Gilmour v Bastian - [1917] HCA 61

COMPLAINANT; BASTIAN

ON APPEAL FROM THE SUPREME COURT OF Local Government-Breach of ordinance-Penalty-Right of member of public to

recover-Necessity for authority of council-Fines and Penalties Act 1901 (N.S.W.) (No. 16 of 1901), sec. Government Act 1906 (N.S.W.) (No. 56 of 1906), secs. 179, 187, 190, 191, 199, 202.

By sec. 4 of the Fines and Penalties Act 1901 (N.S.W.) it is provided that " Any fine penalty or forfeiture imposed or authorized to be imposed by any Act may be sued and proceeded for by any person whomsoever unless by the Act imposing the same such right to sue or proceed is expressly given to any officer or person by name or designation."

Sec. 179 of the Local Government Act 1906 (N.S.W.) includes in the revenue of a municipality the amount of all penalties payable in respect of offences against the Act or any ordinances. Sec. 187 authorizes the Governor to make ordinances for carrying the Act into effect, dealing with a number of specified matters. Sec. 190 provides that a penalty may be imposed for any breach of an ordinance. Sec. 191 provides that all penalties imposed by the Act or by any ordinance may be recovered in a summary way, and shall when recovered be paid to the council interested. Sec. 202 provides that " (1) The mayor, president, or any person appointed by the council in that behalf, may direct any prosecution or legal proceedings to be taken for or in respect of any offence against this Act or any ordinance or regulation. (2) Any officer or servant of a council appointed by the council in that behalf may represent and act for the council in the conduct of any action, suit, or other legal pro- ceeding in any Court by, for, or on account of or against such council."

24 CLR 15

Held, that the right to sue or proceed for a penalty for the breach of an ordinance is not by the Local Government Act 1906 expressly given to any officer or person by name or designation, and, therefore, that under sec. 4 of the Fines and Penalties Act 1901 such a penalty may be sued and proceeded for by any person whomsoever.

Special leave to appeal from the decision of the Supreme Court of New South Wales (Ferguson J.) Gilmour v. Bastian, 34 N.S.W.W.N., 239,

APPLICATIONS for special leave to appeal.

On the hearing before a Stipendiary Magistrate of New South Wales of an information whereby George John Gilmour charged that Alfred Arthur Copeland Bastian, who was the returning officer at an election for aldermen for the Council of the Municipality of Willoughby, did not cause to be counted in his presence and subject to his supervision the votes recorded for each candidate at each polling place contrary to the Ordinance in such case made and provided, objection was taken that a prosecution for such an offence could not be instituted or carried on by a person not having any…

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 Gilmour v Bastian

Details

AGLC: Gilmour v Bastian [1917] HCA 61
Case: [1917] HCA 61
Decision Date: 26 November 1917

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute arose from a prosecution initiated by George John Gilmour against Alfred Arthur Copeland Bastian, an election returning officer, for an alleged breach of a municipal ordinance. An objection was raised that the prosecution could not be validly instituted by a private individual without the authority of the Council, which the Magistrate upheld, dismissing the information. The Supreme Court, on a case stated, found this determination to be erroneous in law.

The central legal issue before the High Court was whether a private individual could sue for a penalty for a breach of a local government ordinance, or if such a right was exclusively vested in the Council or its appointed officers. This question turned on the interpretation of section 4 of the *Fines and Penalties Act 1901* (NSW) and its interaction with provisions of the *Local Government Act 1906* (NSW), particularly sections 179, 187, 190, 191, and 202.

The High Court affirmed the decision of the Supreme Court, holding that section 4 of the *Fines and Penalties Act 1901* permits any person to sue for a penalty unless the relevant Act expressly grants this right to a specific officer or person by name or designation. The Court found that the *Local Government Act 1906* did not contain such an express designation that would exclude the right of a private individual to sue. While the Act provided for penalties to be paid to the council and empowered the council to direct prosecutions, these provisions were not interpreted as an express exclusion of the general right to sue conferred by the *Fines and Penalties Act 1901*.

Consequently, the High Court refused special leave to appeal, upholding the Supreme Court's finding that the Magistrate had erred in law by dismissing the information on the grounds that the complainant lacked authority to prosecute.

Orders