Fertility Control Clinic v Melbourne City Council
[2015] VSC 424
•26 August 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 1107
| FERTILITY CONTROL CLINIC | Plaintiff |
| v | |
| MELBOURNE CITY COUNCIL | Defendant |
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JUDGE: | McDONALD J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 and 4 June 2015 |
DATE OF JUDGMENT: | 26 August 2015 |
CASE MAY BE CITED AS: | Fertility Control Clinic v Melbourne City Council |
MEDIUM NEUTRAL CITATION: | [2015] VSC 424 |
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JUDICIAL REVIEW — complaint to Melbourne City Council alleging that conduct of protesters constituted a nuisance — Council concluded that the only activity of protesters which constituted a nuisance was the blocking of entry to the complainant’s premises —Council advised that matter should be settled privately by aggrieved persons referring matter to Victoria Police — whether Council failed to exercise jurisdiction by misconstruing meaning of nuisance and misdirecting itself — whether Council failed to exercise jurisdiction by erroneously concluding that the matter could be settled privately by referral to Victoria Police — whether complainant entitled to declaratory relief — Council directed itself to questions required by legislation — any errors were within jurisdiction and did not give rise to entitlement to mandamus — plaintiff entitled to declaratory relief.
Public Health and Wellbeing Act 2008 (Vic) s 58, 60, 62; Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 56; Interpretation of Legislation Act 1984 (Vic) s 35; Charter of Human Rights and Responsibilities Act 2006 (Vic); Supreme Court Act 1986 (Vic) s 36.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr PJ Hanks QC | Maurice Blackburn Lawyers |
| For the Defendant | Mr RM Niall QC with Mr D A Bruno | Hunt & Hunt Lawyers |
| For the Intervener The Victorian Equal Opportunity and Human Rights Commission | Ms K Eastman SC | The Victorian Equal Opportunity and Human Rights Commission |
HIS HONOUR:
The Fertility Control Clinic (‘the Clinic’) operates a medical clinic within the municipal district of the Melbourne City Council (‘the Council’) which provides a range of family planning and reproductive services. These services include contraception, pap smear tests, sexually transmitted infection screening and treatment, vasectomies, pregnancy ultrasound, pregnancy termination, counselling for problem pregnancy and health referrals.[1] For more than 20 years, individuals associated with a group known as the Helpers of God’s Precious Infants (‘HOGPI’) have gathered in the vicinity of the Clinic’s premises in Wellington Parade, East Melbourne. In this judgment I shall refer to this group of individuals as ‘the Protesters’. HOGPI is not a legal entity and is not the subject of any claim for relief in the current proceedings. Further, no relief, for example by way of injunction, is sought against any of the Protesters.[2]
[1]It was an agreed matter between the parties that the Clinic is a partnership.
[2]Cf McDonald’s Australia Ltd v Watson [2013] VSC 502.
By its amended originating motion filed in court on 3 June 2015, the Clinic seeks relief directed to the Council. The Clinic contends that:
(a)the activities of the Protesters constitute a nuisance within the meaning of the Public Health and Wellbeing Act 2008 (Vic) (‘the Act’);
(b)when it notified the Council in December 2013 that the activities of the Protesters constituted a nuisance, the Council was required by ss 60 and 62 of the Act to take steps to remedy the alleged nuisance;
(c)the Council’s response to its complaint amounted to a constructive failure to perform the duties imposed upon it by the Act; and
(d)the failure to do so enlivens the court’s power to grant relief in the nature of mandamus.
The Clinic seeks orders in the nature of mandamus to compel the Council to exercise the powers conferred upon it by the Act, to remedy the alleged nuisance constituted by the activities of the Protesters. In addition, the Clinic seeks a declaration that the advice from the Council in its letter of 7 May 2013 and repeated in the subsequent letter of 23 January 2014, that the matter was better settled privately through a referral to Victoria Police, does not constitute ‘settling the matter privately’ within the meaning of s 62(3)(b) of the Act.[3]
[3]Supreme Court Act 1986 (Vic) s 36.
