Dyer v Luckett [1928] HCA 24; (1928) 41 CLR 44 (23 August 1928)

HIGH COURT OF AUSTRALIA

Dyer Defendant, Appellant; and Luckett Complainant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

23 August 1928

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

Griffin, for the appellant.

Hammond K.C. (with him Miles), for the respondent.

The following written judgments were delivered:—

Aug. 23

Knox C.J.,

Isaacs and Gavan Duffy JJ.

The appellant was convicted on an information alleging that the Governor by proclamation dated 30th June 1925 did declare a certain area of the Shire of Ku-ring-gai to be a residential district and did thereby prohibit in such residential area the use of any building for the purposes of any trade and that the appellant used a building in such district for the purposes of a trade, to wit the trade of a boot repairer. At the request of the appellant the magistrate stated a case for the opinion of the Supreme Court on the question whether his determination was erroneous in law. The ground relied on by the appellant in support of his contention was that the proclamation of 30th June 1925 was beyond the powers conferred on the Governor by sec. 309 of the Local Government Act 1919. On the case stated Campbell J. held that the determination of the magistrate was not erroneous in law; and this appeal is brought by special leave from that decision.

Sec. 309 (1) of the Local Government Act 1919, so far as relevant, is in the words following: "The Governor may on the application of the council (a) declare by proclamation any defined portion of an area to be a residential district; ... (c) prohibit the erection in such district of any building for use for the purposes of such trades, industries, manufactures, shops, and places of public amusement as may be described in the proclamation; and (d) prohibit the use of any building in the district for any such purposes." By the proclamation, so far as now relevant, the Governor declared the area in question to be a residential district and prohibited in such district "the erection of any building for use for the purposes of any trade, industry, manufacture, shop, or place of public amusement whatsoever, except recreation ground club-houses, and buildings appurtenant thereto," and further prohibited the use of any building for any such purposes. The question for decision is whether in this proclamation the trades for the purposes of which the use of any building in the district is prohibited are "described" within the meaning of sec. 309 of the Act. In our opinion this question should be answered in the negative. We think the provision of the Act that the trades, &c., shall be "described" in the proclamation requires that every trade intended to be included in the prohibition shall be individually dealt with. It must be mentioned by name in the proclamation, or otherwise indicated therein by the use of words by which it can be recognized or identified.

A prohibition of the use of a building for the purposes of "any" trade does not, in our opinion, "describe" the trades for the purposes of which the use of the building is prohibited. According to the Oxford Dictionary the ordinary current sense of the word "describe" is "to set forth in words, written or spoken, by reference to qualities, recognizable features, or characteristic marks; to give a detailed or graphic account of." Applying this definition we think the expression "any trade" cannot be treated as describing a particular trade.

In our opinion the appeal should be allowed, the order of Campbell J. discharged, and the question submitted by the case answered in the affirmative and the conviction quashed. The respondent must pay the costs of the proceedings in all the Courts.

Higgins J.

In my opinion, this proclamation was invalid, and the appellant was not rightly convicted.

The power conferred, by sec. 309 of the Local Government Act 1919, on the Governor in Council by proclamation to prohibit the use of any building in the district for any such purposes—that is to say, "for the purposes of such trades," &c., "as may be described in the proclamation" is not exercised by a proclamation prohibiting the use of any building for the purposes of any trade whatever with specified exceptions. Under the Act, the public are entitled to know, by direct description, what specific kinds of trades are forbidden; and the trades forbidden are not "described" by describing other trades which are excepted from the prohibition, or "permitted." "Permitted" is the fit word used in the schedules A and B to the proclamation.

