Beranghi Co-operative Ltd v NSW Minister for Finance and Services

[2013] NSWSC 234

Supreme Court

New South Wales

Medium Neutral Citation:	Beranghi Co-operative Ltd v NSW Minister for Finance and Services [2013] NSWSC 234
Hearing dates:	27 June 2012
Decision date:	27 March 2013
Jurisdiction:	Common Law - Administrative Law
Before:	Hidden J
Decision:	Summons Dismissed
Catchwords:	ADMINISTRATIVE LAW - mandamus - public works - whether accommodation works required - whether a difference to be determined by the Governor
Legislation Cited:	- Public Works Act 1912 - Railway Clauses Consolidation Act 1845 (UK) - Local Government Act 1906 (NSW) - Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Cases Cited:	- R Walker & Son & Ors v British Railways Board (Lancashire County Council, third party) & Anor [1984] 2 All ER 249 - Rhondda & Swansea Railway Company v Talbot [1897] 2 Ch 131 - Freemans PLC v Park Street Properties (Lincoln) Ltd & Ors [2002] EWHC 477 - Rapley v Martin (1865) 4 SCR (NSW) 173 - Permanent Trustee Company of New South Wales Limited v Council of the Municipality of Campbelltown (1960) 105 CLR 401 - Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 - Sutherland Shire Council v Registrar-General (1991) 72 LGRA 84 - Palmisano v Hawse & Ors [2003] NSWSC 566, 127 LGERA 268 - Fourmile v Selpam Pty Ltd (1998) 80 FCR 151
Category:	Principal judgment
Parties:	Beranghi Co-operative Ltd (plaintiff) NSW Minister for Finance and Services (defendant)
Representation:	Counsel: T Ingles (In person) M Allars with Ben Jacobs (defendant) Solicitors: Ewa Pardey for IV Knight, Crown Solicitor (defendant)
File Number(s):	2011/359522

Judgment

1. These are proceedings for judicial review arising out of the dealings of the plaintiff, Beranghi Co-operative Ltd, with the defendant, the NSW Minister for Finance and Services. I shall refer to the plaintiff as "Beranghi", and the defendant as "the Minister". Beranghi is not legally represented but its case has been put by its director and authorised representative, Mr Tim Ingles. To understand the issues and the relief sought, some background is necessary.

1. Mr Ingles described Beranghi as a land sharing co-operative. It owns a number of adjoining lots in the area of Crescent Head in the north of New South Wales. In the early 1900s a Crown drainage reserve through four lots on the eastern side of that land was proclaimed. In 1964 a drain was constructed on the reserve, for the purpose of flood mitigation, by the Macleay Rivers County Council, now the Kempsey Shire Council.

1. This is, as I understand it, an open channel which bisects Beranghi's land, running from its southern to its northern boundaries. To the east of the land is Loftus Road. Maps of area show two Crown roads giving access to the land from that road, but the status of those Crown roads will need to be examined. To the south of the land is Neville Morton Road, but it does not provide access to the land. Immediately south of the land is a further lot, lot 104, which is not part of Beranghi's property, and Neville Morton Road terminates at the southern boundary of that lot.

1. Beranghi acquired its land in 1999. Beranghi has long complained that the drain compromises access to some of the lots within the land. It is not necessary for present purposes to examine the problem in detail. It can be seen by reference to a map of the relevant lots which is an attachment to a submission by Beranghi filed on 7 May 2012. The complaint is that the drain impedes access to the lots on the western side of the land. No bridge or compensatory easement was provided by the council when the drain was constructed. Over a period after its acquisition of the land, Beranghi corresponded with the council seeking some provision of that kind, without success. The council maintained that it was under no obligation to do so.

1. The construction of the drain was undertaken pursuant to the Public Works Act 1912, and the council was the "Constructing Authority" for the purpose of that Act. What Beranghi sought in its correspondence with the council was "accommodation works" within the meaning of s 91 of that Act. Relevantly for present purposes, that section provides:

"91 Accommodation works

The Constructing Authority shall make, and at all times maintain, the following works (hereinafter called "accommodation works"), for the accommodation of the owners and occupiers of lands adjoining any public work, that is to say:

(a) such and so many convenient gates, bridges, arches, culverts, and passages over, under or by the sides of or leading to or from the public work as are necessary for the purpose of making good any interruptions caused by the public work to the use of the land through, in, or upon which such public work is made or constructed; and such work shall be made forthwith after such public work or part of it passing over such lands has been laid out or formed or during the formation thereof, ..."

