Hope v. The Council of the City of Bathurst.

Judges: Gibbs J
Stephen J
Mason J
Murphy J

Aickin J

Court:
High Court

Judgment date: Judgment handed down 20 June 1980.

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Aickin J.

I have had the advantage of reading the reasons for judgment prepared by my brother Mason and I agree with them. I have nothing to add.

ORDER:

Appeal allowed with costs.

Order that the judgment of the Supreme Court of New South Wales (Court of Appeal) be set aside and in lieu thereof order:

(a) That the appeal to that Court be allowed with costs;

(b) That the questions asked in the Stated Case be answered as follows:

Question 1 Did I err in law in holding that it was a question of fact whether the activities of the appellant on the land fell within the description of one or both of the words ``Business'' or ``Industry'' in the definition of ``Rural land'' in sec. 118 of the Local Government Act 1919?

Answer Yes.

Question 2 If the answer to Question 1 is yes, should I have allowed the appeal as a matter of law?

Answer No; other issues remain to be decided.

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ATC 4392

Question 3 On the facts found and admitted should I, as a matter of law, have held the appellant had discharged the onus of proof ( vide sec. 118(7)) that the land was rural land?

Answer No; see answer to Question 2 above.

Question 4 If the answer to Question 3 is yes should I, as a matter of law, have allowed the appeal?

Answer No; see answer to Question 2 above.

(c) That the matter be remitted to the Land and Valuation Court to be dealt with in accordance with the above answers and for determination of the other issues involved.