Jupp nha v Oey ie

Jupp nha v Oey ie - [1935] HCA 75 - HCA 1935 case summary — Zoe

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A Court of equity has no general duty to " enforce the law," either at the suit of the Attorney-General or of private persons. Criminal Courts exist for the purpose of enforcing the criminal law and magistrates' Courts have the function of enforcing many laws which create offences. In the case of Institute of Patent Agents v. Lockwood (1) the House of Lords had to consider an attempt to enforce by interdict rules made under the Patents, Designs, and Trade Marks Act 1883 which prohibited any person describing himself as a patent agent unless he was duly registered in accordance with the rules. The defendant described himself as a patent agent and was not registered. Lord Herschell L.C. expressed what he described as his strong opinion in the following words : - '' You have here, for the first time, a new offence created - the offence of practising as a patent agent without being on the register. But for the enactment creating that offence, the defender has done nothing of which anybody would have a legal right to complain either civilly or criminally. The Legislature, having created that new offence, has prescribed the punishment for it, namely, a penalty of £20. Can it possibly under these circumstances be open to bring the individual, not before the summary Court at small expense to determine the question of his liability to a £20 penalty, but to bring him before the Court of Session with its attendant expense and to ask the Court of Session to make a declaration that he has been breaking the law in a manner which the Legislature has said subjects him to a penalty, and, then, having proved that he has rendered himself liable to a penalty, to ask the Court of Session to interdict him, with this result, that if he were to offend again he would not be subject to the summary procedure and the £20 penalty, but would be liable to imprisonment for breach of the interdict ? My Lords, it seems to me, I confess, scarcely necessary to do more than state the contention to show that it is impossible that it can be supported. If that be the law, the number of cases must have been almost innumerable in which such a proceeding would have been competent, and yet it is absolutely unheard of. I will not dwell upon the grave inconveniences which would result from,

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in refusing the special remedy of interlocutory injunction, no standing the Attorney-General's fiat. As a plaintiff Miss Ra has no cause of action : as a relator she has no better right than th public at large whom the Attorney-General represents. What right amounts to has been the subject of much discussion before and is the subject of an elaborate judgment in Attorney-General and Lumley v. T. S. Gill & Son Pty. Ltd. (1), but, whatever else is about it, it cannot be regarded as fundamental in the public welfare. The Local Government Act authorizes the council to take power enforce the by-law to the full extent a mandatory injunction could g Under the by-law the council has taken those powers. Whether or not this excludes the jurisdiction to grant an injunction, it affords: powerful consideration in relation to its exercise. We find that in fact the council intended to repeal the by-law and that but for a slip it would have succeeded in doing so: that it has set about doing so again, and that, believing that the by-law was repealed, it encouraged the defendants to begin building. There is every re for the council at the moment to refrain from requiring the pullit down of the work that has been done. By recourse to the Attorne General's fiat the relator seeks to overcome what is decided on in the way of local government by the intervention of the central Government. Further it appears that if the by-law is repealed a great deal of unnecessary inconvenience and loss will be infli : The peculiar remedy of a Court of equity in these circumstances is sought for a purpose which may prove transient in the protection of an interest not very tangible. In my opinion every reason is against interfering brevi manu. It is not as if the defendants had not committed themselves to building and nothing had been done. If in the end the local law remains that the building ought not to remain, so much the worse for them. The building cannot be used. If there is jurisdiction to grant an interlocutory injunction there is. jurisdiction to grant a final injunction. If the by-law is not repealed the area will remain residential and no doubt the council which has resolved not to repeal it will see that it is obeyed and, if necessary,