1. Provision is made for disputes concerning accommodation works by s 92 of the Act:

"92 Differences as to accommodation works to be settled by Governor

If any difference arises respecting the kind or number or any accommodation works or the dimensions or sufficiency thereof or respecting the maintaining thereof, the same shall be determined by the Governor, who shall also appoint the time within which such works shall be commenced and executed."

In that section, of course, "difference" means a disagreement or dispute.

1. Relying on that section, Mr Ingles wrote to the Governor, Professor Marie Bashir AC, on 13 October 2003, asking that her Excellency require Kempsey Council to provide appropriate accommodation works. What was sought was the provision of a road across lot 104 and into the land to the west of the drain, to provide access from Neville Morton Road from the south, or the construction of bridges across the drain, to provide access from Loftus Road to the east.

1. Correspondence between Beranghi and the Governor and the council continued over a period of some years. There is no need to recount all of it. In due course the matter was referred to the responsible Minister, then the Minister for Commerce. By a letter of 26 May 2008, the principal solicitor of the Department of Commerce, Ms Elizabeth Stewart, advised Beranghi that there was no "difference" concerning accommodation works within the meaning of s 92.

1. Representations on behalf of Beranghi were made by Mr Andrew Stoner, then the member of Parliament for the area embracing Crescent Head. In a letter to Mr Stoner of 10 February 2010, Beranghi noted that Kempsey Council had approved a sub-division in the area to the south of its land without requiring "through road access." In that letter the accommodation works which Beranghi sought were set out in detail. It is not necessary to go to that detail. It is sufficient to say that they were to the same effect as those previously sought, that is, an accommodation road connecting Neville Morton Drive to the southern boundary of Beranghi's land or, failing that, accommodation bridges across the drain on each of the Crown roads from Loftus Road to the east.

1. That request was conveyed to the Governor by Mr Stoner and, after obtaining advice from the Solicitor-General, her Excellency responded by a letter of 4 May 2010. The letter stated that it was considered inappropriate to take any action under s 92 because of the time which had elapsed since the construction of the drain, noting that s 91 requires any accommodation works to be made "forthwith", that is, at the time that construction was being undertaken.

1. On 3 October 2011 Mr Ingles, on behalf of Beranghi, wrote to the responsible Minister, by then the Minister for Finance and Services, again setting out the accommodation works sought and submitting, by reference to authority, that both ss 91 and 92 were applicable. Submissions to similar effect had earlier been made to the council. Those accommodation works are marked by highlighter on the attachment to Beranghi's submission to which I have referred, the accommodation road being marked in yellow and the bridges in pink. This letter, referred to in argument as the "request letter", sought the assurance of the Minister that he would "provide papers to the NSW Governor for signature" by a certain date, whereby a determination would be made under s 92 of the Act "in accordance with law."

1. On 10 November 2011, having received no reply to the request letter, Beranghi issued the proceedings in this court by summons. The summons seeks an order in the nature of mandamus in the terms of the request letter, that is, that the Minister provide papers to the Governor for the purpose of a determination under s 92. Under the heading "Pleadings and Particulars" after sketching the history of the matter, Beranghi asserts that the "refusal by the Minister for Finance and Services to process this matter and provide papers to the Governor is a denial of natural justice, due process and a failure to meet statutory obligations."

1. In a response to the request letter of 23 December 2011 Ms Stewart, on behalf of the Minister, repeated her earlier conclusion that there was no "difference" founding the Governor's jurisdiction to make a determination under s 92 and, for that reason, decided that no papers should be provided to the Governor as sought in the request letter. She set out her reasons for that decision, and these have been treated as the Minister's reasons for the purpose of the present proceedings. These reasons were directed to the submissions earlier made by Beranghi to the council and to the Governor, and the position of both parties will become apparent as I examine the merit of the relief sought.

1. Beranghi's grounds for judicial review are the following:

• The Minister failed to take into account all relevant correspondence, legislation and case law.

• The decision demonstrated bias and was made in bad faith.

• The decision was ultra vires, the Minister lacking jurisdiction to make it.

• The Minister had not acted fairly and had denied natural justice to Beranghi.

• The decision was, in any event, manifestly unreasonable.

