Foil ilesch v CROMMELIN, MOORE & WEA

[11]

the Company agreed with the appellant that if the appellant would have the old road reopened as a public highway the Company would recoup the appellant any expenditure connected with the opening of the road and would complete the fence on the left side and clear the road of all surface boulders. On 25th November 1926 it was resolved by the appellant that steps should be taken to have the road declared a public highway under the provisions of the Local Govern- ment Act 1915 (Vict.). On 3rd May 1927 the appellant gave notice of its intention to take the land comprised in the old road under the Local Government Act 1915, Part XVII., Div. 3. The respondent gave notice of dissent and attended by her counsel a meeting of the appellant Council on 9th June 1927, the day fixed for hearing objection to support her objections. On 7th September 1927 a notice appeared in the Government Gazette published by the appellant setting forth (inter alia) that the appellant deemed it expedient to execute certain work for the purpose of providing a road, and that it was in the opinion of the appellant necessary and desirable that it should exercise its powers of taking land compulsorily, and that it had caused specifications, maps and plans of the work to be prepared, and that the same had been approved by the appellant. 'The notice also stated that the purport of the said work was for the purpose of providing a road between the Kororoit Creek road and the Altona road in the east riding of the Shire of Werribee. The notice also described the land which it was proposed compulsorily toacquire. Such land consisted wholly of the respondent's land being portion of the land comprised in the old government road and included the whole of that part of the plaintiffs land traversed by the pipe-line laid by the Commonwealth Oil Refineries Ltd., but the specifications stated that a crossing was to be provided across the railway-line. The appellant also caused a notice dated 10th September 1927 to be served on the respondent defining the land which it proposed to acquire compulsorily as being identical with the land described in the notice in the Government Gazette above referred to, and stating that it was for the purpose of providing a road from the Kororoit Creek road to the Altona road, and setting forth that specifications, plans, sections and elevations were deposited

[35]

the assumed application of the doctrines firmly established in Clanricarde's Case (1) and Campbell's Case (2), it has been held that - this Municipality was proceeding to take the respondent's land for - an unauthorized purpose and should be restricted accordingly. - Reference to those cases and similar cases will show that where a public authority has been similarly restrained it has always taken some step that directly assumed to take the private land or to exercise some dominion over it or do some act which would deprive the owner of his proprietary rights. They are not cases which restrain the public authority from submitting the question to a public tribunal constituted for the purpose, or from declaring the statutory purpose itself which admittedly it has power to declare, or from taking a step not conditioned on a purpose. Narma's Case (3), as pointed out 3 in Jones's Case (4), was an instance of the latter class. And - the present case, when properly examined, is seen to be of the Narma class. I would refer particularly to Lord Swmner's words - (5). His Lordship's observations are, I think, very apposite to - this case. In this case the Council has no power to make any order to resume or to use land, nor has it made or threatened to make such an order. The Act itself (sec. 468) provides the only analogue to such an order. All the Council can do is to declare its statutory purpose; when it does the Act speaks for - itself. As to Campbell's Case, it seems important to point out the gist of that decision. Apart from the initial act of resumption, : which is impossible here, it appeared affirmatively that neither in June nor in November was there any consideration or " real decision or determination " by the Council as to the statutory purpose. In | June the Council did not even purport to consider the improvement. and remodelling of the area in the vicinity. In November it - applied itself merely to giving a new form to an old transaction - previously decided on, that is, a transaction of resumption and not of purpose. The twofold distinction between that case and the present one is apparent. The pleadings and the formal order bring this out very distinctly, when read in conjunction with the relevant

