Lake Macquarie Shire Council v Aberdare County Council [1970] HCA 32

High Court of Australia Barwick C.J. Menzies andWindeyer JJ. Lake Macquarie Shire Council v Aberdare County Council [1970] HCA 32

ORDER Appeal dismissed with costs. Barwick C.J.

We have on this appeal listened to a full argument on behalf of the appellant but I find no need to ask for the assistance of the respondent's counsel nor to reserve my opinion. The matter I think can be adequately disposed of at once.

The question is whether an assessment made by the respondent council is invalid for want of compliance with the provisions of Div. 6 of Pt XXIX of the Local Government Act, 1919-1969 N.S.W.. The respondent assessed the appellant and each of the other councils which constitute the county district of the respondent under ss. 572A and 572B of that Act ratably to the valuations respectively furnished by those councils pursuant to s. 571 of the Act.

The respondent did not exercise nor, apparently, consider the exercise of, the power given by the proviso to s. 572B (1). The appellant's complaint is the respondent gave no consideration to the question whether or not any of the loans in respect of which the assessment was to be made would be of special benefit to a portion only of the county district.

It is said on behalf of the appellant that some of the loans in respect of which the assessment was to be made were for the benefit of part only of the county district. This submission of fact I find unnecessary to deal with because of the view I have formed of the case. Not having given that question, that is to say the question whether any loan would be for the benefit of part only of the county district, any consideration, the submission is that the respondent could not decide as in the submission it ought, whether or not to exercise the discretion given by the proviso. Therefore, it is said, the assessment was not authorized by s. 572A which requires that the assessment shall be made in the manner prescribed by s. 572B.