Mulgrave Shire v Commissioners of the State Savings Bank of Victoria [1937] HCA 39

MULGRAVE

DEFENDANT.

(1), 651-653."

Th Local Government Act 1928 | provides :—Sec. 197 (1): " Sub- ) the provisions hereinafter con- by-laws may be made for any lity . . . forthe purposes . . . (iv) Regulating the distribution of water from under the management ot car

uncil." Sec. 385 (1):

. OF AUSTRALIA.

Appeal dismissed with costs.

itors for the appellant, Herman & Coltman. itors for the respondents, Owen Jones & Co.

AD.

{HIGH COURT OF AUSTRALIA.}

PRESIDENT, COUNCILLORS AND RATEPAYERS OF THE SHIRE OF

AND

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

'Unpaid charges for excess water supplied by measure to land by a municipal uneil which has accepted the management and control of the waterworks n its municipal district under secs. 651-653 of the Local Government Act

rates and other moneys due to any municipality on the twenty-ninth day of December, in the year One thous- and eight hundred 'and ninety-one, under any Act for the time being in force relating to local govern- ment in respect of any property by the owner of such property, and all rates and other moneys which have there-

APPELLANT ;

Responvent.

public being deceived in the sense intended by the section by H.C. or A. use of either the name 'Mickey Mouse" or " Minnie Mouse " trade mark on the appellant's goods.

1937. Ww

Raprio

CorPoRATION

Pry. Lrp. v Disney.

Government—Water supply—Water supplied by measure—Waterworks under 4 ©, op A. al of council—Charges for excess water—Unpaid charges—Not due " pect of any property "—Not a charge on land—Power to withhold supply during -payment—Local Government Act 1928 (Vict.) (No. 3720), secs. 197 (1) (iv),

1937, Ww

Metpournr, June 4, 7, 8.

Sypvey, Aug. 9.

Latham €.3., 'Dixon and Evatt JJ.

H. C. oF A. 1937. eae

MuLcrave

Corporation v Commis- SIONERS OF THE STATE Savines Bank oF Vicroria,

HIGH COURT

1928 (Vict.), and which by by-law made under sec. 197 (1) (iv.) of that A by special order has levied a water rate and has fixed the cost of excess wi

due "in respect of any property" within the meaning of sec. 385 (1) Local Government Act 1928 and are, therefore, not a charge upon the but the council is not under any duty to maintain the supply of water an may therefore discontinue it until the charges are paid,

Decision of the Supreme Court of Victoria (Mann C.J.) : Commissio the State Savings Bank of Victoria v. Shire of Mulgrave, (1937) VLR. 9 varied.

Apprat from the Supreme Court of Victoria.

In an action brought by the Commissioners of the State Savi Bank of Victoria against the President, Councillors and Ratepay of the Shire of Mulgrave in the Supreme Court of Victoria a s case substantially in the following terms was stated by the pa for the opinion of the court :—

incorporated in Victoria under the title set out above, pursuant the Local Government Act 1928 (Vict.).

2. Three agreements dated respectively 20th May 1924, October 1934 and 22nd October 1934 were made between Melbourne and Metropolitan Board of Works (acting in p

after and before the twenty-fourth day of December One thousand nine hun- dred and three become due to any municipality under any Act for the time being in force relating to local government in respect of any property by any person whomsoever, and all rates and other moneys which on or after the twenty-fourth day of Decem- ber One thousand nine hundred and three have become or become due under any Act in respect of any property to any municipality by any person whomsoever, shall with interest thereon as in this Act provided be and until paid remain a charge upon such property." Sec. 651 (2): "The council may accept and have the management and control within the municipal district, or if the Governor in Council consents without the muni- cipal district of any new waterworks, and may with the like consent within or without the municipal district con-

struct any new waterworks for wo supply for any purposes whatso and may supply with water any baths or wash-houses." See. 65 "Tn addition to the rates her in this Act mentioned . council of every municipality special order make and levy a rate in respect of all or any part ratable property within such mt district, for water sup) council to all or some of the inhabita of such municipal district or for purpose of constructing waterwo paying the interest on any loan tracted by the council for pose." Sec. 653: "The council contract for any period not ¢ ten years at one time with the of any waterworks or any other for such supply of water as the thinks necessary for the pu this Act."

RJ OF AUSTRALIA.

the Melbourne and Metropolitan Board of Works Act 1928 (Vict.) ) the defendant (acting in pursuance of the Local Government Act 1928) relating to the supply of water within the municipal district

the defendant. The agreement dated 20th May 1924 provided that the board would lay mains and pipes for the supply of water to the township of Mulgrave. By the agreement the waterworks were put under the control of the council. The council undertook to y a water rate on the ratable property in the township and also make a charge for water supplied by measure. It was also expressly agreed that it should not be compulsory on the board to

that the board would not be liable to the council or to any person pos damages for any non-supply or defective supply of water. e council undertook to accept the management and control of works for and on behalf of the board and irrevocably authorized board to undertake the collection of the water rates and charges, it was provided that the agreement should continue for ten An agreement of 22nd October 1934 extended this agree- nt until 30th September 1934. Another agreement of 22nd

the board to the council, and contained a similar provision to that in the earlier agreement, that it would not be compulsory for e board to supply water to the council and that the board would

pply or defective supply of water ; and the council irrevocably the board to undertake the collection of the water rates

Management and control of the waterworks referred to in the agreements and by means of the mains and pipes therein referred sat all times material supplied water to some of the inhabitants e said district.

