Tooth & Co Ltd v Parramatta City Council

Tooth & Co Ltd and Howard Francis Swanbury appealed to the High Court of Australia from an order of the Supreme Court of New South Wales that discharged an order nisi for a writ of mandamus. The applicants sought the mandamus to compel the Council of the City of Parramatta to approve plans and specifications for a hotel and consent to its erection, or alternatively, to reconsider the application free from irrelevant considerations. The council had refused the application, which was made under various provisions of the Local Government Act 1919-1952 (NSW) and the County of Cumberland Planning Scheme Ordinance.

The High Court was required to determine two primary issues: first, whether an appeal lay to the High Court as of right from the Supreme Court's order, and second, if not, whether special leave to appeal should be granted. The competency of the appeal as of right hinged on whether the order involved a sum or matter at issue, or a claim, demand, or question respecting property or civil right, amounting to or of the value of £300, as stipulated by s 35(1)(a) of the Judiciary Act 1903-1950. The court also considered the availability of alternative statutory remedies and the principles governing the exercise of discretion in granting a writ of mandamus.

Dixon C.J., delivering the judgment of the court, held that the appeal was incompetent as of right because the order discharging the order nisi for mandamus did not involve a matter or right of the requisite monetary value. His Honour explained that the refusal of mandamus merely denied an immediate remedy and did not conclude the appellants' rights, as other statutory remedies, including appeals to the Land and Valuation Court, remained available. Consequently, the court refused to grant special leave to appeal, noting that the existence of equally convenient, beneficial, and effective statutory remedies meant that mandamus was not the appropriate recourse. The court also made observations on the scope of s 342R of the Local Government Act and cl 27 of the Planning Scheme Ordinance, particularly regarding the council's discretion and the interpretation of "amenity of the neighbourhood."

The appeal was dismissed as incompetent, and special leave to appeal was refused. The appellants were ordered to pay the respondent's costs limited to those properly incurred in opposing the application for special leave to appeal.