Tavitian v Commissioner of Highways
[2010] SASC 206
•9 July 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Civil)
TAVITIAN v COMMISSIONER OF HIGHWAYS & ANOR
[2010] SASC 206
Judgment of The Honourable Justice Kourakis
9 July 2010
ADMINISTRATIVE LAW - JUDICIAL REVIEW - POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION - DECLARATIONS
HIGHWAYS - NEGLIGENCE AND NUISANCE - INTERFERENCE WITH RIGHTS OF USER AND ACCESS - INTERFERENCE WITH ACCESS TO AND FROM ADJOINING LAND
HIGHWAYS - STRUCTURES AND GATES
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - JURISDICTION AND GENERALLY
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - DECLARATIONS - JURISDICTION
Plaintiff challenges validity of recommendation made by first defendant that Governor proclaim a portion of highway – highway runs along boundary of plaintiff’s land – plaintiff claimed effect of proclamation was to close off a means of access from highway to his property – first defendant did not provide plaintiff with statutory notice of proposed proclamation – plaintiff did not bring proceedings challenging proclamation until over four years after proclamation made – plaintiff seeks declaratory relief – whether a means of access must be clearly visible – whether plaintiff’s means of access satisfies requirement of visibility – second defendant contends that plaintiff’s claim invokes court’s equitable jurisdiction – whether remedy should be denied by applying time limit prescribed by Rules of Court for judicial review of administrative action of six months by analogy because of similarity between plaintiff’s action and action for judicial review – plaintiff also claimed damages against second defendant for nuisance created by obstructing his access to highway – second defendant has not by any act or omission actually obstructed or threatened to obstruct plaintiff’s access – whether plaintiff’s nuisance claim succeeds.
Held: plaintiff’s claims dismissed – a means of access must be visible – requirement for visibility of means of access is satisfied if a reasonable bystander, standing stationary at the location in issue, would conclude that there was a means of access at that location – plaintiff’s means of access satisfies requirement for visibility – first defendant failed to fully discharge duty by not giving statutory notice to plaintiff – court’s power to grant declaratory relief is a statutory power and is discretionary – court is not obliged to apply the time limit for judicial review of administrative action of six months by analogy on equitable grounds, although the discretionary power to grant or refuse a declaration is ample to allow the plaintiff’s delay to be measured against that time limitation – having regard to delay, merits of claim and the consequences of making a declaration, plaintiff’s action for declaratory relief is dismissed on discretionary grounds despite first defendant’s failure to give statutory notice to plaintiff – plaintiff’s claim for nuisance also dismissed because the making of the proclamation could not of itself sound in damages and the plaintiff has not proven any conduct that amounts to a nuisance or obstruction of his proprietary rights.
Acts Interpretation Act 1915 s 13; Highways Act 1926 s 7, s 30A; Supreme Court Act 1935 s 17, s 31; Supreme Court Civil Rules 2006 r 199, r 200, referred to.
Chapman v Michaelson [1909] 1 Ch 238; Ibeneweka v Egbuna [1964] 1 WLR 219; Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; Hogg v Scott [1947] 1 KB 759, applied.
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, distinguished.
Baker v Duke Group Ltd (in liq) (2005) 91 SASR 167; Duke Group Ltd (in liq) v Alamain Investments Ltd (2003) 232 LSJS 58; Tito v Waddell (No 2) [1977] Ch 106; Attorney-General v Huber (1971) 2 SASR 142, discussed.
Downs v Williams (1971) 126 CLR 61; Earl of Oxford’s Case (1615) 1 Rep Ch 1; 21 ER 485; Gee v Pritchard (1818) 2 Swans 402; 36 ER 670; Batemans’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; Cooney v The Council of the Municipality of Ku-ring-gai (1963) 114 CLR 582; Langman v Handover (1929) 43 CLR 334; Mayfair Trading Co Pty Ltd v Dreyer (1958) 101 CLR 428; AWB Ltd v Cole (2006) 233 ALR 453; H Stanke & Sons v O’Meara (2007) 98 SASR 450; Hall v City of Burnside and Ors (No 9) [2008] SASC 361; Ilic v The City of Adelaide [2010] SASC 139; Pidoto v Victoria (1943) 68 CLR 87, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"means of access"
TAVITIAN v COMMISSIONER OF HIGHWAYS & ANOR
[2010] SASC 206Land and Valuation Division: Civil
KOURAKIS J: The plaintiff in these proceedings, Mr Tavitian, challenges the validity of a recommendation made by the defendant, the Commissioner of Highways (the Commissioner), that the Governor proclaim a portion of Sturt Highway which runs along one of the boundaries of land owned by Mr Tavitian in the hundred of Nuriootpa (the Nuriootpa land). The Nuriootpa land runs along the eastern verge of the Sturt Highway between Gawler and Nuriootpa. It is bounded by Kingsford Road to the south and Gomersal Road to the north. Mr Tavitian seeks a declaration that the proclamation of the Governor, made on the Commissioner’s recommendation, that that part of the Sturt Highway be a controlled access road is unlawful and invalid.
Mr Tavitian contends that the recommendation and subsequent gubernatorial proclamation are invalid because the effect of the proclamation was to close off a means of access from Sturt Highway to his property. That means of access comprised a form of gate, which I shall describe in these reasons as a wire gate, at a point in the fence line of his property where vehicles could travel across the verge which mediates the Sturt Highway from the Nuriootpa land. Pursuant to the provisions of the Highways Act 1926 (the Act), the Commissioner was required to give landowners who enjoyed a means of access 30 days written notice of the proposed proclamation and invite them to make submissions on it. It is common ground that the Commissioner did not give Mr Tavitian that notice.
The proclamation was made on 17 July 2003. The plaintiff did not bring proceedings challenging the proclamation until 14 November 2007, over four years after it was made. Counsel for the Commissioner and the State of South Australia (jointly referred to hereinafter as the State) submits that the plaintiff’s claim should be dismissed by reason of that delay. The making of a declaration is discretionary and, in the proper exercise of that discretion, the order may be refused on the grounds of undue delay. In my view, the State’s submission should be accepted because there is insufficient explanation for what is a very long delay, during which time an order made at the highest level of government and with important public consequences has been left to stand. I so determine even though I find that Mr Tavitian did have a means of access from the Sturt Highway to his property and that Mr Tavitian was therefore denied his statutory right to make submissions given by s 30A(2)(a) of the Act. In my view, the injustice to Mr Tavitian arising from that failure is outweighed by the public interest considerations to which I have just referred. I develop my reasons for so finding below.
Mr Tavitian also claims damages against the State for nuisance caused by obstructing his access to the Sturt Highway. I dismiss that claim because the State has not, by any act or omission, obstructed or threatened to obstruct Mr Tavitian’s access. The proclamation itself, if invalid, is ineffective and does not obstruct Mr Tavitian’s access. The State has not physically obstructed the access or threatened to take any action against Mr Tavitian if he should continue to use the access. I explain my reasons for dismissing this claim in further detail below.
