Gilmour v Bastian

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.