Rae v Simmons - [1910] HCA 38

11 CLR 246

JAMES WALTER RAE

CHARLES SIMMONS

ON "APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. H.

Pastures Protection Act 1902 (N.S.W.) (No. 111 of 1902), secs. 49-52-Local

Government Act 1906 (N S. W.) (No. 56 of 1906), sec. 75- Destruction of rabbits on roads - Powers of Pastures Protection Board - Interference with SYDNEY,

roads under control of shire councils. Aug. 24.

Under sec. 49 of the Pastures Protection Act 1902 it is the duty of the occupier of land to destroy rabbits upon any roads bounding his land, in accordance with the requirements of the Pastures Protection Board.

Sec. 75 of the Local Government Act 1906 provides that a council shall have the control and management of all public roads in its area, and that no person shall use any road, or permit a road to be used, so as so affect the exercise of the rights and powers of the council.

Proceedings were taken against the appellant for failing to destroy rabbits on a road bounding his land. The means which the appellant was required by the board to adopt included the destruction of briar and blackberry bushes, which necessitated a breaking of the surface of the road. The Supreme Court held that sec. 49 of the Pastures Protection Act did not conflict with sec. 75

11 CLR 247

of the Local Government Act, and that the board was entitled to proceed against the appellant for not adopting the means specified. Special leave appeal to the High Court was sought on the ground that the sections in ques-

Held, that the case was one in which special leave should not be granted as the decision was manifestly right.

Special leave to appeal from the decision of Supreme Court: Rae v. Sim- mons, 10 S.R. (N.S.W., 582 27 W.N. (N.S.W.), 142, refused.

APPLICATION for special leave to appeal from the decision of the Supreme Court upon the hearing of a special case stated by a magistrate under sec. 101 of the Justices Act 1902 (No. 27).

An information was laid against the appellant under sec. 49 of the Pastures Protection Act 1902 (No. 111), for that he, being the occupier of certain land, and liable to destroy and suppress rabbits and noxious animals under the Pastures Protection Act, did upon the roads bounding such land fail to suppress and destroy rabbits and noxious animals from time to time fully and continuously by all lawful means, at his own cost, and in accord- ance with the requirements of the Board.

Sec. 49, as amended by sec. 2 of the Pastures Protection Amendment Act 1904 (No. 20), provides that " it shall be the duty of the owner or occupier respectively of any land from time to time to suppress and destroy, by all lawful means, at his own cost, and in accordance with the requirements of the Board as specified under the provisions of sec. 52 of the said Act, all rabbits and noxious animals which may…

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.

Continue reading Rae v Simmons

Details

AGLC: Rae v Simmons [1910] HCA 38
Case: [1910] HCA 38
Decision Date: 24 August 1910

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellant, Rae, had been charged with failing to destroy rabbits on a road bounding his land, as required by section 49 of the *Pastures Protection Act 1902* (NSW). The Pastures Protection Board had specified that the destruction of rabbit harbours, including briar and blackberry bushes, was necessary, which would involve disturbing the surface of the road. The appellant argued that this conflicted with section 75 of the *Local Government Act 1906* (NSW), which vests control and management of public roads in shire councils.

The legal issue before the High Court was whether section 49 of the *Pastures Protection Act 1902* conflicted with section 75 of the *Local Government Act 1906*, thereby rendering the Board's requirements unlawful. The magistrate had found a conflict and dismissed the information, but the Supreme Court of New South Wales overturned this decision, holding that the Board's powers were not in conflict with the council's control of the roads.

The High Court, in refusing special leave to appeal, found the Supreme Court's decision to be "manifestly right." The Court reasoned that the *Pastures Protection Act* imposed a duty on occupiers to destroy rabbits and noxious animals on bounding roads in accordance with the Board's requirements. The *Local Government Act* granted councils control over roads but did not preclude the exercise of powers under other legislation, such as the *Pastures Protection Act*, which mandated specific actions for public benefit. The Court concluded that there was no inherent conflict between the two legislative provisions, and the Board was entitled to require the appellant to take the specified measures.

Orders