I have concluded that there was no actual or constructive failure by the Council to perform the duties imposed upon it by the Act. Contrary to the Clinic’s submissions, there is no basis for concluding that the Council misdirected itself when addressing the question of whether the activities of the Protesters constituted a nuisance.[4] The advice by the Council that the Clinic should seek to settle its dispute with the Protesters privately by aggrieved individuals making a complaint to Victoria Police was misconceived. This did not constitute advice as to a method of settling the matter privately within the meaning of s 62(3)(b) of the Act. Whilst the advice was erroneous, it was within jurisdiction and does not enliven the court’s power to grant mandamus. Nevertheless, the Clinic is entitled to a declaration that the advice did not constitute advice to settle the matter privately within the meaning of s 62(3)(b) of the Act.
[4]Transcript of proceedings, Fertility Control Clinic v Melbourne City Council (Supreme Court of Victoria, S CI 2014 1107, McDonald J, 3 June 2015) T9 LL 20-22.
The Council raised Constitutional and Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) arguments in these proceedings. This resulted in the Victorian Equal Opportunity and Human Rights Commission filing written submissions[5] and also making submissions in court.[6] However, Mr Niall QC who appeared with Mr Bruno for the Council, confirmed in court on 4 June 2015 that the implied Constitutional freedoms and Charter issues were not pressed and that considering them would not assist in the resolution of the proceedings.[7]
[5]Victorian Equal Opportunity and Human Rights Commission, ‘Submissions of Intervener’, Submission in Fertility Control Clinic v Melbourne City Council, S CI 2014 1107, 9 February 2015.
[6]Transcript of proceedings, Fertility Control Clinic v Melbourne City Council (Supreme Court of Victoria, S CI 2014 1107, McDonald J, 4 June 2015) T157 L24 —T159 L17.
[7]Ibid T156 LL14-17.
Relevant statutory provisions
Having regard to the breadth of the submissions which were advanced before the court, it is necessary to set out in detail the provisions of the Act which were the subject of submissions. The provisions of the Act to which reference was made are as follows:
58 Application of Division
(1)This Division applies to nuisances which are, or are liable to be, dangerous to health or offensive.
(2)Without limiting the generality of subsection (1), this Division applies in particular to nuisances arising from or constituted by any—
(a) premises; or
(b) water; or
(c)animal, including a bird or insect, capable of carrying a disease transmissible to human beings; or
(d) refuse; or
(e) noise or emission; or
(f) state, condition or activity; or
(g)other matter or thing —
which is, or is liable to be, dangerous to health or offensive.
(3)For the purpose of determining whether a nuisance arising from or constituted by any matter or thing referred to in subsection (2) is, or is liable to be, dangerous to health or offensive—
(a)regard must not be had to the number of persons affected or that may be affected; and
(b) regard may be had to the degree of offensiveness.
(4)In this section, offensive means noxious or injurious to personal comfort.
59 Effect of Division
(1)This Division does not render lawful any act, matter or thing which but for this Act would be a nuisance.
(2)This Division is in addition to, and does not prejudice, abridge or otherwise affect any right, remedy or proceeding under any other provision of this Act, or under any other Act, or at common law.
60 Duty of Council
A Council has a duty to remedy as far as is reasonably possible all nuisances existing in its municipal district.
61 Offence of causing a nuisance
(1) A person must not—
(a) cause a nuisance; or
(b)knowingly allow or suffer a nuisance to exist on, or emanate from, any land owned or occupied by that person.
Penalty: In the case of a natural person, 120 penalty units;
In the case of a body corporate, 600 penalty units.
(2)A person is not guilty of an offence under subsection (1)(b) if the person had a lawful excuse for knowingly allowing or suffering a nuisance to exist on, or emanate from, any land owned or occupied by that person.
62 Notification of nuisance
(1)If a person believes that a nuisance exists, that person may notify the Council in whose municipal district the alleged nuisance exists.
(2) The Council must investigate any notice of a nuisance.
(3)If, upon investigation, a nuisance is found to exist, the Council must—
(a)take any action specified in subsection (4) that the Council considers appropriate; or
(b)if the Council is of the opinion that the matter is better settled privately, advise the person notifying the Council of the nuisance of any available methods for settling the matter privately.
