Harrison v Darling to Glen Waverley Railway Construction Trust [1934] HCA 55; (1934) 52 CLR 68 (13 December 1934)

HIGH COURT OF AUSTRALIA

Harrison Plaintiff, Appellant; and The Darling to Glen Waverley Railway Construction Trust Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

13 December 1934

Starke, Dixon, Evatt and McTiernan JJ

Hogan, for the appellant.

Eager, for the respondent, was not called upon on the main appeal.

Hogan, in reply.

Eager, in reply on the cross-appeal.

The following written judgments were delivered:—

Dec, 13

Starke J.

This was an action in which a declaration was sought that the Darling to Glen Waverley Railway Construction Trust was not constituted in the manner required by the Darling to Glen Waverley Railway Construction Act 1926 (No. 3500), and the Railway Lands Acquisition Act 1928. The Construction Act authorized the making of a railway commencing on the Darling railway at or near its junction with the Outer Circle railway subject to such deviations and modifications as might be considered desirable by the Board of Land and Works, and also the doing of anything the Board deemed necessary to make fit for traffic that portion of the Darling railway line which is situate between the Darling railway station and the commencement of the line authorized by the Act. The junction of the Darling and Outer Circle railway lines was at a point in a south-easterly direction from the Darling railway station. But the Darling and Glen Waverley line was not constructed so as to commence at this point; it was constructed a short distance north of it, crossed the Outer Circle line, and joined up with the Darling railway line nearer to the Darling railway station than the junction.

It was argued that this deviation from or modification of the commencing point of the line named in the Act was unauthorized, and that consequently the Railway Construction District and the Darling to Glen Waverley Railway Construction Trust were not formed in accordance with the provisions of the Construction Act and the Railway Lands Acquisition Act. The deviation or modification resulted in the shortening of the Glen Waverley line, and gave it advantages both in direction and in curves. The line as constructed commenced at a point on the Darling railway which was not far from the junction of the Darling and Outer Circle railway lines. And the authority to construct the line is not rigid: it is subject to such deviations and modifications as may be considered desirable by the Board, and the engineering advantages of the deviation or modification—if that be of any importance—are obvious upon the mere inspection of the plans. Consequently, in my opinion, the Darling to Glen Waverley line of railway, as it was constructed, is within the authority conferred by the Construction Act, and is authorized by it.

Objections to the inclusion of the lands of the plaintiff and other members of the East Malvern Ratepayers' Association within the Railway Construction District, based upon the unauthorized construction of the Darling to Glen Waverley line, necessarily fail, and so do objections to the constitution of the Railway Construction Trust based upon the same ground. It was therefore rightly declared that the Darling to Glen Waverley Railway Construction Trust and the Darling to Glen Waverley Railway Construction District were validly constituted.

But it was also declared that a rate purporting to have been made by a resolution of the defendant on 8th August 1932 was illegal and unenforceable. On 25th July the Construction Trust passed a resolution that a construction rate as hereunder be struck on the net annual value of the whole of the ratable property in the railway rating area for the period 1st July 1932 to 30th June 1933 due and payable on 30th July 1932: Zone 1, 1s. 6d. in the £; 2, 1s. 1d.; 3, 11d.; 4, 10d.; 5, 8d.; 6, 7d.; 7, 6d.; 8, 4d.; 9, 3d.; 10, 1d. The July rate was not approved by the Governor in Council, nor published in accordance with the Railway Lands Acquisition Act 1928 (see secs. 43, 45). By a resolution of 8th August 1932, the Trust purported to rescind the resolution of 25th July 1932. On the same date, 8th August, the Trust resolved "that a construction rate as hereunder be struck on the net annual value of the whole of the ratable property in the railway rating area for the period July 1st 1932 to June 30th 1933 due and payable on August 9th 1932." The rate so adopted was higher than that imposed on 25th July 1932. The validity of the August rate depends upon the provisions of several sections of the Railway Lands Acquisition Act 1928. The 33rd section, sub-sec. 2 provides: "No resolution or other act of the trustees at any meeting shall be revoked or altered at any subsequent meeting unless such meeting is specially convened for the purpose nor unless such revocation or alteration is determined upon by a majority consisting of at least two-thirds of the trustees present at such subsequent meeting." It is conceded that the August resolutions were not passed by a majority consisting of two-thirds of the trustees present at the meeting; in fact they were passed by a majority of one. The rate was approved by the Governor in Council, and published once in the Government Gazette, but it has not been published once, or at all, in "some newspaper circulating in the Railway Construction District." The August resolutions contravene sec. 33 (2), and the provisions of sec. 45 cannot be relied upon to give them force and effect, owing to the absence of the publication required by that section. The declaration that the rate purporting to have been made by resolution on 8th August 1932 is illegal and unenforceable is therefore right.

