Gadsden v Gibbs

This matter concerned an application for special leave to appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The original dispute involved an information laid by George Arthur Gibbs, Secretary of the Melbourne and Metropolitan Board of Works, against Stanley Wilkinson Gadsden. Gadsden was charged with knowingly erecting a fence, structure, or obstruction over a sewer vested in the Board, contrary to section 148 of the Melbourne and Metropolitan Board of Works Act 1915. The magistrates had dismissed the information, finding that the gates in question did not constitute a fence, structure, or obstruction within the meaning of the Act.

The legal issue before the Supreme Court of Victoria, and subsequently the High Court on the application for special leave, was whether a double-gate, hung on posts on either side of a ten-foot strip of land above a sewer, constituted a "structure" erected or placed over the sewer within the meaning of section 148 of the Act. The gates met over the centre of the sewer when shut and were fastened by a bolt, though not locked.

The Supreme Court of Victoria, on review, held that the gates were a "structure" and, when closed over the sewer, were a structure over the sewer. The High Court, in refusing special leave to appeal, indicated that it saw no reason to doubt the correctness of the Supreme Court's decision. The Court implicitly affirmed the principle that a structure, for the purposes of the Act, could include a gate that, when closed, extended over a sewer, even if it was not a permanent or locked fixture.