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to restrain an illegal act of a public nature at the instance of th Attorney-General suing on behalf of the public, although the act does not constitute an invasion of any right of property a although the Act imposing the new liability prescribes the remedy { its breach." Such a jurisdiction amounts, it is objected, to a gener jurisdiction to enforce the law; no definition is given of an a which tends in its nature to injure the public, or of an illegal a public nature. But similar obscurity exists in other bra the law, and still its administration has not been insuperable. tending to cause public mischief constitute, it is said, a misdeme at common law (see Stephen, General View of the Criminal Law, ed. (1890), pp. 99-107; R. v. Porter (1); R.v. Manley (2)). definition is given of acts tending to cause public mischi: question whether any particular act tends to the public mis for the Court (R. v. Brailsford (3); R. v. Porter (1) ). The will not define such acts, for it is impossible to foresee all the exigenci of society which may require protection. So, too, in the injunctions, the Courts of equity decline to define too precisely tl limit of their jurisdiction and authority. " The intrusions of equit into the sphere of public law have been sporadic and unsyste but we are awakening to the immense possibilities of equity in thi field, and we may be on the threshold of many new development (Hanbury, Modern Equity (1935), p. 577). The Courts, how have held that certain acts are illegal and tend to the injury of public, and thus as to acts of that character the law becomes and settled. It is unnecessary to make a detailed examination all the authorities in which injunctions have been granted in th field of public law, but instances in which jurisdiction has asserted to restrain, by injunction at the suit of the Attorney- the contravention of various enactments, include: (1) the cont ; vention of statutes or by-laws regulating the width of streets, pub or private, or the alignment of buildings upon street - or the erection of buildings (Attorney-General v. Ashborne Re Ground Oo, (4); Attorney-General v. Wimbledon House Estate Go. (5) ; Attorney-General v. Gibb (6) ; Council of the Shire of Ho

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y. Danglade (1) ); (2) the contravention of a statute providing for the licensing of vehicles (Attorney-General v. Sharp (2); Attorney- General v. Premier Line Ltd. (3) ); (3) the contravention or the fraudulent evasion of statutes prohibiting the use of professional titles by unqualified persons or bodies (Attorney-General v. George C. Smith Ltd. (4); Attorney-General v. Churchill's Veterinary Sanatorium Ltd. (5); Attorney-General v. Appleton (6); Attorney- General v. Myddletons Ltd. (7): these cases may seem anomalous, as may also the case of Trethowan v. Peden (8) ). Then there is a long line of cases in which the Courts have at the suit of the Attorney-General restrained statutory corporations, created for particular purposes, from going beyond or exceeding the scope of such purposes. (See Kerr on Injunctions, 6th ed. (1927), p. 548.) None of these cases "take the form of any positive interest susceptible of enjoyment by his Majesty's subjects as of common right," and they possess no features or characteristics which are ordinarily described as proprietary, or are even analogous to features or characteristics so described. Yet the Courts act by injunction. They discern in the Act some provision enacted for the benefit of, or in the interest of, the public generally. Such are provisions for the public health or comfort or safety, or for the orderly arrangement of cities or towns, or for keeping public corpora- tions, created for particular purposes, within the ambit of their powers, and so forth. But the categories of cases in which the Courts will act are never closed, owing to the exigencies of society and the great variety of cases that arise. It does not follow that the Courts will enforce by injunction every statutory duty or obliga- tion (Attorney-General v. Mercantile Investments Ltd. (9) ). The nature and purpose of the duty or obligation must be considered and also the effect of its contravention upon the public generally. The Courts have not defined the limit of their jurisdiction, and no one has yet been able to expound a simple and consistent system. The

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criminal code is not enforced by injunction, for constitutions practical reasons. Otherwise the overruling consideration y the topic has always been the critical question whether an illeg act is being committed that tends in its nature to injure the The ground upon which Attorney-General and Lumley v. T.S8.¢ & Son Pty. Ltd. (1) was decided is thus too narrow, and cons quently affords no answer to the Attorney-General's claim in ¢] present case. a The defendant, however, contends that by-law No. 71 of the of Essendon provides the only and exclusive remedy in case of it contravention. An Act may provide expressly or impliedly ¢] the remedy it prescribes is the sole remedy for its contraventior and then neither the Attorney-General nor a private in can seek any other remedy or sue for an injunction. But it be remembered in the present case, if I am right, that the by-k ereates a public right or interest and that an invasion of that has taken place. "The Attorney-General suing in respect of th invasion of public rights has at least as large a right to invoke th protection of the Court as a private owner suing in respect of hi tights" (Attorney-General v. Ashborne Recreation Ground Co. (2)) The public right does not spring from the remedy, but from th prohibition contained in the by-law. The statute in question Attorney-General v. Wimbledon House Estate Co. Ltd. (3) prohibited the erection of buildings beyond the building line, under penalty of forty shillings for every day during which the offence was continued after written notice had been given by the urban authority. Farwell J. said : - "T am clear that there is not one remedy only, the statutory remedy. There is, first of all, the statutory obl not to build without the written consent, and if that is disol

apart from any question of penalty - there is a remedy by inj tion, because it is a public general Act prohibiting wee mat in the interests of public health and in order to preserve in the width of the public streets, and that is a matter for whie the Attorney-General can sue . . . I see no reason why Attorney-General should not be heard to say in this Court, '

