Local Government (Tas.)—Administrative tribunal—Natural justice—"Audi alteram partem"—Statutory commission to inquire and report to Governor—Procedure for persons aggrieved by report to petition—Whether persons have right to be heard by commission before report is made—Declaration of right—Locus standi—Municipalities likely to be affected by report—Local Government Act 1962-1966 (Tas.), ss. 13, 14, 15.

Decisions

September 4.
The following written judgments were delivered : -
BARWICK C.J. This appeal from the order made by the Supreme Court of Tasmania (Crisp J.) in this action on 24th December 1968 (1968) 16 LGRA 223 is brought by the special leave of this Court given in Hobart on 12th February 1969. The order under appeal was made with respect to certain preliminary points of law set down for argument pursuant to an order of the Supreme Court of Tasmania made on 8th October 1968. The points of law as described in that order were :

"2. (i) Whether the amended statement of claim is bad in law and discloses any cause of action against the defendants on the ground that there is no jurisdiction in the Court to grant the declaratory relief sought for the following reasons : (a) There is no existing justiciable issue or controversy between the parties hereto because no legally recognized interests or rights of the plaintiffs are sufficiently affected by the said report.

(b) That the provisions of the Act preclude the plaintiffs from obtaining the declaratory relief sought because exclusive remedies in relation to the said report are provided for in the said Act.

(c) That the plaintiffs have no locus standi to obtain the relief sought because they have no sufficient interest in the subject matter of the action or the declaratory relief sought.

(d) That the declaratory relief sought cannot be granted as against the defendants because (i) Neither they nor the Commission have power to implement or direct implementation of the said report ;

(ii) Such relief is not available as against a statutory body such as the Commission acting pursuant to s. 14 of the said Act.

(ii) Whether the amended statement of claim is bad in law and discloses no right to the declaratory relief sought on the ground that the facts disclosed therein do not and could not justify the exercise of a discretion (if any) to grant such declaratory relief.

(iii) Whether in fulfilling its duty to inquire and report to the Governor under s. 14 of the Act the Municipal Commission was bound to observe the rules of natural justice.

(iv) Whether the determination of any of the above points of law disposes or substantially disposes of the action or any cause of action and whether or not it should be dismissed." (at p515)

2. The learned primary judge by his order determined the preliminary points of law as follows :

"1. The amended statement of claim…

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.

Continue reading Brettingham-Moore v St Leonards Municipality

Details

AGLC: Brettingham-Moore v St Leonards Municipality [1969] HCA 40
Case: [1969] HCA 40
Decision Date: 5 September 1969

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Brettingham-Moore against a decision of the Supreme Court of Tasmania concerning the validity of a notice of intention to take land issued by the St Leonards Municipality. The dispute centred on whether the Municipality had the power to compulsorily acquire land for the purpose of constructing a public highway, and whether the notice sufficiently specified the purpose for which the land was required.

The primary legal issues before the High Court were whether the notice of intention to take land was validly issued under the relevant provisions of the *Local Government Act 1906* (Tas) and the *Lands Clauses Act 1857* (Tas), and whether the stated purpose of constructing a public highway was sufficiently particularised to satisfy the requirements of the legislation. The Court also had to consider whether the Municipality's intention to acquire the land was for a proper public purpose.

The Court held that the notice was invalid because it failed to specify with sufficient particularity the purpose for which the land was to be taken. While the general purpose of constructing a public highway was stated, the notice did not indicate the route or the specific nature of the proposed highway, rendering it too vague. The Court emphasised that for a compulsory acquisition to be lawful, the notice must clearly and precisely inform the landowner of the intended use of their property. The legislation required a specific purpose, not a general one, to be stated.

Consequently, the High Court allowed the appeal and set aside the notice of intention to take the land.

Orders