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1900. July 18, 19. Nov. 10.





Victoria-Appeal to County CourtRating-Power to State a Case for the Supreme Court Justices (Victoria) Act, 1890 (No. 1105), s. 139-Local Government (Victoria) Act, 1890 (No. 1112), 8. 277-Local Government (Victoria) Act, 1891 (No. 1243), ss. 60 and 61-Principle of Rating Tramways-Deduction of Interest and Sinking Fund of Money Borrowed-Parochial or Mileage Rating— Form of Security for Costs of Appeal.

By the Justices Act, 1890, s. 139, the Court of general sessions is in any case of appeal, if so required by any party to proceedings, to state the facts specially for the determination of the Supreme Court thereon, "any Act to the contrary notwithstanding."

By the Local Government Act, 1890, s. 277, an appeal is given to the Court of general sessions for any cause, and its decision is to be "final and conclusive on all parties."

By the Local Government Act, 1891, 860, all rate appeals are transferred from the general sessions to the County Court, whose decision is to be "final and conclu

* Coram, Lord Hobhouse, Lord Macnaghten, Lord Lindley, Sir Richard Couch, and Sir Henry Strong.

VOL. 70.-P.C.

sive on all points"; and section 61 applies to rate appeals all the provisions of other Acts, and gives to County Courts all powers and jurisdictions possessed by Courts of general sessions "subject to the provisions

of this Act"

Held, that the Local Government Acts the power to state a Case possessed by the did not take away from the County Court Court of general sessions.

In rating a tramway leased by a corporation to a tramway company on which tramway the company is to repay, by means of a sinking fund, borrowed money with interest thereon, no deduction is to be made in respect of the money so borrowed or the interest.

The company is the occupier of the land in such circumstances, though the ownership is in the Crown, and its rating is that of a simple occupation rate, and the true test of value is the rent obtainable from a hypothetical tenant.

When a tramway passes through several rating areas, the parochial principle of rating is to be applied by which buildings are rated separately to the area in which they stand, and the remainder of the rating value is distributed among the rating areas on the mileage principle.

Where a muncipality is respondent to an appeal to her Majesty in Council the condition that security shall be given in


MELBOURNE TRAMWAY AND OMNIBUS Co. v. FITZROY CORPORATION. bond, mortgage, or personal recognisance, is sufficiently complied with by delivery of the bonds to the Prothonotary and not to the municipality.

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Appeal from a decision of the Supreme Court of the Colony of Victoria. The facts and arguments sufficiently appear in the judgment of the Board.

Asquith, Q.C., Hon. Isaac A. Isaacs, Q.C. (of the Colonial Bar), and John Mansfield, for the appellants.

Balfour Browne, Q.C., Cripps, Q.C., and Lewis Coward, for the respondents.

LORD HOBHOUSE delivered the judgment of their Lordships:

This appeal is not unimportant to the parties directly concerned; and it derives greater importance from the fact that it involves a controversy on the principle of levying local rates which is pending between the appellants and other local authorities besides the respondents; and another controversy on procedure which affects rating authorities and ratepayers generally.

The appellants carry on their business in the city of Fitzroy and several other cities or towns under the provisions of Acts of Parliament passed in the years 1883 and 1884. For the year 1896-97 the appellants were rated by the respondents at 10 per cent. on the assessed value of 13,2251. The appellants objected to the principle on which the value was assessed, mainly because the respondents refused deductions for certain classes of outgoings. They appealed to the County Court, and on March 15, 1898, Judge Casey, who presided in that Court, decided in accordance with their contention, reducing the valuation from 13,2287. to 1,682. In May, 1898, either on the 12th or the 17th, the Supreme Court issued a mandamus to Judge Casey directing him to state the facts for their determination. The appellants appealed to the Full Court on the ground that the decision of the County Court in a rate appeal is final and conclusive, and that the mandamus was issued without jurisdiction. On July 26, 1898, the Full Court dismissed the appeal, and the soundness of that decision is challenged in the present appeal.

Their Lordships will first address themselves to this question, which is one of nicety and difficulty. It depends on the examination of a series of statutes relating to local government, and of another series relating to the functions of Justices of peace sitting in petty or general sessions. In making that examination their Lordships have been much aided by a very full and careful judgment delivered by Mr. Justice Hood in a case of Melbourne Tramway and Omnibus Co. v. Melbourne Corporation [1898].1

The appellants rest their case on the provisions of the Local Government Acts of 1890 (No. 1112) and of 1891 (No. 1243). By section 276 of No. 1112 an appeal is given, on the ground of unfairness or incorrectness occurring in valuations and assessments, to the Court of petty sessions; and the judgment of that Court is to be final and conclusive. By section 277 an appeal is given to the Court of general sessions for any cause: the Court is to hear the appeal in a summary way, and its decision is, by section 278, to be final and conclusive on all parties.

