Jupp nha v Oey ie

erection of the factory. 'The application was refused.

Held, by Latham C.3., Rich and McTiernan JJ. (Starke J. dissenting), the injunction was rightly refused.

Per Latham ©.J.: The legislation authorizing the by-law and the by-!

Parliament intended to be exhaustive, and the general interest of the pul in the observance of the law was not alone sufficient to justify the Court i granting an injunction at the suit of the Attorney-General.

Per Rich J.: The Supreme Court properly exercised its discretion in re the special remedy of interlocutory injunction notwithstanding the Atto General's fiat.

Per McTiernan J. : Although the by-law affected the interests of the public, the Attorney-General was not entitled to enforce it by the equitable remedy of injunction, as the by-law did not create any right for which this was an appropriate remedy ; for, while the breach of the by-law, as in the case of any other law, might impair the general welfare, it did not interfere with the right of the public to the enjoyment of any positive interest or advantage.

Attorney-General and Lumley v. T. S. Gill d- Son Pty. Ltd., (1927) V.L.R. 22;

Decision of the Supreme Court of Victoria (Martin J.) affirmed,

Ellen Donaldson Ramsay brought an action in the Supreme Court of Victoria against the Aberfoyle Manufacturing Co. (Australia) Pty. Ltd. and John R. & E. Seccull Pty. Ltd. claiming an injunction to restrain the defendants, their servants and agents, from erecting or continuing to erect the factory in course of erection by the defendants on a piece of land in the City of Essendon adjoining on the north the plaintifi's premises, and an order that the defendants do forthwith pull down and remove so much of the factory as had been erected on the land in question. This land was within an area within which a by-law of the City of Essendon prohibited the erection of such a factory. The council made a new by-law altering the boundaries of the residential area established by the by-law and, if that by-law had been valid, the action of the defendants would have been lawful. The new by-law was, however, quashed by the Supreme Court by reason of a defect in the procedure of making the by-law. The council proposed to make a by-law identical in terms as soon as possible, but no such by-law had as vet been made. The plaintiff was the owner and occupier of land which adjoined the land upon which the factory was being built by the Aberfoyle Manufacturing Co. (Australia) Pty. Ltd., John R. & E. Seccull Pty. Ltd. being the contractor for the erection of the building. The plaintiff applied for an interlocutory injunction. The application was heard by Martin J., who applied the decision of the Full Court of Victoria in Attorney-General and Lumley v. T. S. Gill & Son Pty. Ltd. (1) and refused the application. Subsequently, the Attorney-General was added as a plaintiff. The application was renewed on behalf of the Attorney-General and was refused.

Ramsay v. ABERFOYLE Manurac- TURING Co. (Ausrratta) Pry. Lp.

H.C.or A. From that decision the plaintiff now, by leave, appealed 'tot ah High Court.

Herring and T. W. Smith, for the appellants. Ratepayers ¢: fascree' inform for breach of a by-law (Gill v. City of Prahran (1) ). (Avsrrati4) though the statute prescribes a penalty, unless it takes away fl

Pry. Lrp. rae 4

• • Court's power to grant an injunction, that power still remain

As soon as it is determined that the by-law creates publi rights, the Attorney-General can take action independently o any private rights. The Attorney-General can come to to assert any public right which he believes to have been infrin This is so, provided that the laws confer the benefits on the memb of the public. The rights conferred by the building by-law ar conferred generally on citizens of Victoria and not only on citi of Essendon (Attorney-General vy. Ashborne Recreation Ground 0 (2) ). The Court should not have attempted to limit the classes cases which it could protect by injunction, as it did in A General and Lumley v. T. 8. Gill & Son Pty. Ltd. (3). The ana to restrictive covenants which was there used was unsound. Th law was correctly laid down in Attorney-General v. Sharp (4). A by-law as to highways imposes an obligation and, consequently, a correlative right on the public, which could be enforced by injunctiot The Court has the widest jurisdiction in granting an injunction to restrain an infringement of a public right (Attorney-General v Premier Line Ltd. (5); Halsbury, Laws of England, 2nd ed., vol. 18 p- 51). The interest created by the by-law in this case poss characteristics of a nature recognized in equity and capable enforcement by injunction. The principle in Gill's Case (6) is too narrow, as a public right for the invasion of which the Court grant an injunction at the suit of the Attorney-General ni possess the same characteristics as those possessed by individuals enforced by them. Attorney-General y. Sharp (4) shows that th jurisdiction of the Court reaches even further than it is neces

a different basis. ill's Case (6) rightly states the law but w

(1) (1926) V.L.R. 410 ; 48 A.L.T. 36. (4) (1931) 1 Ch. (2) (1903) 1 Ch. 101, (5) (1932) 1 Ch. (3) (1927) V.L.R. 22; 48 ALT. 112. (6) (1927) V.LR.

this is a development of the equitable rights incorporated in a building scheme (Council of the Shire of Hornsby v. Danglade (1); Han- bury's Essays on Equity (1934), pp. 80, 107, 112). [Counsel also referred to Shelfer v. City of London Electric Lighting Co. (2), Attorney-General v. Wimbledon House Estate Co. (3), Attorney- General v. Ashborne Recreation Ground Co. Ltd. (4) and Public Health Act 1875 (38 & 39 Vict. c. 55), sec. 157). The plaintiff has a right to an injunction apart from the Attorney-General (Boyce v. Padding- ton Borough Council (5); Mayner v. Payne (6); Winterbottom v. Lord Derby (7) ). This Court should not consider the possibility or probability of a new by-law being passed sanctioning the erection of the factory on the present site (Attorney-General v. Westminster City Council (8) ). The Court should not suspend an injunction which refers solely to the future (Attorney-General vy. Acton Local Board (9) ).

Wilbur Ham K.C. (with him Dean), for Aberfoyle Manufacturing Co. Gill's Case (10) was correctly decided. Attorney-General v. Sharp (11) was based upon nuisance. The ordinary law is laid down in Institute of Patent Agents v. Lockwood (12). An injunction will not issue to restrain anything which is illegal. The council can at any time vary the limits of the residential area, and, conse- quently nothing in the nature of a proprietary right can attach to the property in consequence of the by-law. The by-law makes the bulk of the municipality a residential area, leaving only a fraction available for a shopping area. This must contemplate enlargement of the latter area from time to time as the exigencies of the time requires. This is a very different right from that acquired under a restrictive covenant or under a building scheme (Attorney-General vy. Sheffield Gas Consumers Co. (13); Attorney-General v. Birming- ham, Tame, and Rea District Drainage Board (14) ). The only person

W.) 118. (8) (1924) 2 Ch. 416, at pp. 419, 422. (2) (1895) 1 (9) (1882) 22 Ch. D. 221.