The defendant duly passed a by-law No. 20, which was duly med on 7th January 1926. The by-law provided, under the "water rate": "4, All ratable property within the area supplied or hereafter to be supplied with water shall be liable such rates and charges as the council may from time to time by

H. C. or A.

1937. Ww

Mvuierave C ee ATION

ce ate SIONERS OF THE SraTR

SavIncs

BANK OF Vicrorta,

H.C. or A. 'special order' provide." The by-law proceeded to provide

Morerave Corporation

Vierorra.

HIGH COURT

the supply of water by measure and provided that if any p refused or delayed having the meter repaired after having required so to do, the council might shut off the supply of wi from the premises until the meter had been repaired.

5. The defendant duly passed special orders, which we confirmed on 16th December 1933 and 5th December 1935, special orders levied a water rate payable in respect of rat

fol. 783428. a road or street within the area of the Town of Mulgrave in the special orders and was until 27th April 1936 suppli water from a water-main, part of the waterworks hereinbef referred to.

£2 2s.; (3) water supplied to the property, in excess of minimum quantity to be charged as provided in the special ord £49 2s. 11d., making a total indebtedness of £53 7s. 8d.

8. By two several instruments of mortgage dated re 4th July 1930 and 27th May 1931 Edward Francis Watt the said land to the plaintiff to secure repayment of a princip and interest therein mentioned. The mortgages were duly 1

| 57 C.L.R.] OF AUSTRALIA. 465 in accordance with the provisions of the Transfer of Land Act 1928 H.C. oF A. on 16th July 1930 and 4th June 1931 respectively. tees

9. Edward Francis Watt made default in payment of such principal Mutcrave

. . . . CORPORATION and interest and in the exercise of its powers as mortgagee the ®

plaintiff on 21st April 1936 entered into possession of the land. _Com"S-

; SIONERS OF _ No payment in respect of such principal or interest has at any time arp since 21st April 1936 been made by Edward Francis Watt. BANK OF

Vieroria.

10. By a contract of sale dated 14th May 1936 the plaintiff in the exercise of its powers as mortgagee sold the land to one Norman Edward Fear, and he entered into possession of the land pursuant to the contract of sale on 14th May 1936.

11. On 27th April 1936 the defendant cut off the supply of water

_ from the water-mains to the land and disconnected the water-mains from the pipes leading to the land and has since refused to restore the supply of water or to reconnect such water-mains with the pipes while the sum of £53 7s. 8d. or any part thereof remained unpaid.

12. On 5th June 1936 the plaintiff, pursuant to a requisition made upon it by Norman Edward Fear in accordance with the contract of sale, wrote a letter to him in the following terms :—'' 5th June 1936. Dear Sir,—As vendors under contract of sale of 13 acres 1 rood 24 perches to Norman Edward Fear dated 14th May 1936,

_ we hereby undertake to indemnify the purchaser against any claim

for water charges to the above-mentioned date and to arrange for the supply of water to be reconnected by the Shire of Mulgrave without charge to the purchaser."

13. On 5th June 1936 the water rates and meter rent due and

payable as aforesaid in respect of the land were paid by the plaintiff, but the sum due and payable as aforesaid to the defendant in respect _ of excess water supplied as aforesaid is still unpaid. 14. On 4th June 1936 the defendant supplied to W. G. Cole, the solicitor for Norman Edward Fear, a certificate pursuant to sec. 385 (2) of the Local Government Act 1928.

15. The land is ordinarily used by the occupier thereof for the

; purpose of growing vegetables, and a constant supply of water is essential for the full beneficial enjoyment thereof.

H. C. or A. 1937.

a MvLGRavE

CORPORATION

v Commis- SIONERS OF

Baxk oF Vieroria.

HIGH COURT

The relief claimed in the statement of claim included (a) an inj tion directing the defendant—(i) to restore the supply of water land, and to reconnect the water-main with the pipes and taps on land ; and (ii) to continue to supply water to such land as long as water rate made and levied in respect thereof should be duly (6) an injunction restraining the defendant from failing or re supply water to the land so long as the water rate made and respect thereof should be duly paid ; declarations—(i) that th £49 2s. 11d. alleged to be owing by Edward Francis Watt for e water supplied to him by measure was not a charge on the la (ii) that if and so far as any of the provisions of the by-law or of special orders did upon their proper construction make el excess water supplied by measure a charge on the land, provisions were in excess of any power conferred on the defend and were of no force or effect; (iii) that the defendant was entitled to cut off or withhold the supply of water to such by reason of non-payment of the sum of £49 2s. 11d. so long as water rate made and levied in respect thereof should be duly (iv) that the defendant was not entitled to cut off or withhold supply of water to such land at its will and pleasure so long water rate made and levied in respect thereof should be duly p and (v) that the defendant was under a duty to connect its w main to the water-pipes and taps on the land and to conti supply water to such land.

The question for the opinion of the court was:

Whether the plaintiff is entitled to any and which of the claimed in the statement of claim herein.

It was agreed that if the court should be of opinion that the plain was so entitled, judgment in the action should be entered for' plaintiff for such relief with costs; and if the court should be opinion that the plaintiff was not entitled to any relief, j the action should be entered for the defendant with costs.

