Coles v Adeney [1914] HCA 19

H.C. or A. 1914.

aw MooraBBin Sure v. ABBOTT.

Isaacs J.

HIGH COURT (194.

monly use it are to be liable to pay at all." Then sub-sec. 2 provides for the persons who get the advantage of the work but are not within sec. 526, not being persons whose premises front, adjoin or abut on the place to be improved. There may, for instance, be the well known foot between their land and the street on which it abuts, and although they got all the advan- tage of the work they would have none of the responsibility. That would not be fair; and therefore the legislature completes its plan of making those who get the advantage of the work pay for it, by providing that if such an owner commonly uses the street or has the right to use it, and if in the opinion of the council the street is for his advantage or benefit, then he may be included as an owner. This single reference to the " opinion " of the council as to persons liable is notable. Sub-see. 3 only defines the persons meant by "owners," but the other conditions have to be complied with in order to make them liable.

See. 529 is a machinery section. I quite agree that the discre- tion of the council is absolute as to whether the work should be done, how much it should cost, how it is to be done, which of the possible persons liable are to be actually liable, and how the total cost is to be apportioned among them. But it is only a discretion that is absolute provided that the council act within their juris- diction. They cannot enlarge their jurisdiction ; and, if Iam right in saying that the central idea of the scheme is to make those owners who are getting the advantage responsible, the council may think that some of those persons are not getting the advantage of the work and may leave them out. But if only those are to be responsible who are getting the advantage, I can- not see how the words in sec. 527 could include persons who are not getting the advantage. It would not only be an injustice to them but it would pro tanto relieve those who are getting the advantage. Whichever way it is looked at, the argument for the appellants is beset with a great many difficulties of construction and reasons of fairness.