OF AUSTRALIA.

27 C.L.R.]

387

[HIGH COURT OF AUSTRALIA.]

HIS MAJESTY THE KING

ApPELLANT;

DEFENDANT, A:-;'D

THE MAYOR, ALDERMEN, COUNCILLORS AND C~TIZENS OF THE CITY OF MELBOtRNE . . . . .

1 J'

RESPONDENTS.

PLAINTIFFS.

ON APPEAL FROM: THE SUPREME COURT OF VICTORIA.

1I,.14_Penalty-To wAom payable-Crollm or Gil!! 0/ .llelbouTne-Local Got·em. H. C. O}' A. IMIIl Act 1915 (Vict.) (No. 2686), lees. 4, 197, 223, 720, 721-Penaltiu Act 1920 1915 (Viet.) (No. 2706), lee. 3. '-v-'

&-e. 4, of the Local Government At'.t 1915 (Viet.) provides that thE' Act" shall :ME~1I0URNE, Dot apply to the City of Melbourn~ or the City of Geelong except where tlxpressly 1:~;c~17 1:. 10 stated." Sec. 721 provides that" Except where it is by th~ Act provided to the contrary all penalties recovered for offences against this Act committed Knox C.J., Isaac •• ag&inst the by.laws or regulations or in the municipal district or in any way Gavan Duffy ,md Rich JJ. in respect of ..ny municipality shall be paid into the municipal fund of such municipality. " Held, th..t aec. 721 applies to the City of Melbourne, and, therefore, that all recovered by process of law for penalties for breaches of by.laws made by the Council of the City of Melbourne under the Local Government Act 1915 are payable to the City of Melboume CofollOration.

BUms

Deellion of the Supreme Court of Victoria: Mayur King, (1919) V.L.R., 626; 41 A.L.T., 73, affirmed. APPEAL

from the Supreme Court of Victoria.

~c.

of Melbourne v. The

388

HIGH OOURT

B. C. OF A. 1920.

[1910.

In an action brought in the Supreme Court by the Mayor, Aldermen, CounciHdrs and Citizens of the City of Melbourne against ~ THE KING Hi8 Majesty the King, the following special case was stated· by the partip,s :MELBOUP.NE CORPORAThis action was commenced on 5th April 1919 by 1.\ petition TION. whereby the plaintifis claimed, (a) for money received by the defendant for the use of the plaintiffs, 12s. 6d.; (b) a declaration that all sums recovered by prooess of law for penalties and costs fot breaches of by..1e.ws made by the Council of the City of Molbourne under the Local Government Act 1915 are payable to the plaintifts : and the parties have concurred in stating the questions of law arising herein in t.he following calle for the opinion of the Supreme Court :1. The plaintiffs are a body corporate incorporated under the law of the State of Victoria. 2. Under and by virtue of the powers conferred on it by the Local Government A('l 1915 the Council of the City of Melbourne rosdp. a by-law, to wit, By-law No. 134 of the City of Melbourne. 3. Upon the information of one Michael Maltin O"1'ooJe, informant, against A. Dobies, defendant, for a breach of the said By-law No. 134, the said defendant, A. DobIes, was on 19th December 1918 convwted by the Court of Petty Sessions sitting at Melbourne and fined the 8um of lOs. with 2s. 6d. C08ts; and the said fine amounting to lOs. was paid by the said defendant A. Dobies to the Clerk of the Court. of Petty Sessions at Melbourne. 4. In accordance with a genera! demand by the defendant for all sums recovered by process of law for penalties for breaches of bylaws made by the said Council under the said Local Government Act. the said sum of lOs. was on 8th January 1919 paid by the said Clerk of Petty Sessions into the Consolidated Revenue of the Crown for thA State of Victoria.. G. Until 9th May 1918 all fines and costs recovered by -process of I~ for breaches of such by-laws were paid to the plaintiffs. 6. Since 9th May 1918 the defendant has demanded and received such nnelS, claiming that sec. 721 or the Local GOt'ernment Act 1915 doeEl not apply to the City of Melbourne, and that consequently the sam.e are, by virtue of the Penalties Act 1915, sec. 3, pavable to the ConsolidatM Revenue of Victoria. ~'.

rt 0.1•.&.]

