RESPONDENTS. PLAINTIFFS, Local Government-Councillor-Disqualification-0 person concerned
contract or in any work to be done under the authority of any such Council" Meaning-Action for penalties against disqualified councillor-Onus of proof- Provision for recovery of penalty " with full costs of suit "-Meaning-Presump- tions-Omnia praesumuntur contra spoliatorem-Destruction of document by MELBOURNE, party to suit-Local Government Act 1946 (No. 5203) (Vict.) SS. 53 (1), 56 (1), Oct. 24, 25, (2).
Section 53 (1) of the Local Government Act 1946 (Vict.) provides :----` No person holding any office or place of profit under or in the gift of the council of any municipality or concerned or participating in any manner whether directly or indirectly in any contract with any municipality or in any work to be done under the authority of any such council or in the profit of such contract or work shall be capable of being or continuing a councillor of the municipality."
Held, that the words work to be done under the authority of any such council" include work to be done for and on behalf of the council if it is within the scope of the authority conferred by the council on the persons who
Held, further, that the effect of the words " to be done" is to make
' concern " a cause of incapacity if it is concern in work about to be under- taken or in the course of execution if not yet completed.
The meaning of " concerned" in its context discussed with reference to Section 56 of such Act provides :- (1) Every person who acts as a councillor, being incapacitated under the provisions hereof to be or continue such or
before he has made and subscribed such declaration as aforesaid, shall, save in case of incapacity proceeding from unsoundness of mind, be liable for every such offence to a penalty of not more than fifty pounds, and such penalty may be recovered by any person with full costs of suit in the Supreme Court or any county court, and such penalty when recovered shall be paid into and form part of the municipal fund. (2) In every such action the person sued shall prove that at the time of SO acting he was qualified under the provisions of this Act to be a councillor, and had made and subscribed the declaration aforesaid, or he shall be adjudged to pay the said penalty and costs without any other evidence being required from the plaintiff than that such person
Held, that the burden of disproving incapacity or disqualifying facts is on the councillor not only where his initial qualification is in issue but also where the question is whether he has incurred a disqualification through
Held, further, that the words ' full costs of suit' mean party and party costs of the action considered as an action confined to the penalty or penalties actually recovered.
In an action against a councillor for penalties the question…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Allen v Tobias [1958] HCA 13
Case
[1958] HCA 13
Decision Date
CaseChat Overview and Summary
This case concerned an appeal and cross-appeal from a decision of the Supreme Court of Victoria. The plaintiffs, Charles Eric Tobias and Douglas John Stanley, had brought an action against the defendant, Leslie William Allen, seeking penalties under section 56 of the *Local Government Act 1946* (Vic.). They alleged that Allen, a councillor for the Shire of Mulgrave, had acted as such while disqualified by reason of his involvement in a contract or work undertaken by the council. The Supreme Court had found Allen liable for penalties on certain occasions, but the defendant appealed this finding, while the plaintiffs cross-appealed seeking greater penalties and costs.
The central legal issue was whether the defendant, Leslie William Allen, had incurred a disqualification from continuing as a councillor under section 53(1) of the *Local Government Act 1946* (Vic.). This section prohibits any person "concerned or participating in any manner whether directly or indirectly in any contract with any municipality or in any work to be done under the authority of any such council" from being or continuing as a councillor. The court was required to determine the meaning of "concerned" and "work to be done under the authority of any such council," and whether the defendant's actions in relation to a rubbish tip site constituted such involvement, particularly after his re-election as councillor. A further issue arose regarding the interpretation of "full costs of suit" as provided in section 56(1) of the Act.
The High Court held that the phrase "work to be done under the authority of any such council" encompassed work undertaken for and on behalf of the council, provided it fell within the scope of the council's delegated authority. The court also determined that the words "to be done" indicated that involvement in work about to be undertaken or in the course of execution, if not yet completed, would constitute a disqualifying concern. Crucially, the court applied the principle *omnia praesumuntur contra spoliatorem* to presume that the defendant had executed an agreement relating to the rubbish tip, given that he had destroyed all copies of the document. Furthermore, the court affirmed that section 56(2) of the Act placed the onus on the councillor to prove their qualification or lack of disqualification, not only for initial eligibility but also for any subsequent disqualifying events.
The appeal was dismissed, and the cross-appeal was allowed. The judgment of the Supreme Court was varied concerning the costs order. The High Court ordered that the plaintiffs recover their costs of the action, including pleadings and transcript, but excluding any costs that would not have been allowable had the action been confined to penalties for acting as a councillor during the period from 1 January 1955, to the issue of the writ, on the grounds of disqualification. These costs were to be taxed in the Supreme Court of Victoria.