Monday 8 March 2010
ST ALDER & Ors v WAVERLEY LOCAL COUNCIL & Anor
Judgment
1 ALLSOP P: I agree with Handley AJA.
2 BEAZLEY JA: I agree with Handley AJA.
3 HANDLEY AJA: This is in form an application for leave to appeal from the decision of McLaughlin AsJ who, on 14 December 2009, summarily dismissed the appellants' proceedings. The substantive proceedings, commenced by summons on 23 June 2009, sought declarations establishing the appellants' right to remain in occupation of part of the Pavilion on Bondi Park and an injunction to restrain the Council and the State from interfering with their occupation. A statement of claim was filed on 15 July pursuant to an order of Slattery J.
4 On 31 August and 3 September the defendants applied by motion for the proceedings to be summarily dismissed. On 2 October the appellants applied for leave to amend their statement of claim. The primary judge refused leave to amend and dismissed the action because he held that none of the appellants' grounds for relief could possibly succeed.
5 On 23 December Basten JA made orders restraining the respondents from disturbing the appellants' occupation pending the hearing of their application for leave to appeal. Their summons was filed on 24 December.
6 The respondents objected to the competency of the proceedings. Under s 104 of the Supreme Court Act an appeal does not lie directly to this Court from a decision of an Associate Justice except in the cases provided in the rules. SCR Pt 20 r 17 lists the cases in which such an appeal lies. An order for summary dismissal is expressly excluded (r 17(k)(ii)) and an order refusing leave to amend is not included. The summons for leave to appeal as framed is therefore incompetent.
7 The appellants' proper course was to appeal, as of right, to a Judge of the Common Law Division. However s 51(2) of the Supreme Court Act relevantly provides:
"Where proceedings are commenced in the Court of Appeal but are under this or any other Act or under the rules, assigned to a Division -
(a) the proceedings shall be for all purposes well commenced on the date of commencement in the Court of Appeal, notwithstanding that the proceedings are assigned to a Division;
(b) the Court of Appeal may, on application by any party or of its own motion, order that the proceedings be remitted to a Division;
(c) …
(d) subject to any order under para (b), proceedings may be continued and disposed of in the Court of Appeal."
8 The parties had incurred the expense associated with this hearing and court time had been set aside which would have been wasted if the proceedings were remitted to the Common Law Division. The matter would probably come back to this Court in any event. In these circumstances and in the interest of finality this Court decided to hear and dispose of the case under s 51(2)(d) of the Supreme Court Act. This means that the Court has heard the appeal as of right which lay to a Judge of the Division.
9 The statement of claim alleged in substance that the appellants, having occupied (without any attempt to be precise as to the occupancy of any person) part of the Pavilion for periods of up to eight years, on 16 June 2009 were given notice to vacate by 24 June. They claimed an implied licence based on the Council's knowledge of, and acquiescence in, their occupation, and the provision by its staff of brooms, mops, and buckets to enable them to maintain the area in a clean and hygienic condition.
10 The statement of claim further alleged that the Council's knowledge and acquiescence, and the provision of cleaning equipment gave rise to an estoppel by convention which entitled the appellants to remain in occupation. The repudiation of the convention by the Council was said to expose the appellants to a lack of short-term accommodation. No other detriment was then alleged.
11 The statement of claim as proposed to be amended, filed on 2 October, sought declarations that the appellants were tenants with a right to 12 months or reasonable notice, that they were beneficiaries of an equitable estoppel, and that fiduciary duties were owed to them which the respondents threatened to breach.
12 The tenancy was said to arise from an agreement that the appellants could remain in occupation "in consideration of cleaning and maintaining the area occupied". The estoppel by convention and the equitable estoppel were said to be supported by the appellants' changes of position in reliance on the acquiescence of the Council by maintaining, cleaning and occupying the area.
13 The proposed statement of claim also pleaded that the enforced removal of the appellants would cause them to lose contact with medical practitioners, and religious and psychological services in the area on which they had relied and that in reliance on their accommodation at the Pavilion they had given up opportunities to take up accommodation elsewhere.
