City of Newcastle v Royal Newcastle Hospital
96 CLR 493(1957) 31 ALJ 20
(1957) 4 LGRA 69
[1957] ALR 277
[1957] HCA 15
(Judgment by: Fullagar J)
City of Newcastle
v Royal Newcastle Hospital
Judges:
Williams J
Webb J
Fullagar J
Kitto J
Taylor J
Subject References:
Local government
Rating
Exemption from liability
Land of public hospital
Legislative References:
Local Government Act 1919 (NSW) - 132
Judgment date: 1 January 1957
Sydney
Judgment by:
Fullagar J
FULLAGAR J. The dissenting judgment of Owen J. in this case was, in my opinion, right, and I agree entirely with the judgment of my brother Kitto, which I have had the advantage of reading.
The trouble in this case seems to me to have begun when counsel for the plaintiff municipality called Dr. Morgan as a witness. This course was apparently adopted because it was known, or anticipated, that the defendant hospital would tender certain "expert" evidence. The evidence of Dr. Morgan, and the evidence of the four doctors who were called for the defendant, was, in my opinion, plainly irrelevant to any real issue in the case. The defendant, however, very naturally, did not object to Dr. Morgan's evidence, and the plaintiff, having called Dr. Morgan, could not very well object to the calling of evidence which to some extent contradicted Dr. Morgan. The result was that the case was fought on a false issue, and decided on a fallacy.
The root of the fallacy lies in the assumption that deriving an advantage from the ownership of land is the same thing as using the land. The fallacy is helped out by the coining of an expression-"intangible user"-which has no real meaning. Actually, while using the land will practically always mean deriving an advantage from it, an advantage may clearly be derived from the ownership of it without its being "used" in any way. What has been done in this case is to begin with the proposition that he who uses land derives an advantage from it. (This proposition is probably true, but its converse is false.) Evidence is then adduced to show that an advantage is derived from the ownership of the particular land in question. The conclusion is then deduced that the land in question is being "used". It seems to me to be a clear example of a familiar fallacy.
The only other observation I would make is that the case of Liverpool Corporation v Chorley Union Assessment Committee [F24] , seems to me to stand out in conspicuous contrast with this case, and to illustrate very well the kind of thing which it would have been sufficient for the defendant to prove in this case.
The appeal should, in my opinion, be allowed.