(4) For the purposes of subsection (3)(a), the Council may—
(a)if section 66 applies, exercise the powers conferred by that section;
(b) issue an improvement notice or a prohibition notice;
(c)bring proceedings under section 219(2) for an offence against this Act.
63 Failure of Council to investigate complaint
(1)If the Council does not, within a reasonable time of being notified of an alleged nuisance, investigate the subject matter of the notification, the person who notified the Council may make a complaint to the Magistrates' Court of the existence of the alleged nuisance.
…
Is the Clinic’s application out of time?
Rule 56.02(1) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (‘the Rules’) provides:
A proceeding under this Order shall be commenced within 60 days of the date when the grounds for the grant of the relief or remedy claimed first arose.
Mr Niall QC submitted that grounds for the grant of the relief claimed by the Clinic first arose on or about 7 July 2013.[8] The Clinic first notified the Council of an alleged nuisance constituted by the activities of the Protesters by letter dated 5 March 2013.[9] The Council responded to this letter on 7 May 2013.[10] In that letter the Council acknowledged the Clinic’s formal notification of a nuisance under s 62(1) of the Act. The Council advised that the nuisance had been investigated as required by s 62(2) of the Act. Thereafter the letter stated:
I have determined that whilst most of the actions of the protesters do not fall within the specific definition of nuisance in the Act, it is arguable blocking entry into the clinic is such a nuisance.
Having made this determination, I advise that the Council has formed the opinion that the matter is better settled privately through the referral of such behaviour by the aggrieved individual to the Victorian police.
[8]Transcript of proceedings, Fertility Control Clinic v Melbourne City Council (Supreme Court of Victoria, S CI 2014 1107, McDonald J, 3 June 2015) T16 LL4-9.
[9]Affidavit of Susie Allanson affirmed 11 March 2014, Exhibit “SA10”.
[10]Ibid Exhibit “SA11”.
Mr Niall submitted that the Council’s letter of 7 May 2013 constituted a decision which enlivened the court’s jurisdiction to grant relief by way of mandamus.[11] The 60 day period prescribed by r 56.02(1) of the Rules expired on 7 July 2013, well before the filing of the Clinic’s originating motion dated 12 March 2014. In response, Mr Hanks QC, who appeared with Ms Walker QC and Ms McCarthy for the Clinic, submitted that the court’s jurisdiction to grant mandamus was enlivened by the Council’s letter of 23 January 2014 responding to a letter from the Clinic of 23 December 2013.[12]
[11]Transcript of proceedings, Fertility Control Clinic v Melbourne City Council (Supreme Court of Victoria, S CI 2014 1107, McDonald J, 3 June 2015) T16 LL4-7.
[12]Ibid T16 L30 — T18 L9.
Both the original letter of complaint of 5 March 2013 and the subsequent letter of 23 December 2013 allege a nuisance arising out of the activities of the Protesters. There is no question that the Council’s initial response of 7 May 2013 could have been the vehicle for an application under Order 56 of the Rules. However, whilst both letters allege the conduct of the Protesters constituted a nuisance within the meaning of the Act, the alleged nuisances are not the same. The 5 March 2013 letter alleged that the conduct of the Protesters was a nuisance which was ‘offensive’. The letter of 23 December 2013 alleged that the nuisance was both dangerous to health and offensive.
Mr Niall correctly conceded that the allegation contained in the letter of 23 December 2013 that the Protesters’ conduct was both offensive and dangerous to health alleged a new kind of nuisance within the meaning of s 58(1) of the Act.[13] The Clinic had not previously alleged that the Protesters’ conduct was dangerous to health. The making of this allegation enlivened a fresh obligation under s 62(2) of the Act for the Council to investigate whether the conduct of the Protesters was dangerous to health. The first occasion when the Clinic sought relief by way of mandamus arising from the Council’s decision in respect of the dangerous to health allegation was in response to the letter of 23 January 2014. The Clinic’s originating motion of 12 March 2014 was within the 60 day period prescribed by r 56.02(1) of the Rules. As such, the application was not out of time.
