Allen v Tobias [1958] HCA 13

High Court of Australia Dixon C.J. McTiernan and Williams JJ. Allen v Tobias [1958] HCA 13

ORDER Dismiss the appeal with costs. Allow the cross-appeal with costs. Discharge the judgment of the Supreme Court in so far as it deals with the costs of the action. Order that in lieu of that part of the judgment it be considered and adjudged that the plaintiffs recover from the defendant their costs of the action (including their costs of pleadings and of the transcript of evidence and any costs reserved in the Supreme Court) but excluding all costs which would not have been allowable had the action been confined to the recovery from the defendant of penalties for acting as a councillor of the Shire of Mulgrave during the period from 1st January 1955 to the issue of the writ of summons on the ground that the defendant was incapacitated at that time to be or continue such within the meaning of s. 56 (1) of the Local Government Act 1946 Vict.. Order that such costs of the action be taxed in the Supreme Court of Victoria.

Cur. adv. vult.

The Court delivered the following written judgments:—

1958, April 2 Dixon C.J., McTiernan and Williams JJ.

By the judgment of the Supreme Court of Victoria from which this appeal comes, the plaintiffs, who sued under s. 56 of the Local Government Act 1946 (No. 5203) Vict., recovered from the defendant certain penalties "to be paid into and form part of the municipal fund of the Shire of Mulgrave" and one-half of their taxed costs of the action including costs of pleadings and transcript of evidence and any reserved costs. The penalties amount to £34. Presumably an action for penalties is to be regarded as an action neither of contract nor of tort within the meaning of O. LXV r. 12 of the Rules of the Supreme Court, and accordingly the order for costs carries half the full costs of suit taxed in the ordinary manner. The trial occupied seventeen days. The questions which arose, both of fact and law, were dealt with in a very full and careful judgment by the learned judge who heard the suit, Sholl J. Nevertheless the defeated party, the defendant, sought and obtained from this Court special leave to appeal from the judgment, and the successful parties, the plaintiffs, took advantage of the appeal to give a notice of cross-appeal on the ground that the judgment did not go far enough in their favour. When the appeal came on to be argued, it occupied three days. The question for the determination of which all this has proved necessary is whether the circumstances in which land has been used as part of a rubbish tip by a shire council have disqualified one of three tenants in common of the land from sitting as a councillor within the period of time allowed for bringing such a penal action. About the period of time there is no doubt. The writ was issued on 8th February 1956, and, as a result of the operation of s. 5 (5) (a) and s. 35 of Act No. 5914 upon s. 81 of the Supreme Court Act 1928, penalties could only be recovered in respect of instances which occurred not earlier than 1st January 1955, of the defendant's acting as a shire councillor though disqualified: see Paine v. Loft [1] . Nor is there any doubt about his so acting within the period. He acted in that capacity on seventeen occasions and in respect of each occasion a penalty of £2 has been fixed. What is in question is the disqualification. That depends upon a provision which stands as sub-s. (1) of s. 53 of the Local Government Act 1946. Under that provision no person concerned or participating in any manner whether directly or indirectly in any contract with any municipality or in any work to be done under the authority of any such council or in the profit of such contract or work shall be capable of being or continuing a councillor of the municipality.