Werribee Council v Kerr

The appellant, the Council of the Shire of Werribee, sought to compulsorily acquire land owned by the respondent, Ethel Jean Kerr, for the purpose of constructing a public highway. The respondent challenged this acquisition, alleging that the Council's true intention was not to create a public road but to facilitate the continued presence of a pipeline laid by Commonwealth Oil Refineries Ltd. across her land. The Supreme Court of Victoria found in favour of the respondent and granted an injunction restraining the Council from proceeding with the acquisition. The Council appealed this decision to the High Court of Australia.

The High Court was required to determine whether the Council's decision to acquire the land was made in good faith for the statutory purpose of providing a public road, or whether it was actuated by an ulterior motive, namely, to benefit the oil company. This involved considering whether the Council had acted within its powers under the Local Government Act 1915 (Vict.) and whether the evidence supported the respondent's claim that the Council's actions were not bona fide.

A majority of the High Court, comprising Knox C.J., Higgins, Powers, and Starke JJ., dismissed the appeal. They applied the principle established in *Municipal Council of Sydney v. Campbell*, which states that a body authorised to take land for specific purposes will not be permitted to exercise its powers for different, ulterior purposes. The majority found that, on the facts proved, the respondent was entitled to the judgment of the Supreme Court. Isaacs J., dissenting, argued that the appeal should be allowed, contending that the decision constituted an unprecedented interference with municipal government and that the trial judge had erred in his interpretation of the facts and the relevant legal principles concerning the exercise of statutory powers.