The claim for relief fails on the proper construction of s 92. However, given the long history of the matter and in deference to the comprehensive submissions of Mr Ingles, it is appropriate to deal with Beranghi's main arguments. I shall deal firstly with the question whether s 91 imposed a duty upon the council to provide the accommodation works which Beranghi had requested.

1. I have been assisted by points of claim filed by Beranghi and points of defence filed on behalf of the Minister. I have also had the benefit of written submissions, refined in oral argument, by Mr Ingles on behalf of Beranghi and by Ms Allars of counsel, appearing with Mr Jacobs, for the Minister.

The council's duty - s 91(a)

1. By s 91(a), when a Constructing Authority is required to make accommodation works for the benefit of owners or occupiers of lands adjoining any public work, those accommodation works "shall be made forthwith after such public work or part of it passing over such lands has been laid out or formed or during the formation thereof..." (my emphasis).

1. From those words, Ms Allars submitted, it is clear that the duty created by the section is to provide accommodation works at the time the public works are carried out. In particular, as she put it in written submissions, the purpose of the section is to ensure that when passage on a road is interrupted by construction work, the Constructing Authority provides an alternative route, such as a bridge or detour pathway around the work. In oral submissions she argued that the section "contemplates the kind of detour works or bypasses that are commonly constructed when public works are carried out today." If this be so, the duty to provide accommodation works ceases once the relevant public work has been completed.

1. Mr Ingles submitted that the duty to make and maintain accommodation works "exists in perpetuity." He accepted that the word "forthwith" means that the constructing authority has an obligation to provide accommodation works immediately, without delay. However, as I understand his argument, this means that the Constructing Authority should act promptly in response to a request for accommodation works, whenever that request is made.

1. He relied on the decision of Goulding J in R Walker & Son & Ors v British Railways Board (Lancashire County Council, third party) & Anor [1984] 2 All ER 249. That case involved the construction of s 68 of the Railway Clauses Consolidation Act 1845 (UK). That section imposed a duty upon railway companies to provide and maintain accommodation works, and it was designed to protect the interests of the owners and occupiers of the land through which a railway line was to be constructed. Subsequent legislation imposed the duties created by the section upon the Railways Board.

1. There are significant similarities between s 68 and s 91(a). Like the New South Wales provision, s 68 required the company to "make and at all times thereafter maintain" certain accommodation works. Further, the duty to provide the relevant accommodation works was to be performed "forthwith": see the judgment at 252.

1. Pursuant to s 68, the railway company had provided fencing along the railway line at the time of construction. At issue in that case was a preliminary question whether the duty to maintain that fencing endured many years later, after the railway line had ceased to be used. On the facts he was asked to assume, which need not be examined for present purposes, Goulding J held that it did.

1. This case does not assist Beranghi. The import of the term "forthwith" in s 68 did not arise for consideration because it was the maintenance of the fencing, not the provision of it, which was at issue. As Ms Allars put it in written submissions, the decision is not authority "that a duty to provide accommodation works, unfulfilled at the time that the public works were constructed, remains pending and awaiting performance indefinitely."

1. Ms Allars also referred to Rhondda & Swansea Railway Company v Talbot [1897] 2 Ch 131, in which s 68 arose for consideration. The case was concerned with a different part of that section from that considered in Walker & Sons v British Railways Board, but that is immaterial for present purposes. Lindley LJ set out the relevant part of the section at 136, and continued at 137:

"Now it has been decided, and very properly decided, in Reg. v Fisher, and afterwards in Reg. v Brown, that, having regard to the enactment that the accommodation works shall be made forthwith after the railway over such land shall have been laid out, the accommodation works which the company may be required to make are such accommodations works as are required at the time the land is taken, having regard to its then use, and not accommodation works which may be required when the character of the land, and perhaps the nature of the neighbourhood, is entirely altered years afterwards." (Footnotes omitted. My emphasis.)

The last words of that passage are directed to the facts of that case which, again, need not be examined.

1. In his written material Mr Ingles also referred to Freemans PLC v Park Street Properties (Lincoln) Ltd & Ors [2002] EWHC 477, although he did not develop a submission arising from it in writing or orally. To the extent that s 68 arose in that case, it was also concerned with the maintenance of accommodation works. Indeed, H.H. Judge Richard Seymour QC said at [26]:

"... it is clear, in my judgment, that s 68 was intended to benefit a class of persons, namely all of the owners and occupiers of land adjoining the railway who needed to have the relevant particular works undertaken for their accommodation as at the date the land required for the particular railway was taken."