[13]Transcript of proceedings, Fertility Control Clinic v Melbourne City Council (Supreme Court of Victoria, S CI 2014 1107, McDonald J, 4 June 2015) T157 LL10-19.
Did the Council fail to perform the duty imposed by the Act to investigate the alleged nuisance?
The amended originating motion filed in court on 3 June 2015 seeks an order in the nature of mandamus compelling the Council to perform its duty under s 60 of the Act to remedy the nuisance constituted by the presence and activities of the Protesters in the vicinity of the Clinic. Mr Niall submitted that s 60 of the Act does not create any duty enforceable by way of mandamus.[14] He submitted that the statutory duty created by s 60 of the Act is too generic or vague to be amenable to mandamus.[15] This submission has considerable force. However, it is unnecessary to express any concluded view as to whether s 60 of the Act creates a duty amenable to relief by way of mandamus. Ultimately, Mr Hanks did not rely solely upon s 60 of the Act as the basis for relief by way of mandamus. Rather, he submitted that the source of the duty was s 60 of the Act read in conjunction with s 62 of the Act. He submitted that the duty in s 60 was amplified in s 62.[16]
[14]Transcript of proceedings, Fertility Control Clinic v Melbourne City Council (Supreme Court of Victoria, S CI 2014 1107, McDonald J, 3 June 2015) T102 LL5-6.
[15]See Weaven v Secretary to the Department of Justice [2012] VSC 582, [12]; DPP v Zierk [2008] VSC 184, [18].
[16]Transcript of proceedings, Fertility Control Clinic v Melbourne City Council (Supreme Court of Victoria, S CI 2014 1107, McDonald J, 3 June 2015) T211 L9.
Mr Hanks submitted that upon the receipt of the Clinic’s letter of 23 December 2013, the Council had a duty pursuant to both ss 60 and 62 of the Act to investigate and take steps to remedy, as far as reasonably possible, any nuisance that was dangerous to public health and offensive.[17] Mr Hanks submitted that the Council misconstrued the meaning of nuisance in s 58 of the Act and misdirected itself as to the nature and scope of its duty.[18] He placed reliance upon the Council’s contention in its letter of 7 May 2013 which was confirmed in the subsequent letter of 23 January 2014, that save for the blocking of the entrance to the Clinic’s premises, the conduct of the Protesters complained about by the Clinic did not constitute a nuisance within the meaning of the Act.
[17]Ibid T19 LL9-21.
[18]Fertility Control Clinic, ‘Plaintiff’s Closing Submissions’, Submission in Fertility Control Clinic v Melbourne City Council, S CI 2014 1107, 4 June 2015, [10] – [11].
The initial letter of complaint from the Clinic dated 5 March 2013 included the following:
We have been instructed by our client that a high proportion of patients attending the Clinic notice the Protesters, causing them to feel high levels of distress, anxiety, intimidation, fear and anger.
We have been provided with a recent research paper, surveys, as well as several statements of both patients and people accompanying patients to the clinic. They indicate that the Protesters routinely make comments to the patients and those accompanying them, display posters and use props, try to hand pamphlets and other material to patients and those accompanying them and try to block the entry to the clinic. The research paper, survey and statements indicate that the activities of the Protesters make patients and people accompanying patients to feel high levels of psychological distress, including feeling uncomfortable, annoyed and hurt.
The Clinic’s subsequent letter of complaint of 23 December 2013 annexed a number of witness statements to the effect that the activities of the Protesters included the following:
·standing outside the Clinic every day for more than 20 years from Monday to Saturday inclusive in numbers from three to 12 persons with 50 to 100 persons once per month;
·approaching women apparently coming to the Clinic, imposing their presence even when clearly unwelcome;
·harassing women entering or leaving the Clinic, engaging in arguments with the women and passers-by;
·attempting to block women’s entry to the Clinic;
·blocking the footpath outside the Clinic;
·entering the laneway that runs along the side of the Clinic to follow patients or stand and pray, sing and shout outside the Clinic’s consulting rooms;
·jostling and striking people passing the area and entering the Clinic;
·making offensive, frightening and misleading statements to patients and staff;
·engaging in loud singing, praying and shouting, clearly audible in the Clinic;
·intimidating and harassing patients of the Clinic, with the effect of deterring patients from attending the Clinic; and
·causing significant injury to the personal comfort of staff members, patients and others.[19]
[19]Ibid [4].
