Baiada v Baulkham Hills Shire Council [1951] HCA 70

t State Ba Hee. Haglis Yetta é RS 344 HIGH COURT [198

{HIGH COURT OF AUSTRALIA.)

BAIADA . Sans pete A . APPELLA PLAINtiFy, AND

ANOTHER . . af DEFENDANTS,

BAULKHAM HILLS SHIRE COUNCIL 0

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A. Resumption of Land—Statutory power—* Purposes" of statute—Necessily

1951 " Improvement and embellishment of the area" —Notification in the Goi

Ww Gazette—Conclusiveness—Statute—Operation—Local Government Act 1919-19% SyDNEY, (V.S..) (No. 41 of 1919—No. 9 of 1950), #3. 321 (d), 532, 536—Local Nov. 16. 'ment (Amendment) Act 1951 (N.S.W.) (No. 18 of 1951).

Dixon, Unless a resumption of land by a council is in truth for a purpose or "rp Meine," of the Local Government Act 1919-1950, within the meaning of s. 632 of thi ae Act, the publication in the Government Gazette of a notification th land has been resumed is not conclusive. 4

Motor Wheel & Tyre Co. Ltd. v. Commissioner for Railways, (1950) 50

(N.S.W.) 205; 67 W.N. 166, referred to. ae Decision of the Supreme Court of New South Wales (Roper C.J. in ¥ reversed. ;

AppeaL from the Supreme Court of New South Wales. Hl

Celestino Baiada, by way of statement of claim dated 3rd 1948, brought a suit in the equitable jurisdiction of the Court of New South Wales against the Council of the Shi Baulkham Hills and the Minister for Public Works, in whic claimed an injunction, declarations and orders in respect of cel land.

or parcel of land situate in the Shire of Baulkham Hills, having an of 175 acres 1 rood 22 perches, and being the whole of the d comprised in certificate of title, vol. 1113, fol. 160.

. The defendant the Council of the Shire of Baulkham Hills now and has at all material times been duly incorporated under provisions of the Local Government Act 1919-1946 (N.S.W.) nd is liable to be sued in its said corporate name.

_3. By a resolution duly carried at a duly convened meeting of the defendant Council it was resolved and determined that formal application be made under seal in accordance with the provisions ss. 532 and 536 of the Local Government Act 1919, as amended, _ for the approval of His Excellency the Governor to the defendant

Council acquiring by way of resumption for the purpose of the

nprovement and embellishment of the area the land described in par. 1 and the defendant Council duly notified the plaintiff

ete No. 128 of 7th November 1947, it was thereby notified declared that the land referred to in par. 1 was thereby resumed er Div. 1 of Part V. of the Public Works Act 1912, for the pose of the improvement and embellishment of the area and the said land was thereby vested in the defendant Council.

5. The plaintiff charged that the facts were that prior to that lesion being carried as aforesaid or at any other material time e said iand was not required by the defendant Council for the provement and embellishment of the area but for other and

ent purposes. 6. The plaintiff further charged that the facts were that that olution was not based upon or preceded by any real or effective ise by the defendant Council of its discretion to resume the and that the defendant Council came to its determination hout full and proper inquiry and information enabling it Properly to determine the necessity of resuming the land of the ntiff,

The plaintiff further charged that the fact was that prior to 'passing of that resolution and at all material times the defendant uncil had not the intention to use the land for the improvement, embellishment of the area but intended to subdivide the land Tesell it.

OF AUSTRALIA. 345, The amended statement of claim was substantially as follows ;— H. ©. or A. . The plaintiff is now and has at all material times been the es d proprietor for an estate in fee simple of all that piece

Barapa

Councrt.

H. ©, or A,

1951. ~ Barapa Bavikwan Huts Same Covnen..

HIGH COURT [195

8. The plaintiff requested the defendant Council to refrain from _ carrying out its intention to resume the land, but the defendant — Council proceeded with and completed the resumption despite such requests.

9. By reason of those wrongful acts of the defendant Council — and the defendant the Minister for Public Works the plaintiff has sustained and will continue to sustain serious loss and damage,

The plaintiff claimed, inter alia, (i) a declaration that the purported — resumption of the land by the defendant Minister for Publie Works _ on the advice of the defendant Council was void and of no effect; (ii) an injunction restraining the defendants from mortgaging, selling, charging, or dealing in any way with the land; (iti) a declaration that the defendant Council held the land in trust for the plaintiff; (iv) an order to the defendant Council to do all such acts as might be necessary to re-transfer the land to the plainti and (v) an inquiry as to the damage sustained by the plaintiff, and an order to the defendant Council to pay the amount of such damage when so ascertained to the plaintiff.