Mann C.J. held (1) that the money due for excess water sup was not a charge on the land, and (2) that the municipality right to cut off the water supply pending non-payment of the ex water charges: Commissioners of the State Savings Bank of v. Shire of Mulgrave (1). 3

From that decision the defendant appealed to the High

(1) (1937) V.L.R. 94.

OF AUSTRALIA.

'questions for determination, (1) whether moneys owing for water, as distinct from moneys owing for water rates, are, er sec. 385 (1) of the Local Government Act 1928, a charge on the y to which the water is supplied ; (2) whether the munici- ty is under any duty to supply water to persons connected with i The statutory provisions governing the supply of water nicipal councils are sees. 651, 652 and 653 of the Local Govern- Act 1928. As to the first question.—Moneys owing for excess are a charge on the land, as being " moneys owing in respect property, within sec. 385 (1) of the Local Government Act 1928. e it can be ascertained whether there has been any excess er used, reference must be made to the rateable value of his y to see to what quantity of water the occupier is entitled

as distinct from a public duty enforceable by mandamus. mncil obtains its power to charge for excess water from sec. (1) (iv) of the Local Government Act 1928. [He referred to y. Lapworth (1); Re Sneesby and Ades and Bowes' ct (2).] Mann C.J. was in error in applying to this question cases of Attorney-General v. Wilts United Dairies Ltd. (3) and Commonwealth v. Colonial Combing, Spinning and Weaving Co. (4). [He referred to the Melbourne and Metropolitan Board of Act 1928 (Vict.), secs. 72, 73, 102, 103, 110, 113, 117.]

C.J. referred to Betts v. Municipality of Manly (5).]

at case is distinguishable from the present, because there was nance which imposed a duty to supply. [Counsel referred to Waterworks Co. v. Wilkinson (6).]

KC. (with him Dean), for the respondent. Moneys owing ss water are not a charge on the land. This is merely a

LR. 3 GP. 149, (4) (1922) 31 C.L.R. 421. V.LR. 497; 41 A.L.T.28. (5) (1923) 23 S.R. (N.S.W.) 249; 40 38 TLR. 781. WN. (N.S.W.) 29.

(6) (1879) 4 C.P.D. 410, at pp. 417, 418.

agar K.C. (with him Campton), for the appellant. There are H- ©. or A.

1937. eo MULcRavE

CoRPORATION

v Commis- SIONERS OF vHE STATE Savixes Bank oF Victoria.

H.C. oF A. 1937. Ww

Murerave CORPORATION vw Commis- SIONERS OF 'THE STATE Savines Bank OF Vicroria.

HIGH COURT

case of goods sold and delivered, Sec. 652 (1) authori imposition of a rate only, not of charges for excess water, by-law-making power conferred by sec. 197 (1) (iv) does not ex to making charges for water supplied a charge on the land, by-law should be construed in such a way that it will be within by-law-making power. Before the council can either expres impliedly make such charges a charge on the land, it mu expressly given power by the legislature. Secs. 346 and 3 of the Act provide the means by which moneys other than are to be recovered by the council. As to the second que —It is true that the Act imposes no express duty to suppl water, but the exercise of the rating power by the munieips casts on it a duty to supply. Where there is power to supply the benefit of the inhabitants, and the council exercises that p a duty is cast upon it to supply water to a rated property. ' test of ratability under the special order is the availability of ws

secs. 206, 225, 229 (2), 345.| The municipality, actin; benefit of the ratepayers, has spent public money on these works. The reasoning of Mann C.J. regarding the exaction was correct. Even if the council has power to cut off the in some circumstances, the statute has stated explicitly the which it is to recover moneys other than rates, and it cannot them by any other means. If there is a power to cut off, its for this purpose is a fraud upon the power.

Fullagar K.C., in reply. Sec. 385 (1) of the Local 1928 uses the words "moneys . . . due .. « ! person whomsoever," not " by the owner" or " by the "Tn respect of"? means " arising in connection with" a

OF AUSTRALIA. 469

charges for excess water supplied on the property. The H.C. or A. is supplied for the more beneficial enjoyment of the tenement. needh

ding the second question, the suggestion of discrimination Mvtcrave Corporation

power to cut off. [He referred to Hoddesdon Gas Co. e: pood (1); Melbourne and Metropolitan Board of Works Act COs.

SIONERS OF

sec. 72.] In this case the water was cut off while money was erase

for water rates as well as for excess water. BANK oF Vierorta.

e following written judgments were delivered :— Aug. 9. am C.J. This is an appeal from a judgment of Mann C.J. action by the respondent corporation against the appellant ition by which it was declared (1) that a sum of £49 2s. 11d. to be owing by one Watt to the defendant for excess water d to him is not a charge upon certain land of which he was ly the owner, and (2) that the defendant was not and is

n of non-payment of the said sum.

ie plaintiff was the mortgagee of certain land in the shire of rave of which Watt was the owner. Watt owed £49 2s. 11d. defendant for excess water rates in respect of water supplied m by measure. Upon default being made under the mortgage, tiff sold the land and gave an indemnity to the purchaser st all municipal charges then existing on the land. When the ss charges were not paid the municipality cut off the water. municipality contends that the excess charges are charges the land and that it was entitled to cut off the water. The ntiff brought the action for the purpose of challenging these us and obtaining suitable declarations. I propose first to deal the question whether the excess charges are charges upon the

decision of this question, in my view, depends upon the s of sec. 385 of the Local Government Act 1928. That provides that all rates and moneys which have become due r any Act in respect of any property to any municipality by on whomsoever shall with interest thereon as in the Act ed be and until paid remain a charge upon such property.