A means of access to the Nuriootpa land
A “means of access” is defined by s 7 of the Act in this way:
means of access in relation to land abutting a road, means the travelled way, path or crossover leading from the edge of the vehicular carriageway of the road to any part of the boundary of that land from which access can be had to that land and includes the earth, formation, paving and structures or other surfaces together with any gate, structure or supports appurtenant thereto.
In my view, the adjective “travelled” qualifies only the noun “way”. The noun “way”, if left unqualified, would mean no more than that it was possible to gain access from the highway to the abutting land. Such a definition of a means of access would strain the ordinary meaning of that phrase and would create significant tensions in the application of the phrase in the various provisions of the Act in which it appears. A “path”, on the other hand, means a way beaten or trodden by the feet of people or animals and, for that reason, need not be qualified by the word “travelled”.[1] In my view, however, the use of the adjective “travelled” and the meaning of the noun “path” do not imply any minimum requirements in the frequency or regularity of the use of the travelled way or path. For so long as the travelled way or path has in fact been used to take access to abutting land and has not been abandoned, it remains a means of access within the definition.
[1] It is not necessary to consider the precise meaning of the word “crossover” in the context of this case.
I accept the State’s submission that a means of access must be visible. The State correctly points out that so much is necessarily implied, if indeed it is not an inherent aspect of the concept of a means of access, by the requirement that the Commissioner give landowners who enjoy a means of access notice of a proposed proclamation to control that access. The notice can hardly be given if the means of access is invisible.
However, from that foundation the State mounts a submission that the means of access must be clearly visible to someone travelling along the highway. In my view, acceptance of the proposition that the means of access must be visible and not hidden does not imply anything further about how obvious it should be to passing traffic. Indeed, such a test would significantly undermine the procedural rights accorded to land owners by the Act.
Controlled access roads will often be declared on roads that run through significant tracts of farming land in the South Australian countryside. South Australian farms are often fenced with cyclone wire topped with one or two strands of barbed wire. The wire is strung between substantial wooden or concrete bearer posts which hold much of the tension of the fence. Between the bearer posts fences are usually reinforced with fabricated steel stakes, known commonly as droppers, which are hammered into the ground. Access to the paddocks of South Australian farms is sometimes taken through swinging steel gates mounted along the fence line. However, not uncommonly, access is obtained through wire gates.[2] Wire gates consist of no more than a section of fencing of the sort that I have described attached to one or more droppers. The gate is formed by making provision for the fencing dropper at the leading edge of the wire gate to be attached to a bearer post. When shut, a wire gate is not readily distinguishable from the fence itself and may not be noticed from a moving car. In other rural settings, farming properties may not be fenced at all and a means of access from a highway may be even more difficult to identify.
[2] Such gates are also sometimes referred to as “bogan” or “back-o-beyond” gates.
Access from a highway or road is very important for many farming operations. It may be used to bring machinery on to the farm to sow or harvest crops or to move livestock from one paddock to another. A farmer with a means of access which is not as obvious as those in an urban setting is no less entitled to the protection of the statutory scheme than town residents. In my view, the requirement of “visibility” is satisfied if a reasonable bystander, standing at the location in issue, would conclude from his or her observations that there was a means of access at that location.
Mr Tavitian gave evidence that there was a wire gate in the fence of his property through which he, albeit infrequently, took access from the Sturt Highway. The primary purpose was to water a stand of trees he had planted. The State accepts that there was a wire gate in the fence and does not dispute that Mr Tavitian, on occasion, took access to the Nuriootpa land through it. However, the State contends that the means of access may not always have been apparent to casual or even careful observation. In particular, it emphasised that if the wire gate was not attached to the bearer, and was instead left to lay on the ground, an observer might conclude only that there was no more than a gap in the fence. I do not accept that submission. The reasonable bystander should be credited with a knowledge of the varied forms that gates to rural properties take, an appreciation that a gap in the fence may be due to the wire fence being left on the ground and sufficient diligence to conduct a close inspection of the fence line. I am satisfied that, whether the wire gate was on the ground or attached, a reasonable bystander, on observing the configuration of the fence, would conclude that there was a wire gate and a means of access at that point.
It follows that the Commissioner failed to fully discharge his duty by not giving the statutory notice to Mr Tavitian.
The declaration sought by the plaintiff
In my view, the declaration sought by Mr Tavitian will have no different effect to an order in the nature of certiorari which he could have sought in proceedings brought pursuant to r 199 and r 200 of the Supreme Court Rules 2006 (the Rules).
I shall deal with Mr Tavitian’s claim for damages more fully commencing at [84], but it is convenient to explain immediately why it can be put to one side on the question of whether a declaration should be made. If the written proclamation were valid, Mr Tavitian’s claim for nuisance would fail and he would not be entitled to damages or a declaration that it was ineffective. Leaving aside for now misfeasance in public office, which has not been claimed, no action for damages lies against the taking of administrative action which is ineffective at law. If the Commissioner had taken steps pursuant to an invalid and therefore ineffective proclamation, such as erecting a barrier across the claimed access, Mr Tavitian could have brought an action for obstruction of his right to access to the highway. However, no such steps were taken by the Commissioner. It follows that, on either view of the validity of the proclamation, a declaration would serve no purpose in the nuisance claim.
A summons for judicial review brought pursuant to r 199 and r 200 must be issued as soon as reasonably practicable and no later than six months after the impugned administrative action was made. The State contends that the jurisdiction I am exercising, at least in dealing with Mr Tavitian’s claim, is equitable and that I should apply the limitation in r 200 by analogy.
Equitable remedies may be denied on the ground that a statutory time limit should be applied by analogy because of a similarity between the equitable cause of action and an action which is subject to the statutory limitation. In Baker v Duke Group Ltd (in liq),[3] the circumstances in which a time limitation may be applied by analogy were explained in Perry J in the following terms:
[82] [I]f there is no statutory limitation which applies to the equitable right in question, the court may take the view that the equitable right is so similar to a legal right to which a statutory limitation period is applicable, that a similar limitation period should be applied to the enforcement of the equitable right.
[83] In such cases, the limitation period is said to be applied by analogy. Application of the principle is limited to cases where there is a ‘sufficiently close similarity between the exclusive equitable right in question and the legal rights to which the statutory provision applies’.
[84] However, a court will not apply a statutory period of limitation by analogy, if in the circumstances of the case it would be unjust to do so.[4]
[3] (2005) 91 SASR 167.
[4] Baker v Duke Group Ltd (in liq) (2005) 91 SASR 167 at 176 [82]-[84] per Perry J, Duggan and White JJ agreeing.
His Honour said later in his reasons:
[142] The relevant principles in considering the presence of laches are clearly established. There must be unreasonable delay in the institution of the proceedings and it must be established that by reason of the delay there has been such a substantial detriment to the defendant as to render it unjust to allow the claim to be prosecuted.[5]
[5] Baker v Duke Group Ltd (in liq) (2005) 91 SASR 167 at 184 [142].