(3) (1904) 2 Ch. 34. (10) (1927) V.L.R. 22; 48 A.L.T. 112. (4) (1903) 1 Ch., at p. 103. (11) (1931) 1 CI

Ww Ramsay v. ABERFOYLE Manurac- TURING Co. (AUSTRALIA) Pry. Lrp.

who can bring such a matter before the Court is the Attorney-Ger acting on behalf of all the people and not on behalf of part (dito General v. Churchill's Veterinary Sanatorium Ltd. (1); Attorney General v. Wimbledon House Estate Co. Ltd. (2)). Here there j another remedy given in that the local council can require building to be pulled down. This case does not come within th class of case in which there is no other legal remedy aya (Hanbury's Essays on Equity (1934), p. 112; Hanbury on Moden Equity (1935), pp. 571, 572). Under the Local Government Act at the by-law the remedy given by the Act and by-law is intend to be the only remedy. The council is not to have its authority

General substituted for that of the council unless there is som breach of duty on the part of the council. The Legislature ha left it in the discretion of the council to determine whether th building is to be pulled down or not. The by-law was passed ur sec. 197 (5) (b) of the Local Government Act, and sec. 197 (6) provides for the inclusion of provisions for pulling down. Penalt for breach of the by-law go into the municipal fund. The counei has sufficient power to prevent the factory operating, and, therefore the Attorney-General should not intervene. There is sufficient cause for the Court to refuse an injunction because of the action of council in altering the by-law. The matter should be left in ab until the position with regard to the by-law is cleared up (Dun v. Neems (3) ). The cases as to what persons can sue are colle in Collins and Meaden on Local Government, 2nd ed. (1933), at pp. 815-817. In any case, having regard to the fact that this is a

interlocutory application, even if the Court has jurisdiction, it ald refuse to exercise it in favour of the applicant (Attorney: v. Sheffield Gas Consumers Co. (4)). Before an interlocut injunction should be granted there should be a very strong probability of success at the trial (Challender v. Royle (5); Halsbury, Laws

England, 2nd ed., vol. 18, p. 29; Hanbury, Modern Equity (1935),

p. 570). The balance of convenience is the very question ti

(1) (1910) 2 Ch, 401, at pp. 406, 407. (4) (1853) 3 DeG. M. &

(2) (1904) 2 Ch., at pp. 41, 44. 43 E.R., at p. 122. i

(3) (1914) V.L.R. 364, at pp. 367, (5) (1887) 36 Ch. D, 425, at pp. 436, 368; 36 ALL.T. 10, at p. 12. 443.

committed to the council (Halsbury, Laws of England, 2nd ed., vol. 18, p. 33). This is not a case in which the Court ought to exercise the exceptional remedy of injunction.

Walker, for John R. & E. Seccull Pty. Ltd. By far the most impor- tant question is how far will the Court go in issuing an injunction. To say that the Court will grant an injunction to restrain a breach of any statute is going much too far (Attorney-General v. Sheffield Gas Con- sumers Co.(1)). Aninjunction will go only in the case of a breach of a proprietary right, that is, a right which the public enjoys in respect of property, a breach of which will constitute a public nuisance (Attorney-General v. Mercantile Investments Ltd. (2)). The law with regard to the issuing of injunctions should be static. The only laws that have ever been regarded as creating proprietary rights of this nature in the public are those creating a public nuisance. There must be some special right infringed in order to give rise to the remedy of injunction. The Attorney-General could not sue to restrain the breach of a building scheme. Where a specific remedy is contained in a statute, that is the only remedy available (Pasmore v. Oswald- twistle Urban Council (3); Country Roads Board vy. Neale Ads Pty. Ltd. (4) ).

(Starke J. referred to Grand Junction Waterworks Co. v. Hampton Urban Council (5).]

Tf there is not here an exclusive remedy, there is at least an adequate remedy (Attorney-General vy. Merthyr Tydfil Union (6) ). An injunction should be refused because the plaintiff will be in no 'worse position if it is refused than if it is granted, and the defendants will be in a very much worse position.

T.W. Smith, in reply. The right here is similar to that conferred by a private building scheme. It is a legislative restriction of the use of land for the use of the public at large. No permit to build should have been given by the building surveyor. A permit to build in a residential area is not valid and is not a permit at all. Attorney-General v. Sharp (7) lays down a general rule which

(1) (1853) 3 DeG. M. & G., at p. 320; (3) (1898) A.C. 387, at pp. 394, 397.

43 E.R., at (4) (1930) 43 C.L.R. 126, at p. 134. (2) (1920) 21 8. .) 183; 38 (5) (1898) 2 Ch, 331, at p. 345. W.N. (N.S.W.) 31. (6) (1900) 1 Ch. 516, at p. 550. (7) (1981) 1 Ch, 121.

Ramsay a ABERFOYLE Manurac- TURING Co. (Avsrratta) Pry. Lap.

Ramsay v ABERFOYLE Ma ruRING Co. (Avsrratra) Pry. Lev.

we Galle cover any case of stati prohibition. Atiomes Ga eral.

there is a right in the Attorney-General to complain of brea the by-law, then, though an injunction does not follow as of righ it follows as of course (Attorney-General v. Birmingham, Tame, Rea District Drainage Board (3) ). Tf the right and the vio atio thereof are found the question of the balance of convenience d not arise (Halsbury, Laws of England, 2nd ed., vol. 18. p. ' Attorney-General and Lumley v. T. 8 Gill & Sons Pty. Ltd. (4)). adequate remedy means one adequate in fact, and the remedy pulling down does not exist in this case. There is here damage caused to the individual plaintiff and she is entitled injunction in her own right (Blundy, Clark & Co. v. London and No Eastern Railway Co. (5) ). There is evidence that the plain property will be damaged, and the plaintiff thus shows special d to enable her to sue for this public wrong.