This distinction between prohibiting specified trades and permitting specified trades is by no means merely verbal; especially in a community which recognizes the natural liberty of every man to do as he pleases so far as he is not prohibited by law: Libertas est naturalis facultas ejus quod cuique facere libet nisi quod jure prohibetur. It by no means follows that because Parliament is willing to entrust to the Governor in Council—the Ministry of the day—the power to prohibit trades which he describes, it is willing to entrust to the Ministry the power to prohibit all trades, or all trades with an exception. The latter power would enable the Ministry to prohibit trades to which it had never directed its attention. Suppose a new kind of trade came into existence in the district after this proclamation, and were carried on, however innocently, however noiselessly, however remotely from the public—suppose the trade of making radio-receivers or making microscopes—such a trade would be forbidden by this proclamation under the general words, although the Ministry has not addressed its mind to the suitability of such a trade to the residential district. The meaning of sec. 309 is that the Ministry must frankly state the trades which it prohibits, describing them, and take the responsibility for its choice. It is not for me to say that a power to prohibit all trades, or all trades with an exception, should be given: it is enough to say that it has not been given; and powers have to be strictly construed and strictly followed. There is no valid execution of a power if the conditions prescribed by the donee of the power are not satisfied by a literal and precise performance even if they seem to be unessential and unimportant except as being required by the donor of the power (see cases cited in New South Wales v Commonwealth[1]).

On behalf of the appellant it is not urged that the particular building which is not to be used has to be specified; and I leave that matter open. The only points finally urged are that the proclamation is unreasonable and ultra vires because the trades to be prohibited are not described. I am glad to observe that Campbell J. in his judgment recognizes the objection of unreasonableness to be in truth an objection that the thing done is not within the ambit of the power (see Widgee Shire Council v Bonney[2]).

I cannot find that any of the cases cited throw much direct light on the problem in this case; although, indirectly, the cases which show that a power to regulate does not involve a power to absolutely prohibit such as Municipal Corporation of the City of Toronto v Virgo[3] -seem to me to involve the principle which I have stated. But it may be noticed that, where prohibition of the use of a building without permission is intended by the Legislature, it is expressly given (sec. 316). Sec. 618 obviously does not cover this case.

I think that the appeal must be allowed and the conviction set aside.

Starke J.

Under the Local Government Act 1919 of New South Wales the Governor in Council may, on the application of the municipal council, proclaim any defined portion of a municipal area to be a residential district, and may prohibit the use of any building in such district for the purposes of such trades, industries, manufactures, shops and places of public amusement as may be described in the proclamation (see sec. 309). In pursuance of these powers, the Governor in Council proclaimed the residue of Ku-ring-gai Shire (after provision for certain specified districts) as a residential district, and prohibited the use of any building in such residential district for the purposes of any trade, manufacture, shop or place of public amusement—except recreation ground club-houses and buildings appurtenant thereto.

The only question for determination is whether the all-embracing prohibition of any trade &c. (with the minor exceptions mentioned) falls within the power to prohibit the use of any building for the purposes of such trades &c. as may be described in the proclamation. Much as I am impressed by the reasoning of Campbell J. and the convenience of the method adopted in the proclamation, yet, in my opinion, the proper exercise of the power requires some specification or description in the proclamation of the trades prohibited thereby, and it is not enough to proclaim generally, as was done in this case, that all trades &c.—with a few minor exceptions—are prohibited. The provisions of sec. 309, sub-sec. 2, as amended by the Act of 1927, appear to me to support this view.

In my opinion, it would be wise for this Court to confine itself to the part of the proclamation attacked in this proceeding, and to refrain from attempting any very precise interpretation of the words "as may be described in the proclamation" found in sec. 309 of the Local Government Act.

The appeal should be allowed.

Appeal allowed. Order of Campbell J. discharged. Question submitted by the case answered in the affirmative and conviction quashed. Respondent to pay costs of all proceedings in all Courts.

Solicitor for the appellant, N. L. R. Griffin.

Solicitors for the respondent, Dowling, Tayler, Macdonald & Walker.

[1] [1926] HCA 23; (1926) 38 C.L.R. 74, at p. 128.

[2] (1907) 1 C.L.R. 977, at p. 989.

[3] (1896) A.C. 88.