[38]

claim (par. 5) sets up an agreement that "if the defendant would hawe the old road reopened as a public highway the said Company would recoup the defendant any expenditure connected with the opening of the road ; complete the fence on the left-hand side and clear the road of all surface boulders." Par. 6 sets out a resolution to have the said road declared a public highway under the provisions of the Local Government Act 1915. That has reference to sec. 475, which, when acted on, is the completion of the purpose. After setting out allegations intended to establish legal reasons for opposing the project and amounting to non-compliance with statutory conditions the statement of claim, in par. 14, says: " The defendant unless restrained will proceed with the said work or undertaking and the compulsory acquisition of the said land, and will cause its order together with copies of the specifications, maps, plans, sections and elevations and the written objections to be forwarded to the Minister." Nothing could be more definitely averred than the averment that the Shire intended in fact to " proceed with the said work or under- taking," that is, to open the road as a public highway. The averment as to compulsory acquisition can have no other meaning than that, if the circumstances mentioned in sec. 468 arise, the Shire will exercise the statutory powers thereby conferred. The concluding portion of par. 14, which in legal sequence precedes the second, is an averment that the Shire will, unless restrained, obey the Act of Parliament, which is couched in imperative terms. Par. 14 of the defence admits the Shire's actual intention to carry out the work or undertaking. The formal order perpetually restrains the Shire from proceeding further (1) in the compulsory acquisition of the said land and (2) in the making and opening of the said road pursuant to the purported order aforesaid, and (3) in particular from transmitting the said purported order to the Minister of the Crown under sec. 467 (2) of the Local Government Act 1915. How all that is compatible with an absence of intention to proceed to open the road I fail to understand. There was not a single step in any proceeding to compulsory acquisition, except the attempt to declare a statutory purpose. Apparently on the literal meaning of the words of the formal order no matter what may be the exigencies

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them - would have no standing-ground. Sec. 468 (4) is perfectly plain as to that, and the case of Stevenson v. Narracan Shire (1) confirms it. This action is, in my opinion, entirely premature, to say the least, and is practically a supersession of the functions of the Minister. It certainly is so, apart from fraud. The right of an individual to challenge the legality of a public authority's conduet is stated by Lord Cranworth in Mayor &c. of Liverpool v. Chorley Waterworks Co. (2). Except in any proceeding at the instance of the Attorney-General, a plaintiff seeking the assistance of a Court of equity by way of injunction is bound to show, said his Lordship, "not only that the defendants are committing or intend to commit a wrong, but also that the wrong, complained of, does occasion or will occasion loss or damage to him." At the present. stage the respondent cannot possibly satisfy that requirement. Even fraud will not surmount that difficulty, there being no damage actual or threatened. A quia timet action, such as this is, does not lie unless the plaintiff shows at least "a well-founded and reasonable apprehension of danger" (see Attorney-General v. Corporation of Manchester (3) ). The admitted facts not only fail to reach that point, but they show that the Council was proceeding to submit the whole question to the statutory tribunal before attempting to exert any interference with the respondent's property. In those circumstances the mere illegality - if for the moment we assume illegality - in the Council's action cannot be a matter for individual suit. The Attorney-General alone would be entitled to sue in such a case, if any action lay. The respondent, however, by mingling matters that on the relevant legislation must be kept distinct, depends on the quia timet principle, and for that there is no foundation in fact or law. The scheme of the Act makes this plain. The Local Govern- ment Act 1915 is a delegation by the State Parliament to the inhabitants of localities called municipalities to exercise certain powers of self-government. One of the most important of these powers is the control of existing roads and the creation of new ones where the needs of the locality require them. Obviously, local

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H.C. or A. do justice to such a matter. I could not help feeling during the pee: argument, when learned counsel were pressing upon us views as to ees sufficiency of specifications, of the swampy character of the lower Soucy: end of the proposed road, of the extent to which passengers would Kerr. pe likely to use the road, of the practicability of a ford, of the Isaacs J. the condition of the bridge, of the comparative advantages of rival routes, of the probability of the railway authorities granting a level _ crossing, that this Court was asked to express with all " the valour of ignorance " opinions upon what the Legislature has, in my opinion, e wisely left exclusively to the statutory tribunal it has created for ; the purpose. The Council, says the Act, having made the order, Be "shall" cause it to be sent, with specifications, &c., and all the 4 written objections, to the Minister. It is practically a rehearing. a Then says the Act: "The said Minister shall consider the same - respectively and shall for the purpose of such consideration have the like powers as are by the last preceding section vested in the council and may confirm the said order with or without variation or may - disallow such order." That is to say, the Minister is to rehear the - matter on evidence and argument as representing the larger community of the State and decide for himself whether the work - or undertaking shall proceed or not, and, if to proceed, then with - what variations. Until that is done any attempt to use the land isa simple trespass, and can be restrained as such. The Act says this reference to the Minister " shall'? be made; the Court has said - it "shall not" be made. I respectfully think, as I have said, the a decision is due to a total misconception of the provisions of the Act as applied to the matters complained of. All the objections raised by Mrs. Kerr, and decided in the first instance by the Council, are placed by the Act within the jurisdiction of the statutory tribunal, - and that I apprehend on recognizcd principles is an exclusive tribunal. The Minister is peculiarly well equipped with the means of probing all the objections. He has at his command officers and advice and potential witnesses who are specially competent to advise on public undertakings which involve, as roads do, very important public interests. He, therefore, is in the best position, and at least Parliament has thought so, to hold the balance fairly between public and private interests, and, if necessary, to adjust them to some

