Allen v Tobias [1958] HCA 13

Allen v Tobias [1958] HCA 13

A councillor is disqualified under s. 53(1) of the Local Government Act 1946 (Vict.) if he is concerned in a contract or work authorised by council within the period in suit, regardless of whether the work is completed or the benefit is contingent. The burden of disproof of incapacity lies with the councillor, and presumption may be drawn against him for destruction of relevant documents. Costs recovered in action for penalties must be confined to party and party costs attributable to those penalties actually recovered.

Parties
Appellant/defendant: Leslie William Allen; Respondent/plaintiff: Charles Eric Tobias; Respondent/plaintiff: Douglas John Stanley
Jurisdiction
Australia
Procedural Posture
Action for Penalties Under Local Government Act 1946 (vict.) / Appeal and Cross Appeal From Supreme Court of Victoria
Outcome
Appeal dismissed with costs. Cross-appeal allowed with costs. Order for costs substituted.
Legal Topics
Councillor Disqualification, Contracts With Municipalities, Council Work Disqualification, Recovery of Penalty and Costs
Local Government Law Administrative Law Councillor Disqualification Contracts With Municipalities Council Work Disqualification Recovery of Penalty and Costs

Case Brief

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Parties

Leslie William Allen

Appellant/defendant

Charles Eric Tobias

Respondent/plaintiff

Douglas John Stanley

Respondent/plaintiff

Procedural Posture

Action for Penalties Under Local Government Act 1946 (vict.) / Appeal and Cross Appeal From Supreme Court of Victoria

Legal Issues

  1. 1 Whether the appellant was disqualified from sitting as a councillor due to being concerned in a contract or work under the authority of the council
  2. 2 The meaning and scope of 'concerned' and 'work to be done under the authority of any such council' under s. 53 of the Local Government Act 1946 (Vict.)
  3. 3 Whether destruction of documents by the defendant establishes a presumption against him

Ratio Decidendi

A councillor is disqualified under s. 53(1) of the Local Government Act 1946 (Vict.) if he is concerned in a contract or work authorised by council within the period in suit, regardless of whether the work is completed or the benefit is contingent. The burden of disproof of incapacity lies with the councillor, and presumption may be drawn against him for destruction of relevant documents. Costs recovered in action for penalties must be confined to party and party costs attributable to those penalties actually recovered.

Court Disposition

Appeal dismissed with costs. Cross-appeal allowed with costs. Order for costs substituted.

Orders

  • Discharge the Supreme Court's costs judgment.
  • Order that plaintiffs recover from defendant their costs of action (including pleadings, transcript of evidence, and reserved costs) excluding costs not allowable if action had been confined to recovery of penalties for acting as councillor during period from 1 Jan 1955 to issue of writ.