(1) (1859) 6 C.B, N.S. 239; 141 E.R. 447. H.C. or A.

1937. we

MULGRAVE CORPORATION v Commis- SIONERS OF THE STATE Savrxcs Bank OF VicroriA.

Latham C.J.

HIGH COURT

The Act provides in express terms that certain moneys are money which are due in respect of property; e.g., sec. 264 provides

within the municipal district." Sec. 615, dealing with expen in keeping open drains, supplies another instance of moneys bei declared to be a debt due and payable to the municipality in of land. The question is whether the excess water charges question, which are moneys due to the municipality, are due " respect of any property." '

In order to provide a water supply for a portion of the shire | municipality made an agreement with the Melbourne and M politan Board of Works. The municipality acted in pursuan of a provision contained in sec. 651 (2) of the Local Gover Act 1928: "The council may accept and have the ma and control within the municipal district . . . of any n waterworks." The Board of Works acted in pursuance of #

Board of Works Act 1928. Under this section the board, "sul to the approval of the Governor in Council, . . . may such terms and conditions as it deems fit contract with any oth body corporate or public body for or with respect to the doing an¢ the control and management by either or both of the contra parties of any matter or thing which such contracting parties or either of them is by law empowered to do control and ma and to carry out every such contract according to the tenor thereof.

Under the agreement with the Board of Works the board agree to lay down water-mains and pipes in certain streets and roads the supply and distribution of water to and within the townshil Mulgrave, and to supply water to the council for distribution b the council. The council undertook to accept the management a control of the works for and on behalf of the board. The coun also agreed that it would by special order make and levy a we rate and that it would also by special order make and levy a char; of Is. per 1,000 gallons for all water supplied by measure with) the township. The council further agreed that it would by-laws and regulations with respect to the supply and distrib of the water.

| C.L.R.] OF AUSTRALIA.

special order to make and levy a water rate in respect of all

_ for water supplied by the council to all or some of the inhabitants. ' It is thus clear that the water rate is a rate which is due in respect z of property, and it is therefore, by virtue of sec. 385, a charge upon - the land upon which the rate is levied. The question is whether excess water charges are similarly chargeable upon the land. Sec. _ 652 deals only with water rates and not with excess charges. In -sub-sec. 5 it is provided that the water rate shall not exceed in any year the sum of 2s. in the pound on the valuation of the ratable property within the municipality. It is clear that the power conferred on the council by sec. 652 cannot be relied upon for the purpose of justifying a charges for excess water supplied, the amount ~ of which obviously might exceed in any year 2s. in the pound on the value of the rateable property. The amount payable by way 'of water rates depends upon the rate struck and the value of the land. The amount payable by way of excess charges depends upon the amount of water consumed and the charge fixed therefor. - It has no relation to the value of the land. ~ The council made a special order in accordance with the agreement into which it had entered with the Board of Works. By this special order it levied a water rate on the net annual value of the ratable _ property referred to in the order for the supply of water for stock and/or domestic purposes otherwise than by measure. For all water supplied by measure "to any and all ratable property " the _ special order provided that there should be a charge of 1s. per . _ 1,000 gallons for water supplied in excess of a minimum quantity, the minimum quantity being the quantity which at 1s. per 1,000 gallons would produce an amount equal to the water rate upon the land to which the water was supplied. Thus the municipality 'Purported to fix excess water charges by special order and also in 'the special order referred to the excess charges as charges made for water supplied to property. As I have already said, sec. 652 does not confer any authority to make any provisions by special order with respect to excess charges. Therefore, in my opinion, even if

the provisions of the special order mean that the charges are made j

:

The Local Government Act 1928, sec. 652 (1), enables the council 4- ©: oF A.

1937. Ww

'or any part of the ratable property within the municipal district Mutcrave

CoRPORATION

v Commis- SIONERS OF THE STATE Savrnas BANK OF Vrerorta.

Latham ©.3.

1937. Ww

Moterave CORPORATION

Latham C.J.

HIGH COURT

support the contention that the charges are so made. The council also, however, made a by-law under the pows

of "regulating the supply and distribution of water from works under the management of the council." It is clear, I that under this power the council may provide by by-law for th charges to be paid by persons to whom water is supplied, by-law made by the council provides in clause 4 that all ra property within the area supplied with water shall be liable such rates and charges as the council may from time to time special order provide. (The by-law was made in 1926 and the speeis order was made at a later date.) By clause 4 the council a to make the excess charges as well as the rates a liability in of property. Before considering whether the council had do this, reference should be made to clause 6 of the by-law, whie provides that every owner or occupier of lands and tenem other persons supplied or using water for specified industrial purpo e or for (inter alia) watering gardens shall be supplied by m Clause 6 also provides that the amounts to be charged for supplied by measure shall be at the rate of 1s. per 1,000 g The land in respect of which the question arises in this case ¥ market garden, and the excess water was used for watering tl garden, so that the person supplied with or using the water, n Watt, was supplied by measure and became liable to pay for th water at the rate of 1s. per 1,000 gallons. Both the special order and the by-law are apparently directe towards bringing about the result that the excess water as well as the water rate, are moneys due in respect of pi I have already explained why in my opinion the special ord itself is ineffective for this purpose. I am also of opinion that h by-law is similarly ineffective. In the first place it cannot be that there is any general power in the council to make a by- the effect that any moneys whatever owing to the municip shall be charged upon the property of the person who owes } money. No such power is conferred by any section of the