The defendant Council, under its common seal, (1) did not admit (a) that the resolution or the effect thereof was correctly or sufficiently set forth in par. 3 of the statement of claim; (b) that the notification or the effect thereof was correctly or sufficiently set forth in par. 4; and (c) that prior to the resolution being carried as alleged, or at any other material time, the land wa: not required by the Council for the improvement and embellish of the area, or that it was required for other and different purpo and denied the allegations made in pars. 6 and 9 of the stat of claim ; (2) in answer to par. 7, admitted that prior to the p: of the resolution and at all material times the Council intended subdivide the land and resell it because the Council deem expedient to acquire and sell the land in the interests of its and because it desired to plan new roads and a new subdivi in such area and thereafter to sell the land in lots but except as to that the Council denied that at the times mentioned it had not the intention to use the land for the improvement and embe ment of the area but intended to subdivide the land and r it; (3) in answer to the statement of claim, repeated the admi made as in (2) above and submitted that such action constituted or would constitute the improvement and embellishment of area within the meaning of s. 321 of the Local Government A 1919, or, alternatively, that such intention and such con constituted purposes for which the land might lawfully be rv under the terms of the Act and validate the resumption not

OF AUSTRALIA.

Council were expressed to be for the improvement and embellish- ment of its area ; (4) submitted that the plaintiff had not disclosed any equity entitling him to proceed against the Council in the "equitable jurisdiction of the Court, and that his proper remedy, if any, was at law, and the Council craved the same benefit from that defence as if it had pleaded or demurred to the statement of claim; and (5) in further answer to the statement of claim, said that the plaintiff had been guilty of laches and acquiescence and delay and by reason thereof was not entitled to the relief claimed. Upon the matter coming on for hearing on 16th April 1951, the judge upheld a demurrer ore tenus on behalf of the defendant Council to the statement of claim. His Honour said he did not feel disposed, on his then present feeling, to review his decision in Mot Wheel & Tyre Co. Ltd. v. Commissioner for Railways (1) ; and in Howarth v. McMahon (2). The suit was dismissed. From that decision the plaintiff appealed to the High Court.

_ A. R. Taylor K.C. (with him D. S. Hicks), for the appellant. 'The decision in this case followed the decisions of the judge of first instance in Motor Wheel & Tyre Co. Ltd. v. Commissioner for

ways (1); and Howarth v. McMahon (2). At the time of his lecision in this case the High Court had not dealt with the appeal

inst the decision in Howarth v. McMahon (2); and the judge _ Was not disposed to reconsider his previous decisions. Motor Wheel & Tyre Co. Ltd. vy. Commissioner for Railways (1) dealt with a resumption which was effected solely under the provisions

i the Public Works Act 1912, as amended, but Howarth v. McMahon (3) dealt with a resumption under the Local Government 1919-1948 and the Public Works Act 1912. The decisions in cases were based upon the dicta in Criterion Theatres Ltd. V. Sydney Municipal Council (4); but the power to resume in that case was not conditioned upon the existence of a purpose. 'it was a power to resume all lands required for the opening of new public ways, &c., and all lands of which those so required I part. The effect of the decision was merely that the ation qua the residue of the land of a purpose which was not could not operate to invalidate the acquisition of one of a parcel of land, another portion of which was required

1) (1950) 50 S.R. (N.S.W.) 205; (3) (1951) 82 -R. 442; (1950) 51

67 W.N. 166, 81 8 W.N. 25. (1950) 51 S.R. (N.S.W.) 73; 68 (4) ( ; WN. 25.

ecdiiy that by the terms of the resolution the purposes of the 1. C. or A.

1951. ed

Barapa v. Bavutkuam HILts Sure Counem.

