Mackellar County Council v Jones [1967] HCA 36; (1967) 116 CLR 453 (17 October 1967)

HIGH COURT OF AUSTRALIA

MACKELLAR COUNTY COUNCIL v. JONES [1967] HCA 36; (1967) 116 CLR 453

Local Government (N.S.W.)

High Court of Australia
McTiernan(1), Kitto(2), Taylor(2), Windeyer(3) and Owen(4) JJ.

CATCHWORDS

Local Government (N.S.W.) - County councils - Proceedings against - Applicability of statutory provisions as to notice of action and limitation of time for institution of proceedings - Local Government Act, 1919-1959 (N.S.W.), ss. 4, 564 (4) (a), 573 (2), 580 (1) (6).

HEARING

Sydney, 1967, August 18, 21; October 17. 17:10:1967
APPEAL from the Supreme Court of New South Wales.

DECISION

October 17.
The following written judgments were delivered:-
MCTIERNAN J. This is an appeal from the Court of Appeal of the Supreme Court plaintiff to certain pleas of the defendant to the declaration in the action. These pleas are based on s. 580 of the Local Government Act, 1919-1959 (N.S.W.). The ground of the demurrer is that s. 580 does not apply to a county council. The majority of the Court of Appeal, Wallace P. and Holmes J.A., allowed the demurrer. The dissentient was Jacobs J.A. (at p454)

2. Section 580 is in Pt XXX of the Act. The heading of Div. 1 of Pt XXX is "Application of this Part". Section 574, the first section in Div. 1, provides as follows: "574. Subject to the provisions of this Act - (a) this Part shall apply to municipalities and shires; (b) the powers and duties conferred and imposed upon a council under this Part shall apply in respect of each area to the council of the area." The defendant is not a "municipality" or a "shire". The county district for which the defendant is the council is not an "area". All this is made clear by s. 4, the interpretation section of the Act. (at p454)

3. Section 580 is in Div. 3 of Pt XXX. The heading of the Division is "Legal and other proceedings - against the council or its members or servants". The heading of Pt XXX is "Supplementary". Taking the words of s. 580, the intention of the legislature as to its application is that the section is supplementary only to the provisions of the Act relating to councils of "areas", as defined by s. 4. The question in dispute is whether s. 564, sub-s. (4) (a), of the Act operates to extend the application of s. 580 to councils of county districts. Section 564 is in Pt XXIX, the provisions of which relate to county districts and county councils. The question depends entirely on the provision of s. 564, sub-s. (4) (a), with which it concludes. The words of the provision are "for the purpose it shall have all the powers which by law may be exercised by the council of an area in or in connection with the exercise of the delegated powers and the performance of the delegated duties and the provisions of any laws relating to areas, and their councils shall, mutatis mutandis, apply for the purposes of this Part to county districts and county councils". This provision should not be separated from the rest of s. 564, sub-s. (4) (a). The words "the provisions of any laws relating to areas and their councils" should receive a construction limited by the subject matter of s. 564. I think that unless expressly mentioned the provisions of s. 580 would not be assumed to attach to the delegation of the powers, functions and duties of the municipalities and shires absorbed in a county district. Section 573, sub-s. (2), of Pt XXIX expresses the intention of the legislature as to the classes of provisions of Pt XXX, identified by reference to their subject matter, which, unless otherwise expressly applied, are to apply to county councils. The provisions of s. 580 as to legal proceedings are not included in s. 573, sub-s. (2). It should be added that no ordinance has been made under s. 573, sub-s. (1) (a), applying s. 580 to county councils. In my opinion the decision of the Court of Appeal is right. (at p455)

4. I would dismiss this appeal. (at p455)

KITTO AND TAYLOR JJ. We have had the opportunity of considering the reasons prepared by Owen J. in this matter and we agree with him that the appeal should be dismissed. We do not, however, subscribe to the view that the expression in s. 564 (4) (a) of the Local Government Act, 1919, as amended - "laws relating to areas, and their councils" - is, in the context in which it appears, appropriate to describe a provision such as s. 580. What the initial part of the earlier sub-section does is, first of all, provide that "Upon the proclamation of the delegation of powers or duties the county council shall have full power to exercise the powers and shall perform the duties so delegated". Then "for that purpose", it is to have "all the powers which by law may be exercised by the council of an area in or in connection with the exercise of the delegated powers and the performance of the delegated duties". Thereafter the sub-section provides that "the provisions of any laws relating to areas, and their councils shall, mutatis mutandis, apply for the purposes of this Part to county districts and county councils". These concluding words are, it seems to us, intended to ensure that a county council shall have full and ample powers, whether they be found in the Local Government Act or elsewhere, to perform the duties and functions with which they may be invested under Pt XXIX. We do not see s. 580 as such a law. However, it is unnecessary to elaborate on this point of view for we agree with Owen J. that close consideration of the provisions of s. 573 must lead to the conclusion that s. 580 is not a law of the kind described by the critical expression as it is used in s. 564 (4) (a). (at p456)

WINDEYER J. I consider that this appeal should be dismissed. I agree in the judgment which Owen J. has prepared. The words in s. 564 (4) on which the appellant relies to make s. 580 applicable seem to me to be, in themselves, indefinite in their operation. And their inherent uncertainty becomes the more apparent when other parts of the Act, particularly s. 573, are read. Subjects are not to be deprived of common-law rights, or to have their common-law remedies limited, by statutory phrases which are uncertain and obscure. (at p456)