OF AUSTRALIA.

389

7. The defendant claims the right to retain the said sum I)f lOs., H. C. opA. 1920. and to demand and receive all sums recovered by process of law '-v-' for penalties for breaches of by-laws made by the said Council under THE KING the said lhm Got'e1'nment Act. ". :lh:LBOURNE The questions for the opinion of the Court are (1) whether the CORPORA· TION. said 8wn of' lOs. is in law recoverahle by the plaintiffs; (2) whether all sums recovered by process of law fer penalties for breaches of by-laws made by the Council of the City of ~Ielbourne under the Local Government Act 1915 are payable to the plaintiffs. 8. It has been agreed between the parties that if the Court shall answer the first question in the affirmative judgment shall be given for the plaintiffs fo1' lOs., and that if the Court shall answer the second question in the affirmative there shall be a declaration accordingly; and that in either case the plaintiffs shall also have judgment for their costs of the action to be taxed on the Supreme Court scale, but thll,t if the Court shall answer both questions in the negative judgment shall be given for the defendant with costs of the action to he taxed on the Supreme Court scale. The Full Court an!lwered both questions in the affirmative, and ordered judgment to be entered for the plaintiffs: ilfayor &c. 01 Melbourne v. The King (1). From that decision the Crown now, by special leave, appealed to the High Court.

A. H. Davis, for the appellant. The answers to the questions depend on whether sec. 721 of the IAX'nlGovernmcnt A(~t J!Il:'}, or, alternatively, the provisions of the special Acts ..elating to t.he City of Melbourne, apply to penalties for breaches of by-laws made by the City of Melbourne under the L()('nl Government Act 1!1l;->. If neither of these alternatives is right, then under sec. 3 of the Penalties Act 1915 the penalties go to the Grown. 8ec.721 does not apply to such penalties~ By SOO. 4 of the Locqf Government Act wr;) that Act does not apply to the City of Melbourne except where it is expressly stated to apply. It is ~pressly 80 stated in sec. 197, which gives power to make by-laws. It is reasonable to say that some of the section~ which follow soo. 197 in Part VII. of the Act. (1) (UH9). V.L.R.. 626; 4t AL.T., 73.

300

HIGH COURT

JL C,

01'

t.

l!;!'C ~

TR~K;,;(:

'il".

Mli:LB0VFo;, f. ('ORPOlU·

no};".

[1920,.

by reason of their subject matter, ars also applicable to the City 'of l\loIbomne, but the extent to which those section!! are by implication from soc. Hl7 to be read as so applicable is limited to matters relatiDf to the making of by-laws and to matters which are necessarily incidental to by-Ie,w8, including their enforcement. But Part VII. exhauet,s the opera.tion of the implication from sec. 197. In tbf. absence of any express statement, there i~ nothing in soo. 721 or ir the sections associated with it tc connect it or them with the City of Melbourne. The appropriation of penalties is not a necessary part of the m&kill..g and enforcement of by-laws. Such appropriation is a mg,tter specially dealt with by Parliament in different Acts, such all the Poli<',e Ofjences Act 1915. When Parliament passed -see. 3 of tht; Penalties Act 1915 it contemplated that there were casee like the present where penalties wer~ not .appropriated in a particul&J W8eY,' [KNOX C.J. At present the Court is against you ae to BOO. 721.] Sir Eduvzrd Mitc~ll K .C. (with him Ham), for the respondents. The limitation. put by the appellant upon the applicability of Part. VII. to the City of Melbourne would exolude flOO. 223~ which providoo that aU offences against any by-law in force in any municipality shall be deemed to be an offence against the .Act. That sectiCB must apply to the City o! Melbourne, otherwise the penalty in thie C&S6 would not have been rightly imposed. There can be littl£; doubt that S0C. 720, whicb provides for the mode of recovering penalties, applioo to the City of Melbourne; and, if it doeo, sec. 721 must also apply. Sec. 4 of the Local GoveTflrMnt Act is not like r. section in the Constitution. It cannot he read strictly as applying to each section of the Act.