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does not explicitly, nor, I think, by any necessary intendment, or take away any public right, or prevent the Attorney-G from suing in respect of the invasion of any such right. It conf no dispensing power upon the council, nor does it enable the coune to override the rights of the public. (Cf. Lwmley's Public Health 10th ed. (1930), vol. 1, pp. 368, 369). Another provision of the by- prescribes that any person who is guilty of any wilful act or d contrary to the by-law shall be liable to a penalty of not less thar one pound and not exceeding twenty pounds for each offence, a1 in the case of a continuing offence to a further penalty not exce two pounds for each day such offence is continued after written n of the offence. (See also Local Government Act 1928, sec. 222.) | assume that anybody might take proceedings to recover the penalt (Sargood v. Veale (1); Dunstan v. Neems (2) ); with which, howe must be compared R. v. Panton; Ex parte Schuh (3) ). authorities already cited make it clear that such a provision is nc the only remedy available, and that the Court can enforce compli with the by-law in an action by the Attorney-General. But tl Attorney-General is not entitled to an injunction as a matter tight in every case in which public rights are invaded, for the Cour has a discretion - a judicial discretion - in the case of actions by th Attorney-General as well as in other actions (Attorney-General Wimbledon House Estate Co. Ltd.(4); Attorney-General v. Grand June tion Canal Co. (5) ; Attorney-General v. Birmingham, Tame, and District Drainage Board (6)). "The Court no doubt has a disere in the case of Attorney-General actions as well as other actions. Itis not sufficient for the Attorney-General simply to come to the and say, 'I call attention to the fact that there has been a b of this statute, and it follows as a matter of course that the . . . injunction which I ask for must be granted '" (Attorney-General V Wimbledon House Estate Co. Ltd. (7), per Farwell J.). Again, Attorney-General v. Birmingham, Tame, and Rea District Drair Board (8), the same learned Judge, then a Lord Justice of Appe (1) (1891) 17 V.L.R. 660; 13 A.L.T. (4) (1904) 2 Ch. 34. x 121. (5) (1909) 2 Ch, 505, at p. 517. (2) (1914) V.L:R. 364; 36 A.L.T.10. (6) (1910) 1 Ch, 48 ; (1912) A.C. 788.

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same street, nor to build any addition to any house or building beyond the front main wall of the house or building on either side of the same." The breach of this section did not impair a public tight similar to that in the case which has just been cited. But it was contended on behalf of the Attorney-General that one of the objects of the Act was to secure the uninterrupted access of light and air to the houses on either side. This provision more closely resembles the present by-law than the by-law in Attorney-General y. Ashborne Recreation Ground Co. (1). But the benefits or advan- tages to the public which it is alleged that the present respondents are infringing lack the positive characteristics of rights exercisable in relation to definite things, light and air, the enjoyment of which was secured by sec. 3 of the Public Health (Buildings in Streets) Act 1888 (51 & 52 Vict. c. 52). It is a mistake to look only for a pro- prietary interest as the foundation of the equitable jurisdiction, but that public right is not appropriate subject matter for protection by injunction which may be infringed without the loss to members of the public of some specific benefits as distinct from the impairment of the general welfare. There are difficulties in reconciling Attorney- General v. Sharp (2) and Attorney-General v. Premier Line Ltd. (3) with this view, if those cases decide that there is enough to found the Attorney-General's claim for an injunction if the defendant has violated a public duty, using that term in its general sense, and the remedies given by the statute creating the duty are inadequate, provided that the statute does not disallow this equitable remedy. But it is sufficiently clear from the facts in these two cases that the illegal conduct of the defendants respectively tended to the injury of the positive right of the public to orderly and regulated trans- port ; what was protected by injunction was a public right of the same general nature as that in the Ashborne Case (1) and in the Wimbledon Case (4). But the public right created by the by-law in the present case is not of this nature. Viewing the right which was protected by injunction in each of these cases, they are all in line with the principle enunciated by Turner L.J. in Attorney-General v. Sheffield Gas Consumers Co. (5) : - * It is not on the ground of any

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Before

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Judgment (165 paragraphs)

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Cited By (3)