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an argument, however, without a charge to that effect, without evidence to support it, without any motive to suggest it, and without any finding of the learned primary Judge accepting it. As Lord Parmoor said in Clanricarde's Case (1), " care must be taken not - to introduce indirectly a charge which is disclaimed as a direct issue." As a plain and bold accusation of dishonesty it would be _ understandable ; and the argument before us sometimes approached it so closely that, in justice to the representative bedy concerned, I propose to deal with it. But the real argument and charge were based on the words of Vaughan Williams L.J. in London and North- Western Railway v. Westminster Corporation (2): " You are acting ; mala fide if you are seeking to acquire land for a purpose not authorized by the Act, and in such a case it is right to restrain the - persons who are misapplying the powers given by an Act." This was supplemented by a reference to Lord Macnaghten's judgment in the same case in 1905 (Westminster Corporation v. London and North- - Western Railway (3) ), especially the word "reasonably." Now, I set aside for the moment bad faith, as I understand it, namely, actual dishonesty, and reserve the term " mala fides " for the other ; Latin term " ultra vires" in accordance with the view expressed by Lord Parmoor in Clanricarde's Case. In that sense, the duty of - the Court in approaching such a question is very distinctly expressed by the House of Lords in that case. Lord Loreburn L.O. laid down the law. As stated in that case (and repeated in Campbell's Case (4)) it is a question of fact whether an administrative body is using : its powers for unauthorized purposes. He says that the adminis- trative body must intend to act for a statutory purpose. He also says the land which they seek to take must be land which is capable of being made use of for a statutory purpose. He explains at once what he means by that, namely, that, looking at the land as a whole, _ "a man might in reason think the purchase could be utilized for any of the statutory purposes." That also isa question of fact, said his Lordship ; and I may add that to go further and urge that in truth a man does not think so when he says he does, gets into the domain -

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necessary to be proved with regard to those two grounds. He must prove (1) that there was not such a purpose and (2) that the land was "quite incapable" of being so used. Then there is this passage (1) : "The Court will not interfere with the discretion or revise the opinion of the administrative body if there was anything on which it could in reason come to the conclusion it reached." When a Board is set up with such compulsory powers as are possessed by the Congested Districts Board (and the same at least is to be said of the Municipality here, with the additional superintendence of the Ministerial tribunal) it is not intended that Courts of law shall do what we are invited to do, namely, dog its footsteps and peer into its minutes as if they were to be suspected of meaning more than they say or trip it up upon the ground that it has not acted judiciously or has not kept proper minutes, or upon any other ground, dishonesty apart, than that it has in fact exceeded its powers." Almost every word of that is applicable here. In that case, the Master of the Rolls did what the learned primary Judge did in the present case: he found that "the respondents were not acting bona fide in the sense in which the term had been used in the statement of claim; that is to say, that they made the final offers without reference to the purposes of the Act and without due inquiry whether the estates were suitable to those purposes" (1). It was argued, just as here, that the by-motive vitiated the taking and made it ultra vires, and, as seen by that reference and also more fully in the Local Government Reports (2), the doctrine of reasonableness was relied on and most of the relevant cases were cited as here. Their Lordships addressed their own minds to the evidence, and dealt with it in a way entirely in accordance with the generally accepted duty of an appellate Court, and quite inconsistent with the method of approach suggested in this case, namely, that this is not a rehearing, and there is a presumption that the primary judgment was correct, leaving the burden on the appellant to displace it. The doctrine of "reasonableness" as an independent ground, if it ever had any existence, I should have thought received its quietus in that case. Its only possible relevancy is this: Can it be shown