Cur. adt'. vult. )laI'Ch 1.

The following judgment! were read :KNOX c.J., ISAACS AND :UICE JJ. (read hy KNOX C.J.). The question r&ised for our decision by this special C68e is whether pwalties and coots fooovered by process of law in respect of breaehet 01 the by-lawt made by the Council of the City of Melbourne under

270.L.R.]

OF AUSTRALIA.

391

the power conferred by the Local GOf1emmsnt Act 1915 should be paid H. O. OF A. 1920. to the Crown or into the mUnicipal fund. The Supreme Conrt of ___ V'lOtoria having decided in favour of the r~ndent6 (the plaintiffs THJC Klso in the action), an appeal was instituted in this Court by the Crown, MEJ.B~·IjB:Sl:: and it appea.rmg· that the amount actually in dispute in the action CORl'OBATIOX. was less than £300, special leave was given in order toO enable thp, Knoxe.l. question to be decided by this Court. ~ J. Biehl. The aiiswers to be given to the questions submitted by the special case depend on the true construction of certain sections ·of the Local Got7emrMnt Act 1915, more particularly sees. 4, 107 and 721 ; &tld the exact pomt at issue is whether sec. 721 of the A~t applies to penalties recoVered for oiJences committed against the by-laws of the City of Melbourne made undet the Act. By sec. 4 it is pzovided that "This Act shall apply to every mwticipality' constituted or to be constituted but shall not apply to the City of Melbqnme or the City of Geelong except where expressly ~ stated." By see. 197, the materi,,1 part of which is expressJydeclared to apply to the City of Melbourne, power is conferred "subject to the proviaions hereinafter contained" to make by-laW$ for any muni., oipality for certain pUrposes defined by the section. The effect of tha section is, in our opinion, to declare that with regard to the p!OViaions of the Act reJating to by-Jaws the City of Melbourne is to be included within the expftlll8ion .. municipality." It is common ground that the by-Jaw for breach of which the fine now UJlder consideration was impoeed was properly made under this MIction.. It cannot be disputed that the penalty was properly sued for and recovered undfU' sec. 720 of the Act, which is the only section. in the Act prescribing the procedure for the recovery of pena.lt~ for offencea against the Act. By sec. 223 of the Act all offences against any by~Ja"s in foree in any municipality are to be deemed to be offences against the Act. The penalty for an offence against the Act is provided for by see. 119, which is in the following words :-" Every person guilty of an offence agaiDFt this Act shall for every 8uch offmee be U&ble to the penalty expressly imposed by this Act or by any by-law in force in that beblf &tld .if no other penalty is impoeed to a penalty of not more thua Wentv pounds." This section' is found in Part XXXVIII.,

392

mGB COURT

B. C.

OJ'

2, of the Act, but is by its express words clearly connooted with 88QB. 197 and 223 of t.he Act, and equally with those section. applies to the by-laws of the City of Melbourne made under the

A. DiVision

~. Tilt:

[1920.

KING

MELB~"uBNE Act. 8ec. 720 prescribe, the proct'dure for the recovery of penalties, and what has heen said with regard to see. 719 applies equally to fa::. ~.~. this section. Moreover, 118 pointed out above, the. proceedings Rich I. out of which tlul penalty now in question arose were propt"rly instituted under this section. Sec. 721 provides for the application of penalties recovered under sec. 720, and this fa.et alone would seem to indicate that it was intended to extend to all cases in which penalties were recovered under that section, whether the by-law broken was a hy.. law of the City of Melbourne or of some other municipality. But it is~n.tended on behalf of the appellant that the provisioJls of this section are prevented from applying to penalties for breaches of the by-laws of the City of Melbourne, by force of sec. 4 of the Act, inasmuch 8S sec. 721 contains no express statement that its provisions shall apply to the City of Melbourne. We think sec. lUi should he read as enacting that the City of Melbourne and every other municipality may make by-laws for the pm'poses therein defined, and' that the other sections which haye hoon referred to above. (223, 719, 720, 721) expressly deal with ,and apply, to all by-laws properly so made. We can see no distinction so far 8S regards the application .of these ~tions between the by-laws of the City of ~Ielbollrne made under the authority of sec. I H7 and those of any other municipality. We may add that no l"OOl;IOn was suggested why any distinction should be made in respect of the application of penalties recovered between the City o~ Melbourne and any other municipal corporation. We think the. plain meaning of the words ., subject to the provisions hereinafter contained" is that the power to make by-laws is given to the City of Melbourne and to all other Dlunicipalities. controlled and ,supplemented by such provisions contained in subsequent sections of the Act as nre properly' appliea,ble to such by-laws. Those proyisiolllJ, when identified, are the" provisions hereinafter contained" referred to in sec. 197, and are by force of that section expressly made to apply to the City of Melboume.