OWEN J. The question to be determined in this appeal is whether s. 580 of the Local Government Act and, in particular, sub-ss. (1) and (6) of that section apply to the county council of a county district constituted under Pt XXIX of the Act. Section 580, which is in Pt XXX of the Act, provides, by sub-s. (1), that a writ or other process in respect of damage to person or property shall not be sued out or served against the council of a city, municipality or shire for anything done or intended or omitted to be done under the Act, until the expiration of one month after notice in writing has been given to the council and, by sub-s. (6), every such action is required to be commenced within twelve months after the cause of action arises. The section provides as well that, in the case of damage to property, a person authorized thereto by the council, shall be permitted to inspect the property damaged and that all facilities and information necessary to ascertain its value, the nature and extent of the damage and the amount (if any) expended on repairing the same shall be given to him (sub-s. (3)). In the case of injury to the person, sub-s. (4) provides that a medical practitioner duly authorized by the council shall be permitted to examine the person injured and all facilities and information necessary to enable him to ascertain fully the nature and extent of the injury and the loss or expenses arising therefrom shall be given to him. (at p456)

2. Part XXIX of the Act contains six divisions. Division 1 consists of an interpretation section. Division 2 enables the Governor, by proclamation, to constitute as a county district for local government purposes groups of municipalities or shires or parts thereof. Division 3 provides for the constitution of county councils, the methods of selecting the members of such councils and matters related thereto and declares by s. 563, as amended by Act No. 21 of 1959, that a county council shall be a body corporate which may sue and be sued in its corporate name. Division 4 contains s. 564 which empowers a county council to undertake any function delegated to it in accordance with the Act for the joint benefit of the constituent areas, "area" being defined by s. 4 to mean "city, municipality or shire". It deals also with the delegation of powers to county councils by councils of areas and by s. 564 (4) (a) it is provided that: "Upon the proclamation of the delegation of powers or duties the county council shall have full power to exercise the powers and shall perform the duties so delegated; and for that purpose it shall have all the powers which by law may be exercised by the council of an area in or in connection with the exercise of the delegated powers and the performance of the delegated duties and the provisions of any laws relating to areas, and their councils shall, mutatis mutandis, apply for the purposes of this Part to county districts and county councils . . . . " Division 4A makes provision for the abolition of county districts and the dissolution of county councils in certain events and Div. 5 deals with the destruction of aquatic pests by county councils. Division 6 is headed "Ancillary Powers" and contains s. 570 to s. 579. Section 570 gives a county council power to do all acts not otherwise unlawful which are necessary or incidental to the carrying out of its duties or the exercise of its powers under the Act and s. 573 (1) enables ordinances to be made "for carrying this Part into effect, and in particular for and with respect to - (a) applying, mutatis mutandis, to county councils (subject to the provisions of this Part) any of the provisions of this Act relating to councils; and without limiting the generality of the foregoing power, applying any of the provisions of sections twenty-six, thirty-one, thirty-five, forty-eight, eighty-six, or of Part VIII of this Act; (b) . . . (c) . . . ". Section 573 (2) provides that: "The provisions of Part XXX relating to the making, alteration, rescission, and enforcement of ordinances shall apply, mutatis mutandis, to this Part and to county councils as if they were councils of areas." The words in s. 564 (4) (a) which I have put in italics are relied upon by the appellant Council as entitling it to plead s. 580 (1) and (6) to the present action. (at p457)

3. Had it not been for the presence of s. 573 (2) in Pt XXIX of the Act I would have been of opinion that s. 580 was a "law relating to councils" of areas within the meaning of s. 564 (4) (a) and that, by virtue of that sub-section, it would apply to the case of an action brought against a county council. But the existence in the Act of s. 573 (2) has led me to the opposite conclusion since that sub-section expressly provides for the application to county councils of some of the provisions of Pt XXX and makes no mention of other matters with which Pt XXX deals. Thus Div. 2 (ss. 575 to 579) of Pt XXX which deals with the making, alteration and rescission of ordinances are expressly made applicable to county councils as are the provisions for the enforcement of ordinances which are to be found in Div. 4 (ss. 586 to 595) of that Part while Div. 3 which contains s. 580 receives no mention in s. 573 (2). I can understand that the draftsman may have considered - with some justification - that it was doubtful whether the powers vested in the Governor under Div. 2 of Pt XXX to make, alter and rescind ordinances by proclamation would fall within the description of a law "relating to areas and their councils". But when an examination is made of Divs. 3 and 4 of Pt XXX it will be seen that Div. 3 is headed "Legal and other proceedings - against the council or its members or servants" while the heading of Div. 4 is "Legal and other proceedings - by the council or its servants", and in these circumstances it is difficult to understand why Div. 4 should be expressly mentioned in s. 573 (2) while Div. 3 is not so mentioned unless it was the intention that Div. 3 should not apply to county councils unless, of course, it should be made to apply by ordinance. (at p458)

4. In these circumstances and having regard to the fact that s. 580 imposes considerable limitations upon the common-law rights of persons who wish to institute legal proceedings against councils of areas I have come to the conclusion that s. 580 is not to be regarded as a "law relating to areas, and their councils" within the meaning of s. 564 (4) (a). (at p458)

5. For these reasons I would dismiss the appeal. (at p458)

ORDER

Appeal dismissed with costs.