The Council did not challenge any of the evidence concerning the activities of the Protesters as set out above. In light of the advice which was provided to the Council regarding the activities set out above and the Council’s conclusion that the only activities which arguably constituted a nuisance was the blocking of the entry to the Clinic, Mr Hanks submitted:
It must be that the Council assumed (consistent with the submissions it has advanced in this case) that “nuisance” was limited to an actionable interference with land and did not extend to a common and public nuisance, involving “elements of annoyance, inconvenience, or hurt to the public”, including picketing that involves obstructing and besetting.[20]
[20]Ibid [11.3].
Mr Hanks submitted that because the Council misconstrued the meaning of ‘nuisance’ its subsequent investigation of the Protesters’ conduct was not in accordance with the duty imposed by the Act.[21] As to the blocking of the entrance to the Clinic’s premises, Mr Hanks submitted that rather than taking steps to remedy the nuisance, the Council informed the Clinic that the nuisance was ‘better settled privately’ through Victoria Police. He submitted that in so doing, the Council misconstrued the nature and scope of the duty imposed by s 62 of the Act and thereby fell into jurisdictional error.[22]
[21]Ibid [11.4].
[22]Ibid [12.2].
Mr Hanks submitted that after failing to adequately investigate, the Council erroneously determined that the only activity ‘arguably’ comprising a nuisance was the blocking of the entry and failed to turn its mind to the remedying of the nuisance as defined in the Act. He submitted that the advice to settle the matter privately via Victoria Police was flawed because:
·Victoria Police is not an entity through which a matter can be ‘settled privately’ because it is an organisation that is empowered by the State to enforce the law, operating under State law, namely the Victoria Police Act 2013 (Vic);
·Victoria Police can only enforce the criminal law in so far as the conduct of Protesters constitutes a breach of that law;
·If Victoria Police has any role in prosecuting an offence of causing a nuisance under s 61 of the Act, the performance of that prosecutorial role could not be characterised as settling the matter ‘privately’; and
·The Protesters occupy a public area within the Council’s municipal district where they commit the offence of causing a nuisance and that area is a public place for which no ‘private settlement’ is available.[23]
[23]Fertility Control Clinic, ‘Submissions on Behalf of the Plaintiff’, Submission in Fertility Control Clinic v Melbourne City Council, S CI 2014 1107, 13 October 2014, [42.4]; See also Transcript of proceedings, Fertility Control Clinic v Melbourne City Council (Supreme Court of Victoria, S CI 2014 1107, McDonald J, 3 June 2015) T9 L20 — T10 L6.
The Clinic’s contention that the Council fell into jurisdictional error by misconstruing the meaning of nuisance is underpinned by the proposition that the Council misconstrued ‘nuisance’ for the purposes of the Act as being limited to an actionable interference with land (i.e. a private nuisance). Mr Hanks submitted that for the purposes of the Act, nuisance also includes a public nuisance.
The Council’s initial response of 7 May 2013 includes the following:
I have determined that whilst most of the actions of the protesters do not fall within the specific definition of nuisance in the Act, it is arguable blocking entry into the clinic is such a nuisance.
The Council’s subsequent letter of 23 January 2014 referred to the passage set out above. That letter continued:
I do not intend to resile from the delegate’s determination…
It is only when the actions of various unidentified people blocking access to the clinic on different occasions are bundled together and looked at collectively that the result may meet the concept of a nuisance under the Act.
…
At face value, neither the initial letter of 7 May 2013 nor the subsequent letter of 23 January 2014 supports the Clinic’s contention that the Council construed ‘nuisance’ as being limited to private nuisance. Rather, both letters address the question of whether the conduct complained of by the Clinic fell within the definition of nuisance contained in the Act. It is well-established that a decision-maker will not fall into jurisdictional error if they ask the question required by an Act, merely because the answer to the question may be erroneous.[24]
[24]Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 208 [30]; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, 573-574 [72]; Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, 420 (Jordan CJ).