OLR.) OF AUSTRALIA.

second place, the by-law-making power is limited to regulating "the supply and distribution of water. Under such a power, as I have already stated, the council can determine the charges to be id by the person to whom water is supplied or distributed. A -law providing that another person should pay that person's debts i in respect of those charges would clearly not be within the power. This is the effect of the attempt to make the charges a a, upon the land and, in my opinion, the attempt is unsuccessful. In the third place, the relevant provision of sec. 197 contemplates the regulation of supply and distribution by by-law and it is at least _yery doubtful whether the council had power to make a by-law "which does not itself fix charges but which relegates the fixing of those charges to a special order—as is provided by clause 4 of the "by-law. It is not, however, necessary to determine this last point, because the by-law itself fixes in clause 6 the charges for water Eg by measure in the present case. It is this provision of the byl -law and not any clause in the special order which, in my opinion, takes the excess charges payable. The terms of clause 6 show that the liability to pay for water supplied by measure is not a liability in respect of land. The persons chargeable under clause 6 are

"owners or occupiers of lands or tenements or other persons supplied with or using water." Thus a person who is supplied with or uses water is chargeable without respect to the land (if any) which he _ May own or occupy. The important matter is not the ownership of land but the supply and use of the water. The liability is plainly, think, a personal liability, and not a liability in respect of land. '- In my opinion, therefore, the judgment of the learned Chief Justice was right upon this question. The second question is whether the council acted wrongly in cutting off the water when the charges were not paid. Any duty to maintain a supply of water must arise either from contract or from some statutory provision. There is no general common law 'Principle that a person who or a corporation which enters into the business of supplying a commodity is bound to continue supplying it. There was no contract relating to the supply of water between the council and any of the parties presently concerned. The Local Govern- Act does not place any responsibility upon the council to supply

H. C. or A. we

Muterave CORPORATION v Commis- SIONERS OF THE Stave Savrves BANK OF Victoria.

Latham C5.

H. C. oF A. 1937. —

MULGRAVE

CorPORATION v, Commus- SIONERS OF THE Stare Savines BANK OF Vierorta.

Latham C.J.

HIGH COURT

water or to continue the supply of water if it has begun to do The appellant has not been able to refer the court to any statuto provision which confers upon any persons the right to be suppli with water by the council. I can see no foundation for the cont tion that the council is bound to supply water to the inhabitants o the shire or to any persons. ie

The learned Chief Justice applied to this case the principle whic forms the foundation of the decisions in Attorney-General y, Will United Dairies Ltd. (1); see also The Commonwealth y. Co Combing, Spinning and Weaving Co. Ltd. (2). In my opinion, this principle is not applicable to the present case. The cases mention applied the principle that where a public authority was ent with the exercise of a discretion the authority could not validly u its powers for exacting money, for the reason that such a amounted to the unauthorized imposition of a tax. In the prese case no question arises of the imposition of a tax or impost and tl cases mentioned therefore do not appear to me to be applical If the council was under a duty to supply water, it could not law exact compliance with requirements not authorized by law b supplying the water. But if, as I think was the case, the coun

person when the council refused to continue the supply of » because it had not been paid for water supplied in the past.

I am therefore of opinion that the order of the Supreme should be varied by omitting the declaration that the council not entitled to cut off the water. To this extent the appeal shou be allowed and the order of the Supreme Court should othe be affirmed.

territory lies within thirteen miles radius of the Melbourne post off That radius measures the extent of the metropolis for the p of the Melbourne and Metropolitan Board of Works Act 1928. municipal council entered into agreements with the Melbourne at Metropolitan Board of Works for the construction by the latt a system for the supply and distribution of water to and within th

(1) (1922) 38 T.L.R. 781. (2) (1922) 31 C.L.R., at pp. 444, 459, 460 ok

R] OF AUSTRALIA.

township of Mulgrave, which apparently lies within the radius. 'The agreement under which the construction was carried out provided that on completion the council should undertake and accept the management and control of the waterworks for and on behalf of the board. That agreement has been superseded by another, which contains elaborate provisions governing the relations 'of the two bodies. In brief, these provisions make it the board's function to supply the water and the council's to "' manage" the waterworks and to "comply with any suggestions or requests of the board," to levy rates and charges and to pay the proceeds to the board, to guarantee a return of six per cent per annum on the 'board's capital and to make by-laws.

The by-law made by the council of the municipality in pursuance of this arrangement is expressed to make the ratable property within the area liable to such rates and charges as the council might by special order provide. The by-law requires that users of water for certain purposes shall be supplied by measure and provides the tate payable for every thousand gallons.

The respondent bank was mortgagee of land within the area, land which was used for growing vegetables. The occupier was chargeable by measure under the by-law.

The special order which had been adopted purported to impose arate and, in an obscurely expressed provision, to treat the amount of the rate as payment on account of water consumed by those chargeable by measure.

The occupier of the mortgaged land consumed an excess quantity of water, which, according to the tariff, made him liable for a little under £50. Default was made in the discharge of this liability and also of the mortgage debt and interest. The respondent bank sold the land under its mortgage. But before the sale was completed

the municipality claimed payment of the liability for excess water and, as it remained unpaid, it cut off the supply of water.

