Jolly v Yorketown District Council

[1968] HCA 55

High Court of Australia

Barwick C.J. McTiernan, Kitto, Menzies and Owen JJ.

Jolly v Yorketown District Council

[1968] HCA 55

ORDER

Appeal allowed with costs. Judgment and order of the Supreme Court of South Australia set aside and in lieu thereof order that the appeal to that Court be allowed with costs and the judgment of the Local Court of Yorketown given and pronounced on 24th June 1967 be set aside and judgment entered for the defendant with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 30

Barwick C.J. and Owen J.

This is an appeal by special leave from a decision of the Full Court of the Supreme Court of South Australia dismissing an appeal from the judgment of a stipendiary magistrate given in favour of the respondent Council on a claim by it to recover from the appellant £122 together with interest thereon for what are described as "street moieties" charged by the respondent against the defendant for the construction of kerbing and water tables in two streets on to which a corner block of land owned by the appellant abutted.

Section 319 (2) of the Local Government Act, 1934-1966 S.A. provides, inter alia, that if the work of forming or constructing water tables in any public street or of constructing kerbs in any such street has not been previously carried out and if the Council carries out such work not previously carried out, it may recover "as provided by this section" from the owners of ratable property abutting on such street, the cost of such work, or such part thereof as the Council thinks fit, ratably according to the frontages of the ratable property abutting on the street. By s. 319 (11) the total of all amounts payable under the section in respect of any ratable property is not to exceed ten shillings per lineal foot of the frontage of the property to the street in which the work is carried out. Section 319 (10) is in the following terms:

(10) The council shall within six months of the completion of any work the cost of which is sought to be recovered under this section from any owner of any ratable property, give notice in writing to the owner of the ratable property specifying the amount required to be paid to the council and requiring the payment thereof. If previous to the notice being given as aforesaid to the owner of any ratable property any other amount or amounts have been payable under this section towards the cost of any work by the owner of the ratable property or any predecessor in title of the owner, the notice shall specify the amount or amounts, as the case may be, which have been so payable in respect of the ratable property and the time or times when the amount or amounts became so payable and, if no such amount has been payable, the notice shall specify accordingly.

The fact is that in the present case the respondent Council, within six months of the completion of the work, gave the appellant a document in the following terms:

Yorketown 25th June, 1965. J. G. Abbot District Clerk Mr. A. H. Jolly, 89 Main North Road, Nailsworth. Dr. to District Council of Yorketown Copy To Kerbing and Water Tabling moieties Part Lot 45, Stansbury. 244 feet @ 10s. per foot £122 - -

Thereafter it commenced an action in the Local Court of Yorketown to recover the amount and interest thereon from the appellant. At the hearing it was submitted by the appellant that there had been a failure to comply with the requirements of s. 319 (10) in that the document of 25th June 1965—assuming it to be a "notice in writing specifying the amount required to be paid to the council and requiring the payment thereof"—did not specify the amount or amounts previously payable towards the cost of the work by the appellant or by any of his predecessors in title and the time or times when the amount or amounts became so payable, nor, if no such amount was previously payable, did it specify accordingly.

The learned magistrate overruled this objection, being of opinion that the provisions of the sub-section requiring the notice to "specify" the amount or amounts previously payable and, if no such amounts were previously payable, to "specify accordingly" were directory only and that a failure to comply with them did not affect the validity of the notice and did not therefore afford any defence to the Council's claim. On appeal to the Supreme Court, Chamberlain J. was of opinion that the provisions in question were mandatory; that the notice did not comply with them; and that the action could therefore not be maintained. His Honour, however, concluded by saying that he recognized the force of the views expressed by the other members of the Court and that he was content to join with them in dismissing the appeal. Travers J. considered that the failure to state expressly in the notice that an amount had previously been payable or, if no such amount had been payable to state that fact, was not a condition precedent to the Council's right to recover the moneys claimed. He was also of opinion that, since the document of 25th June 1965 claimed payment for the maximum amount chargeable under the section, the appellant had in any event been told "by necessary inference" that no previous amounts had been payable and that this sufficiently met the requirements of sub-s. (10). Walters J. thought that so much of the sub-section as required a notice to be given within six months of the completion of the work was mandatory and that compliance with that requirement was a condition precedent to the respondent's right of action. He considered, however, that the later part of the sub-section was directory only and that a failure to comply with its terms did not bar the right of the Council to recover.

