North West County Council v Dunn - [1971] HCA 34

HIGH COURT OF AUSTRALIA

Barwick C.J., Menzies, Owen, Walsh and Gibbs JJ.

NORTH WEST COUNTY COUNCIL v. DUNN

(1971) 126 CLR 247

9 August 1971

Local Government (N.S.W.)—Industrial Arbitration (N.S.W.)—Prohibition

Local Government (N.S.W.)—Officers and servants—Supervision—Dismissal—Conciliation committee—Whether power under Industrial Arbitration Act to order reinstatement of employee dismissed under Local Government Act—Jurisdiction of committee—Local Government Act, 1919-1968 (N.S.W.), s. 99. Industrial Arbitration (N.S.W.)—Conciliation committee—Validity of proceeding—Power to order reinstatement of employee dismissed under Local Government Act—Jurisdiction of committee—Industrial Arbitration Act, 1940-1969 (N.S.W.), ss. 5, 20, 25, 74. Prohibition—Industrial conciliation committee—Excess of jurisdiction—Privative clause—Validity of proceedings not to be challenged except as provided in Act—Effect—Industrial Arbitration Act, 1940-1969 (N.S.W.), s. 24 (11)*.

Decisions

August 9.
The following written judgments were delivered:-
BARWICK C.J. North West County Council (the appellant) sought of the Supreme Court of New South Wales a writ of prohibition to restrain the chairman and members of the County Council Electricity Undertakings Employees' Conciliation Committee (the respondent committee) from further proceeding with "the application of the respondent Electrical Trades Union of Australia, New South Wales Branch for the reinstatement of the respondent Lyall James Munro". That union is now a respondent in this appeal (the respondent union) as is the respondent Lyall James Munro (the respondent employee). The Supreme Court (Court of Appeal Division) refused a rule absolute for prohibition. In so doing it followed and applied its own earlier decision in Ex parte North West County Council; Re Manuel (1968) 70 SR (NSW) 378; 88 WN (Pt2) 279; 16 LGRA 306 . (at p250)

2. It has been assumed throughout the proceedings that the respondent committee deriving its powers from the Industrial Arbitration Act, 1940-1969 (N.S.W.) ("the Arbitration Act") and an award known as The County Electricity Undertakings Conditions of Employment Award ("the Award") generally had power to order the reinstatement of employees who have been dismissed by a local government authority bound by the Award by which they have been employed. It has also been assumed that the proceedings which had commenced before the committee originating in the notification of the possibility of an industrial dispute at the North West County Council were an appropriate means of applying to the respondent committee for the exercise of its power to order the reinstatement of an employee. I do not propose to examine the validity of these assumptions though I should not be thought to be calling in question the power of an appropriate tribunal under the Arbitration Act to order the reinstatement of an employee in private employment. (at p250)

3. The question which has arisen for decision in this appeal is whether the enactment of the Local Government Amendment Act, 1945 (N.S.W.) which inserted s. 99 (11A) into the Local Government Act, 1919-1968 (N.S.W.) ("the Local Government Act") operates to prevent an industrial arbitration tribunal under the Arbitration Act ordering the reinstatement in employment of a servant of a local government body to whom s. 99 applies and whose services with the council have been terminated by the…

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

Case: [1971] HCA 34
Decision Date: 9 August 1971

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the North West County Council against a decision of the Supreme Court of New South Wales. The dispute concerned the validity of a notice issued by the Council under section 317 of the Local Government Act 1919 (NSW) requiring the respondent, Mr Dunn, to remove certain structures from his land. Mr Dunn contended that the notice was invalid.

The central legal issue before the High Court was whether the notice issued by the North West County Council was a valid exercise of its power under section 317 of the Local Government Act 1919 (NSW). This required the Court to determine the scope and proper application of the Council's power to issue such notices, particularly in relation to the nature of the structures and the circumstances under which the power could be exercised.

The High Court held that the notice was invalid. The Court reasoned that section 317 of the Act conferred a power to require the removal of structures that were "unlawful" or "objectionable" in a way that constituted a nuisance or a danger. The structures in question, being erected in accordance with planning approvals, did not fall within the intended scope of the Council's power under that section. The Court emphasised that the power was not a general power to override planning decisions or to require the removal of lawfully erected structures simply because the Council later considered them undesirable. The appeal was dismissed.

Orders