In Duke Group Ltd (in liq) v Alamain Investments Ltd,[6] Doyle CJ explained:
[I]n each case the Court took a fairly broad approach to the question. It gave considerable weight to the point that the facts relied on would support the common law and equitable claims. It seems not greatly concerned with distinctions between the causes of action. I agree that the application of a time limit by analogy cannot depend on a minute comparison between the claim in equity and the claim that is said to be similar and is said to be statute barred. It is to be expected that there will always be differences in the elements of the claim in equity and the claim which is said to be statute barred. However, differences in the elements of the respective causes of action must be relevant, and possibly significant.[7]
[6] (2003) 232 LSJS 58 (this was the decision at first instance that was appealed against in Baker v Duke Group Ltd (in liq) (2005) 91 SASR 167).
[7] Duke Group Ltd (in liq) v Alamain Investments Ltd (2003) 232 LSJS 58 at 78 [130], referring with approval at 77-8 [128]-[129] to the decisions of Couthard v Disco Mix Club Ltd [2001] 1 WLR 707 (“It would have been a blot on our jurisprudence if those selfsame facts give rise to a time bar in the common law courts but none in a court of equity”: at 730); and Cia de Seguros Imperio v Health(REBX) Ltd [2001] 1 WLR 112.
The State contends that the declaration Mr Tavitian seeks is similar to the declarations made in the “supervisory” equitable jurisdiction of both the Court of Exchequer and the Court of Chancery. From that foundation, it argues that the declaration sought by Mr Tavitian is an equitable remedy which is subject to equitable principles. That contention must rest on the premise that the statutory conferral of a power to make declarations in s 31 of the Supreme Court Act 1935 carries with it the principles which guided the exercise of the inherent power to make declarations enjoyed by those courts before the nineteenth century judicial reforms and that those principles include the application, by analogy, of statutory and common law time limits.
The short and perhaps soundest answer to that contention is that the statutory grant of a facultative power to make declarations should not be narrowed or burdened by the obscure historical practices of courts which ceased to have a separate existence well over a century ago. However, in deference to the submission of the State I shall attempt to answer it on its terms.
I do not accept that there is any analogy between the jurisdiction invoked by Mr Tavitian and the Court of Exchequer’s equitable jurisdiction, but I do accept that there is some similarity between the jurisdiction invoked by Mr Tavitian and aspects of the jurisdiction of the Court of Chancery. However, in my view it is important to distinguish between the nature of a declaration as a remedy and the substantive law applied by the courts which were empowered to make them. It is not always easy to do so because the substantive principles of Anglo-Australian law were often initially “secreted in the interstices of procedure”.[8] Whether the epithet “equitable” or “statutory” is used to describe the declaratory remedy, the principles which guide the court in making or withholding the remedy must depend on the source of the power it is exercising and the substantive principles of law which are applicable to the cause of action in which it is sought. In my view, s 31 of the Supreme Court Act 1935 is the only source of power this Court has to make the declaration sought in this action. That power is neither expressly nor impliedly hedged by reference to equitable principles. Furthermore, this action is not brought in the equitable jurisdiction of this Court, or at least does not fall exclusively within that jurisdiction, and I am therefore not bound to apply equitable principles.
[8] Downs v Williams (1971) 126 CLR 61 at 83 per Windeyer J.
Nonetheless, the discretionary power to grant or refuse a declaration is ample to allow the delay of Mr Tavitian to be measured against those time limitations imposed by r 200(2). I give my reasons for so concluding below.
Jurisdiction of the Court of Exchequer
The Court of Exchequer developed as a separate organisation over the course of the twelfth century and is said to be the earliest department of State to achieve a separate existence.[9] In the thirteenth century, the judicial side of the Exchequer was beginning to be more definitely separated from the administrative side.[10] The Court of Exchequer retained a close connection with the other of the King’s Courts. The King sometimes sat in the Exchequer and it was usually stationed at Westminster, although it sometimes followed the peripatetic path of the other of the King’s Courts. From the time of Edward II, some of the Barons of the Exchequer were lawyers and, by 1579, they were all appointed from amongst the Sergeants at Law.[11] Judges of the Exchequer and Chancery sometimes met to discuss difficult legal points.[12]
[9] WS Holdsworth KC, A History of English Law (3rd ed, 1922) vol I at 231.
[10] WS Holdsworth KC, A History of English Law (3rd ed, 1922) vol I at 231-2.
[11] WS Holdsworth KC, A History of English Law (3rd ed, 1922) vol I at 235-7.
[12] WS Holdsworth KC, A History of English Law (3rd ed, 1922) vol I at 233.
The Court of Exchequer was a court of revenue which decided fiscal disputes between the Crown and its subjects. It also had an exclusive common law jurisdiction over its own officials. Over time it developed a wider common law jurisdiction, the edifice of which was built on the fiction that a plaintiff who wished to sue for breach of contract or other injury was supposed to be a debtor to the Crown. It was then supposed that, unless he could recover his debt or damages, he was the less able to satisfy his Crown debt.[13]
[13] WS Holdsworth KC, A History of English Law (3rd ed, 1922) vol I at 240.
The equitable jurisdiction of the Court of Exchequer was limited. It could not interfere in cases which were before Chancery. The fact that the Court had both an equitable and a common law jurisdiction enabled it to take account of both the legal and the equitable rights of parties in cases where it was claimed either that an injunction against suing at law should be granted or that there was no ground for equitable interference with the law because legal remedies sufficed.[14] However, importantly for the purposes of this case, equitable relief against the Crown could be given by the Court of Exchequer by proceedings brought against the Attorney-General without adopting the Petition of Right procedure.[15]
[14] WS Holdsworth KC, A History of English Law (3rd ed, 1922) vol I at 565-6.
[15] WS Holdsworth KC, A History of English Law (1926) vol IX at 30-1.
Over time, the jurisdiction of the Court of Exchequer came to be limited almost entirely to revenue cases.[16] The Exchequer’s equitable jurisdiction was finally taken away in 1842 and given to the Court of Chancery,[17] with which it had shared the historical association to which I have referred.
[16] WS Holdsworth KC, A History of English Law (3rd ed, 1922) vol I at 234.
[17] WS Holdsworth KC, A History of English Law (3rd ed, 1922) vol I at 241-2.
In my view, the jurisdiction of the Court of Exchequer was essentially civil in nature, even though the civil claims on which it adjudicated implicated the Sovereign. It did not have jurisdiction over matters of public law which bear any substantial similarity to Mr Tavitian’s claim.
In Tito v Waddell (No 2),[18] Sir Robert Megarry V-C stated the following propositions concerning the Court of Exchequer’s jurisdiction to make declarations:
·The Court of Exchequer, in its equity jurisdiction, could grant declarations against the Crown in proceedings brought against the Attorney-General.
·The power to make declarations against the Crown passed to the Court of Chancery when the Exchequer jurisdiction was transferred to it in 1841 and transferred to the Supreme Court pursuant to the Judicature Act 1873.
·The jurisdiction of the Court of Exchequer was independent of proceedings by Petition of Right.