_ The contention of the municipality is that the liability is a charge "upon the land and that in any case it is entitled to withhold supplies 'of water on the ground of non-payment of arrears for excess water

owing by a previous occupier, or, indeed, upon any or no ground

475,

H.C. or A.

1937. we

MUvLerave CorPoRATION ve Commis- SIONERS OF THE STATE Savines BANK oF Vicrorta.

Dixon J.

H.C. or A. 1937. Ww

MULGRAvE

CORPORATION v. Comms: SIONERS OF THE StaTE Savios Bank oF Victoria.

Dixon J.

HIGH COURT

The respondent bank then brought the action out of which appeal arises against the municipality seeking declarations of rig and an injunction restraining the latter from refusing to s water. Mann C.J., who heard the action, made declarations the sum said to be owing for excess water was not a charge on th land and that the defendant municipality was not entitled to ¢ off or withhold the supply of water to the land by reason of payment of such sum.

governing body under sec. 168 of the Water Act 1928 and the w considered provisions of that enactment relating to water-su ppl authorities are inapplicable. . The Melbourne and Metropolitan Board of Works Act 1928 cont sections which, if the board were dealing directly with the distributio of water to consumers, would govern the case and remove difficulties which the parties have encountered. : The statutory provisions which have been invoked for the pur of solving those difficulties are contained in Part XXV. of the Government Act 1928 together with the by-law-making power w is conferred by sec. 197 (1) (iv) and perhaps by clause 2 of Pa of the Thirteenth Schedule under the operation of sec. 197 (1) One of the provisions of Part XXV. is sec. 653, which is as follows "The council may contract for any period not exceeding ten ye at one time with the owners of any waterworks or any other for such supply of water as the council thinks necessary for purposes of this Act, or with the consent of the Governor in Counei may purchase any waterworks." In making the agreement with the board, the defendant mut pality apparently acted under this section. On its part the board seems to have acted under sec. 36 of | Act. Possibly it relied also on sec. 104, but as the terms of the agreement may be considered to fall outside the latter provi may be disregarded. Sec. 36 makes the following prov " Subject to the approval of the Governor in Council, the board 1 upon such terms and conditions as it deems fit contract with ' other body corporate or public body for or with respect to doing and the control and management by either or both

R.] OF AUSTRALIA. 477

itracting parties of any matter or thing which such contracting 4- ©. or A. wrties are or either of them is by law empowered to do control adh

manage and to carry out every such contract according to the Muterave

a ' C

faire tierecf." onronaTioN The language is not very grammatical and is certainly somewhat Ee vague. It may, perhaps, be pressed so far as to authorize either Tease to the agreement to do what the other is empowered by law _Baxx or

_ § é Victorta.

to do, if the agreement warrants it.

The provisions of Part XXV. of the Local Government Act 1928 P*°*

in no express power to lay a reticulated system of water supply

and apparently reliance was placed upon the powers of the board

'to construct and perhaps to maintain the system. But sec. 652 of "the Local Government Act 1928 enables the municipality by special order to make a water rate in respect of all or any part of the ratable ny within the municipal district for water supplied by the council to all or some of the inhabitants. Sec. 651 (2) is expressed to authorize a council, inter alia, to accept and have the control and Management within the municipal district of new waterworks. _ Sub-sec. 4 provides that the council may maintain and repair the _ same and make by-laws for the resort thereto and the use thereof. It is doubtful whether the words " the same " refer to this or another _ category of waterworks for which the consent of the Governor in Council would be requisite. The provisions from which I have extracted the powers mentioned are too long to set out in full, but 'they contain no reference to a reticulated system. They refer to reservoirs and waterworks in general terms. The by-law-making

Power contained in sec. 197 (1) (iv) simply speaks of regulating the supply and distribution of water from waterworks under the manage- ment of the pote The clause in the Thirteenth Schedule does, however, tefer to a " pipe or conduit from or by which" a person is" "supplied or to which he has access."

The defendant municipality contends that, neither under its by-law nor under any of these provisions, does it incur any duty to water from its system and that, therefore, it can withhold supply for any reason it thinks fit. On the other hand, it main- that, under its by-law and sec. 385 of the Local Government 1928, the money due for excess water by an occupier of land

H.C. oF A.

1937. Ww

MuLerave CORPORATION v Commis-

SIONERS OF

HIGH COURT

becomes a charge upon the estate. The section imposes a for moneys becoming due under any Act in respect of propert any municipality by any person whomsoever.

I agree in the first contention and disagree in the second. reasons which lead me to adopt the view that, on the one hand, th municipality is under no legal duty to supply water to an occup of land, and, on the other hand, obtains no statutory charge moneys owing for the excess supply of water have their source i one common consideration. That consideration is that, in my opinion, the municipality's duties in respect of the undertaking an not governed by any statutory provision which has been ft for a reticulated system of water distribution and lays down, a such a provision might be expected to do, the conditions for g and withholding a supply of water to occupiers. It is a n consequence of this view of the statutory provisions upon which t defendant municipality relies that no statutory right should conferred to payment of the amount due as one payable in re of land and no duty should be imposed of giving a supply of to occupiers.