[73]

of any local authority, to put in pipes, with provisions as to leaks, &c., (3) power to interfere with property of other public authorities - including the Railways Commissioners, with certain qualifications - as to agreement or arbitration, and so on. Obviously the C.0.R. is regarded both by the Commonwealth Parliament and the State Parliament as a very important public utility. The works were erected to the north of Mrs. Kerr's holding of about 1,000 acres. It became necessary to find a pipe outlet to the sea, which was to the south of Mrs. Kerr's land. On the government maps in the Lands Department and in the municipal map there appeared what was shown to be - as is so frequently the case in enclosed holdings - a reserved government road about a chain and a half wide running in a south-easterly direction through Mrs. Kerr's land from Kororoit Road on the north to a railway-line on the east. The C.0.R. applied to the appellant Shire, in whose municipality the locus is - situated, for permission to put in the necessary pipe. The permission - was given. It was necessary for the C.O.R. to cut through and to blast a quantity of basaltic stone, and after obviously considerable - expense the work was completed in about 1924. After reaching the boundary of Mrs. Kerr's land the excavation passed under the railway-line across to the Altona Bay road, and then along that road to the sea. It was, however, afterwards discovered that in or about 1886 a predecessor municipality had sold the site of the road to a predecessor of the respondent, and despite the public maps no road any longer existed on the pipe-line. In an action by Mrs. Kerr against the C.0.R. an injunction was, of course, obtained to remove the pipe, the Court staying its operation for a pericd. Obviously the C.O.R. was at the mercy of Mrs. Kerr. Any price, however it exceeded the true value of the land and that did not exceed the cost of removing the pipe and reinstating the land, plus the cost of again putting down a pipe somewhere else along roads, however - devious, could be insisted on. To prevent the possibility of such injustice and manifest waste of money and energy, one way seemed open. That was to apply to the Werribee Shire to compulsorily - acquire the supposed road and constitute it a lawful road, whereupon either under Act No. 3075 or by consent of the Shire the pipe could be allowed to remain. By this means public and private money

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compulsory taking, she would no doubt get whatever damages compensatory or exemplary that were just and also her costs up to date, and justice and public convenience would be served. She would, of course, be thereby deprived of one thing - the enormous advantage of being able to dictate a price, based not on the value of what she gave but on the necessities of the Company. Why the deprivation of this power of dictation and the substitution of a fair value should arouse the indignation of any tribunal of justice is beyond my comprehension. We are not aware of all the circumstances of the trespass, but, whatever they are, they can be met in the ordinary way. On 20th October 1926 Mr. Byrne appeared before the Council in session, and this is recorded : - Mr. Byrne appeared on behalf of the Colonial Oil Refineries regarding a road along which the Company had laid a pipe-line under the impression, according to the records in the Title's Office, that it was a public road, and after obtaining permission from the Council Mr. Byrne stated that the Company had since discovered that the road was private property, and asked the Council to have it reopened as a public highway. He stated that the Company was prepared to recoup the Council any expenditure connected with the opening of the road ; to complete the fence on the left-hand side ; and to clear the road of all surface boulders to the satisfaction of the engineer without cost to the Council." In describing the propcsal of Byrne I disregard everything said in the evidence as to the "making" of the road in the completer sense of that term. The learned Judge preferred the minutes to recollection, and I gather that referred to the " making " of the road. I take the story as told by the minutes, and such of the evidence as is not only consistent with the minutes but is obviously connoted by what is there feund. The recoupment meant, of course, the money which the Council would have to pay as compensation to Mrs. Kerr. The only other recoupment would be the cost of advertisements, and perhaps solicitor's costs. Apart from that, the proposal was to do the work of fencing and clearing at the Company's direct cost. This is corroborated by several witnesses and undenied. Indeed, it is part of the respondent's case (par. 5 of the statement of claim) of her