·The jurisdiction extended beyond declarations as to the validity of documents or other action and included declarations as to property rights.[19]
[18] [1977] Ch 106.
[19] Tito v Waddell (No 2) [1977] Ch 106 at 256H-257D per Megarry V-C.
It must be remembered that the making of declarations by the Court of Exchequer merely reflected the principle that no mandatory orders could be made against the Crown.[20]
[20] Hodge v The Attorney-General (1839) 3 Y & C Ex 342; 160 ER 734; PW Young QC, Declaratory Orders (2nd ed, 1984) at [302]; Kanaga Dharmananda & Anthony Papamatheos (eds), Perspectives on Declaratory Relief (2009) at 59-60; I Zamir, The Declaratory Judgment (1962) at 17-19, 187-190.
Jurisdiction of the Court of Chancery
The jurisdiction of the Court of Chancery fell into three divisions; the common law jurisdiction, the equitable jurisdiction and other miscellaneous branches of jurisdiction.[21]
[21] WS Holdsworth KC, A History of English Law (3rd ed, 1922) vol I at 446.
The equitable jurisdiction of the Court of Chancery arose out of the recognition “[t]hat it is impossible to make any general Law which may aptly meet with every particular Act, and not fail in some circumstances”.[22] It was the jurisdiction commonly invoked to restrain parties enforcing their statutory and common law rights where it would have been unconscionable to do so.
[22] Earl of Oxford’s Case (1615) 1 Rep Ch 1 at 6; 21 ER 485 at 486 per Lord Ellesmere LC.
By the time of the Judicature Act reforms, the jurisdiction of the Court of Chancery included jurisdiction over equitable forms of property and deceased estates. In contract matters, Chancery provided the remedies of injunction, specific performance and relief against forfeiture. It assisted the administration of legal actions by making orders in the nature of discovery. Chancery also gave its protection to vulnerable persons.[23]
[23] R Meagher, D Heydon, M Leeming, Meagher, Gummow & Lehane’s Equity Doctrines & Remedies (4th ed, 2002) at [1-075]; WS Holdsworth KC, A History of English Law (3rd ed, 1922) vol I at 466-7.
Chancery’s common law jurisdiction included proceedings initiated by the writ of scire facias to repeal letters patent or other instruments and cases where the King or a grantee of the King was concerned. Proceedings challenging the seizure of property by the Crown were also brought in Chancery.[24] Chancery also had a common law jurisdiction in actions brought against officers of the Court.
[24] See the discussion of the remedy of monstrans de droit in WS Holdsworth KC, A History of English Law (1926) vol IX at 25-6.
The Petition of Right, by which relief from a wrong committed by the Crown was sought, if endorsed with the fiat “Let justice be done”, resulted in proceedings in the common law jurisdiction of Chancery.[25] The Court of Chancery would resolve the common law claims brought before it by the Petition of Right procedure by making a declaration because no mandatory order could be made against the Crown. Until the nineteenth century, it seems to have been accepted that the Court of Chancery could not, without a Petition of Right, give the equitable relief which the Court of Exchequer could give in an action brought against the Attorney-General. However, on the basis of some judicial statements attributing the Court of Exchequer’s power to the very nature of its equitable jurisdiction, and because of a confusion of procedures between the hearing of a Petition of Right and claims for equitable relief, it came to be accepted that proceedings against the Attorney-General for equitable relief against the Crown could be brought in Chancery.[26]
[25] WS Holdsworth KC, A History of English Law (1926) vol IX at 16-17.
[26] Dyson v Attorney-General [1911] 1 KB 410 at 415-6 per Cozens-Hardy MR; WS Holdsworth KC, A History of English Law (1926) vol IX at 31; The Hon EM Heenan, "History of Declaratory Relief – A Distinct Remedy Beyond Equitable Affiliations" in Kanaga Dharmananda & Anthony Papamatheos (eds), Perspectives on Declaratory Relief (2009) 51 at 55-7;Grant Donaldson SC, "Discretion in Declaratory Relief" in Kanaga Dharmananda & Anthony Papamatheos (eds), Perspectives on Declaratory Relief (2009) 122 at 124-8.
The public law jurisdiction of Chancery was mixed. From the middle ages, the Chancellor had a special jurisdiction to punish the misdemeanours of Sheriffs and other officers “and to enforce the statutes against those who sued at Rome in respect of matters cognisable in the King’s courts”.[27]
[27] WS Holdsworth KC, A History of English Law (3rd ed, 1922) vol I at 469.
Chancery also had a public law jurisdiction which was described by Bray CJ in Attorney-General v Huber.[28] In Huber, Bray CJ observed that injunctions had in recent time been issued to restrain the commission of summary offences and breaches of by-laws. Bray CJ explained that, before the Common Law Procedure Act 1854, the view was taken that a common law court could not grant injunctions to restrain libels because it could not grant an injunction at all and that Chancery could not grant injunctions to restrain libels because it had no power to try them.[29] He referred to a number of nineteenth century cases where, following those reforms, injunctions had been made to enjoin conduct which would interfere with public health and the orderly arrangement of municipal areas.[30] Bray CJ said of those cases that they concerned a type of interest which had for centuries been protected by courts of equity.[31]
[28] Attorney-General v Huber (1971) 2 SASR 142 at 159-61.
[29] Lord Eldon LC said in Gee v Pritchard, speaking of his power to grant an injunction: “The publication of a libel is a crime; and I have no jurisdiction to prevent the commission of crimes” (Gee v Pritchard (1818) 2 Swans 402 at 413; 36 ER 670 at 674). See also Bonnard v Perryman [1891] 2 Ch 269.
[30] Attorney-General v Huber (1971) 2 SASR 142 at 161-2.
[31] See also Attorney-General v Huber (1971) 2 SASR 142 at 162; R Meagher, D Heydon, M Leeming, Meagher, Gummow & Lehane’s Equity Doctrines & Remedies (4th ed, 2002) at [21-005]-[21-010].
This public law jurisdiction of Chancery developed in response to the non-existence or inadequacy of machinery in the common law courts. Its origin was the Court’s jurisdiction to grant injunctions against the commission of wrongful acts.[32] Chancery’s jurisdiction was, to some extent at least, based on the “privilege of the Attorney-General acting on behalf of the public, to [come into the Court of Chancery] even for a legal demand”.[33] Chancery would also grant an injunction at the suit of the Attorney-General to prevent a public nuisance or public harm which might result from a breach of statutory duty.[34] The development of this jurisdiction is discussed in the judgment of Gaudron, Gummow and Kirby JJ in Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd.[35]
[32] See WS Holdsworth KC, A History of English Law (3rd ed, 1922) vol I at 406, 466; (3rd ed, 1922) vol II at 246-8; (1924) vol V at 287-8, 289-90.
[33] Attorney-General v Mayor, &c, of Galway (1829) 1 Molloy 95 at 103, cited in Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 257-8 [26] per Gaudron, Gummow and Kirby JJ.