The following written judgments were delivered : - ;

Laruam C.J. The important question which is raised by thi appeal is whether the Supreme Court of Victoria may properly gra an injunction to restrain the breach of a certain by-law of the of Essendon. If this question be answered in the affirmative it become necessary to consider whether the Court should in this exercise its discretion by granting an interlocutory injunction upo the application of the plaintiff. '

The defendant the Aberfoyle Manufacturing Co. (Australia) Ltd. is engaged in erecting a factory within an area within which a1 existing by-law of the city prohibits the erection of such a fi The second-named defendant is the contractor for the erection of the factory and is doing the actual work of building. The coun made a new by-law altering the boundaries of the residential

(1) (1910) 2 Ch. 410, (4) ae) V.L.R. 414, at p. 4185 (2) (1931) 1 Ch, 121, 46. at p. 48. (3) (1910) 1 Ch., at p. 60, (5) ssi) 2 2KB. Sa, at p. 352.

established by the by-law, and, if that by-law had been valid, the action of the defendants would have been lawful. The new by-law, however, was quashed by the Supreme Court by reason, we are told, of a defect in the procedure of making the by-law, so that it became unnecessary to consider other objections raised to its validity. The council proposes to make a by-law in identical terms as soon as possible, but no such by-law had been made at the time when the plaintiff applied for an interlocutory injunction restraining the defendant from proceeding with the building of the factory. The proposed new by-law has not yet been made and it can only be a matter of more or less certain speculation as to whether it will ultimately be made and come into effective operation. Martin J. refused the application for an interlocutory injunction, applying the decision of the Full Court of Victoria in Attorney-General and Iumley v. T. 8. Gill & Son Pty. Ltd. (1). Subsequently the Attorney-General was added as a plaintiff. The application was renewed on behalf of the Attorney-General and was refused.

The plaintiff is the owner and occupier of land which adjoins the land upon which the factory is being built. The by-law which is now in operation was made under the powers contained in the Local Government Act 1928, sec. 197 (5) and (6). It prohibits the erection within a specified area of any building for the purposes of any trade, industry, manufacture, business or public amusement, with certain exceptions which are not material. The defendant's factory is being erected within the area specified and it is being erected for the purpose of conducting trading, industrial and manu- facturing operations. The by-law contains provisions for enforce- ment which are authorized by the statute under which it was made. Tf a building is erected contrary to the by-law the council may give to the owner or builder a notice in writing requiring him to deliver a statement in writing or to attend personally or by agent before the council and show sufficient cause why such building should not be brought into conformity with the provisions of the by-law or why it should not be pulled down or removed. In the event of failure to show such cause the council may, through its surveyor with workmen, demolish and pull down the building, or

Ramsay v. ABERFOYLE Manvrac- TURING Co. (AusTRALIA) Pry. Lep.

Ramsay ABERFOYLE Manvrac- turrING Co. (Avsrratia) Pry. Lev.

any part or parts thereof, and may do any other act that may hy necessary for the purposes mentioned and may remove the mate and sell them. Provision is made for deduction from the proceeds of sale and the retention by the council of expenses, fees and penalties Any surplus is payable to the person entitled. The by-law al provides that any person who is guilty of any wilful act or default contrary to the provisions of the by-law shall be liable to a penalty of not less than one pound and not exceeding twenty pounds for each offence, and in the case of a continuing offence to a fu penalty not exceeding two pounds for each day such offence is continued after written notice of the offence from the council.

Thus legislative provision has been made for the by-law to b enforced, not only by penalties recoverable before magistrates, but also by proceedings which the council is left to initiate and in course of which it exercises its discretion in each particular By the utilization of this provision the council can accomplish same result as would be reached if a mandatory injunction w granted by a Court of equity.

The argument upon the hearing of the appeal was largely devoted. to an analysis of the principles stated by the Full Court of Victori in Attorney-General and Lumley v..T. S. Gill &. Son Pty. Ltd. (I). The judgment in that case contains a valuable examination of the principles upon which a Court of equity may properly grant remedy by way of. injunction, particularly in cases when it i sought to found that jurisdiction upon the breach of a statutory duty. The Attorney-General is, in a general sense, the guardian of public rights. As such he not only represents the King in the enforcement of the criminal law, but he may also represent the community in certain cases in civil proceedings in order to protect - public rights. It was held that, in order to entitle the Attorney- General, as representing the public, to an injunction as a remedy for the breach of a statutory duty, there must exist something more - than some benefit or advantage to the public arising from the enforcement of the law; that there must be a positive interest, susceptible of enjoyment by the public as of common right - some- thing analogous to a proprietary right. In my opinion, however, -

it is unnecessary to re-examine these difficult questions, the decisions upon which cannot readily be reconciled.

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,

Ramsay v. ABERFOYLE Manvrac- TURING Co. (AusrRatra) Pry. Lrp.

Ramsay v. ABERFOYLE Mawvrac- rurtxa Co. (Avsrratta) Pry. Lrp.

sanctioning a procedure of that description. The mode of and the amount of penalty are often regarded by the Legislature as of the utmost importance when they are creating new offences, and the law would, I believe, contrary to their intention, be iba seriously modified if it were held that the party committing a breach of that which for the first time is made an offence were to subject himself by so doing to proceedings of this description which mi result in a committal to prison. For these reasons, I think that this action was not competent" (1). Lord Watson expressed an equally definite opinion when he said that, contrary to the con- tention of the plaintiff, "I think it was the plain meaning of the Legislature that when a man whose name was not on the register chose to hold himself forth as a patent agent, the full measure of punishment to be inflicted upon him should be a fine within the sum limited, viz., twenty pounds, to be fixed by a summary Court of criminal jurisdiction. There is a mass of statutes regulating sanitary and other improvements for the benefit of the general. public, which every neighbouring member of the public has a certain interest in seeing enforced, as to which it would never do to permit the civil Courts to adjudicate. It is clear, upon the face - of such legislation, that breaches of those laws were intended to be dealt with simply as a matter of police regulation, to be punished by a fine " (2).

