Allen v Tobias

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.