It is also well-established that a court should be hesitant to go behind the reasons expressed by a decision-maker. In Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty Ltd & Ors,[25] Dawson J when considering an application for a writ of mandamus directed to the President of the Conciliation and Arbitration Commission stated:
Where reasons are given for a decision, it would be wrong to speculate upon matters, beyond those referred to in the reasons which may have motivated the decision. The reasons given by the President are those which I must accept and do accept as being his reasons.[26]
[25](1988) 78 ALR 466.
[26]Ibid 467 [30] (citations omitted). See also East Melbourne Group Inc v Minister for Planning and Anor (2008) 23 VR 605.
At face value, the authors of each of the letters dated 7 May 2013 and 23 January 2014 expressly turned their mind to the question of whether the conduct complained of was a nuisance as defined by the Act. If the Council answered this question incorrectly this was an error within jurisdiction.
Mr Hanks submitted that notwithstanding the express terms of the Council’s letters of 7 May 2013 and 23 January 2014, the court should conclude that the Council had misdirected itself as to the meaning of nuisance for the purposes of the Act. He pointed to the fact that the only conduct identified by the Council which could arguably constitute a nuisance for the purpose of the Act was the blocking of the entry to the Clinic’s premises. He submitted that this supported the conclusion that the Council had confined its consideration of whether the Protesters’ conduct constituted a nuisance, to consideration of whether the conduct constituted a private nuisance. He pointed to the fact that in the present proceedings, the Council had submitted that a nuisance for the purposes of the Act is confined to conduct involving an actionable interference with land (i.e. a private nuisance).[27]
[27]Melbourne City Council, ‘Submissions on Behalf of the Defendant’ Submission in Fertility Control Clinic v Melbourne City Council, S CI 2014 1107, 3 November 2014, [36] and [39].
The term ‘nuisance’ is not defined by the Act. However, ss 58(2) and (3) of the Act provide that Division 1 of the Act applies to nuisances ‘arising from or constituted by’ a range of matters including at s 58(2)(g) of the Act ‘any… other matter or thing…, which is or is liable to be, dangerous to health or offensive’. Contrary to Mr Niall’s submission, there is no basis for construing ‘nuisance’ as confined to an actionable interference with land. For the purposes of Division 1 of the Act, nuisance is not confined to private as opposed to public nuisance. The Act applies to conduct which constitutes a public or private nuisance, provided such conduct is, or is liable to be, dangerous to health or offensive.
A construction that would promote the purpose or object underlying the Act must be preferred to one that would not promote that purpose or object.[28] Section 4 of the Act, headed ‘Objectives’, provides:
[28]Interpretation of Legislation Act 1984 (Vic) s 35(a).
(1) The Parliament recognises that —
(a)the State has a significant role in promoting and protecting the public health and wellbeing of persons in Victoria;
(b)public health and wellbeing includes the absence of disease, illness, injury, disability or premature death and the collective state of public health and wellbeing;
(c)public health interventions are one of the ways in which the public health and wellbeing can be improved and inequalities reduced;
(d)where appropriate, the State has a role in assisting in responses to public health concerns of national and international significance.
(2)In the context of subsection (1), the objective of this Act is to achieve the highest attainable standard of public health and wellbeing by —
(a)protecting public health and preventing disease, illness, injury, disability or premature death;
(b)promoting conditions in which persons can be healthy;
(c)reducing inequalities in the state of public health and wellbeing.
(3)It is the intention of Parliament that in the administration of this Act and in seeking to achieve the objective of the Act, regard should be given to the guiding principles set out in sections 5 to 11.
Nothing in these objectives or in the Act as a whole, excludes public nuisances — provided they ’are, or are liable to be, dangerous to health or offensive’— from constituting a ’nuisance’ for the purposes of Division 1 of Part 6 of the Act.[29]
[29]See Gerry Bates, Environmental Law in Australia (8 ed, LexisNexis Butterworths, 2013) 651 [15.96]. The author refers to the broad definition of nuisance in the Act in support of the proposition that local authorities have powers to issue orders requiring cessation of public nuisance-type activities.