The appeal and cross-appeal should be dismissed.

Dixon J.

The respondent Railway Construction Trust was constituted by Order in Council under what is now sec. 18 of the Railway Lands Acquisition Act 1928 for the purposes of the railway line from Darling to Glen Waverley, the construction of which was authorized by Act No. 3500. That Act empowered the Board of Land and Works, as the Constructing Authority, to make and construct a railway commencing on the existing Darling railway at or near its junction with the existing Outer Circle railway in the line and upon the lands described in a schedule, and to do anything it deemed necessary to make fit for traffic that portion of the Darling railway which is situate between the Darling railway station and the commencement of the line so authorized. The schedule described the line to be constructed as commencing on the Darling railway at or near its junction with the Outer Circle railway, and proceeding thence for about five and three-quarter miles in an easterly direction terminating in or near a specified place, "subject to such deviations and modifications as may be considered desirable by the Board." The two existing railway lines, both of which at that point were disused, met at an acute angle to form which the Darling railway ran in a curve from its easterly course to the south. In the permanent survey of the new line, which did not discriminate between the work of making fit the old line for traffic and of constructing the new line, the point of departure from the course of the existing railway was shown some considerable distance west of the commencement of its southerly curve by which it met the Outer Circle line, and about six hundred and fifty yards from the point of junction. The certificate of the Chief Engineer for Railway Construction under sec. 4 of the Railway Lands Acquisition Act 1928 was based upon this plan, which the actual construction of the line followed. Under sec. 6, with this plan before it, the Constructing Authority caused plans and descriptions to be prepared of all lands, which, in its opinion, would be materially enhanced in value by the construction of the authorized line, and, under sec. 7, caused them to be forwarded to the Minister together with a certificate that the lands shown thereon and described therein ought to be proclaimed a Railway Construction District, which was accordingly done. The respondent was constituted, under sec. 18, the Railway Construction Trust for such district.

The appellant is one of a number of persons whose lands have been included in the district, although they lie west of the actual point of junction of the two old railway lines. He brought in the Supreme Court the action out of which this appeal arises, seeking declarations of right and consequential relief to establish his freedom from liability to railway construction and betterment rates. The substance of his complaint is that the point of departure from the existing Darling railway line was not "at or near" its junction with the Outer Circle railway, with the consequence that, in forming its opinion under sec. 6 of the Railway Lands Acquisition Act 1928 of what lands would be materially enhanced in value by the construction of the authorized line, the Constructing Authority took into account a portion of railway which was not authorized, and so wrongly included lands of the appellant and others in the Railway Construction District, which, accordingly, was badly constituted.

The correctness of this contention depends primarily upon the assertion that the commencement of the railway, as constructed, does not comply with the requirement or description of Act No. 3500. That requirement is that it shall commence in the Darling railway at or near its junction with the Outer Circle railway, but the requirement is subject to such deviations and modifications as may be considered desirable by the Board. It is contended that the qualification expressed in these concluding words, which appear in the description in the schedule, does not apply to the fixing of the commencing point, but only to the route between the two termini. Neither grammar nor sense supports this interpretation of the description. The precise point at which the new construction should leave the old was essentially an engineering question, which the Legislature would not desire to foreclose, and the expressions "at or near" and "subject to ... modifications" are well adapted to leave it open. No reason appears for denying the application of the phrase "subject to such deviations and modifications as may be considered desirable by the Board" to the whole description contained in the schedule, including that of the point of commencement. In any event, it is by no means clear that the point of departure from the old Darling line actually adopted is not "near" its junction with the Outer Circle line within the meaning of Act No. 3500. "Near" is not a word which can be applied without considering the object with which it is introduced into the description. That object was to enable the selection in the existing line, which, in order to make the old junction, swung away from the intended route of the new, of an appropriate point for commencing the new railway, but to limit the selection to the vicinity of the junction. A study of the old lay out does not demonstrate that the description "near the junction" is inappropriate to the actual point of departure. But whether it is accurate to call it "near" or not does not matter, because, if not, it is a permissible modification of the required nearness.