[34] Attorney-General v The Oxford, Worcester and Wolverhampton Railway Co (1862) 7 Hurl & N 840; 158 ER 707; Attorney-General v Shrewsbury (Kingsland) Bridge Co (1882) 21 Ch D 752; Attorney-General v Sharp [1931] Ch 121; Attorney-General v Harris [1961] 1 QB 74; Cooney v The Council of the Municipality of Ku-ring-gai (1963) 114 CLR 582 at 604-5.
[35] (1998) 194 CLR 247 at 258-9 [28]-[30] per Gaudron, Gummow and Kirby JJ.
In Corporation of the City of Enfield v Development Assessment Commission,[36] the jurisdiction invoked by that action was described in these terms:
No such common law action was an issue in this litigation. Nor was the proceeding instituted by Enfield one to which r 98 of the Rules applied. The jurisdiction of the Supreme Court which Enfield invoked was its jurisdiction as a court of equity to grant equitable relief to restrain apprehended breaches of the law and to declare rights and obligations in respect thereto.[37]
[36] (2000) 199 CLR 135.
[37] Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 144 [18] per Gleeson CJ, Gummow, Kirby and Hayne JJ.
Enfield was a planning case in which a municipal council sought a declaration that its concurrence was necessary before a development could proceed and that the purported approval by the Development Assessment Commission was invalid. In my respectful opinion, the passage cited above draws attention to the analogy between building developments undertaken without lawful approval and the public jurisdiction to enjoin mischief and nuisances which the Court of Chancery historically enjoyed. The later reference to Cooney v The Council of the Municipality of Ku-ring-gai[38] shows that it is that equitable jurisdiction to which the passage refers. It must also be remembered that the passage appears in that part of the explanation given in the plurality reasons for holding that the procedural rules applicable to judicial review proceedings did not apply to Enfield’s application.
[38] (1963) 114 CLR 582.
It was always the practice of Chancery as a preliminary to granting relief to recite, by way of declarations, its findings of the rights and obligations to which the parties before it were bound. Such declarations were made, for example, in its testamentary jurisdiction, in the construction of deeds and in its supervision of the administration of trusts. Declarations were also made in Chancery’s jurisdiction to determine the competing claims of adjoining owners of land in cases where common boundaries were disputed. However, in all such cases the declaration was coupled with a grant of special relief which effectuated the right so declared.[39]
[39] PW Young QC, Declaratory Orders (2nd ed, 1984) at [303]; R Meagher, D Heydon, M Leeming, Meagher, Gummow & Lehane’s Equity Doctrines & Remedies (4th ed, 2002) at [19-010]; I Zamir, The Declaratory Judgment (1962) at 7-9.
The non-statutory powers and practice of Chancery before the Chancery Procedures Act 1852 to make declarations independently of any other relief has been much debated but is of little contemporary significance. The power conferred by that Act on the Court of Chancery to make declarations of right without granting consequential relief has generally been conferred on all superior courts in England and Australia from the time of the Judicature Act reforms.
It is not necessary to discuss here the debate as to whether several isolated cases determined before the statutory conferral of power to do so, in which stand alone declarations appear to have been made, demonstrate the existence of a similar inherent power.[40] What is of present importance is that I know of no case brought in the Court of Chancery before 1852 in which a stand alone declaration was made that an administrative act was invalid.
[40] R Meagher, D Heydon, M Leeming, Meagher, Gummow & Lehane’s Equity Doctrines & Remedies (4th ed, 2002) at [19-010]; Kanaga Dharmananda & Anthony Papamatheos (eds), Perspectives on Declaratory Relief (2009) at 58; PW Young QC, Declaratory Orders (2nd ed, 1984) at [303]; I Zamir, The Declaratory Judgment (1962) at 7-8.
The State contends that there are two distinct equitable jurisdictions which it describes as the “original” and “supervisory” jurisdictions in which Chancery and the Court of Exchequer would grant declarations. In this respect, the State relies on the following passage from Meagher, Gummow & Lehane’s Equity Doctrines and Remedies:
There was always an historical difference between general declarations made by the Court in the course of litigation between private parties (that is declarations made in the so called ‘original’ jurisdiction) on the one hand, and declarations made by the court in litigation between the Crown and a private party (that is declarations made in the so called ‘supervisory’ jurisdiction) on the other hand.[41]
[41] R Meagher, D Heydon, M Leeming, Meagher, Gummow & Lehane’s Equity Doctrines & Remedies (4th ed, 2002) at [19-005].
As I understand the State’s submission, the declarations made by the Court of Exchequer are included in what the authors describe as Chancery’s “supervisory” jurisdiction. However, the declarations made by the Court of Exchequer in disputes between the Crown and its subjects over their property and fiscal rights is discussed by the authors as falling within the original jurisdiction to make declarations.[42] It is only after the discussion of the Court of Exchequer’s jurisdiction to grant declarations against the Crown that the authors turn to declarations made in the “supervisory jurisdiction”, saying:
However, so far, declaratory relief has been examined only in its original jurisdiction. There is also a supervisory aspect of declaratory relief, deriving ultimately from the ancient remedies granted against the Crown.[43]
[42] R Meagher, D Heydon, M Leeming, Meagher, Gummow & Lehane’s Equity Doctrines & Remedies (4th ed, 2002) at [19-030].
[43] R Meagher, D Heydon, M Leeming, Meagher, Gummow & Lehane’s Equity Doctrines & Remedies (4th ed, 2002) at [19-080].
The ancient remedies to which the authors refer are, I think, injunctions to prevent public mischiefs, such as those discussed in Huber, and perhaps the writs of habeas corpus and mainprize, over which both the Court of Chancery and the Court of King’s Bench had jurisdiction. It may also be a reference to the ancient remedies given by common law courts. The authors then proceed to discuss cases which were decided after the Judicature Act reforms where declarations have been given as to the validity of statutes, administrative acts, regulations and by-laws. The authors include in the supervisory jurisdiction category the cases collected in Zamir’s text The Declaratory Judgment. Those cases were also brought after the Judicature Act reforms. Zamir introduces his discussion of those cases in a way which suggests that the supervisory jurisdiction to which he refers developed after those reforms even though the derivation of the jurisdiction to rule on the validity of the acts of the Crown is undoubtedly ancient:
The role of the declaratory judgment as a supervisory remedy will now be considered. Review of administrative action by way of declaratory proceedings has been the main device developed by the courts to overcome the deficiencies of the traditional supervisory remedies, ie, the prerogative orders. As Lord Parker, the Lord Chief Justice, explained:
The very limitation in scope of the prerogative orders, in the face of the growing complexity of administration, has called into service that traditional genius for the development of procedures and remedies which has given English law its preculiarly virile character. Indeed, whether regard is had to the development by Mediaeval lawyers of case and assumpsit as general remedies in tort and contract, or the recent development of the declaration as a remedy in administrative law, the compelling fact which emerges is the paramount absorption of English courts with the problem of giving access to the courts, rather than in the enunciation of general heads of liability, or a general jurisprudence for decision.[44] (underlining added, footnotes omitted)
[44] I Zamir, The Declaratory Judgment (1962) at 149.
