Morgan v Municipality of Clarence

[1987] TASSC 28

TASSC A16/1987

CITATION:            Morgan v Municipality of Clarence [1987] TASSC 28; A16/1987

PARTIES:  MORGAN
  v
  MUNICIPALITY OF CLARENCE

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  88/1986
DELIVERED ON:  2 April 1987
DELIVERED AT:  
HEARING DATE:  
JUDGMENT OF:  Green CJ

CATCHWORDS:

REPRESENTATION:

Counsel:
           Applicant:  
           Respondent:  
Solicitors:
           Applicant:  
           Respondent:  

Judgment Number:  TASSC A16/1987
Number of paragraphs:  11

Serial No A16/1987
  File No 88/1986

MORGAN v MUNICIPALITY OF CLARENCE

REASONS FOR JUDGMENT  GREEN CJ
  2 April 1987

1. The applicant was at all material times the occupier of land known as 357 Pass Road. At some time three holes were dug in the land and, to some extent, earth was banked up around them. The holes were filled with effluent or water, creating lagoons with surface areas of about 600, 400 and 100 square meters. On about the 28 January 1986 the applicant was served with what was described as a final order issued under the seal of the respondent which read as follows:

"TAKE NOTICE that pursuant to Section 681 of the Local Government Act 1962 (as amended) as the occupier of the property known as the Aintree Health and Leisure Centre situate at 357 Pass Road, Cambridge, upon which property there exists excavations, namely three lagoons forming part of an intallation [sic] for the disposal of night–soil. YOU ARE HEREBY ORDERED to securely fence off the excavations by installing a fence around the perimeter of the area excavated. THE FENCE shall be a four foot high child–proof fence in accordance with the Australian Standard (a copy of which is annexed hereto) or otherwise a fence which is to the satisfaction of the Municipal Engineer.

YOU ARE REQUIRED to complete the fencing work within seven days of the date of this order."

1. The applicant did not comply with the order or notice and was convicted of a breach of s821(b)(ii) of the Local Government Act 1962 which provides that a person who fails to do any act directed or required to be done by an order or notice served under the Act is guilty of an offence. The applicant moves to review that conviction upon the following grounds:

"1The learned Magistrate erred in fact in determining and finding that the three lagoons situated at Pass Road Cambridge to which the said order of the Respondent was directed were or are 'excavations'.

2The learned Magistrate erred in law in determining that the said three lagoons were and are 'excavations' within the meaning of and for the purposes of section 681 of the Local Government Act 1962."

1. Section 681, pursuant to which the respondent purported to give the notice, reads as follows:

"681 – The corporation may, by order addressed to the owner or occupier of any land which has been excavated for brickmaking, quarrying, mining, or other purposes, whether before or after the commencement of this Act, direct that owner or occupier to have the excavation so made securely fenced round to its satisfaction, and may further direct the owner or occupier to take such measures as are in its opinion necessary, and as are specified in the order, for preventing any noxious or offensive drainage or other matter from flowing or being thrown or cast into the excavation."

1. The applicant submits that the words "or other purposes" should be construed ejusdem generis with the words "brickmaking, quarrying, mining" which precede them and that if they are so construed, s681 would have no application to the excavations in this case. The applicant submits further that although the holes were excavations when they were dug, they ceased to be excavations when they became filled with water or effluent.

1. As an aid to the construction of s681 I have regard to what, in my opinion, is the object of that part of s681 which empowers corporations to make orders to fence, namely to reduce the danger of people, and possibly animals, falling down holes and injuring themselves.

1. Notwithstanding some earlier dicta to the contrary, it now seems to be accepted that the ejusdem generis rule should not be applied automatically merely because it appears that specific words which precede general words fall into a relevant genus. Generally speaking, some additional reason derived from the context or from the purpose of the legislation needs to be demonstrated before a court is justified in cutting down the breadth of general words used by Parliament – The King v Regos (1947) 74 CLR 613, 623; Mattinson v Multiple Incubators Pty Ltd [1977] 1 NSWLR 368 at 373 and ff; Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 at 647; Gas and Fuel Corporation of Victoria v Comptroller of Stamps [1964] VR 617, 620.

1. Before the ejusdem generis rule can be applied it is necessary to identify a relevant genus to which the specific words which it is said qualify or restrict the general words belong. Excavations for the purposes of brickmaking, quarrying or mining are undertaken for the purposes of winning respectively clay, stone or minerals and thus they could all be said to belong to the genus of excavations which are carried out for the purpose of winning materials from the ground. The consequence of the application of the ejusdem generis rule to s681 by reference to that genus would be that corporations would have the power to require an owner or occupier to fence excavations carried out for the purpose of winning materials from the ground, but would not have the power to require an owner or occupier to fence excavations carried out for some other purpose. There is no difference between the nature of the danger presented by a hole which has been excavated for the purpose of winning materials, and a hole which has been excavated for some other purpose and I can see no reason at all for drawing such an anomalous distinction between the two classes of excavations. I am not persuaded that the words "excavated ... for other purposes" should be confined to excavations done for the purpose of winning materials from the ground.

1. The only other relevant genus to which excavations for the purposes of brickmaking, quarrying or mining could be said to belong is the genus of excavations which result in the creation of holes which are fairly large and likely to remain for an appreciable time. To restrict the application of s681 to excavations of that kind is arguably justifiable upon the ground that it would thereby exclude from the operation of s681 small holes of the kind which might be dug in a suburban garden which present no danger to anyone and which it is unlikely were intended by the legislature to be within the purview of s681. Such a construction would, I think, be supported by the use of the word "excavation" itself which connotes a hollowing out of some size and which would be an extravagant word to use to describe a hole a few centimetres deep. However, it is unnecessary for me to express a concluded view about the possibility that the ejusdem generis rule should be applied so as to limit the words in that way because it is plain that the excavations in this case would fall within the scope of s681 even if it were construed so that it did not apply to small holes which were temporary or not dangerous.

1. The applicant's second submission raises the question of whether, for the purposes of s681, an excavation ceases to be an excavation when it is filled with water, In my view, it does not. I accept that if an excavation is filled with something substantial like a building or earth or rock it would cease to be an excavation, but when one has regard to the purpose of s681, I do not think it should cease to be regarded as an excavation if it is filled with a much less substantial material such as water. In my view, the justification for drawing a distinction between an excavation which is filled with solid matter capable of supporting a person and an excavation which is filled with water is that the latter is still capable of presenting a danger to people and animals, whereas the former is not. I think that that conclusion is also consistent with ordinary linguistic usage. I cannot imagine anyone referring to "that excavation over there with Westminster Abbey in it", but it would not be remarkable if someone were to refer to "that excavation over there which has become filled with water".

1. I hold that the excavations on the applicant's land were, at the time when the orders were served, excavations for the purposes of s681.

1. The motion to review is dismissed.