Thompson v Randwick Municipal Council [1953] HCA 75

High Court of Australia Dixon C.J. Webb, Kitto and Taylor JJ. Thompson v Randwick Municipal Council [1953] HCA 75

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Nov. 18 Dixon C.J., Webb, Kitto and Taylor JJ.

This is an appeal by special leave from an order of the Supreme Court of New South Wales in Equity upholding a demurrer ore tenus to the statement of claim in a suit brought by the appellant against the respondent council. The purpose of the suit was to restrain the defendant council from acting upon an alteration of the division into wards of the municipality when the council's officers compiled the list of electors for the municipality and also from holding the elections for aldermen in accordance with such alteration.

According to the statement of claim a proclamation by the Governor in Council appeared in the New South Wales Government Gazette of 3rd July 1953 purporting to alter the division into wards of the municipality in a manner described in the schedule to the proclamation and altering the number of aldermen constituting the council from twelve to fifteen. The plaintiff's contention is that the proclamation was invalid because the conditions prescribed by s. 58 (4) of the Local Government Act 1919-1952 were not fulfilled. Sub-section (1) of s. 58 empowers the Governor by proclamation to divide a municipality into wards and to name or alter the name of a ward. Sub-section (2) enables him by proclamation to alter or abolish any division of a municipality into wards and again to divide a municipality into wards. Sub-section (3) provides that before such division, alteration, abolition or subsequent division is carried out a notice prescribed shall be given and the council or any elector may make written representations with regard thereto. Then sub-s. (4) provides that before so dividing a municipality or altering or abolishing any such division or redividing the municipality the Governor shall, on the request of one hundred or more of the electors, remit to a poll of electors of the whole of the municipality the question whether such division, alteration, abolition or redivision shall be carried out. Thereupon the council is to fix a day for the poll. If the decision of the poll is in the negative the proposal shall not be given effect to.