This case has often been followed and applied and I am aware of no subsequent decision which in any degree diminishes the authority and weight of these important general principles. In my opinion, - they are particularly relevant in such a case as the present. The by-law in question, made in precise and detailed conformity with the statute, provides for three kinds of penalties in order to secure - its enforcement. There is, first, a penalty of not less than one pound and not exceeding twenty pounds. Then, secondly, if the council thinks it proper to give a written notice of the offence, there is a penalty not exceeding two pounds a day for a continuing offence. Thirdly, if the council, after hearing the owner or builder, is of opinion that the building should be pulled down or removed, the council may, by its officers and workmen, pull it down or remove

(1) (1894) A.C., at pp. 361,362. (2) (1894) A.C., at p. 363.

it. It would be difficult for a Legislature more clearly to show its intention to provide a complete code of remedies. Everything that a Court of equity can achieve can in substance be attained by the application of the by-law. The Legislature, in explicitly authorizing such a by-law, has indicated in the clearest manner that it is for the council in its discretion to decide, by a simple and inexpensive procedure, whether a building which (ea hypothesi) is being erected in contravention of the by-law, should be pulled down or removed. In my opinion, apart from other considerations, the application of the remedy by way of injunction is in this case definitely excluded by the statute which expresses so clear an intention as to the means whereby this particular by-law shall be enforced. The relevant discretion is expressly committed to the council. The council is a representative body, responsible to the ratepayers, who can express their approval or disapproval of the manner in which it exercises its powers and discharges its duties.

It may be observed that this by-law does not present a case of the statutory "re-enactment" of a previously existing common law liability as in Stevens v. Chown (1), and that in cases like Attorney- General v. Ashborne Recreation Ground Co. (2) and Attorney-General v. Wimbledon House Estate Co. Ltd. (3) there was no actually available provision in the law under which the local authority (which actually sought the aid of the Court) could itself so act as to secure observance of the law by pulling down the unlawful structure.

In my opinion these specific provisions for enforcement of this by-law are sufficient to distinguish this case also from Attorney- General v. Sharp (4), where the Court held that an injunction should be granted to restrain a person from plying for hire with motor omnibuses in breach of a statute. The defendant had been fined for this offence sixty times. It was held that this fact showed that the remedies provided by the act were ineffective and that the Court had jurisdiction to grant an injunction restraining the defendant from causing or permitting any of his motor omnibuses to ply for hire in breach of the statute. Lawyers are familiar with the prin- ciples relating to the inadequacy of a common law remedy in damages

(1) (1901) 1 Ch. 894, at p. 903. (3) (1904) 2 Ch. 34. (2) (1903) 1 Ch. 101. (4) (1931) 1 Ch. 121.

Ww Ramsay v ABERFOYLE Manurac- TuRING Co. (AusTRaLiA) Pry. Lrp.

Ramsay v ABERFOYLE Manvrac- 'TuRING Co. (AusTRALrA) Pry.. Lap.

"notwithstanding the infliction of the punishment prescribed by the

• warrant the Attorney-General intervening for the purpose of asserting

which in particular cases provide a foundation for the application of the equitable remedy by way of injunction. It appears to me that those principles are given a new application when a decides that a penalty imposed by a statute is inadequate becan it has not proved to be a deterrent in a particular case, with result that an injunction is granted so that a further breach of law will involve a contempt of Court with consequent imprisonment, . However, as I have said, the specific provisions for enforcement this particular by-law distinguish it from such a provision as that which was under consideration in Sharp's Case (1).

In Sharp's Case (1) it was also decided that, where the Attor General was a party, the fact that the Act imposing a new liability prescribes a remedy for its breach does not exclude the jurisdiction

-of the Court to grant an injunction. To this extent the Court of Appeal held that the principle laid down by the House of Lords in Institute of Patent Agents v. Lockwood (2) was not applicable whe the Attorney-General was a party. I cannot think that the J meant to decide that the presence of the Attorney-General in litig

-tion may affect the construction of a statute in ascertaining intention of the legislation as to the exclusive character of the remed provided, but it is not necessary to consider this question. is nothing in the decision in Sharp's Case (1) to affect the proposition that, if the statute clearly shows that a particular remedy was to applied at the discretion of a municipal council, a Court of equ has no authority to substitute its judgment for that of the council -The later case of Attorney-General v. Premier Line Ltd. (3) went further than Sharp's Case (1). In that case the learned Judg said : - '' The Attorney-General has been invoked, and he has" intervened in order to assert, not only the rights of the three relators joined with him as co-plaintifis, but of the public at large. The public is concerned in seeing that Acts of Parliament are obeyed, and if those who are acting in breach of them persist in so doing,

Act, the public at large is sufficiently interested in the dispute to

public rights, and if he does so the general rule no longer operates ; the dispute is no longer one between individuals, it is one between thé public and a small section of the public refusing to abide by the law of the land " (1). Upon this principle a Court of equity would, in cases where the Attorney-General is a party, have a most extensive and hitherto unprecedented field of authority in securing observance of the law. Obedience to any ordinary public statute is a matter of concern to the public, but in my opinion the general interest of the public in the observance of the law is not in itself sufficient to justify the Court in granting an injunction at the suit of the Attorney-General. Iam -not aware of any other authority which supports such a proposition stated in the general terms which have been quoted. Prima facie it is for Parliament to see that the remedies for breach of a statute are adequate to secure observance of the law, and it is not for any Court of law or of equity to assume a general supervision, even at the suit of the Attorney-General, for the purpose of remedying what it

• regards as the defective machinery of a statute. In Sharp's Case (2) and the Premier Line Case (3) the Courts were dealing with statutes which prescribed only a pecuniary penalty. This case is very different, and, whatever may be the power of a Court of equity in such cases as those mentioned, there is, in my opinion, no doubt that it would not be a proper exercise of the power of such a Court to administer a remedy which is substantially identical with a remedy the application of which is definitely entrusted by Parliament to another Court or to a public body acting as a tribunal for this specific purpose. Thus I find it unnecessary to consider the second question as to the exercise of the discretion of the Court in this particular case. For the reasons stated I am of opinion that the appeal should be dismissed with costs.

Ricu J. After having had the advantage on the hearing of the appeal of a full examination of the facts of this case and the considerations which arise out of them I regret to say that we were

(1) (1932) 1 Ch., at p. 313. (2) (1931) 1 Ch, 121. : (3) (1932) 1 Ch. 303,

Ramsay "0. ABERFOYLE Manurac- TURING Co. (AusTRALIA) Pry. -Lrp.

