Thompson v Randwick Municipal Council [1953] HCA 75; (1953) 90 CLR 449 (18 November 1953)

HIGH COURT OF AUSTRALIA

THOMPSON v. THE COUNCIL OF THE MUNICIPALITY OF RANDWICK [1953] HCA 75; (1953) 90 CLR 449

Local Government (N.S.W.)

High Court of Australia
Dixon C.J.(1), Webb(1), Kitto(1) and Taylor(1) JJ.

CATCHWORDS

Local Government (N.S.W.) - Municipality - Division into wards - Aldermen - Alteration in boundaries of wards and number of aldermen - Request for poll - Non-compliance with request - Proclamation - Validity - Injunction - Right of individual elector - Voting rights - Impairment - Local Government Act 1919- 1952 (N.S.W.) (No. 41 of 1919 - No. 53 of 1952), ss. 58*, 648*.

HEARING

Sydney, 1953, November 11, 12, 18. 18:11:1953
APPEAL from the Supreme Court of New South Wales.

DECISION

November 18.
THE COURT delivered the following written judgment:-
This is an appeal by special leave from an order of the Supreme Court of New in a suit brought by the appellant against the respondent council. The purpose of the suit was to restrain the defendant council from acting upon an alteration of the division into wards of the municipality when the council's officers compiled the list of electors for the municipality and also from holding the elections for aldermen in accordance with such alteration. (at p455)

2. According to the statement of claim a proclamation by the Governor in Council appeared in the New South Wales Government Gazette of 3rd July 1953 purporting to alter the division into wards of the municipality in a manner described in the schedule to the proclamation and altering the number of aldermen constituting the council from twelve to fifteen. The plaintiff's contention is that the proclamation was invalid because the conditions prescribed by s. 58(4) of the Local Government Act 1919-1952 were not fulfilled. Sub-section (1) of s. 58 empowers the Governor by proclamation to divide a municipality into wards and to name or alter the name of a ward. Sub-section (2) enables him by proclamation to alter or abolish any division of a municipality into wards and again to divide a municipality into wards. Sub-section (3) provides that before such division, alteration, abolition or subsequent division is carried out a notice prescribed shall be given and the council or any elector may make written representations with regard thereto. Then sub-s. (4) provides that before so dividing a municipality or altering or abolishing any such division or redividing the municipality the Governor shall, on the request of one hundred or more of the electors, remit to a poll of electors of the whole of the municipality the question whether such division, alteration, abolition or redivision shall be carried out. Thereupon the council is to fix a day for the poll. If the decision of the poll is in the negative the proposal shall not be given effect to. (at p455)

3. The statement of claim alleges that more than one hundred electors of the municipality, including the plaintiff, requested the Governor to remit to a poll of electors the question whether the alteration should be carried out. The pleading proceeds to allege that the respondent council did not thereupon or at any time fix or notify as prescribed or in any manner a day upon which such poll as aforesaid should be held and that at no time was such a poll held. There is no allegation that the Governor did not remit the question to a poll of electors but we were informed by counsel for the respondent council that in fact no such remission was made, the view having been taken that what the statement of claim alleges to have been a request did not amount to a request within the meaning of s. 58(4). (at p456)

4. The chief ground of the demurrer ore tenus was that the plaintiff appellant had no title to sue for the relief claimed. Even if the proclamation were void, the consequences were of a public nature, so the respondent council maintained, and the plaintiff is not entitled to complain. No particular right of his had been invaded. There was no threat to invade such a right and, moreover, so it was said, if there were any such right it was not one of the character which courts of equity would protect by injunction or other relief. The respondent council further contended that the result of the non-fulfilment of the requirements prescribed by s. 58(4) was not to invalidate a proclamation once gazetted. Reliance was placed upon s. 648 of the Local Government Act. (at p456)

5. The suit came before Myers A.J., who upheld the demurrer ore tenus on the ground that even if the complaint of the plaintiff appellant were made out, it would amount only to an interference with a public right. It was not alleged that any particular loss was suffered by the plaintiff appellant nor any special damage and there was no allegation of facts showing any private right of his with which the council's action would interfere. It is this last conclusion that the plaintiff appellant contests. (at p456)

6. In support of his appeal it is contended that a particular or private right is given to him which would be interfered with if the council proceeded to act upon the proclamation. The contention depends upon s. 50, which provides that every person shall, if he has the requisite qualification, be qualified to be an elector and shall be entitled (a) to be enrolled for the ward or riding in respect of which he has the requisite qualification, and (b) to vote at any election of aldermen or councillors for the ward or riding. (at p456)

7. The argument of the plaintiff appellant depends upon a number of steps. First, the right to be enrolled, so he contends, becomes effective when the roll is in course of preparation in pursuance of ss. 64, 65 and 66, and entitles him to be enrolled in respect of a lawfully established ward. He adds that a similar right exists in him to vote at the election for a lawfully established ward, although this right to vote may be subject to the prior necessity of having his name placed on the roll. The second step is that the right is one that is cognisable in a court of equity and one which would be protected by injunction. The third step in the argument is that, because a poll was not held, one hundred electors having requested the Governor to remit the question to a poll, the purported redivision of the municipality into wards is void. The fourth step is the contention that by causing his name to be placed upon a roll for a ward forming part of the void redivision, the respondent council impairs his alleged right to be enrolled for a lawful ward. (at p457)

