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PUBLISHED FOR THE PROPRIETORS AT THE OFFICE OF
THE LAW JOURNAL REPORTS, 119 CHANCERY LANE, LONDON.

19C1.

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DECISIONS

OF THE

JUDICIAL COMMITTEE OF

HER MAJESTY'S PRIVY COUNCIL

AND OF THE

HOUSE OF LORDS

IN SCOTCH AND IRISH APPEALS.

AND
FITZROY

OMNIBUS

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V.

1900. MELBOURNE TRAMWAY

sive on all points"; and section 61 applies July 18, 19.

to rate appeals all the provisions of other Nov. 10. CORPORATION.*

Acts, and gives to County Courts all powers

and jurisdictions possessed by Courts of Victoria-Appeal to County CourtRating-Power to State a Case for the general sessions subject to the provisions Supreme CourtJustices (Victoria) Act, of this Act:

Held, that the Local Government Acts 1890 (No. 1105), s. 139Local Government (Victoria) Act, 1890 (No. 1112); the power to state a Case possessed by the

did not take away from the County Court 8. 277- Local Government (Victoria) Act,

Court of general sessions. 1891 (No. 1243), 88. 60 and 61- Prin

In rating a tramway leased by a corpociple of Rating TramwaysDeduction of Interest and Sinking Fund of Money

ration to a tramway company on which Borrowed— Parochial or Mileage Rating

tramway the

company is to repay, by means

of a sinking fund, borrowed money with Form of Security for Costs of Appeal.

interest thereon, no deduction is to be made By the Justices Act, 1890, 8. 139, the in respect of the money 80 borrowed or the Court of general sessions is in any case interest. of appeal, if so required by any party to The company is the occupier of the land proceedings, to state the facts specially for in such circumstances, though the ownership the determination of the Supreme Court is in the Crown, and its rating is that of thereon, any Act to the contrary notwith- a simple occupation rate, and the true test standing."

of value is the rent obtainable from a By the Local Government Act, 1890, s. 277, hypothetical tenant. an appeal is given to the Court of general When a tramway passes through several sessions for any cause, and its decision is rating areas, the parochial principle of to be final and conclusive on all parties.rating is to be applied by which buildings

By the Local Government Act, 1891, are rated separately to the area in which 8 60, all rate appeals are transferred from they stand, and the remainder of the rating the general sessions to the County Court, value is distributed among the rating areas whose decision is to be final and conclu- on the mileage principle. * Coram, Lord Hobhouse, Lord Macnaghten,

Where a muncipality is respondent to an Lord Lindley, Sir Richard Couch, and Sir Henry

appeal to her Majesty in Council the conStrong.

dition that security shall be given in VOL. 70.-P.C.

B

PRIVY COUNCIL CASES.

2

MELBOURNE TRAMWAY AND OMNIBUS Co. v. FITZROY CORPORATION. bond, mortgage, or personal recognisance, is Their Lordships will first address themsufficiently complied with by delivery of the selves to this question, which is one of bonds to the Prothonotary and not to the nicety and difficulty. It depends on the municipality..

examination of a series of statutes relating Appeal from a decision of the Supreme relating to the functions of Justices of

to local government, and of another series Court of the Colony of Victoria. The facts and arguments sufficiently appear in

peace sitting in petty or general sessions.

In making that examination their Lordthe judgment of the Board.

ships have been much aided by a very full Asquith, Q.C., Hon. Isaac A. Isaacs, and careful judgment delivered by Mr. Q.C. (of the Colonial Bar), and John

Justice Hood in a case of Melbourne TramMansfield, for the appellants.

way and Omnibus Co. v. Melbourne CorBalfour Browne, O.C., Cripps, Q.C., and poration (1898). Lewis Coward, for the respondents.

The appellants rest their case on the

provisions of the Local Government Acts LORD HOBHOUSE delivered the judgment of 1890 (No. 1112) and of 1891 (No. 1243). of their Lordships :

By section 276 of No. 1112 an appeal is This appeal is not unimportant to the given, on the ground of unfairness or inparties directly concerned ; and it derives

correctness occurring in valuations and greater importance from the fact that it

assessments, to the Court of petty sesinvolves a controversy on the principle of sions; and the judgment of that Court levying local rates which is pending be- is to be final and conclusive. By sectween the appellants and other local tion 277 an appeal is given to the Court authorities besides the respondents; and of general sessions for any cause : the another controversy on procedure which Court is to hear the appeal in a summary affects rating authorities and ratepayers way, and its decision is, by section 278, to generally.

