Harrison v Darling to Glen Waverley Railway Construction Trust - [1934] HCA 55

THE DARLING TO GLEN WAVERLEY

RAILWAY CONSTRUCTION TRUST

ON APPEAL FROM THE SUPREME COURT OF Railway ConstructionConstruction District-Construction Trust-Railway con-

struction and betterment rates-Constitution of Railway Construction District Line authorized to commence "at or near" specified point-" Subject to MELBOURNE,

considered desirable"-Compliance with requirements Darling to Glen Waverley Railway Construction Act 1926 (Vict.) (No. 3500), sec. 3 (1) (a), Schedule-Railway Lands Acquisition Act 1928 (Vict.) (No. 3760), secs. 4, 6, 7, 18. Starke. Dixon, Rates-Construction and betterment rate-Imposition of rate-Rescission of rate-

Requisite majority for rescission not obtained-Imposition of new rate-Validity of new rate-Railway Lands Acquisition Act 1928 (Vict.) (No. 3760), secs. 33 (2), 43,45.

The respondent Trust was constituted by Order in Council under provisions now contained in sec. 18 of the Railway Lands Acquisition Act 1928. Act No. 3500 authorized the Board of Land and Works, as the Constructing Authority, to construct a railway commencing on the Darling railway line at or near its junction" with the Outer Circle railway "subject to such deviations and modifications as may be considered desirable by the Board." The railway when constructed in fact commenced about 650 yards from the junction of the two existing lines.

Held, that whether the point of departure was or was not near " the junction, there had been a permissible modification of the required nearness.

52 CLR 69

On 25th July 1932 the respondent Trust passed a resolution striking a con- struction rate on the net annual value of the whole of the ratable property in the railway rating area for the period 1st July 1932 to 30th June 1933. On 8th August 1932 the Trust passed a resolution purporting to rescind the resolu- tion of 25th July. This resolution was not passed by the majority of the trustees required by sec. 33 (2) of the Railway Lands Acquisition Act 1928. At the same meeting on 8th August the Trust purported to strike another con- struction rate for the period from 1st July 1932 to 30th June 1933.

Held, that the resolution of 8th August 1932 purporting to rescind the resolu- tion of 25th July not having been passed by the majority required by sec. 33 (2) of the Railway Lands Acquisition Act 1928 was invalid, and was not saved by sec. 45 of that Act, because although the rate passed on 8th August was approved by the Governor in Council and was published in the Government Gazette, it was not published in a newspaper circulating in the District as required by that

Decision of the Supreme Court of Victoria (Gavan Duffy J.) affirmed.

APPEAL from the Supreme Court of Victoria.

The plaintiff appellant, Harold Walter Harrison, brought an action in the Supreme Court of Victoria on behalf of himself and the East Malvern Ratepayers Association, against the Darling-Glen Waverley Railway Construction Trust. The statement of claim was, in substance, as follows :-

1. (a) The plaintiff is a member of an unincorporated body called the East Malvern Ratepayers Association and he and…

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

AGLC: Harrison v Darling to Glen Waverley Railway Construction Trust [1934] HCA 55
Case: [1934] HCA 55
Decision Date: 13 December 1934

CaseChat Overview and Summary

The appellant, Harold Walter Harrison, brought an action in the Supreme Court of Victoria on behalf of himself and the East Malvern Ratepayers Association against the Darling to Glen Waverley Railway Construction Trust. The dispute concerned the validity of the constitution of the Trust and a railway construction rate levied by it. The appellant contended that the Railway Construction District, and consequently the Trust, was not legally constituted due to an alleged improper commencement point for the authorized railway line. Furthermore, the appellant challenged the validity of a specific rate imposed on 8th August 1932, arguing it was invalid due to a prior, unrescinded rate and insufficient publication.

The court was required to determine two primary legal issues. Firstly, whether the construction of the railway line commenced at a point that complied with the statutory requirement of being "at or near" its junction with another existing line, and whether any deviations or modifications were permissible. This issue was central to the validity of the Railway Construction District and the Trust itself. Secondly, the court had to consider the validity of the rate imposed on 8th August 1932, specifically whether a prior resolution imposing a rate for the same period had been validly rescinded, and whether the subsequent rate had been made and published in accordance with the relevant provisions of the Railway Lands Acquisition Act 1928.

The High Court, affirming the decision of the Supreme Court of Victoria, held that the Darling to Glen Waverley Railway Construction Trust and the associated Railway Construction District were validly constituted. The court reasoned that the Darling to Glen Waverley Railway Construction Act 1926 permitted deviations and modifications to the authorized railway line, including its commencement point. The actual commencement point, while not precisely at the junction, was considered sufficiently "near" or a permissible modification thereof, thus validating the formation of the district and the Trust. However, the court also upheld the Supreme Court's declaration that the rate purporting to have been made on 8th August 1932 was illegal and unenforceable. This was because the resolution to rescind a prior rate passed on 25th July 1932 was not passed by the two-thirds majority required by section 33(2) of the Railway Lands Acquisition Act 1928. Consequently, the subsequent attempt to impose a new rate was invalid, and the publication requirements of section 45 of the Act had not been met.

Orders