CORPORAnO,N,

27 C.L:R.]

OF AUSTRALIA.

The conclusion at which we have arrived is fortified by the H. C. ~. A. provisions· contained in sec. 724, which deals with disputes and ~ returns of municipaHties, and is expressly dedared to apply to the TlU: KmG City of Melbourne. By that section the Minister is empowered in )b;LB~~:&NlD c~rtain events to ord~r (inter alia) " all fines or penalties which may CORPORATION. be payable to such council not to be paid." This provision clearly Kno!l C.J. rests on the implicati9u that fines and penalties recoverabl e und er Is&a.JII J. Rieh 1. the Act in respect of breaches of by-laws of the City of Melbourne are payable to the City. In this view of the case it is not necessary for us w express any opinion as to the earlier Acts relied on by the Full Court of Victoria in support of their decision. We agree for the ressons stated a.bove that bot.h questions submitt.ed by the special case should be answered in the affirmative. We ~ave not overlooked the difficulty created by soo. 203, which contains express provision for the application of that section to the City of Melbourne and the City of Geelong, but we think the conaiderations to which we have adver~ed outweigh those which arise from the inciusion of this express provision in soo. 203. The order wiII be that the appeal be dismissed with costs. GAVAN DUFFY J. Sec. 197 of the lQcq,l Government Act of 1915 authorizes the making of certain mUrUcipaJ by-laws, and declares that the provisions of the section enabling such by-laws to be made shall apply to the City of Melbourne. Sec. 203 of the Act prescribes the manner of making such by-laws, and declares that i.ts provisions IShall apply to the City of Melbourne. Sec. 721 of the Act is as follows: "Except where it is by this Act provided to the contrary all pena.Ities recovered for offences against this Act committed against the by-laws or regulathns or in the municipal district or in any way in ~espoot of any mlUlicipality shall be paid into the municipal fund of such municipality." It is said that this section does not apply to by-Ia.ws made under the authority of sec. 197, and in the manner prescribed by soo. 203, because it is not expr4J881y stated that ihC!t sootion applies to the City of Melbourne, as requiled by 88C. • of the Act. It must be

394

HIGH OOURT

[1920.

H. C. or A. conceded that it is nowhere stated in terID3 that this section shall

~:

apply to the City of Melhourne, but that is of no importance if the word.; of the section themselves expressly refer to the by-laws of MELB~~RNf; th6 City of Melbourne, and, in my opinion, they do expressly refer CO..:,~~.l. to those by-laws. The section does not mention tht'm separately, -but it meations a clasG in which they are necessarily included. Gava& Dufty J. The words" the by-laws" in sec. 721 in my opinion mean all by-la~ made under the Act, and the!"eIore include by-laws made by the City of Melhourne under the provisions of secs. 197 and 203. I agree in thinking that the appeal should be dismissed. THE KING

Appeal dismissed with ct>8t8. Solicitor f01 the appellant, E. J. D. Guinm1J8, Crown Solicitor for Victoria. Solicitors for the respondents, MaUeson, St~u:Mt, Stawell ~ Nankivel!. B.L.

R v City of Melb [1920] HCA 6.pdf

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