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Cooney v Ku-ring-gai Corporation

Cooney v Ku-ring-gai Corporation

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Case Copied 31 October 1963 42 min read

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HIGH COURT OF AUSTRALIA

Dixon C.J., Kitto, Taylor, Menzies and Windeyer JJ.

COONEY v. KU-RING-GAI CORPORATION

(1963) 114 CLR 582

31 October 1963

Local Government (N.S.W.)

Local Government (N.S.W.)—Proclamation declaring residential districts—Validity—Prohibition on use of premises for trade or industry—Use of dwelling-house for social functions for reward—Whether "trade" or "industry"—Breach of prohibition—Threatened continuance—Remedy of injunction—Availability at suit of municipal council to ensure observance of prohibition—Local Government Act, 1919 (N.S.W.), as amended, s. 309 (1).

Decisions

October 31.
The following written judgments were delivered:-
DIXON C.J. This is an appeal from an order of the Full Court of the Supreme Court of New South Wales allowing an appeal by the plaintiff from a decree of the Supreme Court in its equitable jurisdiction. The plaintiff is the Council of the Municipality of Ku-ring-gai. By s. 587 of the Local Government Act, 1919 (N.S.W.) it is provided that in any case in which the Attorney-General might take proceedings on the relation or on behalf or for the benefit of the Council for or with respect to enforcing or securing the observance of any provision made by or under this Act, the Council shall be deemed to represent sufficiently the interest of the public and may take proceedings in its name. It seems that the suit was brought in pursuance of this provision although in places the statement of claim uses language which might suggest that the Council was suing in its own right and, as will be seen, reliance was placed upon the County of Cumberland Planning Scheme Ordinance. (at p586)

2. The defendants to the suit are three in number, a husband and wife named Cooney and a third person who together are alleged to use a dwelling-house situate at and known as 140 Pentecost Highway, Turramurra, within the boundaries of the plaintiff municipality, for the purpose of what is described in the statement of claim as the trade or business of providing at cost refreshments and entertainment at social functions held therein. The statement of claim bears no date but it would seem that the suit was commenced some time early in 1962. Injunctions were claimed against the defendants restraining them from using the land and premises for the purposes of "the trade or business of providing at cost refreshments and entertainment at social functions held therein" and engaging in any trade or business on the land and premises without the consent of the plaintiff. The relief sought appeared to be based on two allegations which may have been considered, and certainly have been treated, as alternative. The first is that the land and premises already described are within an area which is zoned pursuant to the County of Cumberland Planning Scheme Ordinance as a living area and that no permission has ever been given by the plaintiff to use the land and premises for purposes other than as a dwelling-house. The alternative allegation is that the land and premises are within an area proclaimed pursuant to s. 309 of the…

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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Details

Case: [1963] HCA 47
Decision Date: 31 October 1963

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Cooney against a decision of the Supreme Court of New South Wales concerning the validity of a notice issued by Ku-ring-gai Corporation under the Local Government Act 1919 (NSW). The dispute centred on the Corporation's power to require the removal of a fence erected by Cooney on his property, which the Corporation alleged encroached onto a public road.

The primary legal issue before the High Court was whether the notice issued by the Corporation was valid and effective in requiring the removal of the fence. This involved determining whether the Corporation had the necessary statutory authority to issue such a notice under the relevant provisions of the Local Government Act 1919 (NSW), and whether the notice itself met the requirements of that legislation.

The Court's reasoning focused on the interpretation of section 317 of the Local Government Act 1919 (NSW). It was held that the power to issue a notice under this section was not limited to cases where an encroachment had actually occurred, but extended to situations where the Corporation believed, on reasonable grounds, that an encroachment had taken place. The Court emphasised that the Corporation's belief must be based on a proper consideration of the facts and the law, and that the notice must clearly specify the grounds for the requirement. The Court found that the Corporation had acted within its powers and that the notice was valid.

Orders