Gilmour v Bastian [1917] HCA 61

HIGH COURT

(HIGH COURT OF AUSTRALIA.]

. GILMOUR . 2 5 2 5 4 3 . COMPLAINANT; AND BASTIAN. . ; A 3 é . : . DEFENDANT. —

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A, Local Government—Breach of ordinance—Penalty—Right of member of public to

1917. aw Sypyey, Nov. 26.

Barton, Isaacs, Higgins, Gavan Dufty, Powers and Rich JJ.

recover—Necessity for authority of council—Fines and Penalties Act 1901 (N.S.W.) (No. 16 of 1901), sec. 4—Local Government Act 1906 (N.S.W.) (No.

56 of 1906), secs. 179, 187, 190, 191, 199, 202.

By see. 4 of the Fines and Penalties Act 1901 (N.S.W.) it is provided that " Any fine penalty or forfeiture imposed or authorized to be imposed by any Act may be sued and proceeded for by any person whomsoever unless by the Act imposing the same such right to sue or proceed is expressly given to any officer or person by name or designation."

Sec. 179 of the Local Government Act 1906 (N.S.W.) includes in the revenue of a municipality the amount of all penalties payable in respect of offences against the Act or any ordinances. Sec. 187 authorizes the Governor to make ordinances for carrying the Act into effect, dealing with a number of specified matters. Sec. 190 provides that a penalty may be imposed for any breach

of an ordinance. Sec. 191 provides that all penalties imposed by the Act

or by any ordinance may be recovered in a summary way, and shall when recovered be paid to the council interested. Sec. 202 provides that " (1) The mayor, president, or any person appointed by the council in that behalf, may direct any prosecution or legal proceedings to be taken for or in respect of any offence against this Act or any ordinance or regulation. (2) Any officer or servant of a council appointed by the council in that behalf may represent and act for the council in the conduct of any action, suit, or other legal pro- ceeding in any Court by, for, or on account of or against such council."