Kemp v Barber [1918] HCA 51

Kemp v Barber [1918] HCA 51

'Footway' as defined by the by-law is limited to places used as thoroughfares for public passing and repassing, not including Flinders Park, which is not so used. Therefore, the conduct in question did not fall within the by-law, and the conviction could not stand.

Parties
Appellant: Thomas Francis Kemp; Respondent: Alexander Barber
Jurisdiction
Australia
Judgment Date
16 September 1918
Procedural Posture
Appeal / Appeal From Supreme Court of Victoria, Following Conviction in Court of Petty Sessions
Outcome
Appeal allowed. Order of Supreme Court discharged. Conviction quashed. Appellant awarded costs in both courts; respondent to pay costs of appeal.
Legal Topics
By Law Interpretation, Regulation of Traffic and Processions, Construction of Statutory Definitions, Scope of Municipal Regulatory Power
Local Government Law Statutory Interpretation By Law Interpretation Regulation of Traffic and Processions Construction of Statutory Definitions Scope of Municipal Regulatory Power

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 1 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Thomas Francis Kemp

Appellant

Alexander Barber

Respondent

Procedural Posture

Appeal / Appeal From Supreme Court of Victoria, Following Conviction in Court of Petty Sessions

Legal Issues

  1. 1 Whether the by-law prohibiting distribution of pamphlets on 'footway' or 'street' applied to Flinders Park, a public park without thoroughfares.
  2. 2 Proper interpretation of 'footway' and 'public place' within the context of the by-law and its empowering legislation.

Ratio Decidendi

'Footway' as defined by the by-law is limited to places used as thoroughfares for public passing and repassing, not including Flinders Park, which is not so used. Therefore, the conduct in question did not fall within the by-law, and the conviction could not stand.

Court Disposition

Appeal allowed. Order of Supreme Court discharged. Conviction quashed. Appellant awarded costs in both courts; respondent to pay costs of appeal.

Orders

  • Appeal allowed.
  • Order of Supreme Court of Victoria discharged.