Kemp v Barber

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The appellant, Thomas Francis Kemp, had been convicted in the Court of Petty Sessions for distributing pamphlets in Flinders Park, Melbourne, contrary to a by-law of the City of Melbourne. The by-law, made under the Local Government Act 1915, prohibited the distribution of handbills on any "street or footway" to the obstruction or annoyance of others.

The central legal issue before the High Court was whether Flinders Park, a public park used for public meetings and devoid of defined paths, constituted a "footway" or "street" within the meaning of the by-law. The by-law defined "footway" broadly to include "every footpath, lane, thoroughfare or other public place within the municipality habitually used by pedestrians."

The High Court, allowing the appeal, reasoned that the definition of "footway" in the by-law, despite its broad wording, must be interpreted in light of the enabling power in the Local Government Act 1915, which was limited to regulating "traffic and processions." The Court held that the term "footway" in the context of the by-law referred to places used as thoroughfares for the public passing and repassing. Given that Flinders Park was a flat, unfenced area used for public meetings and lacked any defined paths or thoroughfares, it did not fall within the intended scope of the by-law. The Court found that the specific clauses within the by-law, such as those relating to keeping to one side of a footway or avoiding obstruction by articles, were inapplicable to a place like Flinders Park, further supporting the interpretation that it was not a "footway" for the purposes of the by-law.

Consequently, the High Court quashed the conviction, ordered the discharge of the order nisi to review, and awarded costs to the appellant in all courts.