be final and conclusive on all parties. The appellants carry on their business

By section 60 of No. 1243 all rate in the city of Fitzroy and several other appeals, which then lay to general sescities or towns under the provisions of sions, are to be made to the County Court; Acts of Parliament passed in the years the Court is to hear them in a summary 1883 and 1884. For the year 1896-97 way, and its decision is to be final and the appellants were rated by the respon- conclusive on all points. According to dents at 10 per cent. on the assessed value the provisions of these sections considered of 13,2251. The appellants objected to the by themselves, the decisions of County principle on which the value was assessed, Courts in rate appeals are unimpeachable. mainly because the respondents refused No. 1243, however, in section 61, enacts deductions for certain classes of outgoings. that all provisions of Acts relating to such They appealed to the County Court, and appeals to general sessions shall (subject on March 15, 1898, Judge Casey, who to the provisions of No. 1243) apply to presided in that Court, decided in accord- appeals to the County Court. For that ance with their contention, reducing the purpose County Courts are to have all the valuation from 13,2281. to 1,6821. In powers and jurisdiction possessed by the May, 1898, either on the 12th or the 17th, Court of general sessions. the Supreme Court issued a mandamus to But while the Legislature was passing Judge Casey directing him to state the No. 1112 it was also passing the Justices facts for their determination. The appel- Act of 1890 (No. 1105), of which section lants appealed to the Full Court on the 139 runs as follows: “No proceeding to ground that the decision of the County be had touching the conviction of any Court in a rate appeal is final and con- offender against any Act, or touching any clusive, and that the mandamus was issued order made or any other matter or thing without jurisdiction. On July 26, 1898, done or transacted in or relative to the the Full Court dismissed the appeal, and execution of any Act, shall be vacated or the soundness of that decision is challenged quashed for want of form or be removed in the present appeal.

(1) 24 Victorian L. R. 33.

MELBOURNE TRAMWAY AND OMNIBUS Co. v. FITZROY CORPORATION. or removable (except as hereinafter men- word "points" instead of“ parties.” That tioned) by certiorari or any other writ or is the only “provision ” in No. 1243 calprocess whatsoever into the Supreme culated to exclude the operation of section Court; but in any case of appeal the 139 of No. 1105. It was then, and had Court of General Sessions before whom long been, the practice of Courts of the same is heard and determined shall if general sessions to state Cases in rate so required by any party to such appeal appeals, and that practice must have been state the facts specially for the determina- well known to all persons familiar with tion of the Supreme Court thereon, in these branches of law. If there had been which case that Court may determine the an intention to prohibit that practice same, any Act to the contrary notwith something more direct and definite would standing.' The literal construction of surely have been said. these words is quite clear-namely, that The existence at that time of the practhe Court of general sessions may be tice of stating Cases in rate appeals is not required to state a Case in all appeals, disputed, though it has been disputed at without any apparent exception of rate the Bar whether or no it has continued appeals. There is therefore a contradic- up to the present time. In his judgment tion between the two simultaneous direc- delivered in this case the learned Chief tions of No. 1105, S. 139, and No. Justice speaks of it as a well-defined 1112, s. 277, and there must be some practice which has prevailed from the qualification of the literal meaning of one earliest time since local government has or the other in order to bring out any existed. Mr. Justice Hood has known sensible result.

instances in the year 1892. He does not It is indeed suggested by the appellants think it necessary to trace it back earlier that No. 1243, passed in the next year, than the year 1865. By the Municipal disposes of the matter by providing that Corporations Acts of 1863 (No. 176, the decisions of the County Court shall be ss. 199–201, and No. 184, ss. 199 6 final and conclusive on all points.” -201) provisions were made for rate This, it is urged, is different from being appeals to petty sessions and general “conclusive on all parties”; it embraces sessions respectively, in terms points of law as well as of fact, and shuts sponding to those used in No. 1112, inout the explanation that enactments of cluding the provisions as to finality. But finality coupled with provisions for con- by the Justices Act of 1865 (No. 267, sideration on a stated Case mean that the s. 135) the Courts of general sessions had finality does not extend to points of law. power to state a Case “in any appeal.”

But in No. 1243 itself, immediately At that time, then, if no earlier, the after the provision for finality in section 60, framers and readers and administrators of comes section 61 applying to rate appeals Sessions statutes found in Local Governall the provisions of other Acts, and ment Acts general expressions of finality giving to County Courts all powers and for decisions in rating appeals, coupled jurisdiction possessed by Courts of general with the provision in Justices Acts of one sessions. That would include the juris- special mode of questioning the finality of diction, and with it the obligation, to the same decisions. It is a hazardous use state a Case, unless there is some provision of language, and difficulties have sprung to prevent it. It is true that all this is from it in other statutes and other dedone 66

“ subject to the provisions of this partments of law; but it seems to have Act." But all this portion of the Act is found favour in Victoria. Mr. Justice aimed at substituting County Courts for Hood says truly that throughout the general sessions in rate appeals, and to legislation on rate appeals appears a desire those provisions the whole is subject. It that the decision of the Appellate Court is almost inconceivable that the framers of should be final, and also an intention to the Act should have deliberately intended allow reconsideration by means of stating to make an alteration of a different kind Cases. It is pointed out by him and also and of great importance in jurisdiction, by Chief Justice Madden that unless there by the obscure process of writing in the is some machinery for such reconsideration

corre

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