Ramsay v. ABERFOYLE Manvurac- ruRING Co. (AUSTRALIA) Pry. Lrp.

mistaken in granting special leave. For I think that the learmed Judge whose order is appealed from exercised a very sound discreti

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,

have the building pulled down or altered. I do not feel that we are called upon to say whether the remedies provided by the Local Government Act are exclusive or whether the decision of the Full Court in Attorney-General and Lumley v. T. 8. Gill & Son Pty. Ltd. (1) is right in all respects. We are called upon to give a prompt decision, and for that reason and for that reason alone I refrain from giving an opinion on those difficult questions. But I certainly entertain no present opinion adverse to the respondents upon them. Old-fashioned views upon the jurisdiction of Courts of equity find the growth of the use of injunction more repugnant than satisfying. An Attorney-General's fiat does not entitle a relator to succeed on a somehow equity or on no equity at all. I am afraid I speak as one not indoctrinated with the Judicature Act. However, in the present case I am not called upon either to advance or restrict the jurisdiction. The appeal should be dismissed with costs.

Starke J. The City of Essendon made a by-law (No. 71) under various powers conferred upon it by the Local Government Act 1928, secs. 197, 198. By this by-law (Part XV.) certain areas within the municipal district were prescribed as residential areas. It also provided that "' the erection (including adaptation for use) or the use of any building or any land for the purpose of any trade, industry, manufacture, business, or public amusement within the whole of the said residential areas shall be and is hereby prohibited." By a contract in writing dated 22nd October 1935 between the Aberfoyle Manufacturing Co. (Australia) Pty. Ltd. (called the proprietor) and John R. & E. Seccull Pty. Ltd. (called the contractor), the contractor agreed to erect and complete a one-story brick factory for the pro- prietor, on the land of the proprietor in Vida Street, within the municipal district of Essendon. It is intended that the factory, when completed, shall be used for the conversion of grey cotton yarns into mercerized cotton yarns. The site of the factory is within a residen- tial area prescribed by the by-law No. 71. On 23rd October 1935 the City of Essendon purported to amend the by-law No. 71 by excepting certain areas from the residential areas thereby prescribed,

we Ramsay e ABERFOYLE Manvrac- TURING Co. (Ausrpanta) Pry. Lr.

Ramsay 2. ABERFOYLE Manvrac- TURING Co. (Ausrratia) Pry. Lrp.

.by-law was passed, and the buildings were commenced pursuant:

the effect of which would have been to exclude the site of the fact from any residential area ; but this amending by-law was q by the Supreme Court of Victoria, on the last day of October 1 for illegality. Towards the end of October 1935 building operati were commenced on the factory site already mentioned, and hays gone on continuously ever since that date. The building surv of the city granted a building permit on the day before the amending

it and in anticipation of the passing of the amended by-law. land on the south side of the factory site is owned by Ellen Don Ramsay, and she has erected thereon a substantial dwelling hou in which she lives. On 30th October 1935 she commenced an in the Supreme Court against the Aberfoyle Co. and Seccull Ltd. claiming an injunction restraining them from erecting continuing to erect the factory already referred to and an o that they do pull down so much of the factory as has been erected She moved for an interim injunction, which was refused. Attorney-General for the State of Victoria then joined, on the relation of Ramsay, as a plaintiff in the action. The motion for interim injunction was renewed, and again refused. An appeal from these decisions has been brought by special leave to this

It cannot be denied that the defendants, the Aberfoyle and h Seccull companies, are engaged in an illegal act in proceeding ¥ the erection of the factory in contravention of the by-law No. 7 The amending by-law which was quashed for illegality, and the building permit given by the building surveyor, do not authorize 0 in any way excuse the violation of the by-law. The City of Essend: "cannot any more than a private person dispense with laws th have to be administered " (Yabbicom v. King (1) ).

But it is contended that there is no jurisdiction to restrain b way of injunction the illegal acts of the defendants, and relia 7 is placed upon the decision of the Supreme Court of Victori in the case of Attorney-General and Lumley v. T. S. Gill & Son Pty. Ltd. (2). In that case a by-law of a municipality prescribed a residential area, and provided that no person in such area should use any land or erect or adapt for use any building for the purpose

(1) (1899) 1 Q.B. 444, at-p. 448, (2) (1927) VLR. 22; 48 ALT. 112

of any trade, industry, manufacture, business or public amusement. It was held that the Attorney-General could only maintain a suit for injunction for the enforcement of a public right or interest if the right or interest presented '' those features which belong to the wide category of rights recognized in equity as proprietary"; they must "take the form of " some " positive interest susceptible of enjoyment by his Majesty's subjects as of common right." The conclusion was then reached that the by-law in question there, prescribing residential areas within the municipality of the City of Prahran, did not possess the features or characteristics necessary to sustain the suit of the Attorney-General.

The principle upon which the equitable jurisdiction of English Courts is exerted by way of injunction in the field of public law is ill-defined and difficult of statement. But the principle asserted in Attorney-General and Lumley v.T. S. Gill & Son Pty. Ltd. (1) con- fines the jurisdiction within too narrow limits and runs counter to a body of authority that ought not to be disregarded. It has been said that " the Court of Chancery kept very clear of the province of crime, and since the province of crime and the province of tort overlap, it kept very clear of large portions of the province of tort " (Maitland on Equity, (1920), p. 19). Thus it was once thought that 'the publication of a libel could not be restrained by injunction because libel was a criminal offence as well as a civil wrong (Gee v. Pritchard (2); Prudential Assurance Co. v. Knott (3) ). The jurisdiction was gradually asserted, however, over this class of wrong, and is now exercised, though with caution (Thomas v. Williams (4); Bonnard vy. Perryman (5)). But it has been authoritatively stated that, where an illegal act is being committed which in its nature tends to the injury of the public, the Attorney-General can maintain an action on behalf of the public to restrain the commission of the act without adducing any evidence of actual injury to the public (Attorney-General v. Shrewsbury (Kingsland) Bridge Co. (6)). A later statement to the same effect may be found in Attorney-General vy. Sharp (7) : " Itis firmly established that the Court has jurisdiction

(1) (1927) V.L.R. 22; 48 A.L.T. 112. (4) (1880) 14 Ch. D. 864, at p. 873. (2) (1818) 2 Swans. 402, at p. 414; (5) (1891) 2 Ch, 269. 36 E.R. 670, at p. 674. (6) (1882) 21 Ch, D. 752.

