Baiada v Baulkham Hills Shire Council [1951] HCA 70; (1951) 83 CLR 344 (16 November 1951)

HIGH COURT OF AUSTRALIA

BAIADA v. BAULKHAM HILLS SHIRE COUNCIL [1951] HCA 70; (1951) 83 CLR 344

Resumption of Land

High Court of Australia
Dixon (1), McTiernan(1), Williams(1), Fullagar(1) and Kitto(1) JJ.

CATCHWORDS

Resumption of Land - Statutory power - "Purposes" of statute - Necessity - "Improvement and embellishment of the area" - Notification in the Government Gazette - Conclusiveness - Statute - Operation - Local Government Act 1919-1950 (N.S.W.) (No. 41 of 1919 - No. 9 of 1950), ss. 321 (d), 532, 536 - Local Government (Amendment) Act 1951 (N.S.W.) (No. 18 of 1951).

HEARING

Sydney, 1951, November 16. 16:11:1951
APPEAL from the Supreme Court of New South Wales.

DECISION

The judgment of the Court was delivered by:-
DIXON J. This is an appeal from a decree of the Chief Judge in Equity by the suit. The object of the suit was to attack the validity of a resumption. The resumption had been made under s. 532 of the Local Government Act and s. 536, as s. 536 stood before Act No. 18 of 1951 came into force. Under s. 532 the Council may acquire land within or outside the area for any purpose of the Act by lease, purchase, appropriation, or resumption in accordance with the Part, that is, Part XXV. The purpose of the Act for which it was purported to make the resumption was that stated in s. 321(d). That provision says that, subject to the provisions of the Act, the council may control and regulate, and may undertake the improvement and embellishment of the area. Assuming that the statement of claim correctly sets out the notice, the notice did not use the full words "for the purpose of undertaking the improvement and embellishment" but omitted the word "undertaking". The purpose was expressed to be simply for the improvement and embellishment of the area. But the defect in the form of the notice the Chief Judge in Equity did not think material. (at p350)

2. The ground upon which the demurrer was allowed was that once the proceedings for resumption had reached a conclusion under s. 536, the gazetted notification precluded an investigation of the purposes which really actuated the Council. In the statement of claim pars. 5, 6 and 7 negative the existence in fact of the requisite purpose expressed by s. 321 (d). The allegations of fact there stated, if true, amount to a denial of the existence of that purpose. (at p350)

3. In upholding the demurrer on this ground the learned Chief Judge in Equity applied the decisions he had given in Motor Wheel & Tyre Co. Ltd. v. Commissioner for Railways (1950) 50 SR (NSW) 205; 67 WN 166 and Howarth v. McMahon (1950) 51 SR (NSW) 73; 68 WN 25 . These decisions were influenced by dicta by Isaacs J. and Rich J. in Criterion Theatres Ltd. v. Sydney Municipal Council [1925] HCA 9; (1925) 35 CLR 555; 7 LGR 72 . His Honour's decision in the present case was more particularly based on the case of Howarth v. McMahon (1950) 51 SR (NSW) 73; 68 WN 25 , an appeal in which was pending in this Court and, indeed, was actually being argued at the time. The decision eventually given in this Court in Howarth v. McMahon is now reported [1951] HCA 19; (1951) 82 CLR 442, at pp 449, 450; 18 LGR 43, at pp 47, 48 . In that decision the case of Criterion Theatres Ltd. v. Sydney Municipal Council [1925] HCA 9; (1925) 35 CLR 555; 7 LGR 72 is mentioned and comments are made upon the dicta of Isaacs and Rich JJ. Then follows a passage which is as follows: - "The decision of Roper C.J. in Eq. in Motor Wheel & Tyre Co. Ltd. v. Commissioner for Railways (1950) 50 SR (NSW) 205; 67 WN 166 turns entirely on the Public Works Act, 1912. His Honour, in the course of his reasons, rejected a contention that s. 34(2) of the Government Railways Act 1912-1950 was the source of the power there in question. Having done so, his Honour placed the case entirely under Part V. of the Public Works Act, 1912. Having found that the notice of acquisition complied with the requirements of s. 42 of that Act, his Honour then decided that s. 43 accomplished the vesting of the land notwithstanding that upon the facts behind the acquisition he was of opinion that the works contemplated did not in truth form an authorized work within the meaning of s. 42. The distinction between the present case and Motor Wheel & Tyre Co. Ltd. v. Commissioner for Railways (1950) 50 SR (NSW) 205; 67 WN 166 , as will be seen, lies in the fact that in the latter case the whole question came within ss. 42 and 43 of the Public Works Act. In the present case the Public Works Act, 1912 does not apply unless and until it is, so to speak, drawn in by a proper use of the Local Government Act. For the reasons already given, the Public Works Act is not drawn in by the Local Government Act unless the conditions stated by s. 532 are fulfilled and here they are not fulfilled. It is therefore not proper in the present case to express any opinion about the correctness of the conclusion that in a case exclusively under Part V. of the Public Works Act the facts behind the notice of acquisition are not examinable." (1951) 82 CLR, at pp 449, 450; 18 LGR, at pp 47, 48 . (at p351)

4. A little earlier in the reasons the Court had expressed the opinion that, upon the proper interpretation of the Local Government Act the operation of the provisions of Div. 1, Part V., of the Public Works Act in regard to resumption depends entirely on the substantive power under the Local Government Act becoming exercisable. The Court proceeded to say that that means, when the power is sought in s. 532, it is an indispensable condition that the resumption shall be for a purpose of the Act. At a point in the judgment later than the passage quoted above, the Court said that whatever might be the position under other Acts, under the Local Government Act the cardinal provision is s. 532 and that makes the existence of the requisite purpose essential. "Thus the inquiry is remitted to the question whether the purported resumption of the land of the defendant-respondent was for a purpose within the power of the municipality." These passages amount to a very definite expression of opinion that unless the resumption is in truth for the purposes of the Act within the meaning of s. 532 the publication in the Gazette is not conclusive. To that opinion we adhere. Indeed we have already repeated it and given effect to it in the case of Minister for Public Works and Local Government v. Duggan [1951] HCA 29; (1951) 83 CLR 424; 18 LGR 60 . The judgment of the learned Chief Judge in Equity was based on a view which gave a wider application to his Honour's decision in Motor Wheel & Tyre Co. Ltd. v. Commissioner of Railways (1950) 50 SR (NSW) 205; 67 WN 166 and also upon what his Honour had said with reference to that case in Howarth v. McMahon (1950) 51 SR (NSW), at p 75; 68 WN, at p 26 before it came to this Court. What has been decided in this Court displaces the view so expressed by his Honour and it follows that, apart from what has been suggested as to the application of the new Act, No. 18 of 1951, the decision below cannot stand and the demurrer should have been overruled. The suggestion made as to Act No. 18 of 1951 is that it has a retrospective operation and governs this case. If it had a retrospective operation we are far from saying that it would cause us to reach a different conclusion in this case. But we are clearly of opinion that it has not got a retrospective operation. (at p352)

5. For these reasons the appeal should be allowed with costs, the decree below should be set aside so far as it upholds the demurrer and dismisses the suit with costs and refers the taxation of costs to the Master. In lieu thereof the demurrer ore tenus should be overruled with costs and the cause remitted to the Supreme Court in Equity to be dealt with according to law consistently with this judgment. (at p352)

ORDER

Order accordingly.