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Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd

Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd

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Case Copied 12 December 1935 41 min read

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54 CLR 230

[ ]

RAMSAY AND ANOTHER

ABERFOYLE MANUFACTURING COMPANY

(AUSTRALIA) PROPRIETARY LIMITED

AND ANOTHER

DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF Injunction-Suit by Attorney-GeneralInfringement of municipal by-law-Local

Government Act 1928 (Vict.) (No. 3720), sec. 197 (5), (6).

The defendants were proceeding to erect a factory within an area in which the erection of a factory was prohibited by a municipal by-law. The by-law Nov. 22, 25,

imposed penalties for its infringement and also provided that, where a building was erected contrary to the by-law, the council of the municipality might have the building pulled down. R. owned land adjacent to the factory site. In an action in the Supreme Court of Victoria by R., and by the Attorney- General of Victoria at the relation of R., the plaintiffs applied for an inter- locutory injunction restraining the defendants from proceeding with the erection of the factory. The application was refused.

Held, by Latham C.J., Rich and McTiernan JJ. (Starke J. dissenting), that the injunction was rightly refused.

Per Latham C.J.: The legislation authorizing the by-law and the by-law comprised a code of remedies for the enforcement of the by-law which Parliament intended to be exhaustive, and the general interest of the public in the observance of the law was not alone sufficient to justify the Court in granting an injunction at the suit of the Attorney-General.

Per Rich J.: The Supreme Court properly exercised its discretion in refusing the special remedy of interlocutory injunction notwithstanding the Attorney-

54 CLR 231

OF AUSTRALIA Per McTiernan J.: Although the by-law affected the interests of the public, the Attorney-General was not entitled to enforce it by the equitable remedy of injunction, as the by-law did not create any right for which this was an appropriate remedy for, while the breach of the by-law, as in the case of any other law, might impair the general welfare, it did not interfere with the right of the public to the enjoyment of any positive interest or advantage.

Attorney-General and Lumley v. T. S. Gill &Son Pty. Ltd., (1927) V.L.R. 22 48 A.L.T. 112, discussed.

Decision of the Supreme Court of Victoria (Martin J.) affirmed.

APPEAL from the Supreme Court of Victoria.

Ellen Donaldson Ramsay brought an action in the Supreme Court of Victoria against the Aberfoyle Manufacturing Co. (Australia) Pty. Ltd. and John R. &E. Seccull Pty. Ltd. claiming an injunction to restrain the defendants, their servants and agents, from erecting or continuing to erect the factory in course of erection by the defendants on a piece of land in the City of Essendon adjoining on the north the plaintiff's premises, and an order that the defendants do forthwith pull down and remove SO much of the factory as had been erected on the land in question. This land was within an area within which a by-law of the City of Essendon prohibited the erection of such a factory. The council made a new by-law altering the boundaries of the residential area established…

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.

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Details

Case: [1935] HCA 75
Decision Date: 12 December 1935

CaseChat Overview and Summary

The case of *Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd* involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The appellant, Ellen Donaldson Ramsay, sought an injunction to restrain the respondent companies from erecting a factory on land adjacent to her property. The factory's construction contravened a municipal by-law prohibiting factories in that area. The Attorney-General of Victoria was subsequently added as a plaintiff, at the relation of Ramsay, to support the application for an interlocutory injunction.

The central legal issue before the High Court was whether an injunction could be granted to restrain the breach of a municipal by-law, particularly when the by-law itself prescribed penalties and a mechanism for demolition, and when the Attorney-General sought to enforce it on behalf of the public. The court was required to determine if the remedies provided within the by-law and the enabling legislation were exhaustive, thereby precluding equitable relief, and to consider the circumstances under which the Attorney-General could seek an injunction to enforce such a by-law.

A majority of the High Court, comprising Latham C.J., Rich, and McTiernan JJ., held that the interlocutory injunction was rightly refused. Latham C.J. reasoned that the legislation and the by-law established a comprehensive code of remedies intended by Parliament to be exhaustive, and that the general public interest in the observance of the law was insufficient, on its own, to justify an injunction at the suit of the Attorney-General. Rich J. found that the Supreme Court had exercised its discretion appropriately in refusing the injunction, notwithstanding the Attorney-General's involvement. McTiernan J. concluded that while the by-law affected public interests, the Attorney-General was not entitled to enforce it through an injunction, as the by-law did not create a specific public right for which such equitable relief was appropriate, beyond general welfare. Starke J. dissented, arguing that the by-law created a public right and that the prescribed remedies were not exclusive, thus allowing for an injunction at the suit of the Attorney-General.

The appeal was dismissed with costs.

Orders