Both Mr Niall’s contention that the Act is concerned with private rather than public nuisance, as well as Mr Hank’s contention that the Council must have assumed that the Act has no application to public nuisance, assumes that there is a clear dividing line between the two categories. Conduct may constitute a private nuisance if an occupier of a premises or other persons attending the occupier’s premises ‘are watched continually or beset with insults or messages in ways which offer discouragement to attendance there and so impede the occupier’s enjoyment of his property’.[30] The conduct of Protesters which involves besetting clients of the Clinic in order to discourage their attendance at the Clinic may constitute a private nuisance because it impedes the Clinic’s enjoyment of its property. It may also constitute a public nuisance because the conduct occurs on public property and interferes with members of the public.[31]
[30]Barloworld Coatings (Aust) Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union (2001) 108 IR 107, 113 (Bryson J) cited with approval in Toll Transport Pty Ltd v National Union of Workers and Ors [2012] VSC 316, [27] (Ferguson J).
[31]See Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51, 58.
My rejection of Mr Niall’s submission that Division 1 of the Act is confined to conduct which constitutes a private nuisance does not translate into a finding of jurisdictional error. The express terms of the Council’s letters of 7 May 2013 and 23 January 2014 support a finding that the Council directed its attention to the question required by the Act: whether the Protesters’ conduct constituted a nuisance within the meaning of the Act.
Further, the Council’s conclusion that the Protesters’ blocking of the entry to the Clinic was the only conduct which could arguably constitute a nuisance, is not solely explicable by the Council having proceeded on the basis that the Act was confined to private nuisance. For the reasons set out above, much of the conduct complained of by the Clinic, including the blocking of the entry to the Clinic’s premises, potentially constitutes both a private and public nuisance. The conduct may directly interfere with the Clinic’s enjoyment of its occupation of the premises. If so, the conduct prima facie constitutes a private nuisance. In addition, it may be that the Protesters have engaged in conduct which supports a conclusion that persons attempting to attend the Clinic have been beset with insults or messages in ways which offer discouragement to their attendance. Prima facie, such conduct is a private nuisance by reason of impeding the Clinic’s enjoyment of its property and a public nuisance by reason of the elements of annoyance, inconvenience or hurt to members of the public.[32]
[32]Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1, [36]; Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] NSWLR 760, 767.
However, the relevant decision-makers may have concluded that, save for the obstruction to the entry to the Clinic’s premises, the balance of the conduct complained of by the Clinic was not offensive or dangerous to health. If the decision-makers did erroneously conclude that the conduct was neither offensive nor dangerous to health, any such error was one within jurisdiction.
The advice provided by the Council as to how the matter should be settled privately, was by way of referral ‘by the aggrieved individual’ to Victoria Police.[33] The fact that the Council recommended referral by an ‘aggrieved individual’ (a member of the public) rather than by the Clinic, does not support the Clinic’s contention that the Council assumed that the meaning of nuisance was confined to an actionable interference with land. Ultimately, it is unproductive to speculate as to the process of reasoning which underpinned the Council’s decision that the only conduct which arguably constituted a nuisance for the purposes of the Act was the blocking of the entry to the Clinic’s premises. In circumstances where the Council’s reasons for decision disclose that the relevant decision makers addressed the question required by the Act, there is no utility in going behind the stated reasons for the decision.
[33]Affidavit of Susie Allanson affirmed 11 March 2014, Exhibit “SA10”.
The Clinic’s contention that the Council fell into jurisdictional error by misdirecting itself as to the correct meaning of the term ‘nuisance’ in the Act must be rejected.
Did the Council misconstrue the nature and scope of its duty under s 62(3)?
Mr Hanks also submitted that the Council fell into jurisdictional error by providing advice that the matter was ‘better settled privately’ through Victoria Police.[34] By reason of s 62(3) of the Act, if a nuisance is found to exist, the Council must take any of the actions in s 62(4) of the Act that the Council considers appropriate, or:
[I]f the Council is of the opinion that the matter is better settled privately, advise the person notifying the council of any available methods for settling the matter privately.[35]
[34]Transcript of proceedings, Fertility Control Clinic v Melbourne City Council (Supreme Court of Victoria, S CI 2014 1107, McDonald J, 3 June 2015) T9 LL3-31.