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evidence (interrogatory 3 and answer). The Company's offer was - not then accepted. The Council decided to make an inspection of - the road at 11 a.m. on 8th November. Now, before going further it is necessary, having noted the position of the Company in the matter, to observe the situation of the Council. The Shire of Werribee is a comparatively poor municipality, its rate-producing capacity being incommensurate with its extent. It is in process of development, and its situation between the great centres of Melbourne - and Geelong, aided by the Altona Beach railway and a desirable - beach, is apparently attracting settlement in the locality with which this case is concerned. Mrs. Kerr's holding of 1,000 acres is spoken of as desirable for subdivision. One of the circumstances pressed on her behalf was that the projected road would be inconvenient for subdivision, and she suggested another road which would in fact lend itself better to that purpose, and which she desired the Municipality to make. The cost of making that road would have - been about £8,000 or £9,000. It is common experience that settle- ment, once it begins, sometimes proceeds unexpectedly fast. Another fact of experience is that roads are an essential to rapid and assured settlement. Even as it is, Werribee Shire is ill-provided with roads. That is one of the prime facts of this case. One of the Shire councillors stated: '' We have to travel sometimes three or four _ miles to get from one given point to another, which is not fair to the ratepayers." And in the immediate locality with which this case is concerned, it is proved that settlement is gradually, if slowly, working round from the Racecourse road to Altona. One of the local residents called as a witness for the respondent stated, as one of the objections of what he calls the Progress Association to the resumption of this road, that the Council "were not justified in putting the ratepayers to any expense in resuming or making that road, when there was need to make other roads." There was certainly a a considerable distance away, in continuation of the Kororoit road, a bridge across the Kororoit Creek which was stressed for the respon- dent. But as the shire engineer says : - * That road is fast deteriorat- ing. It is in a deplorable condition. The bridge crossing the Kororoit Creek is condemned. The Kororoit Creek road cannot continue to carry heavy traflic without being reconstructed in the

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Creek road is in a bad state and also the bridge." Ex-Cr. McDougall says: "If another flood similar to the last came along I am afraid then the bridge would be gone." That at present appears to be the only practicable way from the Kororoit Creek road to Altona. The estimated cost of a bridge is £4,000 cr £5,000. But the Shire is poor. Cr. Maher says: "The Council has not the funds to make bridges, it has no money." Cr. Hickey says : - " The financial position of the Shire is in a very deplorable condition. The Council has not the money to metal a road." When, therefore, the proposal of Byrne was placed before the Council, that body resolved to investigate. An inspection took place, which has been the subject of derision. That sentiment I am unable to share. The councillors saw what they thought sufficient to enable them to get a general idea of the locality, and to judge of the more precise information they would get from the shire engineer. That officer made a survey and took levels and made a plan. To use his own words, he advised the Council " that a road in that position is desirable. I pointed out to them that owing to the condition brought about by the flooding of the Kororoit Creek if it were washed away, there would be no access between North Williamstown and the Geelong road. Also in the event of a new bridge being put there, some route would have to be made for traffic. I pointed out that it was the Council's duty to adopt the road if they thought my recommendation desirable." Q.: " And that presents your honest opinion?" A.: " Yes." Later on he deposes to the practicability of the road. His instructions being merely that the road was to be "' opened" he, as he says, did not add anything about " making " the road in the specifications. As is well known, thousands of roads are simply "' opened " in Australia, that is, made available in their natural state to the public to pass. His plans and specifications do little more than that. They have been termed a " sham " - but why, has never been explained. Up to one ton, that is, " light traffic " as it is called, the road would be trafficable without construction. Even Mrs. Kerr's witness Symonds said: " Of course, it would carry the ordinary traffic, but it would not carry anything from the Commonwealth Oil Works without a

[80]

statutory meetings and procedure, the Council finally, on 8th December 1927, made an order under sec. 467 (1), and directed that it be transmitted to the Minister of the Crown in accordance with sec. 467 of the Act. The reasons, as sworn to by several councillors, are shortly these : - It was thought to be desirable for detailed reasons given to open the road, both in the interests of the C.0.R. - and also in the interests of the locality, and, as Cr. Galvin observed, 4 "more particularly as we were getting it for nothing." " Land has been cut up in that locality, and we want all the roads we can get - e) unfortunately we have not enough money to open them." To the same effect Cr. Goatze and others. Ex-Cr. McDougall also thought it would offer facilities to thousands of holiday visitors to the beach. If the road stopped at the railway-line it would still be a highway. - But it was intended, as the engineer stated in his specifications, to obtain a level crossing. Much was made of the fact that up to the present there has been no application made for a level crossing. Also it has been urged that at the Council's statutory meeting they were informed by Mrs. Kerr's agent on 10th November 1927 that some railway officers had expressed an opinion adverse to a level crossing. The learned primary Judge took this into account. He - thought the Council was thereby put cn inquiry. But his Honor - not only erred, in my opinion, in allowing this evidence to affect his mind (it being hearsay only) but he made the grave mistake of thinking it was the Railways Commissioners who were said to have expressed the adverse opinion. The agent, Mr. Symonds, - who in November 1927 stated he had made inquiries, said that the officers he interviewed were three - namely, Mr. Gilchrist, whose position was not mentioned, Mr. Colgate, construction engineer for the district, and a third, unnamed, who was an engineer for the district. They or some of them seemed to have thought the storing of carriages there on race-days was an objection. Some other reason

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to say so, the learned Judge says that the minutes indicate that the Council's suggestion of consideration of Mrs. Kerr's alternative road was "apparently" only a pretence. Referring later to this, he observes : " It is difficult to understand how the Council could have considered they were acting honestly to Mrs. Kerr." Of course, that is not the issue, but it is not an explicit finding of fraud as to purpose. I have anxiously read the judgment, and I respectfully think that we cannot find in that extempore decision any such delimitation of issues and corresponding findings as would amount to anything more than some collateral, unreasonable, inconsiderate and uncandid conduct towards Mrs. Kerr coupled with such a resolve to assist the C.O.R. as in his Honor's opinion deprived the resolutions of the Council of the legal quality of statutory purpose. Even that is not really supported by the circumstances appearing in evidence. But it is needless to pursue it. In my opinion, so far from being fraudulent, the councillors of the Shire of Werribee have acted in the most open manner, making no secret of what form their initial impulse to consider and eventually undertake a statutory purpose. Any suggestion of dishonesty is, in my opinion, not only belated, but disproved. As a representative body they unquestionably thought they could open the road and intended to effectuate that purpose. If, as I believe, they have not been shown to have transgressed the wide limits entrusted to them by the Legislature, no Court of law has any jurisdiction to intercept them in their public duty. And certainly at the instance of no individual whose interests are not presently in danger, and never may be if the legislative course is pursued, can the Court, following the lines of precedent, intervene and prevent the functioning of the Council and the Minister. Injustice can arise only by leaving absolutely uncontrolled in the respondent's hands the power of demanding not simply the value of her property but a price measured by the Company's necessity and that would leave the Municipality without the road it desires and apparently needs.

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led up to resolutions, which I need not detail, for a road one wide, running to a point on the Williamstown to Altona This chain road was part of a former chain-and-a-half road had been given up, sold by Council some forty years before; a there is no evidence whatever of any change in circumstances made the road necessary. The pipe-line, however, was within chain. But such a road would have to pass over a railway embs ment, vested in the Victorian Railways Commissioners, and used for a live railway ; and no permission had been granted by, or was ev sought, from the Commissioners. There was evidence also that the ground over which the proposed "road" was to pass was low and swampy, and unsuitable for a road ; and that the proposed " road" could not satisfy any public need. Probably it is enough to say that there was evidence of such a character that, if the J udge who 1 and heard the witnesses believed it, he was justified in his finding that the purpose was not the purpose sanctioned by the power: and why should we disturb that finding ? te I cannot find in the statement of claim that the plaintiff rests her case on any non-compliance with the forms and conditions prescribed _ by the Act - forms and conditions designed to safeguard the public from an unwise exercise of the true powers of the Council; and I shall therefore confine my judgment to the issue raised - as to the purpose of the Council. But I do not want it to be supposed that we o have assumed that the forms and conditions have been sufficiently followed. For instance, looking at the Government Gazette of 7th September 1927, I find the notice states that "the description" shortly of the purport of the said work or undertaking and of the said specifications, maps, plans, sections and elevations is as follows

for the purpose of providing a road between the Kororoit Creek road and the Altona road in the east riding of the Shire of Werribee. This is no short " description " of the specifications, &e. Moreover, exhibit G (the plan referred to in the Government Gazette and copy of specifications showing the land proposed to be acquired by the Council) sets out the " specifications " in this form :- - " Specifications in connection with the acquiring by the Werribee Shire Council for road purposes of a former government road within the Parish of Truganina. (1) The position of the land to be acquired as shown

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other action by the Council, details of which are set out in judgment of the learned Judge of the Supreme Court. The respon- dent, prior to the request of the Company to the Council, had commenced an action in the Supreme Court of Victoria to cor the Company to remove the pipes from her lands. The respondent (the plaintiff in the action) opposed, on several grounds, the proceed- - ings of the Council taken with the intention of compulsorily acquiring the land, but principally on the ground that the real purpose the defendant (the appellant Council) was not to take the land to make or open a road for traffic, but was solely to obtain title to the land in question so that it might in that way be able to protect the Company against any further trouble or attack from the plaintiff in connection with the pipe-line which the Company had unlawfully laid down on the plaintiff's land. The learned Judge of the Supreme Court of Victoria, after considering the documentary and oral evidence submitted by the parties, - held that the Council did not at any time intend to open the road in question or to make the road, and that the moving factor right through was the desire of the Council to assist the Commonwealth - Oil Refineries. Later on the learned Judge said: ""I make the declaration at any rate that the Council were not acting with any intention of making or opening a road and there will be an injunction." The formal judgment of the Court was as follows: (a) That the purported determination of the defendant that it was expedient to execute the work or undertaking in the pleadings referred to of opening and making a road between the Kororoit Creek road and the Altona road in the east riding of the Shire of Werribee through or over all that piece of land (describing the land), and that it was necessary and desirable to compulsorily acquire the said land for executing such work or undertaking, was unlawful and invalid; (b) that the purported order of the defendant made on the Sth day of December 1927 in the pleadings referred to directing that the said work or undertaking be executed according to the specifications, - maps, plans, sections and elevations described in the notice published in the Government Gazette on the 7th day of September 1927 was _ unlawful and invalid. The order restraining the defendant ftom

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Working details are not necessary, but the learned trial Judge was of opinion that some description of the "nature and extent of the work " would have been given, if the work was really proposed and - intended to be executed, so that persons affected might consider it, and lodge their objections if so advised. Again, the evidence satisfied the learned Judge that the land proposed to be taken was, as it stood, most unsuitable as a road, and that a considerable expen- _ diture would be necessary in filling up and forming swampy and - boggy ground if the land were to be used as a road. Yet, as the learned Judge found, the Council had made no provision for any - such expenditure, and had no means at its disposal for such a purpose unless the Oil Company came to its assistance and recouped it some at least of the expenditure connected with the resumption - of the land and clearing it of boulders. The manager of the Company had stated to the Council that it would so recoup it if the Council - reopened the road, but warned it that the Company's pipe on the - road should not influence the Council's decision. The learned Judge was not much impressed by this altruistic proposal, and in any case the Council took no steps to put it on a safe legal footing. Again, the learned Judge was satisfied - and it was really undisputed - _ that a crossing at the railway was necessary for the effective use of the land as a road, but it was admitted that the Council had taken no steps to provide such a crossing, and the evidence suggests that the crossing might, and probably would, have been refused by the - responsible authorities. On these facts, and others to which the - learned Judge refers, he found that the Council was not compulsorily _ acquiring the respondent's land for the purpose of opening or making a road, but for the purpose of securing a pipe track through the 4 respondent's land for the benefit of the Commonwealth Oil Refineries Ltd. This finding ought not to be disturbed by this Court, and indeed the evidence adduced in the case satisfies me that it was quite right.

Foil ilesch v CROMMELIN, MOORE & WEA - [1928] HCA 41 - HCA 1928 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (123 paragraphs)

Parties