(8) (1875) L.R. 10 Ch. 142. (7) (1931) 1 Ch,, at p. 134.

Ww Ramsay v ABERFOYLE Manvrac- TURING Co. (AusrRauta) Pry. Lev.

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

(1) (1910) 1 K.B. 369. (4) (1903) 1 Ch. 101. (2) (1933) 1 K.B. 529. (5) (1904) 2 Ch. 34. (3) (1905) 2 K.B. 730. (6) (1909) 2 Ch. 265.

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

(1) (1929) 29 S.R. (N.S.W.) 118. (8) (1931) 31 S.R. (N.S.W.) 183; 48 (2) (1931) 1 Ch. 1 W.N. (N.S.W.) 36; (1931) 44 (3) (1932) 1 Ch. CLR. 394; (1932) A.C. 526; (4) (1909) 2 Ch. 5: 47 OLR. 97.

(5) (1910) 2 Ch, 401. (9) (1920) 21 S.R. (N.S.W.) 183; 38 (8) (1907) 1 TR. 252. W.N. (N.S.W.) 31.

Ramsay v ABERFOYLE Manurac- TURING Co. (AvsTRatia) Pry. Lrp.

Ramsay Os ABERFOYLE Manurac- ruRING Co. (AustRALtA) Pry. Lrp.

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, '

(1) (1927) V.LLR. 22; 48 A.L.T. 112. (2) (1903) 1 Ch., at p. 107. (3) (1904) 2 Ch. 34. :

defendants have done that which the Act of Parliament has forbidden them to do, and I appeal to the Court to make them take it down again'" (1). The question depends upon the construction of the particular statute or by-law under consideration, but the general tule of construction, in the absence of clear words or necessary intendment to the contrary, is that when a by-law creating public tights is contravened the remedy contained in it is not the only remedy available, and the Court can enforce compliance with the by-law by injunction at the suit of the Attorney-General (Attorney- General v. Ashborne Recreation Ground Co. (2) ; Devonport Corpora- tion v. Tozer (3); Attorney-General v. Sharp (4) ; Attorney-General y. Premier Line Ltd. (5) ). Institute of Patent Agents v. Lockwood (6) was much relied upon, but it does not touch the point under discussion ; it is based upon the view that the penalty imposed by the Act there in question created no private right in any person or body. It was pointed out during the argument in Attorney-General v. Sharp (7) that the proceeding in Lockwood's Case (6) was not by the Attorney-General to enforce a public right.

The by-law in the case now before us contains, in Part XVI., provisions for its enforcement, and for penalties. These provisions are not limited to the clause which prohibits the erection of buildings for the purposes of trade, &c., within residential areas, but include a multitude of clauses in the by-law relating to the erection of build- ings and other constructions. The first provision is that the council may give to an owner or builder a notice in writing requiring the owner or builder to show sufficient cause why any such building or construction should not be brought into conformity with the provisions of the by-law or why such building or construction should not be pulled down. If the owner or builder fails to show sufficient cause, the council may demolish and pull down the building or construction, sell the same, and deduct the expenses of so doing out of the proceeds. This is a discretionary power, which the council may or may not think fit to exercise. It gives no remedy to the Attorney-General in respect of the invasion of any public right. It

(1) (1904) 2 Ch., at pp. 41, 42. (5) (1932) 1 Ch. 303. (2) (1903) 1 Ch. 101. (6) (1894) A.C. 347.

(3) (1903) 1 Ch. 759. (7) (1931) 1 Ch., at pp. 126-128, (4) (1931) 1 Ch. 121.

Ramsay v ABERFOYLE Manvrac- TURING Co. (AusrRatta) Pry. Lev.

Ramsay cA ABERFOYLE Manvrac- TURING Co. (AusrRaLra) Pry. Lrp.

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.

(3) (1888) 14 V-L.R. 529; 10 A.L.T. (7) (1904) 2-Ch., at p. 42. 15. (8) (1910) 1.Ch., at p. 61.

observed that it is for the Attorney-General to determine whether he should commence litigation, but for the Court to determine what the result of that litigation shall be. The adequacy and convenience of other remedies must be considered, such, for instance, in the present case, as the provision for enforcement contained in the by-law itself. The ineffective nature of the remedy may be estab-

lished by evidence that it has been resorted to and proved futile (Attorney-General v. Sharp (1)). But in the present case the provisions of the by-law appear to me wholly inadequate to redress the wrong of which the Attorney-General complains, and that by reason of the action of the council and the defendants. The council endeavoured to amend the by-law, as already stated, but the amend- ing by-law was quashed for illegality. It proposes to make another attempt to amend the by-law, which will exclude the site of the defendants' factory from any residential area under the by-law, and is in the course, we are informed, of making such an amendment. In these circumstances, the council refuses to enforce the present by-law - the existing law - and the defendants proceed with the erection of their factory despite its provisions. It was conceded that the approval of the Governor in Council must be obtained before any such amendment can take place (see Local Government Act 1928, secs. 197, 198). Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future.

In my opinion, the Attorney-General has established a clear invasion of public right in the contravention of the by-law, and, indeed, the defendants do not dispute their contravention of its provisions. The defendants are doing illegal acts which tend in their nature, if I am right, to the injury of the public. Adapting the words of Farwell J. in Attorney-General v. Wimbledon House Estate Co. Id. (2), the Attorney-General has brought to the attention of the Court the fact that there has been a clear and deliberate breach of the duty imposed by law. In such circumstances, an injunction, whether perpetual or interim, should go, if not of right, still almost asa matter of course. It may be discharged if the by-law is amended so that the erection of the factory becomes no longer a breach of

(1) (1931) 1 Ch, 121. (2) (1904) 2 Ch. 34. VoL. LIV. 7

Ramsay v. ABERFOYLE Manvrac- TuRING Co. (Ausrracta) Pry. Lap.

'Ramsay v ABERFOYLE Manvrac- TURING Co. (AusTRALIA) Pry. Lrp.

the law, but until that time arrives it is the duty of the law to enforce, and of the defendants to obey, the law as it exi (Attorney-General y. Birmingham, Tame, and Rea District Draina Board (1) ).

