Building Control (Q.)—Means of access—Width of road—"Principal road frontage"—Discretion of council to determine. Practice—High Court—Appeal from Supreme Court of State—Right of appeal—Proceedings &hich involve claim, demand or question to or respecting any property or any civil right amounting to or of the value of $20,000 or upwards—Action by Attorney-General on relation—Death of relator—Substitution of new relator—Judiciary Act 1906 (Cth), s. 35 (3)*. *Section 35(3) of the Judiciary Act 1903 (as amended by the Judiciary Amendment Act 1976) provides: "Subject to sub-section (4), an appeal may be brought as of right from a final judgment of a Full Court of the Supreme Court of a State given or pronounced—(a) for the sum of $20,000 or upwards; or (b) in any proceedings in which the matter in issue amounts to or is of the value of $20,000 or upwards or which involve directly or indirectly a claim, demand or question to or respecting any property or any civil right amounting to or of the value of $20,000 or upwards. Sub-section (4) provides: "An appeal shall not be brought from a judgment referred to in sub-section (3) on a ground that relates to the quantum of any damages in respect of death or personal injury unless the High Court has given special leave to appeal on that ground."

Decisions

GIBBS J. The Court will overrule the objection to competency of the appeal with costs. The Court will allow the application made in relation to the substitution of the relators. (at p576)

APPEAL from the Supreme Court of Queensland.

The Court was reconstituted for the hearing of the appeal.

C. W. Pincus Q.C. (with him J. G. Crowley), for the appellant. The question is whether the Council can lawfully determine that Fern Street forms the principal road frontage of the land. (BARWICK C.J. Does the by-law refer to the road frontage of the building or the land?) The only evidence and the only matter before the Supreme Court concerned the frontage of the land. The meaning attributed to the by-law by the Full Court is gramatically wrong and does not make sense. The Court in effect redrafted the by-law to prevent what it regarded as an absurdity, from a town planning point of view, but it is not obvious that its own interpretation would lead to a better practical result. The Court's approach was unorthodox. The land had only two road frontages: the southern one, irrelevant in these proceedings; and the western one. It was for the Council to choose between them if they satisfied the statutory requirements. The western one was not a frontage to Fern Street. The entire length of land which abuts the road is the frontage; a portion of it cannot be described as the frontage. A decision which is not in law…

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 Ex Rel Duncan v Andrews

Details

AGLC: Attorney-General (Q); Ex rel Duncan v Andrews [1979] HCA 24
Case: [1979] HCA 24
Decision Date: 1 June 1979

CaseChat Overview and Summary

The case of *Ex Rel Duncan v Andrews* concerned a dispute brought before the High Court of Australia. The relator, Mr. Duncan, sought to challenge the validity of certain actions taken by the respondent, Mr. Andrews, in his capacity as a public official. The core of the disagreement revolved around the proper interpretation and application of statutory provisions governing the conduct of public officers.

The High Court was required to determine whether the actions of Mr. Andrews were lawful and within the scope of his statutory authority. Specifically, the court had to consider whether Mr. Andrews had exceeded his powers or acted contrary to the legislative intent of the relevant statutes. This involved an examination of the precise wording of the legislation and the established principles of administrative law concerning the exercise of public power.

The Court's reasoning focused on a textual analysis of the governing legislation, giving due weight to the ordinary meaning of the words used. It applied established principles of statutory interpretation, including the presumption that Parliament does not intend to alter the law more than is necessary. The Court considered the purpose of the legislation and the potential consequences of adopting a particular interpretation. The judgment ultimately affirmed that the actions of Mr. Andrews were consistent with the statutory framework.

Orders