Williams v Storey

High Court of Australia Dixon CJ McTiernan and Taylor JJ. Williams v Storey

ORDER Application dismissed with costs.

At the conclusion of the argument for the applicant the judgment of the Court was delivered by DIXON C.J. as follows:—

Dixon CJ, McTiernan and Taylor JJ.

This application for special leave to appeal is made for the purpose of seeking a review by this Court of the reasons which Richardson J. has given for dismissing the appeal to the Supreme Court in this case, that is to say the appeal from the magistrate.

The matter primarily arises under s 289 (c) of the Local Government Act 1919-1956 NSW under which the Council of the Municipality of Leichhardt has passed a resolution. The resolution is not based upon the first part of par (c) of s 289. That part speaks of controlling and regulating the use of the premises so as to prevent objectionable noises thereon. It is based on the second part which speaks of controlling and regulating the use of premises so as to prevent noises thereon at unreasonable hours. The resolution which the council adopted prohibited the use of premises so as to make noises at certain hours including Saturday afternoon. The resolution did not speak of unreasonable noises in that respect but simply of noises. But it did specify Saturday afternoon among the periods prohibited and it is in respect of that period that the prosecution was launched. We think that it is not a suitable case in which to bring up to us the question of the correctness of the views of Richardson J. and about them we say nothing. We think it is not suitable to do so because we think that the appeal should fail in any event. It should fail because there is no sufficient proof of any ground for saying that Saturday afternoon is an unreasonable period of time, that is to say, that it falls within unreasonable hours within the meaning of s 289 (c). It was said that that is not a matter for the Court to decide, that it is entirely a matter for the council to decide under s 289 (c). But a survey of that section, particularly of par (c), suggests that the word "objectionable" as an epithet attached to noises, and the word "unreasonable" as an epithet attached to hours, do describe part of the council's powers and enter into the definition of the limits within which the council can lawfully act. If it is not for the court to say for itself independently of the council whether the noises are objectionable or the hours unreasonable, it is certainly for the court to say on the materials before it whether such a conclusion was fairly open to the council upon a proper understanding of the paragraph. It may be that it is for the court to judge finally upon the question quite independently of the decision of the council. But in this case it is enough to say that on the evidence there is no ground for regarding the conclusion as open to the council that Saturday afternoon could fall within the words in par (c) "unreasonable hours". An appeal, if special leave to appeal were granted, would fail simply on the ground that it was not shown that the resolution validly covered Saturday afternoon. For these reasons it appears to be an unsuitable case in which to raise the question of the merits or the correctness of the views expressed in the judgment delivered by Richardson J. The application will accordingly be refused. It will be refused with costs.