Bell Bros Pty Ltd v Shire of Serpentine-Jarrahdale [1969] HCA 63

High Court of Australia Barwick C.J. McTiernan, Kitto, Menzies and Windeyer JJ. Bell Bros Pty Ltd v Shire of Serpentine-Jarrahdale [1969] HCA 63

ORDER Special leave to appeal granted. Appeal allowed with costs. Order of the Full Court of the Supreme Court of Western Australia set aside and in lieu thereof order that the appeal to that Court be allowed with costs and that judgment be entered for the plaintiff in the amount $1,686.02 with costs to be determined by the Supreme Court.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 12 Barwick C.J.

The applicant seeks special leave to appeal against a judgment of the Full Court of the Supreme Court of Western Australia [1] dismissing its appeal to that Court from a judgment of a single judge of that Court [2] which dismissed its claim to recover fees paid to the respondent for licences to quarry on private land within the local government area controlled by the respondent. The applicant's claim was that the respondent had no authority to demand such fees for the grant of such licences without which the applicant could not lawfully quarry on such land.

1. (1969) 19 L.G.R.A. 79; [1969] W.A.R. 155. 2. (1968) 19 L.G.R.A. 70; [1969] W.A.R. 104.

I have had the advantage of reading the reasons for judgment prepared by my brother Kitto in which he concludes that the applicant's claim ought to have succeeded in the Supreme Court. I entirely agree with my brother's reasons for that conclusion and agree that the payments by the applicant were obtained by that kind of extortion commonly covered by the description of payments exacted colore officii. I agree that the appeal should be allowed.

McTiernan J.

The respondent shire acting in purported exercise of the powers conferred upon it by the Road Districts Act, 1919 WA, instituted by means of by-laws a scheme for the licensing of quarrying operations. The two by-laws relevant to this appeal are as follows: