These observations were cited with approval in the joint judgment of Gaudron A-CJ, McHugh, Hayne and Callinan JJ in Conway v The Queen (2002) 209 CLR 203 at 219, and in Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72 at 78 Gaudron, Gummow, Hayne and Callinan JJ, in their joint judgment, said:
"Section 17(2) [of the Supreme Court Act 1986 (Vict.)] is a provision which confers jurisdiction upon a court and it is, on that account alone, to be given no narrow construction. Rather, it is to be construed with all the amplitude that the ordinary meaning of its words admits."
7 Counsel contended that a liberal construction of the legislation would enable the Court to exercise the jurisdiction conferred by section 88K in such a way as to order the creation of an easement in gross pursuant to the provisions of section 88A. The expression "an easement" in section 88K(1), although it would normally refer to a form of legal right involving a dominant tenement, is nevertheless apt to include an easement in gross of the kind described in section 88A. Counsel recognised that the reference in section 88K(2) to a necessity for the Court to be satisfied that "use of the land having the benefit of the easement will not be inconsistent with the public interest", and the description of the order to be made under section 88K in subsection (1) as "an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement", which might be read as referring to a dominant tenement, did pose problems for his contentions. However, he pointed out that neither of these references to land having "the benefit of the easement" actually specifies that this means land to which the easement is appurtenant. He suggested that the reference to land having the benefit of the easement was not a use of technical language.
8 This argument seems to me somewhat difficult. As Gale's use of the expression "the dominant tenement for the benefit of which the right of way was given" demonstrates, the statutory expressions "other land that will have the benefit of the easement" and "the land having the benefit of the easement" are expressions used in this area of the law to refer to a dominant tenement. Lord Evershed MR in Ellenborough Park at 172, for instance, said "an easement must be appurtenant to an estate for the benefit of that estate and its owner". If they are not used in that sense, the problem must be confronted of determining just what their meaning is. And if they extend to embrace, in the case of a drainage easement in gross, all land the drainage of which may in the future be expected to be undertaken by the use of the easement, there will be practical problems in the identification of the area of inquiry to be undertaken by the Court pursuant to subsection (1) and subsection (2)(a) of section 88K and whether parties other than the applicant should be represented. Had the legislature intended wider enquiries than those related to an identified dominant tenement, it would be reasonable to expect some quite specific provisions dealing with this problem in section 88K. Perhaps more fundamentally, the Court would be required by the section to consider, in a case involving s.88A, not the effective use of other land to have the benefit of the easement, but whether the performance of the prescribed authority's functions made the creation of the easement necessary and, in a case within s.88A(1B), whether the prescribed authority's purpose was within that subsection.
9 Reference was also made in the argument to subsection (3) which directs attention to section 88(1) paras. (a) to (d). On the one hand, it is pointed out that para. (a) plainly contemplates an easement under the general law. On the other hand, paras. (c) and (d) refer to provisions which may or may not exist in the case of any particular easement. When, in that situation, section 88K(3) requires a specification of "such of the particulars referred to in section 88(1)(a)-(d) as are appropriate", I do not think that particular provision points with clarity either in favour of or against the plaintiff's construction of section 88K. The contemplated possible inappropriateness might be due to the Court's order referring to an easement in gross (which would fit the plaintiff's contention), or it might be due to the contemplated order of the Court not involving any persons such as are referred to in section 88(1)(c) or (d) (which would fit the defendants' contention). Perhaps a little more weight, as a consideration tending against the plaintiff's argument, may be given to the contrast between section 88K(3), imposing a requirement that the Court specify such of the particulars in section 88(1) as may be appropriate, and section 88(4) which provides that subsection (1) "does not apply to an easement without a dominant tenement acquired by or for a prescribed authority referred to in section 88A".
10 In seeking to ascertain whether the expressions "easement" and "land having the benefit of the easement" have their technical legal meaning in section 88K, the Court may be guided by the statement of Lord Wilberforce in Ashfield Municipal Council v Joyce [1978] AC 122 at 134, citing Lord Macnaghten in Pemsel's Case [1891] AC 531:
"[I]n construing Acts of Parliament, it is a general rule… that words must be taken in their legal sense unless a contrary intention appears."
11 It is fundamental to section 88A that it contemplates an easement in gross "in favour of" or "to" a prescribed authority, as is made clear by subsections (1A) and (1B). In contrast to this, section 88K is grounded on a reasonable necessity related to "Iand that will have the benefit of the easement" (emphasis added). This distinction, of course, reflects the fundamentally divergent nature of an easement in gross as compared with a true easement. But the adherence of section 88K to the essential nature of a true easement raises a conceptual barrier, which is reflected in various provisions discussed in these reasons, against its application to an easement in gross under section 88A.
12 An appreciation of the quite disparate theoretical underpinnings of the two sections also throws light on the expression debated at the hearing "land that will have the benefit of the easement" and the expression "land having the benefit of the easement" in section 88K. As section 88A is not concerned with any relation of benefit between an easement in gross and any land at all, but only a relation of burden, these expressions, which are fundamental to section 88K, even if they do not have the technical meaning which in this context is naturally appropriate, but some looser meaning, have no work to do under section 88A. Interpreted as land to which an easement in the normal sense is annexed, of course, they are reflected in section 88(1)(a) which is itself picked up by section 88K(3), so that those provisions are part of a consistent statutory scheme. Since the Court must, unless it is not "appropriate" to do so, specify "the land to which the benefit of the easement… is appurtenant" pursuant to section 88K(3) and section 88(1)(a), section 88K(1) and Section 88K(2)(a) seem most naturally to contemplate that their expressions "land that will have the benefit of the easement" and "land having the benefit of the easement" refer to land to which the benefit is appurtenant.
13 That the reference in section 88K(1) and (2)(a) is to a dominant tenement is confirmed by subsection (6), giving a power to release an easement imposed by order under section 88K to "the owner of the land having the benefit of it". There will be no such person in the case of an easement in gross under section 88A. By contrast, the easement in gross under section 88A, the imposition of which is sought by the plaintiff pursuant to the amendment, would be an easement for drainage of water described in Part 7 of schedule 4A where reference is made, not to the owner of land having the benefit of the easement, but to the "body having the benefit of this easement" which, by the easement, would be allowed to "drain water from any natural source". The difficulty of fitting subsection (6) of section 88K within the view of the section put forward by the plaintiff seems to me to be insuperable. In that subsection, the legislature plainly contemplates the possibility of a release of the easement by the owner of the dominant tenement and refers to that person as "the owner of the land having the benefit of it", using the very phrase the meaning of which, as it is used earlier in the section, was debated by counsel. I do not think that, in section 88K, the meaning of these words changes suddenly at subsection (6). And if the legislature contemplated that section 88K might be utilised to impose an easement in gross for the benefit of the council in an application such as the present, it is really not to be imagined that subsection (6)(a) would have been left in its present form; provision would have been made for the prescribed authority in question (that is the council) to have the power of release.
14 It follows that the first question must be answered adversely to the plaintiff, that is to say, in the negative. It is unnecessary to answer the second question.