Jurisdiction of the Court of King’s Bench
The Court of King’s Bench had a jurisdiction over common law actions, which it shared with the Court of Common Pleas, and a jurisdiction in criminal matters.
However, the jurisdiction which is of present importance is its public law jurisdiction. The Court of King’s Bench shared with the Council[45] superintendence over the due observance of the law by officials and others. This supervision developed into the jurisdictions initiated by the writ of error and the prerogative writs.
[45] A body comprising the highest Ministers of the Crown (WS Holdsworth KC, A History of English Law (3rd ed, 1922) vol I at 483) and later both peers and commoners selected by the King (at 492), which later led to the establishment of the Star Chamber (at 501). Later again it developed into the Privy Council (at 516).
A similar supervisory jurisdiction, which was exercised by both the King’s Bench and Chancery, was initiated by the writs of mainprize and habeas corpus.[46] During the fifteenth century, the writ of habeas corpus was used in both Chancery and the King’s Bench as an accompaniment to the writ of certiorari and was used to supervise and defeat the proceedings of inferior courts.[47] Ultimately, the writ of habeas corpus was used by the common law courts in their struggle for superiority with Chancery.[48]
[46] WS Holdsworth KC, A History of English Law (1926) vol IX at 104-8.
[47] WS Holdsworth KC, A History of English Law (1926) vol IX at 109-10.
[48] WS Holdsworth KC, A History of English Law (1926) vol IX at 110-11.
Even though in times long past relief given by the common law courts was sometimes “declared”, there is no historical precedent of an order which is in anyway analogous to the declarations made in Chancery or the Exchequer.[49] However, from 1883 the power to give declarations of right without consequential relief was conferred on all of the divisions of the High Court of England.
[49] Grant Donaldson SC, "Discretion in Declaratory Relief" in Kanaga Dharmananda & Anthony Papamatheos (eds), Perspectives on Declaratory Relief (2009) 122.
Jurisdiction invoked by this action
It is important to differentiate the questions of jurisdiction and power. Section 17 of the Supreme Court Act 1935 confers on this Court the jurisdictions enjoyed by the superior courts of England before the passing of the Judicature Act. It provides:
(2) There shall be vested in the court—
(a) the like jurisdiction, in and for the State, as was formerly vested in, or capable of being exercised by, all or any of the courts in England, following:
(i)The High Court of Chancery, both as a common law court and as a court of equity:
(ii)The Court of Queen’s Bench:
(iii)The Court of Common Pleas at Westminster:
(iv)The Court of Exchequer both as a court of revenue and as a court of common law:
(v)The courts created by commissions of assize:
(b) such other jurisdiction, whether original or appellate, as is vested in, or capable of being exercised by the court:
(c) such other jurisdiction as is in this Act conferred upon the court.
In this case, the jurisdiction of the Court invoked by Mr Tavitian’s action is a common law one insofar as he brought an action for nuisance. Quite apart from that aspect of Mr Tavitian’s claim, the jurisdiction he invoked is, in my view, more aptly described as the supervisory jurisdiction of the Court of King’s Bench to adjudicate on the validity the administrative acts of public officials.
The action is not brought to prevent a public wrong as was the case in Enfield. It seeks the declaration of the invalidity of the proclamation so that Mr Tavitian can exercise his private property rights without fear of prosecution.
The equitable principle that common law or statutory time limits will be applied to analogous equitable claims has no ready application to a claim for a stand alone declaration brought in the supervisory jurisdiction of this Court.
The declaratory power
Section 31 of the Supreme Court Act 1935 confers on this Court the power to grant declarations in all cases in which it has jurisdiction without any common law or equitable restriction on the circumstances on which such declarations should be granted. It provides:
No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court shall have power to make binding declarations of right whether any consequential relief is or could be claimed or not.
In my view, there are three principal reasons that declarations are often referred to as equitable relief. First, because of the practice of Chancery to make declarations before granting other relief and because Chancery was the first to receive the statutory grant of power to make declarations independently of other relief. Secondly, because of the discretionary nature of the relief. Thirdly, to draw an analogy between the approach of Chancery to regulating fiduciary powers and the approach of the common law in regulating the exercise of public power.[50]
[50] Bateman’s Bay Local Aboriginal Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 257 [24]-[25] per Gaudron, Gummow and Kirby JJ; Egan v Willis (1998) 195 CLR 424 at 438-9 [5] per Gaudron, Gummow and Hayne JJ.
However, once the question of jurisdiction is distinguished from the question of power, the approach to the power given by s 31 of the Supreme Court Act 1935 is, in my view, properly described in the line of authorities identified in the submissions of counsel for the State commencing with the case of Chapman v Michaelson,[51] in which Farwell LJ said:
[Y]ou cannot now have recourse to the old equitable practice to explain, and still less to limit, a novel practice created by the Judicature Act and a power given to the High Court and not to one division of the High Court to the exclusion of the other.[52]
[51] [1909] 1 Ch 238.
[52] Chapman v Michaelson [1909] 1 Ch 238 at 243.
Since that pronouncement, courts have repeatedly emphasised the statutory nature of the power.[53]
[53] See, eg, Tito v Waddell (No 2) [1977] Ch 106 at 259 per Megarry V-C; Langman v Handover (1929) 43 CLR 334 at 343; Mayfair Trading Co Pty Ltd v Dreyer (1958) 101 CLR 428 at 456; AWB Ltd v Cole (2006) 233 ALR 453 at 463 [45]; H Stanke & Sons v O’Meara (2007) 98 SASR 450 at 456-7 [26].
In Ibeneweka v Egbuna,[54] Viscount Radcliffe said:
[I]t is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration.[55]
[54] [1964] 1 WLR 219.
[55] Ibeneweka v Egbuna [1964] 1 WLR 219 at 225.
In Forster v Jododex Australia Pty Ltd,[56] Gibbs J traversed the history of the declaratory jurisdiction, but then went on to say:
I find it difficult to see any reason why the Court should have lacked jurisdiction to declare that Jododex held the right which it claimed… The purpose of amending s 10 was to provide a more extensive remedy of a general kind, and there is no possible justification for reading the section as though it contained words excepting from its operation cases arising under the Mining Act. …
It is neither possible nor desirable to fetter the broad discretion given by s 10 by laying down rules as to the manner of its exercise.[57]
[56] (1972) 127 CLR 421.
[57] Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 436-7.