Tt was also contended that Ellen Donaldson Ramsay, who. well as the Attorney-General is a party plaintiff in this action, i entitled to an injunction restraining the defendants from pro with the erection of the factory already mentioned. The argume was founded upon the propositions contained in the judgment ¢ Buckley J. in Boyce v. Paddington Borough Council (2). But th plaintiff Ramsay has not, I think, established that any private righ of hers has been interfered with, and the evidence before the Cou does not sufficiently establish that she has sustained or is likely t sustain any special damage peculiar to herself by reason of 1 invasion by the defendants of the public right created by virtue the by-law. It may be that she will be able to establish such sp damage at the trial of the action, but the probability of success not yet sufficiently appear.

The result is that the appeal of the Attorney-General s succeed, and that an interim injunction should be granted at hii suit in the terms of the first claim in the writ of summons.

McTiernan J. The question arising in this appeal, whether th Attorney-General of Victoria can maintain a suit for an injunctio restraining the respondents from erecting a factory in an ated prescribed by a by-law of the City of Essendon made pursuant to the provisions of the Local Government Act 1928 of Victoria as a residential area and within which the erection of a building for the purpose of manufacture is prohibited, was decided adversely to the contention of the appellants by the Full Court of Victoria in Attorney-General and Lumley v. T. S. Gill & Son Pty. lM (3). There the Attorney-General sought to make the breach a by-law of similar import the foundation of a claim for an injun tion. The by-law of the City of Essendon, now in question, pro e ; that any person who is guilty of any wilful act or default contrary

(1) (1910) 1 Ch. 48; (1912) A.C. 788. (2) (1903) 1 Ch. 109. (3) (1927) V.L.R. 22; 48 A.L.T. 112.

to any of its provisions shall be liable to a penalty for each offence and to further penalties for each day such offence is continued after written notice of the offence from the council of the municipality. 'An offence against the by-law is deemed an offence against the Local Government Act 1928, and the penalties imposed by the by-law are recoverable before a Court of Petty Sessions and are to be paid into the funds of the municipality. Besides these penalties the by-law contains provisions enabling the council to require the owner or builder of any structure erected in contravention of it to show cause why the structure should not be brought into conformity with the provisions of the by-law or pulled down or removed, and, failing sufficient cause being shown, enabling the council to have it demolished and the materials removed.

The Supreme Court of Victoria (Martin J.), following the decision of the Full Court of Victoria in Attorney-General and Lumley v. T. S. Gill and Son Pty. Ltd. (1), held that the Attorney-General was not entitled to maintain a suit for an injunction to restrain the respondents from proceeding with the erection of the factory in contravention of the by-law. Counsel for the appellant submit that Gill's Case (1) was wrongly decided and that the Attorney- General is entitled to ask for the relief which is now claimed.

The criticism of the judgment in the above-mentioned case is founded on the wide ground that the Attorney-General is entitled to ask for an injunction to restrain a breach of any statute or by-law having statutory force; but that criticism is not justified by the settled principles on which equity administers this remedy. The breach of a by-law which renders the offender liable to a penalty may be a criminal act (see Mellor v. Denham (2); R. y. Whitchurch (3)); and the breach of a statute may be a criminal matter irrespective of whether it prohibits "a matter of public grievance to the liberties and securities of a subject" or "commands a matter of public convenience" (see Hawkins' Pleas of the Crown, 8th ed. (1824), Book 2, c. 25, sec. 4). The equitable jurisdiction to grant an injunction cannot be invoked for the sole purpose of preventing the commission of an offence. The provisions

(1) (1927) V.L.R. 22; 48 A.L.T. 112. (2) (1880) 5 Q.B.D, 467, at p. 469. (3) (1881) 7 Q.B.D. 534.

ed Ramsay v. ABERFOYLE Manurac- TURING Co. (AusTRaALiA) Pry. Lrp.

Ww Ransay v. ABERFOYLE Maxvrac- TURING Co. (Avsrrazia) Pry. Lrp.

of the law for the trial and punishment of offenders are not to by supplanted or supplemented by this remedy. But the Court in it equitable jurisdiction will not refrain from granting an injunction against a breach of a statute for which the offender is liable to ; penalty, merely because the injunction will result in the statute bei enforced. In Cooper v. Whittingham (1) Jessel M.R. said that iti true as a general rule " that where a new offence and a penalty fo it had been created by statute, a person proceeding under the statute was confined to the recovery of the penalty, and that nothing el could be asked for." But the Master of the Rolls said that ay exception to this rule is the " ancillary remedy in equity to protect aright." Where a statute grants a right of a kind which is pr tected by the equitable remedy of injunction, the Court interfere to preserve and secure enjoyment of the right and not to pun the offender; and the grant of an injunction is not to be regarded as a remedy which is merely alternative or even additional, to exaction of the penalty provided by the statute. But the statute may exclude the remedy of injunction, and in that case, of cours it cannot be granted by the Court (Stevens v. Chown (2) ). Thi remedy may be excluded expressly or by necessary intendment. The question therefore arises whether the by-law creates any right of a nature which Courts of equity regard as needing the protectit of the equitable remedy of injunction. The judgment of the Sup:

injunction is available to the Attorney-General as an inst for enforcing the law, but also, as an alternative, a more plausible ground, namely, that the by-law creates a right to which the equitabl remedy of injunction extends.

To quote the words of Channell J. in Attorney-General a Spalding Rural Council vy. Garner (4), "the rights, which Attorney-General intervenes in order to protect, as representing he Crown, in the capacity, as it is stated in some of the cases, of p patric, must be rights of the community in general. and not ri

) (1880) 15 Ch. D., 501, at p. 506. (3) (1927) V.L.R. 22 2 K.B. 480, at p. 487.

of a limited portion of His Majesty's subjects, especially when the limited portion in question, the inhabitants of a parish, have representatives who can bring the action."

The two views which may be advanced with respect to the by-law now in question are (1) that it does no more than fulfil the function of numerous restrictive covenants which might have been exacted from purchasers if the whole residential area had been sold by a common vendor, and (2) that it is a statutory rule made in the interests of the community in general.

