme, namely, in July 1924 and in April 1927, and protested against what he called the remaking of Bath Street. But these acts establish that he was objecting to the scheme and do not aid the allegation of waiver or suggest that he induced the Council to act on the faith of any representation, by words or conduct, that any defect in notice given to him might be disregarded. In my opinion it is quite impossible on this state of facts to say that the defendant waived the duration of the notice or is estopped from relying upon the defect in the notice. This appeal must, therefore, be dismissed.

I have thought it right to state my general view of the construction and working of Part XVIII., Div. 11, of the Act as it is of great importance to municipal authorities in Victoria, and is in constant use. I regret that the decision of the Court affords but little real guidance or assistance to these authorities. It would seem a wise precaution that they should slavishly adhere to the form and duration of the notice mentioned in sec. 529.

[1] (1918) 1 Ch., at p. 71.

[2] (1927) V.L.R., at p. 554; 49 A.L.T., at p. 105.

[3] (1927) V.L.R., at p. 555; 49 A.L.T., at p. 105.

[4] [1920] HCA 64; (1920) 28 C.L.R. 305, at p. 326.

[5] (1923) A.C. 435.

[6] (1869) L.R. 5 Q.B. 1, at p. 10.

[7] (1869) L.R. 5 Q.B., at p. 13.

[8] (1913) V.L.R., at p. 347; 35 A.L.T., at p. 35.

[9] (1917) 2 Ch. 340; (1918) 1 Ch. 62.

[10] (1913) V.L.R. 337; 35 A.L.T. 31.

[11] (1917) 2 Ch. 340; (1918) 1 Ch. 62.

[12] (1894) A.C. 129.

[13] (1864) 34 L.J. Q.B. 8.

[14] [1864] EngR 587; (1864) 17 C.B. (N.S.) 514.

[15] (1889) 6 T.L.R. 85, at p. 86.

[16] (1845) 2 D. & L. 967.

[17] (1845) 2 D. & L., at p. 977.

[18] (1890) 25 Q.B.D., at pp. 246-247.

[19] (1894) A.C. 129.

[20] (1918) 1 Ch. 62.

[21] (1918) 1 Ch., at p. 71.

[22] (1908) A.C. 493.

[23] (1923) A.C. 435.

[24] (1917) 2 Ch. 340; (1918) 1 Ch. 62.

[25] (1917) 2 Ch. 340; (1918) 1 Ch. 62.

[26] (1918) 1 Ch., at p. 71.

[27] (1918) 1 Ch., at p. 73.

[28] (1852) 22 L.J. Ex. 38.

[29] (1848) 2 Ex. 654.

[30] (1917) 86 L.J. K.B. 969.

[31] (1914) 1 K.B. 270.

[32] (1914) 1 K.B., at p. 278.

[33] (1886) 32 Ch. D. 72.

[34] (1901) 85 L.T. 611.

[35] (1908) A.C. 493.

[36] (1887) 38 Ch. D. 273, at p. 284.

[37] (1927) V.L.R., at p. 554; 49 A.L.T., at p. 105.

[38] (1917) 2 Ch., at p. 347; (1918) 1 Ch., at p. 73.

[39] (1914) 1 K.B., at pp. 276-278.

[40] (1920) 28 C.L.R., at pp. 325 et. seqq.; (1922) 2 A.C. 541; 31 C.L.R. 27.

High Court of Australia

Sandringham v Rayment [1928] HCA 13; (1928) 40 CLR 510 (7 June 1928)

HIGH COURT OF AUSTRALIA