While we agree with their Honours that it is not always easy to decide whether a particular statutory provision is mandatory or directory, we have no doubt that if compliance with a statutory requirement is made a condition precedent to the maintenance of an action then, as Higgins J. said in Sandringham Corporation v. Rayment [1] ,

all arguments to the effect that it is to be treated as directory, not imperative, become futile. Courts cannot ignore a condition precedent imposed by the legislature [1] .

1. (1928) 40 C.L.R. 510.
2. (1928) 40 C.L.R., at p. 533.

Here the giving of a notice within the stated period is clearly a condition precedent to a cause of action arising under which the Council might recover the amount claimed by it from the appellant. It would be strange if the inclusion in that notice of some matter specified by the statute was mandatory but was directory only of other matters similarly specified. In our opinion all the requirements for which s. 319 (10) provides must be fulfilled if a ratepayer is to be held liable to contribute towards the cost incurred by a council in carrying out the works to which s. 319 (2) refers. The power of a council to compel a ratepayer to contribute to that cost arises from the section and, if it wishes to exercise that power, it must comply strictly with the conditions laid down for its exercise. The case is, we think, indistinguishable in principle from the Sandringham Corporation Case [1] . Section 319 (10) is a provision made for the benefit of the ratepayer. He is not to be held liable to contribute to the cost incurred by the council unless a notice is first given which fulfils the prescribed conditions and the notice must therefore "specify", that is to say must state in explicit terms, the various matters which the sub-section requires to be stated. If it fails to do so, the ratepayer cannot be made liable.

1. (1928) 40 C.L.R. 510.

In these circumstances it is unnecessary to consider other submissions which were made on behalf of the appellant and we would allow the appeal.

McTiernan J.

I took the view upon the application for special leave to appeal that the circumstances of this case were not such as to call for the exercise of the jurisdiction of the Court to grant special leave to appeal. However, as the majority decided to grant the application for special leave to appeal I have to decide the question that arises purely as a question of law without regard to the merits of the case. I have read the reasons for judgment of the Chief Justice and Owen J. and I agree in their conclusion.

Kitto J.

The provision in sub-s. (10) of s. 319 that the Council shall, within six months of the completion of any work the cost of which is sought to be recovered under the section from the owner of any ratable property, give a certain notice in writing to the owner, though it is expressed in positive form, is obviously not intended to create a duty. Its intended operation must be that of a qualification upon sub-s. (2), having the effect that unless a notice complying with sub-s. (10) be given, and given within the six months, the council will not be entitled to recover the cost under sub-s. (2).

The only question, then, is whether the requisites of the notice which is thus made a condition precedent to the recoverability of the cost are to be found in the first sentence only of the sub-section—so that the second sentence intends to give a direction as to the notice while adding nothing as to its essentials—or are to be found in both sentences of the sub-section taken together. It is to be observed that the second sentence is expressed not as a command to the Council but as a requirement of the notice. The notice is to specify amounts (if any) which have been payable under the section in respect of the ratable property previously to the giving of the notice, and it is to specify that no such amount has been payable if such be the case. The purpose of these requirements is apparent from sub-s. (11). The total amounts payable are not to exceed ten shillings per lineal foot of the frontage, and accordingly the notice is to specify—to give not by inference but by direct statement—the information from which the property owner may see for himself whether he is being required to pay in total more than ten shillings per lineal foot. Plainly, as it seems to me, the second sentence intends to add to the description which a notice must satisfy if the amount that it requires to be paid is to be recoverable.

I agree that the action should have been dismissed and that the appeal should succeed.

Menzies J.

I agree.