14 The fiduciary duties alleged which bound the State and the Council were said to be based on the appellants' vulnerability and dependence on the respondents and their status as beneficiaries of the public trust on which the Pavilion was held. It was alleged that these duties prevented the respondents exercising their powers over the land in their own interests.
15 The appeal is an attempt on behalf of homeless persons to remain, sleeping rough, on public property. The social security safety nets provided by governments have not, and perhaps cannot, provide accommodation for these men.
16 The Court has every sympathy for their plight, but its only function is the administration of justice according to law, not to provide social services to those in need. If the appellants have legal or equitable rights they will be enforced, if they do not have such rights the law must take its course. Under the law which this Court is bound to apply hardship alone, however great, does not confer rights. The Court enforces existing rights, and is not entitled to create new ones to relieve the hardship of some, to the detriment of others.
17 In one way or another the appellants' claims to a tenancy, a licence, an estoppel by convention, and an equitable estoppel depend on the fact that the respondents, with knowledge, have allowed the appellants to sleep rough in the Pavilion. A most relevant consideration in assessing claims of this character is that, apart from statute, the courts, as Bowen LJ said in Blount v Layard [1891] 2 Ch 678, 691n, will not readily allow the indulgence or acquiescence of a landowner, however lengthy and continuous, to crystallise into a right.
18 The appellants have not paid rent, and the only consideration pleaded is that they have kept their sleeping areas clean by using the cleaning equipment provided by the defendants. The officers who supplied it would have wanted the area kept clean to avoid any nuisance to the public, and the appellants, in their own interests, would have wanted to keep their sleeping areas clean. Any failure to do this which caused a public nuisance would, in all probability, have provoked immediate eviction action. The idea that the Council officers who provided this equipment to the appellants, and their superiors who authorised this, evinced thereby an intention to enter into contractual or other legal relations with the appellants is far-fetched.
19 The respondents' motions for summary dismissal were based on UCPR Pt 13 r 4 and the inherent power of the Court to prevent abuse of its process. The appellants filed a number of affidavits which were read before the primary Judge and the State filed three affidavits dealing with the Crown lands title to Bondi Park.
20 It was common ground before the primary Judge that the respondents' motion for summary judgment should be determined on the assumption that the primary facts alleged in the proposed statement of claim were true. He was not asked to consider whether the many gaps and deficiencies in the appellants' affidavit evidence justified summary dismissal of the action. The appeal was conducted on the same basis.
21 The respondents' arguments at first instance and in this Court were based on provisions in the Crown Lands Act 1989 (NSW) (the Act) which they submitted prevented the State and the Council creating any enforceable tenancy, licence, or estoppel in the informal manner alleged in the proposed statement of claim.
22 Because it has been dedicated for public recreation Bondi Park is not Crown land as defined in s 3(1) of the Act, but is a Crown reserve within s 34A(1) which provides:
"Despite any other provision of this Act, the Minister may grant a lease, licence … in respect of … a Crown reserve for the purposes of any facility or infrastructure or for any other purpose the Minister thinks fit …".
23 Section 34A(2) requires the Minister, before exercising this power, to consult with the manager of the reserve trust if there is one, and to consider both the public interest, and the principles of Crown land management. Under subs (3) failure to comply with the duty to consult does not affect the validity of any interest granted. The powers in s 34A are conferred on the Minister and must be exercised by him personally and in his name.
24 There is no evidence that the Minister has exercised these powers in favour of the appellants, nor does the proposed statement of claim allege that he has, or plead facts from which that might be inferred. The appellants cannot rely on any statutory power to support, as against the State, the tenancies or licences on which they rely.
25 The provisions of the Act dealing with the Council's powers over Bondi Park are contained in Pt 5. The park is a reserve as defined in s 78.
26 A proclamation notified in the Gazette on 28 January 1938 dedicated Bondi Park for the purpose of public recreation and another proclamation on 8 April 1938 appointed the Council trustee of the Park. Later Sch 8 cl 4 of the Act constituted the Waverley Council trustee, as a corporate reserve trust, of Bondi Park. Pursuant to s 95 or the transitional provisions of the Act the Council manages the reserve trust, and thus the Park.
27 On 12 April 1996 the Minister exercised his power under s 92(3)(b) to alter the name of the reserve trust to the Bondi Park Reserve Trust which also became the name of the corporate trustee.