Barapa v BavLKnaM

HIGH COURT [19%

for the purpose of widening &c. public ways, and the dicta refe

to by the judge below cannot have any application to the le; now under consideration : see Minister for Public Works and Government v. Duggan (1). Where a power is " purposive " | character (a) it must be exercised for that purpose, and (b) j exercised for some extraneous purpose only it is not exercised all. The matters which this Court considered to be decided Municipal Council of Sydney v. Campbell (2) are shown in Werrib Shire Council v. Kerr (3), ef. Deputy Federal Commissioner Taxation (N.S.W.) v. W. R. Moran Pty. Ltd. (4). The matter at i in this case is concluded by Howarth v. McMahon (5). The relevant power which a council has under the Local Government A to acquire or hold land is s. 532, which authorizes a council to acq! land for any purpose of the Act. The power to acquire may exercised either by agreement or compulsory purchase. What be so acquired is land when it is desired to acquire it for a legitimat purpose, that is, a purpose of the Act. Section 536 merely provi the machinery for the exercise of the power of acquisition b resumption and it is clear that s. 536 (1) refers to a case "* wher the council proposes to acquire land" for any purpose of the. because it is only in such cases that land may be acquired by council. Consequently, the resumption which is authoriz s. 536 is a resumption for any purpose of the Act and it is s purpose which is deemed by s. 536 (6) to be an authorized within the meaning of the Public Works Act. A purpo resumption pursuant to the Local Government Act and the Publ Works Act is not effective if it be made (i) for a stated p whereas the council has not any purpose at all, (ii) for a s purpose whereas the council has some other purpose in conti tion, or (iii) for some public purpose which is not a legitin purpose, that is to say, a purpose of the Local Government Quite apart from any question of resumption, the Couneil's p to acquire land by agreement is restricted by s. 532, and clear that if the Council purported to obtain a title by convey of land for some purpose which was not legitimate that title be voidable: see Carington v. Wycombe Railway (6). A sim but independent, submission is that the power under s. 42 fi Public Works Act is again itself defined expressly by reference purpose. Howarth v. McMahon (5) is an authority for the prop (1) (1951) 83 C.L.R. 424; I8L.G.R. (4) (1939) 61 C.L.R. 735, at pp. i 60. 760; (1940) A.C.838 5 68.

(2) (1925) A.C. 338. 338. (3) (1928) 42 C.L.R. 1, at pp. 8, 30, (5) (1951) 82C.L.R. 442; 18 31. 43

(6) (1868) 3 Ch. App. 377.

OF AUSTRALIA.

'that the expression

Act is to be deemed to be a resumption for the purpose of ing out an authorized work, and it is only for such a purpose the power under s. 42 of the Public Works Act can be exercised, was expressly provided by the opening words of s. 42, and the ver of resumption may be exercised only for that purpose, is to say, a purpose which is in fact a purpose of the Local nment Act.

- Badham K.C. (with him R. C. Cook and P. S. Smyth King), the respondents. The Court cannot go behind the notification Gazette of the fact of resumption. Upon the gazettal of notification the resumption was effected, therefore its validity now be questioned. The purpose for which the land was d was clearly an authorized purpose under s. 321 (d) of weal Government Act. The word " undertake" in the intro- ry part of that section should be noted. As to whether or he Governor formed the necessary opinion under s. 39 of the Works Act cannot be canvassed. In Motor Wheel & Tyre

arth v. McMahon (2), the notification, on its face, did not ly with the formal requisites of s. 42 of the Public Works it was not for an authorized purpose. The judgment in y. McMahon (3) only applies to cases where a wrong or no purpose is expressed in the notification; otherwise slature makes it clear that the matter is concluded when the is published in the Gazette. This is in the nature of a er. The facts stated preclude the appellant from succeeding. facts provide a complete answer in law. Irrespective of @ real purpose of the Council the notification terminated the

judgment of the Court was delivered by :— ' J. This is an appeal from a decree of the Chief Judge in by which he allowed a demurrer ore tenus to a statement of

0) 50 S.R. (N.S.W.) 205; (3) (1951) 82 C.L.R. 442; 18 L.G.R. N. 166. 43.

"public purpose" in the concluding H- © or A.

Barapa v. BavuLkuam Hits Sue Counc.

H. C. oF A. 1951. Ration

Barapa v.

BaviKHAM His Same

Counc.

Dixon J.

HIGH COURT

the validity of a resumption. The resumption had been made s. 532 of the Local Government Act and s. 536, as s. 536 stood befor Act No. 18 of 1951 came into force. Under s. 532 the Coune may acquire land within or outside the area for any purpose the Act by lease, purchase, appropriation, or resumption in accor ance with the Part, that is, Part XXV. The purpose of the for which it was purported to make the resumption was tha stated in s. 321 (d). That provision says that, subject to th provisions of the Act, the council may control and regulate, may undertake the improvement and embellishment of the are Assuming that the statement of claim correctly sets out the notice the notice did not use the full words " for the purpose of e taking the improvement and embellishment" but omitted thy word "undertaking". The purpose was expressed to be simplh for the improvement and embellishment of the area. But defect in the form of the notice the Chief Judge in Equity did not think material. .

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

In upholding the demurrer on this ground the learned Judge in Equity applied the decisions he had given in Motor & Tyre Co. Lid. v. Commissioner for Railways (1) and Howa McMahon (2). These decisions were influenced by dicta by /: J. and Rich J. in Criterion Theatres Ltd. v. Sydney Muni Council (3). His Honour's decision in the present case was } particularly based on the case of Howarth v. McMahon (2), appeal in which was pending in this Court and, indeed, was act being argued at the time. The decision eventually given in Court in Howarth v. McMahon is now reported (4). In that d the case of Criterion Theatres Ltd. v. Sydney Municipal Cow is mentioned and comments are made upon the dicta of /saa

decision of Roper C.J. in Eq. in Motor Wheel & Tyre Co.