[35]Public Health and Wellbeing Act 2008 (Vic) s 62(3)(b).
Section 62(3)(b) of the Act has both mandatory and discretionary elements. If upon investigation the Council:
(i) finds that a nuisance exists; and
(ii)is of the opinion that the matter is better settled privately (rather than by means of s 62(4))
the Council must advise the person notifying the Council of the nuisance of any available methods for settling the matter privately. This obligation is mandatory. However, the identification of ‘any available methods for settling the matter privately’ is something within the Council’s discretion. It is clear that the Council directed itself to the question of what was an available method of settling the matter privately. As such, there is no legitimate basis for concluding that the Council fell into jurisdictional error by identifying the wrong issue or asking a wrong question in a way that affected the exercise of the duty under s 62(3)(b) of the Act.[36] However, it is equally clear that the advice to the Clinic to report the matter to Victoria Police did not constitute a method for settling the matter privately.
[36]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [82] (citations omitted).
The task of statutory construction ‘begins and ends with the words which Parliament has used’.[37] The Australian Concise Oxford Dictionary defines:
(a) ‘settle’ as “… establish or become established in a more or less permanent abode … cease or cause to cease from wandering, disturbance, movement, etc. … adopt a regular or secure style of life … determine or decide or agree upon … resolve (a dispute etc.) … deal with (a matter) finally …”;[38] and
(b) ‘private’ as “belonging to an individual; one’s own; personal … confidential; not to be disclosed to others … kept or removed from public knowledge or observation … not open to the public b for an individual’s exclusive use ...”.[39]
[37]Treasurer of the Victoria v Tabcorp Holdings Ltd [2014] VSCA 143, [1]. See also [2] and [99]-[102]; Nigro v Secretary to the Department of Justice (2013) 304 ALR 535, [85].
[38]Bruce Moore, The Australian Concise Oxford Dictionary (4th ed, Oxford University Press, 2004) 1301.
[39]Ibid 1119.
As a matter of plain English, the advice from the Council to settle the matter privately by the referral of the behaviour in question by an aggrieved individual to Victoria Police did not constitute advice to settle the matter privately within the meaning of s 62(3)(b) of the Act. Whichever limb of ‘private’ set out above is applicable, on no view could the involvement of Victoria Police, an agency of the State of Victoria, facilitate a private settlement. Victoria Police have no statutory mandate to broker private settlements between parties who are in dispute.
The Council’s advice to settle the matter privately by referral to Victoria Police was misconceived. However, the Council directed itself to the question it was required to ask by s 62(3)(b) of the Act: whether there was an available method of settling that matter privately. The mere fact that the Council answered this question incorrectly does not give rise to an entitlement to mandamus. The Clinic expressly disavowed reliance upon Wednesbury[40] unreasonableness as a ground of jurisdictional error.[41]
[40]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
[41]Transcript of proceedings, Fertility Control Clinic v Melbourne City Council (Supreme Court of Victoria, S CI 2014 1107, McDonald J, 4 June 2015) T169 LL191-192.
Is the Clinic entitled to declaratory relief?
It is clear from the judgment of the High Court in Ainsworth v Criminal Justice Commission[42] that the unavailability of mandamus does not preclude the grant of declaratory relief. The declaration sought by the Clinic is directed at a legal controversy: whether the advice to the Clinic to settle the matter privately by referral by an aggrieved individual to Victoria Police constituted advice to settle the matter privately within the terms of s 62(3)(b) of the Act. The issue is not hypothetical: it relates to events which have occurred in the past. Further, based on the unchallenged evidence before the court, the conduct which underpins the controversy is ongoing. There is therefore utility in the court granting a declaration that a referral to Victoria Police does not constitute settling a matter privately within the meaning of s 62(3)(b) of the Act.
[42](1992) 175 CLR 564, 581-582.
I shall provide the parties with an opportunity to make submissions on the form of the declaration and what order for costs should be made.
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