The legal reasoning which lies behind the statements of Viscount Radcliffe and Gibbs J is explicated in the following passage from Meagher, Gummow & Lehane’s Equity Doctrines & Remedies:
The only reasoning which would justify treating the traditional barriers to equitable relief (for example laches, refusal to do equity, unclean hands) as applicable to declarations would be to treat the declaratory order as purely equitable relief. If it cannot be so treated, there is no reason to entertain such defences. And Chapman v Michaelson [1909] 1 Ch 238 is a decision of the Court of Appeal in England that the declaratory order cannot be so treated. Sir Herbert Cozens-Hardy MR in that case, in answer to a submission that it was a purely equitable remedy, said (at 242): ‘The simple answer is that it is not equitable relief. It is a mere accident that the judgment has been given in the Chancery Division and not in the King’s Bench Division, since this action might perfectly well have been brought in the Common Law Courts’. Certainly, when the remedy has, in Judicature Act systems, been given to a court in all its divisions, and not merely when the equitable jurisdiction of the court is invoked, it seems hard to classify it as ‘purely equitable’.[58]
[58] R Meagher, D Heydon, M Leeming, Meagher, Gummow & Lehane’s Equity Doctrines & Remedies (4th ed, 2002) at [19-155].
The mischief which would ensue if the statutory power were to be burdened with equitable rules was adverted to by Zamir in the following passage:
Yet from a practical point of view the decision that the declaratory judgment is not equitable may be welcomed. Equity has become a rigid system of law, affording relief only in a limited number of well-defined categories of cases, and subject to complex and technical rules. It is no longer what in its origin it was meant to be and actually was, that is, a general and flexible method of granting relief to persons who deserved it but could not get it at common-law. This original function of equity, essential for the proper operation of the machinery of justice, is now fulfilled to a considerable extent by the declaratory judgment. It would have been regrettable if declaratory relief had been subjected to the restrictions of equity.[59] (footnote omitted)
[59] I Zamir, The Declaratory Judgment (1962) at 190.
Consideration
Even though the statutory power does not directly import equitable limitations on declaratory relief, the time limit applied by r 200 and the plaintiff’s delay more generally are relevant considerations affecting the exercise of the discretion to grant a declaration. In Hogg v Scott,[60] Cassels J indicated that, independently of his decision on the merits of the plaintiff’s claim for a declaration, he would have dismissed the claim because of waiver, delay and the application of a statutory time limit.[61]
[60] [1947] KB 759.
[61] Hogg v Scott [1947] KB 759 at 767.
In addition to the delay, the merits of Mr Tavitian’s claim and the public and private consequences of granting the declaration he seeks are relevant considerations.
I have already mentioned that a summons seeking judicial review must be brought as soon as practicable and no later than six months from the making of the administrative decision that is challenged. The very fact that the jurisdiction I am exercising is the inherent jurisdiction of a superior court, based on the jurisdiction of the Court of King’s Bench to review the legality of public acts, makes the time limitation prescribed by r 200 a relevant consideration even though, as I have already found, that the limitation does not apply by analogy on equitable grounds.[62]
[62] Hall v City of Burnside and Ors (No 9) [2008] SASC 361 at [69] per Doyle CJ.
I do not accept Mr Tavitian’s submission that r 200 has no application to the proclamation made by the Governor because that proclamation was legislative, rather than administrative, in character. The proclamation is not, in itself, a general rule of conduct; those rules are enacted by the substantive provisions of the Act. The proclamation is an administrative act by reference to which the provisions of the Act operate to confer rights and liabilities.[63]
[63] RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 633-4 per Gummow J; Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan; Meakes v Dignan (1931) 46 CLR 73 at 101-2.
Moreover, r 199 and r 200 on their terms apply to reviews of the decisions of tribunals that must act judicially. One of the grounds on which Mr Tavitian challenges the decision of the Commissioner is that the Commissioner was bound to accord Mr Tavitian procedural fairness by giving him an opportunity to make submissions on the closing of his access to the Sturt Highway. The duty of the Commissioner to act judicially which Mr Tavitian pleads in these proceedings would bring the Commissioner’s decision within the scope of r 199. Moreover, the statutory obligation imposed on the Commissioner to give abutting land owners an opportunity to be heard suggests that the proclamation is administrative rather than legislative in character. However, I prefer to base my conclusion that the proclamation is administrative on the relationship the proclamation bears to the provisions of the Act which indicate that Parliament conferred a limited administrative power on the Commissioner and did not delegate to him its legislative power.[64]
[64] Ilic v The City of Adelaide [2010] SASC 139 at [71]-[82].
Even if I were to assume that the Commissioner exercised a legislative power, the particular nature of that power is such that it is of public importance that any challenge to its exercise is brought promptly. Of course, if the proclamation was of and in itself a rule of general application, a delay in challenging it would not ordinarily stand in the way of granting a declaration. That would be all the more so if the invalidity was constitutional.[65] However, here the alleged invalidity is unlikely to affect anyone other than Mr Tavitian. Mr Tavitian was in a unique position to promptly challenge it when he was notified that it had been made but he failed to do so. It is to the delay after Mr Tavitian learnt of the proclamation that I now turn.
[65] Grace Brothers Pty Ltd v The Commonwealth (1946) 72 CLR 269.
The Commissioner purchased a strip of land from Mr Tavitian for the purpose of expanding the highway late in 1993. It was a condition of that agreement, on which Mr Tavitian insisted, that, in addition to the compensation paid for the land, Mr Tavitian would retain the right to claim compensation if the portion of the Sturt Highway which ran along his property was later proclaimed to be a controlled access road.
In 1996 Mr Tavitian’s brother lodged a Development Application for permission to build a dwelling on the land. Representatives of the Commissioner wrote to the District Council of Kapunda and Light, the relevant planning authority, and provided evidential material which was adduced on the appeal to the Environment, Resources and Development Court. That material clearly indicated that the Commissioner intended to proclaim the relevant section of Sturt Highway as a controlled access road. Mr Tavitian does not dispute that he was aware of the position taken by the Commissioner in those proceedings.
Mr Tavitian was notified of the proclamation by letter dated 14 August 2003. On 4 September 2003, and again on 16 October 2003, he met with officers of the Department of Highways (the Department). In those meetings he sought reinstatement of his access. Negotiations between Mr Tavitian and the Department continued in 2004. In February 2004 Mr Tavitian’s brother inspected the Department’s files. Mr Tavitian wrote letters repeating his contention that he was entitled to have the access reinstated on 7 February 2004 and 25 February 2004. There was further correspondence on 19 April 2004 and 27 July 2004. The Chief Executive of the Department formally rejected Mr Tavitian’s contention by letter dated 18 August 2004.
During 2005 there were some discussions between Mr Tavitian and the Department about compensation. In that year Mr Tavitian also complained to the Office of the State Ombudsman about his dealings with the Department. During 2006 more correspondence was exchanged about compensating Mr Tavitian. In January 2007 the Office of the State Ombudsman advised Mr Tavitian that it was satisfied that the Department had acted appropriately.
It appears that Mr Tavitian did not obtain legal advice during the period that he was unsuccessfully negotiating with the Department. In one sense, his failure to obtain legal advice explains his delay in bringing these proceedings. However, the relative ignorance of an unrepresented lay person of the legal relief available to him or her can be given only very limited weight when there has been a delay of this order. So too is the weight that can be given to the extra time it may take a layperson to prepare acceptable documentation to personally institute proceedings for that relief. Much public mischief would be caused if there were an actual or perceived advantage for persons who were considering challenging administrative decisions to delay obtaining legal advice and in that way “buy time” in which to bring proceedings. Such delays would lead to wasted costs and uncertainty both of which are inimical to the public interest.