His Honour went on to observe that a railway company could avoid the need to undertake accommodation works through an agreement to pay compensation to the owners and occupiers of the relevant lands, but added that "subject to that, accommodation works, once undertaken, were to be maintained in perpetuity."

1. In the present case, no accommodation works were undertaken in 1964 when the drain was constructed. I am satisfied that, by the terms of s 91(a), it was then that any obligation to provide such works arose and that that obligation ceased once construction of the drain was completed. The section does not confer upon Beranghi a right, years later, to the provision of accommodation works by the council.

1. Moreover, the council's obligation under s 91(a) was to make such accommodation works as were "necessary for the purpose of making good any interruptions caused by the public work to the use of the land through, in, or upon which such public work is made or constructed." There is no evidence that the owner of the affected lots at the time the drain was constructed requested any accommodation works. More importantly, Ms Allars submitted, there is no evidence that the relevant lots were in "use", so that there was no user which could have been interrupted by the work. Indeed, she noted that Beranghi does not claim that the affected lots or the two Crown roads to which I have earlier referred were in use at that time or have been at any subsequent time. Nevertheless, the Crown roads are foundational to Beranghi's case.

1. The four lots affected by the drainage reserve were the subject of a Crown grant in 1885. Some maps show those two Crown roads, and Beranghi asserts that they are public roads, relying on Rapley v Martin (1865) 4 SCR (NSW) 173. As it was asserted in the request letter, there was "a right of way over Crown roads from Loftus Road", which was intersected by the drain. I shall turn to Rapley v Martin after considering more recent authority relied on by Ms Allars.

1. In Permanent Trustee Company of New South Wales Limited v Council of the Municipality of Campbelltown (1960) 105 CLR 401, the High Court had occasion to consider what constituted a public road at common law. Windeyer J (at 420) described a public road as "land over which a public right of way exists - that is to say, a highway in the common law sense." His Honour continued:

"It is the public right to use the land as a way, rather than its physical nature, that makes land a highway ... . At common law a highway was created when a competent land owner manifested an intention to dedicate land as a public road, and there was an acceptance by the public of the proffered dedication."

1. Public acceptance of the dedication is demonstrated by use of the road, which must be judged by the nature of the road. Menzies J (at 415 - 6) observed that "what can be regarded as use by the public as a means of passage would inevitably depend upon the state of what is open as a road to the public." His Honour referred, by way of example, to a strip of land which is "rough, timbered and full of obstructions." Kitto J (at 410) said that the notion of a road is not confined to "a formed way, or even a tract of land in a physical condition admitting of use for purposes of traffic." His Honour referred (at 411) to a road marked on a Crown grant and offered for dedication to the public, but not used in such a way as to amount to public acceptance, as "a paper road only."

1. Windeyer J noted the requirement under the Local Government Act 1906 (NSW), which came into operation on 1 January 1907, of approval by a local authority in order to dedicate a road to the public: at 421. Prior to that, as his Honour observed at 422, the lodgement of a plan of sub-division, of itself, was no more than an offer to dedicate the roads shown on it. That offer "would be ripened into a complete dedication only by its acceptance by the public." His Honour added (also at 422):

"A declared intention to dedicate would be ripened into dedication by public user of the land as a road, or by a public body having authority to take it over on behalf of the public doing so, by for example, expending money in forming or maintaining it as a road ... ."

1. Ms Allars referred to a number of subsequent cases in which the test formulated in the Permanent Trustee Company case was applied. It is necessary to refer only to two of them: Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 and Sutherland Shire Council v Registrar-General (1991) 72 LGRA 84. In the latter case Young J subjected Rapley v Martin to critical analysis, and it is convenient to examine it later.

1. In Attorney-General for Northern Territory v Minister for Aboriginal Affairs, the issue was whether roads and stock routes marked on maps of Crown land were public roads, so as to be excluded from a grant to an Aboriginal land trust under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Lockhart J held that the evidence did not establish that the Crown had dedicated the roads as such (at 541). His Honour said (at 542):

"Whether the owner of land has dedicated it as a public road is a question to be determined on the facts of each case. The declaration of an intention to dedicate, delineation on maps or plans of roads set apart for public use, user by the public, the expenditure of money by public bodies in forming or maintaining the land as a road are some of the matters which may, when considered with all the relevant evidence, amount to an unequivocal indication of the intention of the owner of the land to dedicate it to the public as a road."

