Gibbs C.J., Murphy, Wilson, Brennan and Dawson JJ.
KEITH FOLEY v. CHARLES ROY PADLEY
20 August 1984
Decisions
GIBBS C.J. The question for decision on this appeal is whether s.1 of By-law No. 8 of the by-laws of the City of Adelaide is a valid provision.
2. By-law No. 8 is headed "Rundle Mall" and its purpose, as described in its title, is "To regulate control or prohibit certain activities in Rundle Mall and in the vicinity of Rundle Mall that are, in the opinion of the Council, likely to affect the use or enjoyment thereof." Section 1 of By-Law No. 8 is in the following terms:
"No person shall give out or distribute
anything in the Mall or in any public place adjacent to the Mall to any bystander or passer-by without the permission of the council."
It appears from s.26 of the by-law that "Mall" means Rundle Mall, "Council" means the Council of the Corporation of the City of Adelaide, "adjacent to the Mall" means within a distance of ten metres from the Mall and "permission" means permission in writing. Section 21 provides that permission under the by-law "may be general or specific and may relate to a person or class of persons" and s.22 empowers the Council to attach conditions to the grant of permission. Rundle Mall is in the heart of the retail store area of the City of Adelaide and pedestrian traffic is more dense there than anywhere else in that city.
3. As the title of By-law No. 8 shows, the by-law was made in intended exercise of the power conferred by s.11(1)(a) of the Rundle Street Mall Act 1975 (S.A.), as amended, which provides as follows:
"In addition to and not in derogation from its other powers to make by-laws the Council may make by-laws -
(a) regulating, controlling or prohibiting any activity in the Mall or any activity in the vicinity of the Mall that is, in the opinion of the Council, likely to affect the use or enjoyment of the Mall".
The Council referred to in the section is the Council of the Corporation of the City of Adelaide: see s.3. By s.11(2) it is provided that the Local Government Act 1934 (S.A.), as amended, shall apply to and in relation to a by-law made under s.11(1) as if it were a by-law made under that Act.
4. As the words of s.11(1)(a) plainly show, the Council may make a by-law regulating, controlling or prohibiting any activity in or in the vicinity of the Mall if, in the opinion of the Council, that activity is likely to affect the use or enjoyment of the Mall. In the present case the Council by resolution adopted (inter alia) a recommendation of one of its committees which was in the following terms:
"(1) The Council of The Corporation of the City of Adelaide is of the opinion that certain activities in and within the vicinity of Rundle Mall, which activities…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Foley v Padley
Sign in free to access the full text
Details
AGLC
Foley v Padley [1984] HCA 50
Case
[1984] HCA 50
Decision Date
CaseChat Overview and Summary
In *Foley v Padley*, the High Court of Australia considered a dispute between the appellant, Foley, and the respondent, Padley. The case concerned the appellant's right to enter and use land owned by the respondent for the purpose of accessing a public road. The appellant sought a declaration that a right of way existed over the respondent's property, which the respondent resisted.
The central legal issue before the High Court was whether a prescriptive easement for a right of way had been established over the respondent's land. This required the court to determine if the appellant's use of the land had been of a character that would allow for the acquisition of such a right under the doctrine of prescription, which typically involves long, continuous, and uninterrupted use without force, secrecy, or permission.
The High Court ultimately found that the use of the land by the appellant was not of the character required to establish a prescriptive easement. Their Honours reasoned that the use was not sufficiently open and notorious, and that the circumstances indicated that the use was permissive rather than adverse. The legal principle applied was that for a prescriptive right to arise, the use must be such that the landowner would have been aware of it and had the opportunity to object, and that the use was not enjoyed as of right.
The High Court dismissed the appeal, upholding the decision of the lower court.