8. Every one of these steps is contested by the respondent municipality. It is convenient to deal at once with the last of them. It necessarily involves matters of fact as well as of law. The basis in fact of the contention is that if the roll is made up in accordance with the proclamation the plaintiff will be enrolled in respect of a ward that does not exist in law and will thereby be refused enrolment in respect of a ward which does exist in law. Now, although by s. 64(1) the council before each triennial ordinary election must cause an original roll of electors to be prepared, yet by s. 65(4) rolls must be prepared separately for wards and the rolls for all the wards taken together constitute the roll for the area. The foundation of the complaint must therefore be that the plaintiff will be enrolled for a ward which does not correspond to what he alleges to be the lawful ward. (at p457)

9. Unfortunately the statement of claim contains no precise allegation as to the manner in which the subdivision took place. The allegation in the pleading dealing with the subdivision craves leave to refer to the proclamation as appearing in the Gazette as if the same were fully set out in the pleading. It was objected on the authority of Metropolitan Theatres Ltd. v. Harris (1935) 35 SR (NSW) 228, at p 233; 52 WN 68, at p 70 that, for the purpose of the demurrer, only what appeared actually in the pleading could be considered and that it was not legitimate to look at the remainder of the proclamation as it appeared in the Gazette. This objection if upheld, however, might result in no more than an amendment and so the Gazette was looked at for the purpose of seeing whether the case of the plaintiff appellant might be bettered. Another fact was stated which also does not appear in the pleading; that is to say we were told what was the ward in which the plaintiff appellant resided. It appears from the Gazette that the proclamation divides the municipality into five wards in substitution for four wards under the previous division. Nevertheless two of the wards, including that in which the plaintiff resides, are constituted as proclaimed in the Government Gazette which previously subdivided the municipality into wards. Apparently there is a revised description but these wards are substantially unchanged. The statement of claim does not therefore in itself show that the ward in respect of which the plaintiff appellant would be enrolled in pursuance of the proclamation is a different ward from that in respect of which he would be enrolled, had there been no such proclamation, and if the proclamation had been fully set out in the pleading that would not have appeared to be the fact. It therefore seems that the very foundation is wanting of the assertion of the plaintiff appellant that his enrolment on the basis of the proclamation would impair his alleged right to be enrolled for a lawfully constituted ward. (at p458)

10. To meet this deficiency, however, it was argued that to be enrolled for the same ward after the municipality had been divided into five wards, that is to say after two other wards had been divided into three wards, was to obtain a different right, different because the proportion in relation to wards, voters and aldermen would be altered. But this contention rests on an indirect consequence of the redivision, upon the effect of a vote and not upon any impairment of the actual right to be enrolled or to vote in respect of a lawfully constituted ward. It could not afford the plaintiff appellant a cause of action, even were his other contentions to be sustained. For these reasons the plaintiff's appeal fails initially. (at p458)

11. It appears proper to add that in point of substance his case would fail even if he made out a locus standi to sue and for equitable relief. It would fail because the grounds assigned would not result in the proclamation being null and void. It may be true that prima facie s. 58(4) appears to impose a condition on the Governor's power by proclamation to divide municipalities into wards or to alter such a division, a condition the non-fulfilment of which would go to power. There is, however, no express language in s. 58 making failure to remit the question to a poll of electors after due request a ground of invalidating the proclamation. If it did result in invalidity the council of the municipality would be placed in an unenviable dilemma. The Governor having proclaimed a division in fact, without a poll, the council would be required at their peril to decide whether the Governor had or had not received a request properly signed by a sufficient number of citizens to remit to a poll. It would be a matter on which the council would have no knowledge, and yet if the council wrongly decided this question, then according to the plaintiff appellant, the rolls and the election thereon would be void. Section 648 appears to be directed to remedy such a position. It provides that a proclamation or notification of the Governor purporting to be made under the Act and being within powers of the Governor shall not be deemed to be invalid by reason of any non-compliance with any matter required by the Act as a preliminary to the making of the proclamation or notification. The words "non-compliance with any matter required by this Act as a preliminary" are very general in their connotation and there seems to be no reason to regard the duty of the Governor to remit to a poll on due request as anything but a non-compliance with a matter required as a preliminary. It is true that if the Governor does remit to a poll and the decision of the poll is in the negative, s. 58(4) provides that the proposal to divide shall not be given effect to. This is a positive command non-compliance with which may well not come within s. 648. Whether it is mandatory or directory is a matter which need not be discussed. But there is a distinction between the Governor in Council mistakenly treating a request as insufficient, or for some other reason erroneously failing to remit to a poll when he should do so, and the disregarding of an express prohibition against making a proclamation when a poll has been held and the vote has been in the negative. The basis of s. 648 seems to be that the validity of a proclamation or notification if made by the Governor in Council is to be tested only by a comparison with the power. If it falls within the ambit of the power it is to be valid, notwithstanding that preliminary conditions were not complied with. In the present case this principle appears to be fully applicable. (at p459)

12. For these reasons the appeal should be dismissed with costs. (at p459)

ORDER

Appeal dismissed with costs.