1. Ms Allars submitted that the Crown roads in the present case were "paper roads", in that the land on which they appear on the maps was reserved when the Crown grant was made but neither was ever dedicated as a public road. As she put it in written submissions, a paper road "does not exist on the ground, but exists only on an official survey, plan and or map as land designated for a road." Ms Stewart, in her response to the request letter, noted that the area adjacent to the drain is "dense scrub which is difficult to access", and that there was no evidence that "there has been at any time a passable or used road" on the affected lots.

1. Let me turn then to Rapley v Martin, decided in 1865. It was an action for trespass, the plaintiff being the lessee of land granted in 1835 to one Hughes. The land at that time was uninhabited. The grant was expressed to be subject to a road, the position and length of which was described. The only trespass proved was the defendant's entry upon the site of that road, but on that basis the jury found for the plaintiff.

1. The Full Court held that, because of the reservation of the road in the grant, there should be a verdict for the defendant. Stephen CJ said (at 180 - 1):

"There was here, we conceive, both before and at the time of the sale and grant to Hughes, a dedication of the road in question to the public, as a highway - effectuated by the terms of the grant, at all events as against Hughes and all claiming under him. ... There was here either the dedication, to the public at large, of the described road as and for a highway, or there was nothing.

But Hughes, or persons claiming under him, can hardly be permitted to say that there was no such grant; for he purchased the land, and accepted the conveyance of it, subject to a declared general right of road. Not only so, but he obtained the site and soil of that road, in addition to his purchase - in consideration probably of the road's passing (partly) through his ground."

1. His Honour added (at 181 - 2):

"The nature of the case being considered, the existence of direct authority on this question is hardly to be expected. Here is an enormous territory, ungranted, unoccupied - which the Crown, the trustee for its subjects, from time to time conveys in parcels for them, for purposes of colonisation and settlement. Roads through these granted lands, for the use of other existing or intending settlers, are indispensable. All such roads, if for the general benefit, are simply highways. The Crown, therefore, usually reserves in its grants the power of making such roads. We will assume that, if indefinite, such a reservation may be void. But why may not the Crown, as in this case, define a road in the first instance, and dedicate it at once to the public? And, if so, the form and mode of dedication adopted here, by declaration in letters patent - necessarily matters of record - would seem on principle to be sufficient for the purpose."

1. In Attorney-General for Northern Territory v Minister for Aboriginal Affairs, as I have said, the issue turned on whether there was evidence that the Crown had dedicated the roads in question. On the issue of acceptance of such a dedication by the public, Lockhart J said (at 541):

"It is open to question whether land which is owned by the Crown may be dedicated as a public road by dedication alone without acceptance by the public. ... As the evidence does not establish to my satisfaction that the roads in question in the present case were dedicated by the Crown it is not necessary for me to decide the question. I should say, however, that as at present advised I would follow the view of Windeyer J in the Permanent Trustee case that public acceptance is essential to achieve dedication of land as a public road."

His Honour later made passing reference to Rapley v Martin (at 545), but in a context which is not material to the present case. Of course, what his Honour said in the quoted passage is directed to the dedication of a public road by the Crown at common law. The position is otherwise when the dedication is governed by statute: Fourmile v Selpam Pty Ltd (1998) 80 FCR 151, per Drummond J at 167 - 8.

1. As I have said, Young J considered Rapley v Martin in Sutherland Shire Council v Registrar-General (supra). At 88 ff his Honour summarised the facts of the case and referred to aspects of the reasons of Stephen CJ. He then examined a number of later cases in which the decision was referred to, concluding that it was not decisive of the issue to be decided in the case before him. His Honour observed (at 92) that it was "a little unclear exactly what Rapley's case decides." On one view, it was based on estoppel. On another, it decided that "where Crown land is involved, indication by the Crown or its agents on a public map including a map on a land grant that a particular piece of land is a road is virtually conclusive evidence of that fact." However, his Honour added, if that were so one would have expected that the Full Court should have sent the matter back for a new trial. Another way of looking at the decision, he said, is that "it is just inconsistent with later decisions including decisions of the High Court."