If the former view were correct the Attorney-General would not be a competent plaintiff and the action would fail. In Gill's Case (1) the Full Court of Victoria did not adopt that view of the by-law then in question. It preferred the latter view, which, in my opinion, is correct. Although the Court preferred the view that the by-law affects the public and not a limited class, it said : - '' But whilst this conclusion shows that none but the Attorney-General may sue, it is founded upon considerations which go some distance to determine whether there arises from the restrictions imposed by the by-law anything which is appropriate for the protection of an injunction. It does not prescribe the condition or character of any definite thing which is provided for the use or service of members of the public, nor does it operate to prevent any actual interference with the general health or comfort, or the enjoyment at large of lawful rights. The consequences to the public at large which flow from the restriction imposed by the by-law upon the rights of user ordinarily incident to property in land may be described as benefits or advantages. But this is so because they tend to promote the general welfare by the orderly discrimination of localities for business and residence. They do not take the form of any positive interest susceptible of enjoyment by His Majesty's subjects as of common right" (2). In my opinion that is a correct description of the nature of the by-law which is now in question. It is clear that the rights which it confers on the public are not enjoyed by them as owners of land or residents in the residential area where the respondents are building the factory. It is true that the

Ramsay v. ABERFOYLE Manurac- rortNG Co. (Ausrratta) Pry. Lrp.

Ramsay v. ABERFOYLE Manurac- TURING Co. (Avsrratta) Pry. Lrp.

or land for the purpose of manufacture, trade or public amu but it does not select as the objects of its prohibition activities result in a public nuisance. When its prohibitions are disregan the public does not cease to enjoy any definite benefit or adva except that which flows from the observance of a law which it m regard as salutary. Whatever the tendency of the by-law, wheth artistic or useful, it creates no rights in the members of the pub

take the form of any positive interest susceptible of

ment by his Majesty's subjects as of common right. The in my opinion, correctly decided that " there is nothing bi into existence by the by-law which upon any reasonable appli cation of principle can require or receive equitable recog or protection," and this decision is applicable to the present cas and expresses the conclusion which should be reached on tl Attorney-General's application as the representative of the publi No English case was cited in which an offender was restrained an injunction at the suit of the Attorney-General from infri

a by-law similar to that in the present case. The appellants s

street of this width by laying down a street of less width. Buckley: (as he then was) decided that although the statute provided ren for the breach of these provisions the Attorney-General was enti to apply for an injunction to protect this public right.

In Attorney-General v. Wimbledon House Estate Co. Ltd. (2) an inju tion was granted to restrain the breach of sec. 3 of the Public He (Buildings in Streets) Act 1888. The section was in these terms : 4 shall not be lawful in any urban district, without the written consent of the urban authority, to erect or bring forward any house or building in any street, or any part of such house or building, beyond the front main wall of the house or building on either side thereof in th

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

(1) (1903) 1 Ch. 101. (4) (1904) 2 Ch, 34. (2) (1931) 1 Ch. 121. (5) (1853) 3 DeG. M. & G., at p. 320; (3) (1932) 1 Ch. 303. 43 E.R,, at p. 125.

Ramsay ABERFOYLE Manurac- rurING Co. (AusrRanra) Pry. Lrp.

Ww Ramsay v. ABERFOYLE 'Manurac- ruRING Co. (Ausrratta) Pry. Lap.

criminal offence committed, or for the purpose of giving a bett remedy in the case of a criminal offence, that this Court is or be called on to interfere. It is on the ground of injury to property that the jurisdiction of this Court must rest ; and taking it to re; upon that ground, the only distinction which seems to me to exist between cases of public nuisance and private nuisance is this - ths in cases of private nuisance the injury is to individual property, and in cases of public nuisance the injury is to the property of mar kind." According to my understanding of the nature of the pub rights which equity has intervened to protect, the decided which have been cited have not departed from this principle and exhibit no tendency to make equity the handmaid of the crin law. A

In Council of the Shire of Hornsby v. Danglade (1) Harvey C.J. in Bq. disagreed with the view taken in Gill's Case (2) as to the nature « the rights created by the by-law and said that they were within the protection of an injunction. That learned Judge in decidi that case gave a description of the interest of the public which the Court did intervene to protect, but the definition was give primarily with reference to the interests of the residents of a pro- claimed district, in a statutory building scheme in the district. appears that agreement was expressed with the principles enunciated in Gill's Case (2), but disagreement only with their application.

is clear that its benefits lack the positive character of those whit a building scheme confers on the residents of the particular distric where the scheme is introduced. That mere considerations of public welfare are not sufficient to enable the Attorney-General to sue to restrain breaches of a statute is fully recognized the following passage from the judgment of the same learned Judge (Harvey C.J. in Eq.) in Attorney-General v. Mercant Investments Ltd. (3): - '" 1 think it may be stated generally tha the Court of equity has power to intervene at the suit of the Attorney-General, and to grant an injunction against the commission of any threatened wrongful act which is a menace to the general

N.S.W.) 118. (3) (1920) 21 S.R. (N.S.W.), at_p. 3 48 ALT, 112. 187 ; 38 W.N, (N.S.W.), at p-33-)

rights of the public which are of a proprietary nature, such as the H- ©. oF A.

user of a highway, or which is likely to cause injury to the members 2;

of the public in general capable of being assessed in individual cases Ramsay in terms of money, such as nuisances from noise, smell, or filth,i.e., Aserroyre

injuries to the health or comfort of the general public." Upon the assumption that it is a matter of public rather than private right

which is affected by the operations of the present respondents, the ee injury to members of the public is in my opinion wholly incalculable,

as their so-called interest in the observance of the by-law is not

In my opinion the principles stated and their application by the Supreme Court of Victoria in Gill's Case (1) are unexceptionable. Assuming the Attorney-General had a right to sue, in my opinion Martin J. did not err in the exercise of his discretion by declining to grant an interlocutory injunction.

The appeal against the learned Judge's refusal to grant Miss Ramsay's application for an interlocutory injunction was also right because the case does not show that the acts of the respondent are in breach of any private right as distinct from her rights as a member of the public (Devonport Corporation v. Tozer (2) ).

Solicitors for the respondent, Aberfoyle Manufacturing Co. (Australia) Pty. Ltd., Arthur Robinson & Co.

Solicitors for the respondent John R. & E. Seccull Pty. Ltd.,

(1) (1927) V.LR. 22; 48 A.L.T. 112, (2) (1902) 2 Ch. 182.