Re BP Australia Ltd

[1993] QCA 150

IN THE COURT OF APPEAL	[1993] QCA 150
SUPREME COURT OF QUEENSLAND	Appeal No. 264 of 1992

Brisbane

[Temdale Pty Ltd & anor. v. Council of the City of Logan]

IN THE MATTER OF the Local Government

Act 1936-1991

- and -

IN THE MATTER OF an application by the Council of the City of Logan for the determination of the construction of section 35(23) of the Act

Between:

TEMDALE PTY LTD

First Appellant

- and -

BP AUSTRALIA LIMITED

Second Appellant

- and -

COUNCIL OF THE CITY OF LOGAN

Respondent

The President

Mr Justice Davies Mr Justice Pincus

Judgment delivered 29/04/93
Judgment of the Court
APPEAL COSTS FUND ACT 1973.

CATCHWORDS:	LOCAL GOVERNMENT - Road Closure - Construction of section 35(23) of the Local Government Act 1936-1991 - whether absence of necessary council resolution
Counsel:	D. Gore Q.C. for the appellants M. Wilson Q.C. for the respondent
Solicitors:	Sly and Weigall Cannan and Petersen for the appellants McCullogh Robertson for the respondent

Hearing Date: 21 April 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 264 of 1992
Brisbane
Before	The President Mr Justice Davies Mr Justice Pincus

[Temdale Pty Ltd & anor. v. Council of the City of Logan]

IN THE MATTER OF the Local Government

Act 1936-1991

- and -

IN THE MATTER OF an application by the Council of the City of Logan for the determination of the construction of section 35(23) of the Act

BETWEEN:

TEMDALE PTY LTD

First Appellant

- and -

BP AUSTRALIA LIMITED

Second Appellant

- and -

COUNCIL OF THE CITY OF LOGAN

Respondent

JUDGMENT OF THE COURT

Judgment delivered 29/04/93

This is an appeal from a declaratory judgment dealing with the
respondent's right to block traffic on a road, Leichhardt
Street, Woodridge, by erecting a permanent barrier across it.
The primary judge made a declaration in favour of the
respondent Council and it is unnecessary to set out its terms.

An unusual aspect of the case is that the evidence shows that the Council has not yet resolved to erect such a barrier, so that the effect of the declaration obtained is to sanction action which it has neither taken nor resolved to take. This feature of the matter was apparently not drawn to the attention of the primary judge, but it was the subject of considerable discussion in this Court. We were told that the Council in fact wishes to erect a barrier, but were not told how that state of mind was ascertained.

The statutory power on which the respondent relies to justify erection of a barrier is s. 35(23) of the Local Government Act 1936 and has been part of Queensland statute law since the Local Authorities Act 1902; its effect has never been determined. Read broadly, the provision gives what might seem an extraordinary power to local authorities to close any road within their respective areas to vehicular traffic, or to any other defined kind of traffic, without notice, without appeal, and permanently. Mr Gore Q.C., who appeared for the appellants, contended that the provision must be read narrowly, but whether or not that is so, we think that its precise effect is a question of some importance. The difficulty about the present case is that the Court is invited to determine its effect in relation to a proposal which is not yet precisely defined. It is our opinion that the Court's declaratory jurisdiction should not be exercised in such a case as this.

The terms of s. 35(23) are as follows:

"Temporary diversion of traffic. Whenever and so often as in the opinion of the Local Authority it is expedient for the proper execution of this Act so to do, the Local Authority may temporarily prohibit or divert all or any part of the public traffic upon or from any road or portion thereof, or upon or from any bridge or the approaches thereto:

Provided that the Local Authority shall, whenever it is practicable, give public notice in some newspaper of its intention so to do.

The Local Authority may close any road against all or any part of the public traffic during any temporary obstruction or danger to traffic, or whenever it may be necessary for any temporary purpose, and may prevent such traffic in or upon any road closed against traffic under the authority of this or any other Act.

The Local Authority may close any road or part of a road permanently or temporarily against any particular description of traffic, and may prevent such traffic in or upon any road so closed, provided that another road or route is available for such traffic in place of the road or part of the road so closed.”

It will be noted that the last sentence contemplates the taking of two steps to effect a closure, the first being the closure itself, and the second prevention of traffic in or upon the road so closed. There is no indication as to how the first step is intended to be effected, although as a matter of common sense one would expect the closure to be notified to the public in some fashion. That is not expressly required, but there must, as was conceded before us, at least be a resolution of the Council. The resolutions of the Council relevant to the matter need not be set out in detail, for it was common ground that none of them constituted a decision permanently to close Leichhardt Street.