1. Put shortly, the issue in the Sutherland Shire Council case concerned land granted in 1864. On that land were certain roads which later needed to be replaced by others. The owner entered into an agreement with the government to dedicate certain new roads and, in exchange, he was to receive a grant of the land forming the old roads. In 1886 the owner published a note in the Government Gazette dedicating to the use of the public those new roads, and in the following year a land grant formally conveyed to him the lands forming the old roads, reciting that the new roads had been dedicated to the use of the public by him. However, there was no evidence that those new roads had in fact ever been formed, used, or accepted by the public.

1. Young J, after analysing Rapley v Martin, said (at 92):

"So far as a private person is concerned, the authorities with some exception all insist that something more is necessary than a mere dedication. It will be wrong to read Rapley in such a way as to cut across those authorities."

Later, dealing with the case at hand, his Honour said (at 95):

"It seems to me that unless there has been some action taken by the public after the dedication, such as user or public expenditure, the mere issue of the 1887 Grant does not of itself amount to an acceptance by the public."

1. Bryson J had occasion to examine Rapley v Martin in Palmisano v Hawse & Ors [2003] NSWSC 566, 127 LGERA 268. With reference to the second of the passages from the judgment of Stephen CJ (at 181 - 2) which I have quoted above, his Honour said at [30]:

"This Court was very ready, in 1865 to discern an intention on the part of the Crown to dedicate land as a highway from references to roads in advertisements published when land was offered for sale, and in the terms of grants ... . The observations of the Court show that readiness to discern an intention of the Crown to dedicate land to the public, not simply to reserve land to itself, where a document makes reference to a road, was based on the circumstances of New South Wales in the period after settlement. ... In effect, the court was unready to see a reference to land as a road in an advertisement, grant or published map as merely an expression of an unfulfilled intention to make a dedication."

1. After referring to Young J's examination of Rapley v Martin in the Sutherland Shire Council case, his Honour observed at [31]:

"What I understand Rapley v Martin illustrates is that relatively early in the settlement of New South Wales necessity for access was an important factor in the behaviour of the Crown and of other landholders, and of the public, that an intention to dedicate by the landholder and acceptance and user by the public in those times should be inferred relatively readily, and that the practices of more settled and more regulated times are not the test of what happened then."

1. Ms Allars submitted that Rapley v Martin turned on its own facts and is not authority for the proposition for which Beranghi contends, that is, that the definition of a road in a Crown grant is sufficient for it to become a public road at common law. That may be so but, in any event, it seems that that decision has passed into history. In the present case there is no evidence of an intention to dedicate the two Crown roads as public roads, let alone acceptance of any such dedication by the public. That being so, there is no evidence that the construction of the drain interrupted any use of the relevant lots.

1. Accordingly, I am satisfied that s 91 was never engaged: not in 1964, when the public work was undertaken, nor in recent years, when Beranghi sought the accommodation works.

The Governor's duty - s 92

1. The jurisdiction of the Governor to make a determination under s 92 is confined to any difference arising "respecting the kind or number of any accommodation works or the dimensions or sufficiency thereof or respecting the maintaining thereof." It is clear that the section is directed to the nature of accommodation works required, not to the question whether there should be any accommodation works at all. In the present case there are no accommodation works within the meaning of s 91 which could be the subject of a difference under s 92. The jurisdiction of the Governor is not enlivened.

1. That being so, there is no basis for the order sought by Beranghi that the Minister provide papers to the Governor for the purpose of a determination under s 92. I might add that, in any event, the Minister had earlier provided papers to the Governor in relation to such a determination. On 20 August 2008 Ms Stewart informed the Governor's official secretary that she was of the view that there was no issue for the Governor to determine under s 92, although she advised that it may be appropriate for her Excellency to obtain advice from the Solicitor-General. As I have recounted, after receiving that advice, her Excellency conveyed to Beranghi by a letter of 4 May 2010 that it was inappropriate to take any action under the section. It is clear that the Minister communicated with the Governor about the matter in conformity with his duty.

Grounds

1. Given these findings, none of the grounds for judicial review has been made out. It cannot be said that the Minister failed to take into account all relevant correspondence, legislation and case law. So much is apparent from the reasons set out in Ms Stewart's communication of 23 December 2011. Nor can the decision be said to be manifestly unreasonable. The remaining grounds, that the decision was ultra vires, that it was affected by bias or made in bad faith, or that there had been a denial of natural justice, are without substance. It is clear that the matter was dealt with by the Minister appropriately and in accordance with the relevant law.

1. Beranghi's summons must be dismissed. If necessary, I shall hear the parties on costs.

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Decision last updated: 27 March 2013