(1) (1950) (2) (

S.R. (N.S.W.) 205 ; (3) (1925) 35 C.L.R, 555; 7 66. 72.

5 S.R. (N.S.W.) 73; 68 (4) (1951) 82 CLR. 442, at pp-4 25.

w. 450; 18L.G.R.43, at pp-47,

CLR] OF AUSTRALIA.

1912. His Honour, in the course of his reasons, rejected a tention that s. 34 (2) of the Government Railways Act 1912-1950 is the source of the power there in question. Having done so, ; Honour placed the case entirely under Part V. of the Public s Act, 1912. Having found that the notice of acquisition plied with the requirements of s. 42 of that Act, his Honour

jon that the works contemplated did not in truth form m authorized work within the meaning of s. 42. The distinction the present case and Motor Wheel & Tyre Co. Ltd. v. Commissioner for Railways (1), as will be seen, lies in the fact that in the latter case the whole question came within ss. 42 and of the Public Works Act. In the present case the Public Works 1912 does not apply unless and until it is, so to speak, drawn 1 by a proper use of the Local Government Act. For the reasons dy given, the Public Works Act is not drawn in by the Local ment Act unless the conditions stated by s. 532 are fulfilled ere they are not fulfilled. It is therefore not proper in the it case to express any opinion about the correctness of the clusion that in a case exclusively under Part V. of the Public Act the facts behind the notice of acquisition are not ble." (2).

little earlier in the reasons the Court had expressed the pinion that, upon the proper interpretation of the Local Govern- Act the operation of the provisions of Div. 1, Part V., of the Works Act in regard to resumption depends entirely on substantive power under the Local Government Act becoming 'isable. The Court proceeded to say that that means, when power is sought in s. 532, it is an indispensable condition that sumption shall be for a purpose of the Act. At a point in he judgment later than the passage quoted above, the Court | that whatever might be the position under other Acts, under Government Act the cardinal provision is s. 532 and that the existence of the requisite purpose essential. ' Thus uiry is remitted to the question whether the purported umption of the land of the defendant-respondent was for a e within the power of the municipality." * These passages to a very definite expression of opinion that unless the ion is in truth for the purposes of the Act within the

(1) (1950) 50 S.R. (N.S.W.) 205; (2) (1951) 82,

449, 450; _ «67 W.N. 166. 18 L.G.R.,

, 48.

g that upon the facts behind the acquisition he was of

issioner for Railways (1) turns entirely on the Public Works M. ©. or A.

1951. Ww Barapa Bavixwaa Hints Sure Counc.

a Kitto J.

H. C. or A.

1951. we Barapa

Baw Hin Suni

AM.

Councm.

Honour had said with reference to that case in Hou

HIGH COURT

meaning of s, 532 the publication in the Gazette is not conclus To that opinion we adhere. Indeed we have already repeated and given effect to it in the case of Minister for Public Works ¢ Local Government v. Duggan (1). The judgment of the lear Chief Judge in Equity was based on a view which gave a application to his Honour's decision in Motor Wheel & Tyre Ltd. v. Commissioner of Railways (2) and also upon what

McMahon (3) before it came to this Court. What has decided in this Court displaces the view so expressed hy his Hon and it follows that, apart from what has been suggested as tot application of the new Act, No. 18 of 1951, the decision Dele cannot stand and the demurrer should have been overrule The suggestion made as to Act No. 18 of 1951 is that it retrospective operation and governs this case. If it had a spective operation we are far from saying that it would cau to reach a different conclusion in this case. But we are cl of opinion that it has not got a retrospective operation. For these reasons the appeal should be allowed with co the decree below should be set aside so far as it upholds the demurr and dismisses the suit with costs and refers the taxation of to the Master. In lieu thereof the demurrer ore tenus shou overruled with costs and the cause remitted to the Supreme in Equity to be dealt with according to law cons

this judgment. Order accordingly.

Solicitors for the appellant, Roscoe W. G. Hoyle & Co.

Solicitor for the respondent Council, 1. W. Shepherd, Parra by Greenwell & York,

Solicitor for the respondent Minister, 7. P. McRae, Solicitor for New South Wales.

(1) (1951) 83 C.L.R, 424; 18 L.G.R. (3) (1950) i 68 W.

50 S.R. (N.S.W.) 205;