KING’S BENCH DIVISION
1908 Oct. 15.
Coram: GRANTHAM J.
MUNICIPAL COUNCIL OF SYDNEY
Subjects: International Law – Act of Foreign Legislature – Local Statute – Street Improvement – Contribution – Remedy by Action – Action in England.
An Act of the Legislature of New South Wales authorized the Municipal Council of the city of Sydney to carry out improvements in a certain street within that city and imposed upon the owners of property situate within the improvement area the liability to contribute towards the cost of the improvements. For the purpose of enforcing payment of contributions the council were empowered to distrain the goods of the owners liable to contribute and, in addition to the remedy by distress, to recover by action the amounts due and payable.
Being unable to recover by means of distress the amount of contribution due from an owner of property within the improvement area, the council brought an action in this country to recover the amount:-
Held, that the action would not lie in this country, on the grounds (1.) that, the liability being imposed by the foreign State solely for its own domestic purposes, the action to enforce it was analogous to an action to recover a penalty or a tax; (2.) that the action was one relating to real property situate abroad.
TRIAL of action before Grantham J. without a jury.
The plaintiffs claimed 3919l. 4s. 3d. for rates or contributions alleged to be payable to the plaintiffs by Sir Frederick Cook, Bart., in respect of his property in Moore Street, Sydney, in the State of New South Wales, for the years from 1898 to 1904 inclusive, under the Moore Street Improvement Act of 1890 (54 Vict. No. 30 of the statutes of New South Wales).
By an indenture dated May 16, 1905, the defendant, Henry Bull, covenanted with Sir F. Cook to keep him indemnified against (inter alia) the claim in this action. A third party notice was accordingly, under the Rules of the Supreme Court, Order XVI., part vi., rr. 48 et seq., served on the said H. Bull, who admitted his liability to indemnify Sir F. Cook and obtained leave to defend the action. The said H. Bull is hereinafter referred to as the defendant.
By the Moore Street Improvement Act of 1890 the plaintiffs were authorized and empowered to carry out improvements in Moore Street, in the city of Sydney. For the purpose of carrying out the said improvements and the acquisition of the land necessary therefore the plaintiffs were empowered to borrow money, the repayments of which together with interest at 4 per cent. per annum were to be spread over a period not exceeding one hundred years nor less than fifty years.
Towards the cost of the improvements and interest as aforesaid the owners of property situate within the improvement area were by the said Act and by the amending Act, the Moore Street Improvement Act Amendment Act of 1892 (55 Vict. No. 13), to contribute an amount not less than one-half of such cost and interest, and the balance was to be a charge on and paid out of the city fund of the plaintiffs.
From 1898 to 1904 inclusive Sir F. Cook was the owner of property situate within the improvement area, and the amount of contributions payable by him in respect of the said property towards the cost of the said improvements and interest as aforesaid for the said years amounted to 3919l. 4s. 3d., no part of which had been paid by him.
The said improvements were duly carried out by the plaintiffs in accordance with the provisions of the said Acts.
The plaintiffs contended that by the combined effect of s. 26 of the first-mentioned Act and s. 238 of the Sydney Corporation Act of 1879 (43 Vict. No. 3), repealed by the Sydney Corporation Act of 1902 (No. 35 of 1902) and re-enacted by s. 211 thereof and s. 13 of the Sydney Corporation Amendment Act, 1905 (Act No. 39, 1905) (1), they were empowered to recover by
(1) The Moore Street Improvement Act of 1890 (54 Vict. No. 30), s. 26: “All powers and provisions for enforcing the payment of rates and other sums of money due to the council contained in the ‘Sydney Corporation Act of 1879,’ or in any other Act relating to the said corporation, shall be applicable, and may be exercised and carried out by the council, and all other persons, for the purpose of enforcing payment of any sum payable, by way of contribution, from any owner of property within an improvement area under this Act.”
By the Sydney Corporation Act of 1879 (43 Vict. No. 3), s. 118, repealed by the Sydney Corporation Act of 1902 (Act No. 35 of 1902) and re-enacted by that Act, in case any person liable to pay any rate neglects or refuses to pay the amount thereof to the city treasurer for fourteen days after a notice in the form therein specified that such rate is due has been left at the premises liable for such rate or after he has by any such notice been called upon and required to pay such rate, the mayor may by warrant under his hand distrain the goods and chattels (if any) of such person on the property action the contribution claimed. The right of the plaintiffs to recover by action in New South Wales was not disputed by the defendant.
