H.C. OF A. 1921 WOOD v. LITTLE. Higgins, J. even if the wheat buyer vote against his own interest? If a policeman be found to have agreed, in effect, with a motor-car owner to overlook the latter's conduct in driving, the agreement would be, of course, illegal, and any action for the money would fail; but if the policeman hire a motor for himself to drive, can it be that h· can refuse payment of the hire on the ground that, as driver, he tends to become more compassionate towards offenders against the regulations, and less likely to prosecute? In Wilkinson v. Osborne (a) this Court treated as being against public policy and illegal a contract made by two members of Parliament to use their pressure on Ministers to purchase certain land. The members were promised a share of commission, but the Court refused to enforce the promise. I can well understand this decision. But in the more recent case of Horne v. Barber (b) the land-owner and the agent agreed to use one Deany, who was a member of Parliament, as an intermediary for the sale to the Government. The Court was prepared to find, if necessary, that Deany was to be employed in order that he might use his pressure on the Government; but the Court disclaimed any intention to base its decision on this ground. The words of my learned brothers Knox, C.J., and Gavan Duffy, J., were:- It is sufficient to say that the learned Judge was of opinion that both parties to the contract intended that the services contracted for were to be rendered by Mr. Deany, a member of the Parliament of Victoria; that the object of the employment of the plaintiffs was the sale of the defendant's property to the Government of Victoria; that Mr. Deany had a pecuniary interest in the transaction, being entitled to share in the commission payable to the plaintiffs; and that the services rendered by Mr. Deany were an effective cause of the sale. We think it unnecessary to determine whether Mr. Deany undertook to use his position as a member of Parliament for the purpose of securing a sale of the defendant's land." I thought at first that this must mean that the parties employed Deany because he was a member of Parliament, with all that the fact implied; but I am assured that this is not the meaning intended to be conveyed. If, then, that case decides that the mere fact of the agent's double duty, to purchaser as well as to vendor-although there was no abuse of that duty in fact, or promise to abuse it-made the contract between the vendor and the agent illegal, I cannot say that (a) [1915] 21 C.L.R. 89. (b) [1920] V.L.R. 198; 27 C.L.R. 494. 1921 the same principle ought not to be applied here, although there cer- H.C. OF A. tainly are some differences of detail. The case of Horne v. Barber has not been impugned before us, and must be accepted as law. But it is right for me to say that, but for Horne v. Barber, I should give my judgment in favour of Little. I concur with my learned brothers in their opinion that sec. 181 of the Local Government Act does not prevent a contract which would otherwise be illegal as against public policy from being illegal, or render a contract enforceable which would otherwise be unenforceable—that the prohibition in sec. 181 does not, as stated by the Supreme Court, "cover the whole field of action." It is simply an additional safeguard provided by Parliament for the purposes of local government; but it does not in the slightest degree repeal the law as to contracts against public policy, or the equitable rules against the enforcement of contracts made by persons in breach of their fiduciary duties. In the case of the Aberdeen Railway Co. v. Blaikie Bros., aheady cited, there was a provision in the Companies Clauses Consolidation Act to the effect that a director of a company who votes in a matter in which he is personally interested shall vacate his seat, and the Scottish Judges held that this was the only penalty. But the House of Lords reversed the decision, pointing out that the enforcement of the contract was forbidden on fundamental equitable principles, apart from this Act. STARKE, J., read the following judgment:-The argument for the appellant was rested upon the proposition that any transaction is unlawful in which the personal or private interest of one of the parties to the transaction conflicted or tended to conflict with the due performance of any public duty. Apart from authority, I should have felt considerable difficulty in assenting to so far-reaching a proposition. But Wilkinson v. Osborne (c) and Horne v. Barber (d) in this Court establish, so it is said, the proposition contended for. There are expressions in the judgments in Wilkinson v. Osborne that favour the contention, but the case was decided on a much narrower and safer ground— namely, that the contract there involved was one to exert political influence or pressure upon the Government. Horne v. Barber might have been decided on the same ground-namely, that the (c) [1915] 21 C.L.R. 89. (d) [1920] V.L.R. 198; 27 C.L.R. 494. WOOD v. LITTLE. Higgins, J. 1921 WOOD H.C. OF A. contract was one to exert political influence upon a Minister of the Crown or the Closer Settlement Board-see 27 C.L.R., at p. 498—or even on the ground that the position of the agent was such that political influence or pressure must necessarily be exerted in dealing with the Minister or the board-that the agent could not effectively divest himself of the influence and pressure attach ing to his position, and made no attempt to do so (see p. 499). บ. LITTLE. Starke, J. However this may be, I am satisfied that the learned Chief Justice is right in saying that the case was decided upon a broader