Mr Tavitian has not given any reason or explanation for not engaging a solicitor.
It follows that the delay of over four years before proceedings were commenced must weigh heavily against making a declaration in Mr Tavitian’s favour.
In determining whether to dismiss Mr Tavitian’s claim by reason of the delay, I am bound to consider his prospects of success. On my earlier finding, Mr Tavitian has been denied his statutory right. The State has accepted, for the purposes of these proceedings, that a failure to give the statutory notice invalidates the Commissioner’s recommendation and the subsequent gubernatorial proclamation. I therefore do not need to determine those issues for myself. I shall only observe that the basis of the former concession is more obvious to me than the latter. It follows, nonetheless, that I must proceed to consider my discretion on the basis that, if I were to refuse to exercise my discretion, Mr Tavitian will go without remedy for the wrong that he has suffered; he will have lost the opportunity to make submissions in support of the retention of his means of access. Of course, even if Mr Tavitian were to be given the opportunity to make submissions, his access may still be denied and he would then only be entitled to compensation for his loss of access, a remedy which is still available to him.
Other than making the proclamation, no action has been taken with respect to Mr Tavitian’s property to give effect to it. The Commissioner has not erected any fences or barriers for the purpose of preventing access to or egress from the controlled access road to Mr Tavitian’s property. Mr Tavitian has not taken any action to close off the access to his property pursuant to s 30D of the Act. Nor is this a case where the proclamation provided for access to Mr Tavitian’s property by way of exception and therefore the Commissioner has not constructed any means of access to it pursuant to s 30DA of the Act. Finally, there is no evidence before me that any proceedings have been brought against Mr Tavitian, or anyone else for that matter, for unlawfully entering on to the proclaimed portion of Sturt Highway from the Nuriootpa land.
However, public money has been expended in providing alternative means of access to other land owners along the Sturt Highway. Compensation has been paid to land owners by reason of the proclamation of that section of the Sturt Highway. It is not clear whether that money would, or even could, be recovered by the State should the proclamation be declared to be invalid. Of course, a fresh proclamation could be made; it is likely that, at the very least, an attempt to again proclaim that portion of the Sturt Highway would be made. In that event, the money and other resources expended as a result of the proclamation which is challenged in these proceedings will have been wasted. Moreover, it may be that the State would be required to pay compensation over again with respect to the same land if a fresh proclamation were made.
I mention that, in my view, it is not possible to merely amend the existing proclamation to allow, as an exemption, the access once enjoyed by Mr Tavitian. If the proclamation is a nullity it cannot be amended. Nor can the invalidity in any sense be limited to that part of the proclamation which affects Mr Tavitian’s property. The power conferred by s 13 of the Acts Interpretation Act 1915 to read and construe a statutory instrument so as not to exceed the power under which it is made is not a power to rewrite the instrument. The reading down must be possible by reference to the text of the instrument itself.[66] I therefore reject Mr Tavitian’s submission that s 13 of the Acts Interpretation Act 1915 allows the proclamation in this case to be read down so that it validly applies to the proclaimed portion of the Sturt Highway except for the section that runs along the Nuriootpa land. The efficacy of the proclamation may be critically affected if the number of points of access along it is changed. The evaluation of the practical feasibility and road safety efficacy of maintaining the remainder of the proclamation if access were to be allowed from Mr Tavitian’s land is a matter for expert assessment by the Commissioner. There is nothing on the face of the proclamation which suggests that it was intended to, or could, operate even if access to the Nuriootpa land were to be retained.
[66] Pidoto v Victoria (1943) 68 CLR 87 at 109-10.
The very making of a fresh proclamation would involve the expenditure of substantial public resources. The Sturt Highway would once again need to be patrolled to identify all means of access. Notice would have to be given and submissions received and considered. The proclamation once made would generate much legal uncertainty about the rights and obligations arising out of both the original and the fresh proclamation, for example as to compensation. That uncertainty might result in litigation.
On the other hand, my refusal to make the declaration sought by Mr Tavitian cannot be equated with a declaration that the proclamation is valid. It follows that the validity of the proclamation may yet fall to be determined in other proceedings. I have considered whether or not that possibility should affect the exercise of my discretion. I have decided that the prospect does not outweigh the public interest considerations to which I have referred. Hopefully such challenges will never be made.
In my view, it is manifestly contrary to the public interest to revisit this issue and to subject the public to much uncertainty so many years after the initial proclamation was made.
Finally, I observe that although Mr Tavitian has been denied an important property right by the failure to allow continuing access to his property in the proclamation, he remains entitled to compensation for the loss of access to the Nuriootpa land.
I therefore refuse to make the declaration sought on discretionary grounds.
The claim for nuisance
The making of the proclamation could not of itself sound in damages. If it was valid, its effects would necessarily be lawful. On my findings as to the failure to give the statutory notice and the State’s concessions about the consequences of that failure, the proclamation is invalid. However, the proclamation does not of itself obstruct Mr Tavitian’s access. The State has not constructed any physical barrier to prevent access. No officer of the State has made any express threat or taken any other action to warn Mr Tavitian against taking access to the Sturt Highway. I accept that Mr Tavitian has been reluctant to take access because he is, naturally enough, concerned about the risk of a prosecution and conviction if he were to test the validity of the proclamation by direct action. However, Mr Tavitian’s decision not to do so is his own. He has not proven any conduct by an officer or employee of the State that amounts to a nuisance or obstruction of his proprietary rights.
I dismiss the plaintiff’s claim for damages in nuisance.
Mr Tavitian did not plead misfeasance in public office. I mention that potential cause of action only because Mr Tavitian has not had the benefit of legal advice.
The tort of misfeasance in public office is committed by a public officer when he or she engages in conduct knowing that he or she has no authority to do so and intending, or being recklessly indifferent to, the damage which is caused by that conduct.[67]
[67] Northern Territory of Australia v Mengel (1995) 185 CLR 307.
There is no evidence before me that the Commissioner knew that he did not have statutory authority to make the recommendation to the Governor which is now challenged because he had not given Mr Tavitian the statutory notice to which he was entitled.
In any event, even though it is not clear, I doubt that an act which is merely invalid and ineffective is conduct for the purpose of the tort because that conduct cannot cause damage in any legal sense precisely because it is ineffective. That was the approach taken in actions,[68] based on the Beaudesert principle,[69] before that principle was abrogated in Mengel.[70] In my view, a similar approach should be taken in the tort of misfeasance in public office.
[68] Dunlop v Woollahra Municipal Council [1982] AC 158 at 170-1.
[69] Beaudesert Shire Council v Smith (1966) 120 CLR 145.
[70] Northern Territory of Australia v Mengel (1995) 185 CLR 307.
Accordingly, I find no basis on which relief could be given on that cause of action on the evidence adduced in these proceedings.
Conclusion
I dismiss the proceeding brought by the plaintiff.
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