Foote, K.C., and Ringwood, for the plaintiffs. There can be no doubt that in New South Wales an action of debt upon a statute would lie: see Com. Dig. Dett. (A 9). But where a debt has once been incurred, the action to recover it being in personam, our Courts entertain it, though the cause of action arose abroad, and though the parties be aliens, provided that service of process has been duly effected: see 1 Sm. L. C., 11th ed. p. 621, notes to Mostyn v. Fabrigas. (1) The Municipal Council of Sydney is for this purpose a mere individual like a railway company. The facts that the debt arose in a foreign country and was contracted with reference to the use of property in the foreign country are not sufficient to deprive these Courts of jurisdiction. Rent for use and occupation of land situate abroad may be recovered by action in this country: Buenos Ayres and Ensenada Port Ry. Co. v. Northern Ry. Co. of Buenos Ayres. (2)
Simon, K.C., and Gwyer, for the defendant. International comity does not extend to the recognition of liabilities imposed by a State on its subjects for its own domestic management and regulation. For that reason the penal laws of a foreign country are not subject-matter of an action in this country: see Dicey, assessed or elsewhere in the city, and cause such goods and chattels when distrained to be sold, and out of the moneys to arise thereby may pay all costs, charges, and expenses attendant upon such distress and sale, and shall then pay the amount of the rate for which such distress and sale are made, and pay over any surplus to the person so distrained upon.
The Sydney Corporation Act of 1879 (43 Vict. No. 3), c. 238, repealed by the Sydney Corporation Act of 1902 (Act No. 35, 1902), re-enacted by s. 211 of that Act, and amended by the Sydney Corporation Amendment Act of 1905 (Act No. 39, 1905), s. 13: “In addition to the mode of enforcing payment of any sum due and recoverable in respect of any rate, or of any part thereof, and any other amount otherwise payable by any person under the provisions of this Act by the means hereinbefore mentioned, the council may recover any such sum by action or suit against any person liable under the provisions of this Act to pay such sum, and may in any such proceeding recover the arrears of any rates.”
Conflict of Laws, p. 220, r. 40; nor are suits for the recovery of penalties, pecuniary or otherwise, for any violation of statutes enacted by a foreign State for the protection of its revenue or other municipal laws: Huntington v. Attrill. (1) For the same reason the Courts of one State cannot be used as a means of collecting the taxes imposed by another: Henry v. Sargeant. (2) There is no difference between rates and taxes for this purpose, except that a rate is an a fortiori case, for a rate is merely a local tax. The claim in the present case is in its nature a claim to enforce a local rate. The fact that a foreign Legislature allows the amount to be recovered by action does not alter the nature of the claim.
Secondly, there is a difference in this respect between personal actions on the one hand, which may be prosecuted anywhere, and real or mixed actions on the other, which must be prosecuted in the forum rei sitae: Story, Conflict of Laws, s. 554; Dicey, Conflict of Laws, p. 214. Thus an action will not lie in this country for trespass to land situate abroad: British South Africa Co. v. Companhia de Mocambique (3); nor to recover arrears of a rent-charge issuing out of land situate abroad: Whitaker v. Forbes. (4) It has been held in the Privy Council that the effect of the Moore Street Improvement Act of 1890 is to impose a charge upon the property within the improvement area: Sydney Municipal Council v. Terry. (5) An action to realize the charge is a real or at least a mixed action, and must therefore be brought in New South Wales and not elsewhere.
Foote, K.C., in reply.
In my opinion this action cannot be maintained in this country. It is only necessary to look at the titles and preambles of the various enactments cited to see that the legislation is of a merely local character. First, there is the Sydney Corporation Act of 1879; that is intituled “An Act to consolidate and amend the laws relating to the Corporation of the city of Sydney.” It recites that it is expedient to consolidate and amend the law relating to the Corporation of the city of Sydney and to make provision in other respects for the better government thereof as well as for other purposes. By s. 1 the Act may be cited as the Sydney Corporation Act of 1879. It is divided into thirteen parts, which deal with the constitution of the municipal council, the appointment of officers, and the rates, revenues and accounts, and internal management generally of the Corporation of the city of Sydney. Following this line of reasoning, I come nest to the Moore Street Improvement Act of 1890. That Act is intituled “An Act to authorize and enable the Municipal Council of Sydney to carry out the improvement of Moore Street within the said city upon an equitable system; to acquire lands and to raise money for carrying out such improvement; to provide for the repayment of the cost of such improvement and the exchange and sale of superfluous lands in connection with the said improvement; and for other purposes.” The next enactment is the Moore Street Improvement Act Amendment Act of 1892, which is intituled “An Act to amend the ‘Moore Street Improvement Act of 1890.'” The preamble recites that “it is expedient to amend in certain particulars the Moore Street Improvement Act of 1890.” Then in the year 1902 there was passed the Sydney Corporation Act of 1902. It is intituled “An Act to consolidate the statutes relating to the Corporation of the city of Sydney.” Therefore this legislation is of a purely local character, and the Act on which this question arises is an Act providing merely for the improvement of a street, Moore Street, in the city of Sydney.
