NEW SOUTH WALES. Nuisance-No to abate-Cottage-Dilapidated condition-Tenant in possession
-Demolition-Discretion of magistrate---Grounds for exercise-Public Health Act 1902-1952, SS. 64, 65, 66. SYDNEY,
Statutes-Construction- Shall May "-Interpretation Act of 1897, S. 23. Nov. 22, 23
Quarter Sessions-Stating case for Supreme Court-Reference of question of MELBOURNE,
w-Appeal already dismissed-Justices Act 1902-1951, S. 131A-Power of Supreme Court. Evidence-Rejection-Tribunal exercising discretion-When question of law.
The Public Health Act 1902-1952, S. 66, provides that where a person on whom a notice to abate a nuisance has been served by a local authority makes default in complying with any of the requisitions thereof, the local authority shall make complaint to a justice, who shall issue a summons requiring the person to appear before a magistrate or justices. The said magistrate or justices may, if satisfied that the alleged nuisance exists, by order require the said person to comply with all or any of the requisitions of the notice, or otherwise to abate the nuisance.
Held, that the magistrate has a discretion, which nust be exercised judicially and upon grounds which do not go beyond the scope and object of Pt. VII of the Public Health Act 1902-1952.
Prima facie, permissive or facultative expressions in a statute operate according to their ordinary natural meaning. In construing a statute conferring a power by permissive or facultative expressions, it is important not to mistake indications or evidences, found in the context or subject matter, of an intention that a right to call for the exercise of the discretion should exist, for indications or evidences of an intention that the officer in whom the
power is reposed should be under a duty, upon request and upon fulfilment H. C. of the necessary conditions, to do the thing authorized.
Once an appeal to Quarter Sessions has been heard and determined, SO that that court has disposed of it by a judicial decision, the opportunity of stating a case under S. 131A of the Justices Act 1902-1951 has passed (Roberts V. Jones (1928) 28 S.R. (N.S.W.) 543 45 W.N. 156, applied). Quarter Sessions, under that section, may pronounce a judgment or decision conditionally subject to the reservation of a special case and a decision thereon by the Supreme Court.
Where evidence is tendered to a tribunal exercising a statutory discretion, the question whether the evidence ought to be received does not depend on its relevance to some distinct issue of fact. It depends on the bearing of the facts it was proposed to prove upon the exercise of the tribunal's discretion.
A refusal to receive evidence because the tribunal is of the opinion that particular facts could not affect the exercise of its discretion involves no question of law unless it exhibits some misconception of the scope of the discretion, or the grounds upon which its exercise should proceed.
Decision of the Supreme Court of New South Wales (Full Court), Williams V. Ward (1953) 19 L.G.R.…
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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AGLC
Ward v Williams [1955] HCA 4
Case
[1955] HCA 4
Decision Date
CaseChat Overview and Summary
This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellant, a property owner, had been served with a notice by the local council under the *Public Health Act 1902-1952* requiring her to abate a nuisance on her dilapidated cottage, which was occupied by a tenant. After failing to comply with the notice, she was convicted by a magistrate and subsequently appealed to quarter sessions. The chairman of quarter sessions dismissed the appeal, and the Supreme Court upheld this decision.
The central legal issue before the High Court was the interpretation of section 66(2) of the *Public Health Act 1902-1952*. Specifically, the court had to determine whether the magistrate, upon being satisfied that a statutory nuisance existed, had a discretion to refuse to make an order for abatement, or whether the word "may" in the section imposed a mandatory duty to make an order, with the discretion limited only to the form of that order. A further issue concerned the admissibility of evidence tendered by the appellant at quarter sessions, which the chairman rejected.
The High Court held that section 66(2) of the *Public Health Act* conferred a discretion upon the magistrate, which must be exercised judicially and within the scope and object of Part VII of the Act. The Court reasoned that the use of the permissive word "may," particularly when contrasted with the imperative "shall" in similar English legislation and considering the context of the Act and the *Interpretation Act 1897* (NSW), indicated an intention to grant discretion. This discretion allowed the magistrate to consider factors such as the unreasonableness or oppressiveness of requiring repairs when demolition might be a more appropriate or just solution, or when the nuisance was unsubstantial. The Court also noted that the rejection of evidence by the chairman of quarter sessions might have been based on a misconception of the scope of this discretion.
Consequently, the High Court set aside the order of the Supreme Court. It remitted the matter to quarter sessions with a direction that the appeal be reheard and decided according to law, consistent with the High Court's judgment on the discretionary nature of the magistrate's powers under section 66(2). The appellant was awarded costs.