Benning v Sydney City Council [1958] HCA 48

High Court of Australia Dixon C.J. McTiernan, Fullagar and Taylor JJ. Benning v Sydney City Council [1958] HCA 48

ORDER Appeal allowed with costs. Discharge the order of the Full Court of the Supreme Court. In lieu thereof order that the appeal to that court from the judgment of Walsh J. be dismissed with costs. Restore the judgment of Walsh J.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 29 Dixon C.J., McTiernan and Taylor JJ.

This appeal is the product of an action brought by a nominal plaintiff on behalf of the Australian Gas Light Co. against the Sydney City Council. The action was brought to recover a sum of money expended by the company in lowering gas mains in Botany Road, Alexandria. The work was done at the direction of the city council and it appears to be agreed that the cost is recoverable by the company unless the direction of the city council was obligatory upon the company. In the first of the Australian Gas Light Co's. private Acts, an Act of Council of 8 Will. IV, there is a provision authorising the surveyor of the town of Sydney or other person or persons having the control direction or superintendence of the roads and streets to require the company to alter the situation of mains by notice and imposing upon the company the duty thereupon to do so. The question is whether this provision applies. The company says it does not for two reasons; first, because Botany Road, Alexandria, is outside the boundaries of what was then the town of Sydney, and secondly, because the city council does not fulfil the description "surveyor of the town of Sydney or other person or persons having the control direction or superintendence of the roads streets" etc. At the trial of the action before Walsh J. without a jury (it was treated as a commercial cause) that learned judge accepted the first of these two reasons while rejecting the second. His Honour therefore entered judgment for the plaintiff, that is in effect for the company, for the amount claimed. On appeal to the Full Court of the Supreme Court (Street C.J., Owen and Brereton JJ.) this decision was reversed and judgment was entered for the defendant city council. The company obtained special leave to appeal to this Court from the decision of the Full Court of the Supreme Court.