The argument for the appellants attacked the decision below on a number of grounds, one of which was that the closure contemplated by the section cannot be the mere erection of a barrier allowing free access by all traffic to each and every part of the road, but must be rather an exclusion of traffic

from the whole or part of a road. It was suggested that this would not be effected by merely putting a barrier across a road such as Leichhardt Street, which is two-way and open at both ends. What the Council's proposal would do is, so Mr Gore argued, not a closure at all within the section.

The primary judge took a different view, describing the closure foreshadowed as being one which was -

“... correctly directed to traffic, that is, the movement of vehicles as distinct from vehicles, and it does not pretend to exclude any vehicles from any part of the road but only certain movements of vehicles."

Referring to the arguments advanced by the appellants, his
Honour said -

"They do not properly acknowledge that the closure to traffic referred to in the statute means a closure to the movement of vehicles, which may be achieved by the use of obstructions at one point in the road while the road may remain open to access by vehicles at all points."

His Honour had no resolution of the Council before him purporting to close a road, neither in the sense which he thought the section meant nor in any other sense; nor has any proposed resolution been formulated. The point assumes some little importance, for it appears that counsel for the respondent, Miss Wilson Q.C., did not dissent from Mr Gore's contention, set out above, as to the general effect of the provision. Miss Wilson submitted that, while there had to be a closure in the ordinary sense - i.e. a shutting off of traffic from the whole or a defined part of a road - one could defend closure by a barrier on the basis that it closed off the small strip of land under the barrier. Mr Gore replied to the effect that if that was done by a resolution he would raise another argument which it was not necessary to put below, namely that to close off that narrow strip, not for its own sake but to achieve the result that vehicular traffic could not pass right through the street, would not be an exercise of the power for the true statutory purpose.

It appeared from these arguments that, if any resolution closing the road is passed and it is framed in accordance with the contentions of counsel before us as to the general effect of the statute (and contrary to the primary judge's view of its effect), there may well arise for decision a question as to the nature and legality of the Council’s purpose. If it is put in some other way, different issues may have to be dealt with.

Another point as to the form of any resolution which might be passed has to do with the expression "any particular description of traffic" in the sub-section. Mr Gore said that the description contained in the learned primary judge's declaration, "vehicular traffic consisting of motor vehicles and horse drawn vehicles is too broad and general; he argued that the statute does not intend to permit the exclusion as is contemplated here, of all vehicular traffic. Were the Court to decide that issue in advance of the drawing of a resolution, its reasons might be of assistance to the Council in deciding on the form of the resolution and the particularity of the description of traffic in it; but there might well remain to be determined a contention with respect to the validity of the description finally settled upon.

At the inception of the appeal this Court drew attention to the absence of any resolution of the Council to effect such closure as was sought to be made the subject of this litigation. The appeal was heard in full in case it should appear appropriate to uphold the declaration made below, or make some other general declaration in anticipation of the Council's deciding permanently to close the road. The arguments advanced on the merits convinced us that it would be unwise for this Court to do either. The nature of the questions to be determined will depend upon precisely what the Council decides by resolution, if one is passed. Miss Wilson informed us that the Council resolved in October last year to bring these proceedings to determine the construction of the section. With all respect, that was not a convenient course, in the absence of any defined decision whose validity might be tested. It can be seen from Re The Trade Practices Act and Re Application by Tooth & Co. Ltd (1978) 19 A.L.R. 191 at 202 and at 207, 208 and from other cases that the jurisdiction to make a declaration may be exercised in advance of the occurrence of the facts to which it relates, but that is not always a proper way to proceed. Although we were urged by the parties to attempt to deal with the matter in its present state, we decline the invitation to do so as it seems to us plain, despite the helpful arguments put by both counsel, that the dispute has not yet matured sufficiently to enable the Court properly and finally to judge it. It is necessary to allow the appeal and set aside the orders made below.

There remains the question of costs. It seems fair not to make any order as to costs below; the parties concurred in the matter being placed before the judge in a premature way. The costs of the appeal are in a different position in that the appellants were entitled to come here to set aside the judge's orders although the ground on which the appeal has succeeded is not one put forward by the appellant. We did not understand Miss Wilson to resist an order for costs of the appeal, but she asked for an indemnity certificate under the Appeal Costs Fund Act 1973, and in our opinion that should be granted. The orders will therefore be: appeal allowed; the orders of the primary judge are set aside and in lieu thereof the originating summons is dismissed; the respondent is to pay the appellants' costs of the appeal to be taxed; the respondent is granted an indemnity certificate in respect of the appeal under the Appeal Costs Fund Act 1973.