For these reasons the decision of Gavan Duffy J. appealed from should be affirmed.

But, in respect of a particular rate with which the respondent Railway Construction Trust has attempted to charge the appellant, the latter obtained from the learned Judge a declaration that it was illegal and unenforceable, and from that declaration the respondent has cross-appealed. The question raised by the cross-appeal turns upon sec. 33 of the Railway Lands Acquisition Act 1928, the two sub-sections of which are expressed as follows:—"(1) All questions at any meeting of the members of any such Trust shall be decided by a majority of the trustees present and in case of an equal division of votes the chairman at such meeting shall have a second or casting vote in addition to his vote as a trustee. (2) No resolution or other act of the trustees at any meeting shall be revoked or altered at any subsequent meeting unless such meeting is specially convened for the purpose nor unless such revocation or alteration is determined upon by a majority consisting of at least two thirds of the trustees present at such subsequent meeting."

It appears that rival proposals for the striking of a rate at graduated amounts for different zones were before a meeting of the Trust on 25th July 1932. The meeting was equally divided and, upon the casting vote of the chairman, the lower rate was adopted. A resolution was passed that a construction rate as specified be struck on the net annual value of the whole of the ratable property in the railway rating area for the period 1st July 1932 to 30th June 1933. Sec. 45 provides that "Any rate made and levied by a Trust under this Act may be made by a resolution of the Trust, and every such resolution shall be published once in the Government Gazette and once in some newspaper circulating in the Railway Construction District and after such publication shall have the same force and effect in respect of that District as if enacted in this Act." Thus subject to the approval of the Governor in Council, which appears to be required by sec. 43 (2), the resolution passed would have been effective to impose the rate, upon its being published in the Government Gazette and in a newspaper. But, after the resolution had been passed and the resolution for the higher rate put, and rejected on the casting vote of the chairman, a member of the trust, who supported the higher rate, gave notice of motion for the rescission of the resolution just passed. To consider this motion a meeting was specially convened for 8th August 1932. At that meeting the motion was carried for the rescission of the resolution passed at the previous meeting, but not by a majority consisting of at least two-thirds of the trustees present as required by sec. 33 (2). Thereupon the higher rate previously rejected was adopted by a resolution passed by a majority of one. This resolution appears to have been approved by the Governor in Council. It was gazetted, but, before it was published in a newspaper, the appellant issued his writ. It, therefore, has not yet obtained the force given to it by sec. 45 and, if complete compliance with the conditions laid down by that section would give it a binding force, it ought not to be allowed to obtain it. For it appears clearly to have been passed in violation of sec. 33 (2). The resolution rescinding the previous resolution for a rate was an express revocation, which could not be passed except by a two-thirds majority and without that express revocation, the resolution for the higher rate would involve an implied revocation or alteration of the former resolution and would require the same majority. Sec. 50 incorporates sec. 343 of the Local Government Act 1928, which enacts that upon any complaint or action for the recovery of any rate from any person, the invalidity or badness of the rate as a whole or in respect of any part thereof shall not avail to prevent such recovery. But it does not incorporate sec. 302, which gives an appeal against a rate for any cause of grievance. This does not mean that the statute intends that an attempt to impose a rate, although by a procedure which violates the legislation, should be allowed to be made by a Railways Construction Trust without legal hindrance. Whether, if the procedure were brought to a final conclusion, sec. 45 and sec. 50, by incorporating sec. 343 (2) of the Local Government Act 1928, would operate to put the rate beyond question need not be considered (Cf. The Minister of Health v. The King (On the Prosecution of Yaffe)[1]). The possibility that a proceeding, which departs from the requirements of the law, may become no longer open to attack is no reason why the Court should not intervene before it is complete.

The decision of Gavan Duffy J. upon the validity of this particular resolution for a rate is right and the cross-appeal should be dismissed.

The order should be—Appeal dismissed with costs; cross-appeal dismissed with costs. Costs to be set off.

Evatt J.

In this case I concur in the judgment of my brother Dixon.

McTiernan J.

I have read the judgment of my brother Dixon and agree with it.

Appeal dismissed with costs. Cross-appeal dismissed with costs. Costs to be set off.

Solicitor for the appellant, J. Woolf.

Solicitor for the respondent, Ernest I. Thompson.

[1] (1931) A.C. 494.