Now it is quite clear that if it were not for s. 238 of the Sydney Corporation Act of 1879 the only remedy for the sum sought to be recovered in this action would be by means of distraining upon the goods and chattels of the owner of the land within the improvement area that are found upon that land or elsewhere in the city of Sydney. Apart from that section the amount could not be recovered by action in New South Wales, and certainly not in this country. That section enacts that, in addition to the mode of enforcing payment of any sum due and recoverable in respect of any rate and any other amount otherwise payable by any person under the provisions of the Act by the means therein mentioned, the council may recover any such sum by action or suit against any person liable under the provisions of the Act to pay the same sum, and may in any such proceeding recover the arrears of any rates.
Mr. Foote contends that this enactment enables an action to be brought in this country and makes the Courts of this country auxiliary to the Colonial Courts to this extent at all events, that whereas before the enactment this claim could not have been recovered by means of an action in the Colony, it is now recoverable not only there, but in this country also. Now, in my view, that was not the object or intention of the enactment. Its sole object and intention was to provide that within that area where the claim was recoverable it might be recovered by an action. It was urged that this is in its nature a transitory action. I do not think it is. Some limit must be placed upon the available means of enforcing the sumptuary laws enacted by foreign States for their own municipal purposes. But what restriction is to be imposed on such legislation if this claim could be put in suit in this country? It is true that the contribution which the Municipal Council of Sydney seeks to levy upon the defendant is a contribution in money, but it might be exacted in another form; the Colonial Legislature might have enacted that of those persons whose property had been improved one should plant trees, another should lay drains, and a third should sink wells and find water – provisions which under certain given circumstances might be as wise and equitable as the levy of a rate for contribution in money. Could the persons who omitted to perform these statutory obligations be sued in this country? Certainly not. And the mere fact that in New South Wales the contribution is a money contribution enforceable by action as well as by distress makes no difference. The action is in the nature of an action for a penalty or to recover a tax; it is analogous to an action brought in one country to enforce the revenue laws of another. In such cases it has always been held that an action will not lie outside the confines of the last-mentioned State.
There is also another view of this question which leads to the same conclusion. In Story on the Conflict of Laws, s. 554, the following passage occurs: “It has been already stated that, by the common law, personal actions, being transitory, may be brought in any place where the party defendant can be found; that real actions must be brought in the forum rei sitae; and that mixed actions are properly referable to the same jurisdiction.” In my view this is a mixed action within the meaning of that rule; the claim is in its nature a matter relating to land; s. 238 of the Act of 1879 made the remedy by action available, but that did not alter the nature of the claim or enable the plaintiffs to bring the action in this country any more than a remedy by distress conferred in general terms by the Colonial Legislature would justify a distress in this country. The contention of the plaintiffs would amount to this, that a foreign Legislature by imposing a personal liability upon its own subjects for its own municipal purposes can thereby impose upon the Courts of this country the duty of adjudicating upon questions which by the law of England are not properly cognizable by these Courts. In my opinion the plaintiffs are no more entitled to recover the claim in England than the London County Council would be to recover in Sydney a penalty for a breach of their by-laws. There must be judgment for the defendant.
Judgment for the defendant.
Solicitors for plaintiffs: Light & Fulton.
Solicitors for Sir F. Cook: J. N. Mason & Co.
Solicitors for defendant: Crawford, Chester & Slade.
(1)  A. C. 150, at p. 157.
(2) (1843) 13 New Hamp. 321, at p. 332, per Parker C.J.
(3)  A. C. 602.
(4) (1875) L. R. 10 C. P. 583; affirmed 1 C. P. D. 51.
(5)  A. C. 308.