It is apparent that the conclusion I have stated is based great extent upon the purpose and scope of the provisions contaii in sees. 651, 652 and 653 of the Local Government Act 1928. As account of the history of these provisions is necessary for the pro understanding of their effect. For that history, considered the form in which they are expressed, shows that they belong to a period of development when cruder facilities for water suppl} were in general use outside large cities.

The water supply of Melbourne itself was the subject of an passed in 1853 (16 Vict. No. 39). The supply of water in pl outside Melbourne was dealt with to some extent by the Munic Institutions Act 1854 (18 Vict. No. 15), which authorized the fot of municipal districts of an area not exceeding nine square ™ if the area contained at least three hundred householders. Sec. 2 provided that the municipal council should adopt such means is might seem desirable for, amongst other things, the securing necessary supply of water for domestic, sanitary, or irrigatio purposes and should and might make by-laws for carrying out tha

OF AUSTRALIA.

ymong other objects. In giving powers to carry out works and in enumerating the purposes for which the council might enter upon vate lands, the statute included wells, pumps and pipes (sec. 46). xt, among the provisions of the Mining Leases Act 1862 (No. 148) ting to water rights, there was included a power to the Governor in Council to demise to any elective body corporate any reservoir ucted at the public expense and any Crown lands necessary as ering ground at such rent whether nominal or otherwise and such term as he should think fit (sec. 12). It is this provision accounts for the reference in sub-sec. 3 of sec. 651 of the Local ment Act 1928 to mining laws. In the following year, the icipal Institutions Act 1863, No. 184, enacted in relation to roughs the provisions which form the foundation of secs. 651 and 2 of the Local Government Act 1928. Apart from arrangement form, only three substantial changes have been made. The ess vesting of the works in the council has been dropped. The urce of the power conferred by the provision contained in the esent sub-sec. 3 has been extended to " any other law now or ter in force authorizing works for supplying water to any districts or places in Victoria." The third change is in the provision contained in the present sec. 653 and consists in substituting ten

e Boroughs Statute 1869 (No. 359) added power to purchase water- and extended from mining laws to other laws the source of er to accept the management and control of waterworks. This tute amended and consolidated the laws as to municipal corpora- that is, in effect, as to boroughs. Neither the Local Government 1863 (No. 176) nor the consolidating Shires Statute 1869 (No. dealt with water supply. The Boroughs Statute 1869 also intro- ed by its section 351 the provision which is now contained in 652 of the Local Government Act 1928. The provisions under- "ho material change in their subsequent course. They were in Part XIX. of the Local Government Act 1874. In 1881 No. 688 provided that the power to construct new waterworks. d by that Part should, so far as related to shire councils,

H. C. or A.

1937. Ww

MvLorave CORPORATION, v, Commis- SIONERS OF THE Stare Savinas Bank OF Vicrorta.

Dixon J.

H.C. or A. 1937. pees

MULGRAVE CORPORATION

Vieroris.

Dixon J.

HIGH COURT

include the power to construct weirs, dams, reservoirs and 0 works for water supply for any purpose whatsoever, consolidating Local Government Act 1903 the provisions became 599, 600 and 601 respectively. In 1914 secs. 39-46 of Act No. 2 introduced the provision standing as sec. 654 of the Act of In the Local Government Act 1915 the present secs. 651, 652, 6 and 654 were respectively sees. 598, 599, 600 and 601. ; The history of the provisions, which I have thus briefly indicat appears to me to account for what is the most conspicuous fea of the present sections 651 to 653, namely, the absence of all rel to a system of distribution by reticulation and the lack of powers, authorities and rights usually taken by an authority carrying out such a system and of the responsibilities usually imy powers and responsibilities all set out in the well-known B Waterworks Clauses Act 1847. i Adequate provision is made by the Water Act 1928 for im

with water supply. These provisions of the Water Act are recent. They have been built up over a long period of t beginning with the Waterworks Act 1865 (No. 288), which pro for a large number of towns and districts. The course of deve ment may be seen from Acts No. 347, No. 449, No. 500, No. (Water Act 1890), Part VI., and Act No. 2016 (Water Act I! Part III., Division 4, and Part IV. a

The difficulties of this case are due entirely to an attempt to fi

an encumbrance to which a successor in title was subject, and not, whether the municipality as a water-supply authority, indirectly exact payment from a subsequent occupier of the lant cutting off his supply of water in penam. No answer can, | thi be found in these provisions for the reason that they we

OF AUSTRALIA.

deals with rating only, may be capable of use in connection reticulation system. For it does not concern itself with the in which water is distributed but only with the fact of supply. do not think sec. 651 suffices to authorize the laying of pipes streets and the supply through them of water to frontagers, So far as I can ascertain, the authority for the construction and intenance of the Mulgrave system must rest upon the combined ration of secs. 36 and 104 of the Melbowrne and Metropolitan

provisions makes applicable. application of the power to levy rates conferred by sec. 652 of the Local Government Act 1928 as, in effect, I have already said, y be consistent with this view and the by-law-making power by sec. 197 (1) (iv) may not be excluded.

