Mackellar County Council v Jones [1967] HCA 36

High Court of Australia McTiernan, Kitto, Taylor, Windeyer and Owen JJ. Mackellar County Council v Jones [1967] HCA 36

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 17 McTiernan J.

This is an appeal from the Court of Appeal of the Supreme Court of New South Wales. The question in the appeal arises from a demurrer by the plaintiff to certain pleas of the defendant to the declaration in the action. These pleas are based on s. 580 of the Local Government Act, 1919-1959 N.S.W.. The ground of the demurrer is that s. 580 does not apply to a county council. The majority of the Court of Appeal, Wallace P. and Holmes J.A., allowed the demurrer. The dissentient was Jacobs J.A.

Section 580 is in Pt XXX of the Act. The heading of Div. 1 of Pt XXX is "Application of this Part". Section 574, the first section in Div. 1, provides as follows: "574. Subject to the provisions of this Act—(a) this Part shall apply to municipalities and shires; (b) the powers and duties conferred and imposed upon a council under this Part shall apply in respect of each area to the council of the area." The defendant is not a "municipality" or a "shire". The county district for which the defendant is the council is not an "area". All this is made clear by s. 4, the interpretation section of the Act.

Section 580 is in Div. 3 of Pt XXX. The heading of the Division is "Legal and other proceedings—against the council or its members or servants". The heading of Pt XXX is "Supplementary". Taking the words of s. 580, the intention of the legislature as to its application is that the section is supplementary only to the provisions of the Act relating to councils of "areas", as defined by s. 4. The question in dispute is whether s. 564, sub-s. (4) (a), of the Act operates to extend the application of s. 580 to councils of county districts. Section 564 is in Pt XXIX, the provisions of which relate to county districts and county councils. The question depends entirely on the provision of s. 564, sub-s. (4) (a), with which it concludes. The words of the provision are "for the purpose it shall have all the powers which by law may be exercised by the council of an area in or in connection with the exercise of the delegated powers and the performance of the delegated duties and the provisions of any laws relating to areas, and their councils shall, mutatis mutandis, apply for the purposes of this Part to county districts and county councils". This provision should not be separated from the rest of s. 564, sub-s. (4) (a). The words "the provisions of any laws relating to areas and their councils" should receive a construction limited by the subject matter of s. 564. I think that unless expressly mentioned the provisions of s. 580 would not be assumed to attach to the delegation of the powers, functions and duties of the municipalities and shires absorbed in a county district. Section 573, sub-s. (2), of Pt XXIX expresses the intention of the legislature as to the classes of provisions of Pt XXX, identified by reference to their subject matter, which, unless otherwise expressly applied, are to apply to county councils. The provisions of s. 580 as to legal proceedings are not included in s. 573, sub-s. (2). It should be added that no ordinance has been made under s. 573, sub-s. (1) (a), applying s. 580 to county councils. In my opinion the decision of the Court of Appeal is right.