Fitzgerald v FJ Leonhardt Pty Ltd [1997] HCA 17

High Court of Australia Dawson, Toohey, McHugh, Gummow and Kirby JJ Fitzgerald v FJ Leonhardt Pty Ltd (97/016) [1997] HCA 17

ORDER Appeal dismissed with costs

Cur adv vult

The following written judgments were delivered:—

13 May 1997 Dawson and Toohey JJ.

McHugh and Gummow JJ have set out the facts in this matter and there is no need for us to repeat them. Nor is there any need for us to examine in any detail the provisions of the Water Act 1992 NT (the Act), since we agree with McHugh and Gummow JJ, for the reasons which they give, that in prohibiting a person from causing, suffering or permitting a bore to be drilled unless authorised by or under the Act, s 56 of the Act is confined in its application to the owner, occupier or lessee of the property in question and imposes no obligation upon the driller to obtain a permit under s 57.

It is upon that construction of the Act that the defence of illegality to the driller's claim for moneys due under the contract must be considered. A convenient starting point is the observation by Gibbs ACJ in Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd [1] :

There are four main ways in which the enforceability of a contract may be affected by a statutory provision which renders particular conduct unlawful: (1) The contract may be to do something which the statute forbids; (2) The contract may be one which the statute expressly or impliedly prohibits; (3) The contract, although lawful on its face, may be made in order to effect a purpose which the statute renders unlawful; or (4) The contract, although lawful according to its own terms, may be performed in a manner which the statute prohibits. 1. (1978) 139 CLR 410 at 413.

The first three instances identified by Gibbs ACJ clearly have no application here. In the first place, it is apparent that the Act did not forbid the drilling of a bore. Section 56 forbids an owner, occupier or lessee of land to cause, suffer or permit a bore to be drilled on the land without a permit under s 57 but that is something different. The obligation to obtain a permit was cast upon the owner, not the driller, and the drilling of a bore constituted no offence on the part of the driller provided he was licensed, as he was, under s 49 of the Act. Indeed, s 56 of the Act may be contrasted with s 48 which makes it an offence for a person to drill or construct a bore unless he or she is the holder of a relevant licence under s 49 or is acting under the supervision of the holder of such a licence.