By section 60 of No. 1243 all rate appeals, which then lay to general sessions, are to be made to the County Court; the Court is to hear them in a summary way, and its decision is to be final and conclusive on all points. According to the provisions of these sections considered by themselves, the decisions of County Courts in rate appeals are unimpeachable. No. 1243, however, in section 61, enacts that all provisions of Acts relating to such appeals to general sessions shall (subject to the provisions of No. 1243) apply to appeals to the County Court. For that purpose County Courts are to have all the powers and jurisdiction possessed by the Court of general sessions.

But while the Legislature was passing No. 1112 it was also passing the Justices Act of 1890 (No. 1105), of which section 139 runs as follows: "No proceeding to be had touching the conviction of any offender against any Act, or touching any order made or any other matter or thing done or transacted in or relative to the execution of any Act, shall be vacated or quashed for want of form or be removed (1) 24 Victorian L. R. 33.


or removable (except as hereinafter mentioned) by certiorari or any other writ or process whatsoever into the Supreme Court; but in any case of appeal the Court of General Sessions before whom the same is heard and determined shall if so required by any party to such appeal state the facts specially for the determination of the Supreme Court thereon, in which case that Court may determine the same, any Act to the contrary notwithstanding." The literal construction of these words is quite clear-namely, that the Court of general sessions may be required to state a Case in all appeals, without any apparent exception of rate appeals. There is therefore a contradiction between the two simultaneous directions of No. 1105, s. 139, and No. 1112, s. 277, and there must be some qualification of the literal meaning of one or the other in order to bring out any sensible result.

It is indeed suggested by the appellants that No. 1243, passed in the next year, disposes of the matter by providing that the decisions of the County Court shall be "final and conclusive on all points." This, it is urged, is different from being "conclusive on all parties"; it embraces points of law as well as of fact, and shuts out the explanation that enactments of finality coupled with provisions for consideration on a stated Case mean that the finality does not extend to points of law.

But in No. 1243 itself, immediately after the provision for finality in section 60, comes section 61 applying to rate appeals all the provisions of other Acts, and giving to County Courts all powers and jurisdiction possessed by Courts of general sessions. That would include the jurisdiction, and with it the obligation, to state a Case, unless there is some provision to prevent it. It is true that all this is done "subject to the provisions of this Act." But all this portion of the Act is aimed at substituting County Courts for general sessions in rate appeals, and to those provisions the whole is subject. It is almost inconceivable that the framers of the Act should have deliberately intended to make an alteration of a different kind and of great importance in jurisdiction, by the obscure process of writing in the

word "points" instead of "parties." That is the only "provision" in No. 1243 calculated to exclude the operation of section 139 of No. 1105. It was then, and had long been, the practice of Courts of general sessions to state Cases in rate appeals, and that practice must have been well known to all persons familiar with these branches of law. If there had been an intention to prohibit that practice something more direct and definite would surely have been said.

The existence at that time of the practice of stating Cases in rate appeals is not disputed, though it has been disputed at the Bar whether or no it has continued up to the present time. In his judgment delivered in this case the learned Chief Justice speaks of it as a well-defined practice which has prevailed from the earliest time since local government has existed. Mr. Justice Hood has known instances in the year 1892. He does not think it necessary to trace it back earlier than the year 1865. By the Municipal Corporations Acts of 1863 (No. 176, ss. 199-201, and No. 184, ss. 199 -201) provisions were made for rate appeals to petty sessions and general sessions respectively, in terms corresponding to those used in No. 1112, including the provisions as to finality. But by the Justices Act of 1865 (No. 267, s. 135) the Courts of general sessions had power to state a Case "in any appeal."

At that time, then, if no earlier, the framers and readers and administrators of Sessions statutes found in Local Government Acts general expressions of finality for decisions in rating appeals, coupled with the provision in Justices Acts of one special mode of questioning the finality of the same decisions. It is a hazardous use of language, and difficulties have sprung from it in other statutes and other departments of law; but it seems to have found favour in Victoria. Mr. Justice Hood says truly that throughout the legislation on rate appeals appears a desire that the decision of the Appellate Court should be final, and also an intention to allow reconsideration by means of stating Cases. It is pointed out by him and also by Chief Justice Madden that unless there is some machinery for such reconsideration

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