0 question is raised as to the power of the council to levy a water . We are concerned only with charges for excess water. A on as to the by-law-making power does arise by reason of the mpt by clause 4 of the by-law to make the land, as distinguished the consumer, liable for such charges. But I do not think that on is open to serious doubt. To interpret a power to make 8 as authorizing the imposition of a charge or encumbrance pon the title to land would not be justified unless the intention of the legislature to do so appeared from express words or by necessary ition. No such intention can be found in sec. 197 (1) (iv). present by-law therefore cannot, in my opinion, operate of its force to impose a charge.

more general attack was made upon the validity of the by-law n exercise of the power conferred by sec. 197. But in the view its validity in other respects does not matter. Nor do the it proceedings raise any question as to the powers or duties of lelbourne and Metropolitan Board of Works. The municipality e defendant in the action. The board is not. The only with which I am concerned are whether the defendant is tled to a charge upon the land in respect of liability for the excess

ly framed to provide for a reticulated system. Sec. 652, H.C. or A.

1937. Ww

Mvterave

CORPORATION

v Commis- SIONERS OF THE Stave Savines BANK OF Vierorta.

Dixon J.

H.C, or A.

1937. Ww

MvLerave CORPORATION v. Commis- SIONERS OF TAB Srare

HIGH COURT

supply of water and whether the defendant might lawfully ou the supply to the present occupier because this liability re1 unpaid. The view I have adopted carries with it an answer to of these questions. If the Melbourne and Metropolitan Board of Works was supplying water through the pipes it laid in pursuance of its ment with the defendant municipality, the measure of its du supply water and its remedies for recovering payment woul clearly specified by its Act: secs. 110-113 would govern the rem for obtaining payment. These sections would enable the boan recover the moneys in question in spite of the change in the own ship and the occupation of the land. Now if it be supposed that effect of sec. 36 of the board's Act and of the agreement made u it is to enable the defendant municipality to exercise any powers of the board, then I should think the power cot sec. 113 of cutting off the water would be included. The cor of the supposition need not be discussed. It is not my desire to unnecessarily into the interpretation of sec. 36 and its operat l But the supposition provides one alternative of a dilemma. — other alternative is that none of the board's powers is exe! by the defendant municipality. On that alternative neither « see any duty. I am unable to agree in the contention that, ¢ alone or considered with sec. 652 and with the special order, { by-law imports a right in an occupier or ratepayer to a supp water whether absolutely or subject to particular dis powers or conditions. For the assumption made is that the s of water is governed only by sees. 651 and 652 of the Local Go ment Act 1928 and the by-law. For the reasons I have given' sections are silent upon the responsibilities of an authority ing water by reticulation. No intention, express or implied, opinion, can be discovered in them that an owner or occupier whether censidered as a ratepayer or merely as an inhabit have any right, conditional or unconditional, to the delivery of to him or to the exercise of any particular discretion on the , the council. I can find in the by-law nothing conferring right or limiting the ground upon which the council may t¢

from supplying water. The plaintiff cannot, therefore, complain

that the municipality has discontinued the supply to it.

On the other hand, I can find no source whence the municipality obtains a title to a charge upon the land in respect of the liability for excess water. Whatever powers of the Melbourne and Metro-

_ politan Board of Works may be exercisable by the municipality in consequence of its agreement with the board, such an agreement cannot operate to give the defendant municipality a charge upon land of the nature claimed. I do not think in sec. 385 of the Local

Government Act 1928 any foundation can be found for so encumbering

the land. In relying upon sec. 385, the defendant assumed that a

statutory liability to pay excess arose. It was said that it was for

money due under an Act in respect of property to the municipality, within the meaning of that section.

It appears to me that by no statute is the liability imposed in respect of property. Sec. 651 does not impose it at all. Sec. 652 certainly does not. It is said that a liability under a by-law is a liability under a statute and that the money is due in virtue of the | provisions of the by-law. Perhaps so much may be conceded.

57 C.L.R.] OF AUSTRALIA.

But sec. 385 imposes a charge only when money is payable in respect of property. In my opinion the liability arising under the by-law for water supplied is not money payable in respect of property. The attempt of the by-law to make property liable for the payment does not show that the payment is "in respect of " the property. The by-law deals with the supply of water in a way that shows that the connection with ownership or occupation of land is accidental

rather than necessary. Clause 6, which prescribes the charge for water supplied by measure, speaks of "' every owner or occupier of lands and tenements or other persons supplied with or using water." In the special order made under the by-law a distinction is made in its expression between " water supplied by measure " and "' water supplied to any and all ratable lands or tenements in excess of the minimum (sic) quantity to be charged." But the distinc- tion is made only because an occupier of lands rated is by the special order allowed without further payment so much water as the amount of his rate would cover if expended in the purchase of water by measure.

H.C. or A.

1937. Ye

Mvuerave CORPORATION v Conmurs- SIONERS OF

THE Sav

B. oF Vicroria.

Dixon J.

484 HIGH COURT

H.C. or A. T am, therefore, of opinion that the land is not charged

ee liability for excess water but that the defendant municipality

Murerave not be prevented from cutting off the water. z ea a It follows that the appeal should be allowed in part, a Comms: order of the Supreme Court should be varied by striking o

SIONERS OF 4 aa — second declaration therein contained. SAVINGS a BANK OF I think that the respondent should pay the costs of the oe but I see no reason for interfering with the order of the Sup

Court in respect of the costs of the action.

Dixon J.

Evarr J. I agree with the judgment of the Chief Justice.

Appeal allowed with costs. Order of Court varied by omitting the second de tion therein contained but otherwise aff

Solicitors for the appellant, W. H. Holroyd-Serjeant & Co. Solicitor for the respondent, H. Stuart Hutchison.