principle-namely, that the contract was unlawful because the personal or private interest of the agent conflicted or tended to conflict with the due performance of his public duty (e). Thus at page 499 the Chief Justice said:-"It" (that is the agreement) “had ... a tendency to interfere with the proper discharge of the duties of Mi. Deany as a member of Parliament, and was consequently opposed to the public good." And at page 500 (f)-- . The decision of Mann, J., and the reasons given by him for that decision, were correct." Mann, J., had said " The reason for that decision "-Wilkinson v. Osborne-“ was that the agreement had a tendency to interfere with the proper and faithful discharge of the public duties of a member of Parliament. . All the members of the Court in Wilkinson v. Osborne relied upon the fact that the agreement in question in that case raised a conflict between the interest of the plaintiffs and the duty they were under as members of Parliament of considering whether the purchase should be approved" (g). The opinions of my brothers Isaacs and Rich, in Horne v. Barber, are rested entirely upon the conflict or the tendency to a conflict between the private or personal interest of the agent and the proper discharge of his public duty: See per Isaacs, J., at p. 500 (h); per Rich, J., at p. 502 (h). It is not for me to canvass that decision, but to accept it, and apply the law so laid down to the present case. Under the Discharged Soldiers Settlement Act 1917, sec. 35, the council of every municipality was, for the purposes of the Act, an advisory committee to the Lands Purchase and Management Board, and had the power and duty of advising the board generally on matters relating to the selection and purchase of land within the municipal district. (e) See [1920] V.L.R., at p. 201. (g) [1919] V.L.R., at pp. 562, 563. (h) See [1920] V.L.R. 202, 203. 1921 WOOD v. LITTLE. Starke, J. The plaintiff in this case was authorized to negotiate with the H.C. OF A. board for the sale and purchase of certain land within the municipal district of the Shire of Jeetho and Poowong, and he was to receive the ordinary agent's remuneration if he effected a sale. Unhappily for him, he was also a member of the council of the municipality of Jeetho and Poowong, and it might so happen that the council, in accordance with its statutory duty, would feel called upon or be required to advise the board in connection with the land in the hands of the plaintiff as an agent for sale. A conflict of interest and duty might arise. The tendency of the agreement might cause the plaintiff to prefer his private interest to the advice. that he ought to persuade the council to tender to the board or to fail in attendance upon the council rather than sacrifice his private interest. It is of no importance, as I understand the authorities, that the parties had no corrupt or sinister intent, or that a conflict of interest and duty was unlikely to arise, and never did in fact arise. The rule of law is clear and it is rigid. The agreement to employ the plaintiff and to pay him the usual commission for his services as an agent tended to bring his interest and his public duty into competition. It was inimical to the State, and therefore unlawful. The learned Judges of the Supreme Court did not, I think, dispute the rule, but rather denied that the public duty contended for rested upon the plaintiff. In sec. 181 of the Local Government Act they found a provision that no councillor should vote upon or take part in the discussion of any matter in or before the council in which such councillor had directly or indirectly, by himself or his partners, any pecuniary interest, under a penalty of not more than 501. The section, so it was said, debarred the councillor from or relieved him from the embarrassment of exercising any judgment on any matter in which he had a personal interest, or operated as a resignation pro tanto of the position of adviser. A similar argument might, perhaps, have been used in Horne v. Barber, based upon the well-known provision in the Constitution Amendment Act of Victoria, sec. 24, but it is not mentioned. I do not place any reliance upon this, for the Constitution Act is expressed in words differing from those used in sec. 181 of the Local Government Act, which may account for the fact that sec. 24 was not referred to. The view taken by the karned Judges of the Supreme Court is, in my opinion, wholly 1921 WOOD บ. LITTLE. H.C. OF A. untenable. The section does not save parties from the consequences of entering into agreements which the law treats as unlawful. It puts a further sanction upon the public representative, and inflicts a penalty upon him if he knowingly votes or takes part in the discussion of any matter in which he has any pecuniary interest. The view of the Supreme Court would lead to most dangerous consequences. Many cases might easily arise in which the mere penalty would be trifling as compared with the pecuniary gain which would accrue to the councillor if the matter in which he was interested were pushed through the council by his vote or influence. As the authorities stand my judgment must be that this appeal be allowed. Starke, J. Appeal allowed. Solicitors for the appellant: Parkinson & Wettenhall. C. E. D. MANN, J. 1921 November 30, December 6. WILLIS v. WILSON & MACKINNON. Costs-Practice-Taxation-Libel-Fair comment Separate counts-Judgment for The Taxing Master, acting upon the principle that when a party is given the costs of certain issues he is to be given only such costs as are solely attributable to those issues, deprived the defendants of the costs of all their witnesses, and |