28 Although Bondi Park is held by the Crown under common law title, s 100(1) deems the reserve trust to hold the fee simple, but only for the purposes of Pt 5 and by-laws made under it. Section 100 subs (2) provides:
"The reserve trust is not capable of alienating, charging, in granting leases of or licences … in respect of, or in any way disposing of the whole or any part of the reserve, except in accordance with this Part."
29 Section 102(1) relevantly provides that a reserve trust may not grant a lease or licence, except a temporary licence, in respect of land in the reserve except on defined conditions, and then only with the consent of the Minister.
30 Section 102A relevantly provides that a reserve trust managed by a Council need not obtain the Minister's consent for the grant of a lease or licence if it has the written authority of the Minister, which may be in general terms, to grant the lease or licence without the Minister's consent. Section 102A(10) provides:
"Any lease, licence … granted by a reserve trust:
(a) without the Minister's consent under s 102, or
(b) otherwise than in accordance with the Minister's authorisation under this section,
has no effect except in such cases as the Minister may determine."
31 Provision is made for temporary licences in s 108 which relevantly provides:
"(1) A reserve trust may, in respect of the whole or any part of a reserve, grant temporary licences for grazing or any other prescribed purpose.
(2) A temporary licence … is … subject to such conditions as may be prescribed.
(3) …
(4) A temporary licence ceases to have effect on the expiration of the prescribed period after it is granted unless it is revoked sooner or is granted for a shorter period."
32 Clause 31(1) of the Crown Lands Regulation 2006 prescribes the additional purposes for which a temporary licence may be granted. These include (c) camping and (e) emergency occupation. The camping referred to, in the context, is camping for recreational purposes. Emergency occupation would include accommodation for those rendered temporarily homeless by an emergency such as a bushfire or a flood. It is doubtful whether it would extend to the accommodation of the chronically homeless.
33 In any event cl 31(3) provides that the prescribed period for the expiration of a temporary licence is one year following the date on which it is granted. The appellants have been in occupation of part of the Pavilion for periods of from two to eight years, and even assuming temporary licences were originally granted they will have long since expired.
34 The proposed statement of claim does not allege that the appellants were granted temporary licences under the Act, nor does it allege facts from which the grant of such licences may be inferred. The appellants do not rely upon any permission granted before they went into occupation but rely on the subsequent acquiescence of the defendants with knowledge of their presence. The proposed statement of claim cannot be supported on the basis that the appellants have been granted temporary licences pursuant to s 108 and cl 31. There is no basis in the pleading or evidence for concluding that there has been or might have been a grant of a temporary licence.
35 The affidavit of Andrew McAnespie sworn on 1 December establishes that the Minister has never exercised the power under s 102A in favour of any Council. Thus the power to grant leases or licences without the consent of the Minister conferred by that section was not available to the Council and the appellants cannot rely on that power.
36 The affidavit of Andrew McAnespie of 18 September establishes that the Minister has not granted consent to any lease or licence in favour of the appellants or any of them. Thus the appellants cannot rely on the Council's power to grant leases or licences, with the Minister's consent, under s 102.
37 It follows therefore that the Council did not have any statutory power to grant the leases or licences on which the appellants rely.
38 In Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520, 533 Lord Wilberforce, delivering the opinion of the Privy Council, said, with citation from decisions of the High Court and Supreme Courts:
"… their Lordships accept as fully established the proposition that, in Queensland, as in others states of the Commonwealth of Australia, the Crown cannot contract for the disposal of any interest in Crown lands unless under and in accordance with power to that effect conferred by statute … It follows as a logical consequence that when a statute, regulating the disposal of Crown lands, or of an interest in them, prescribes a mode of exercise of the statutory power, that mode must be followed and observed: and if it contemplates the making of decisions, or the use of discretions, at particular stages of the statutory process, those decisions must be made, and discretions used, at the stages laid down."
39 General statements of this nature must be read subject to any later legislation, but there is nothing in the 1989 Act which affects this statement of principle. In fact the provisions of ss 100(2), 102(1) and 102A(10), already referred to, confirm its continuing relevance.
40 In my view therefore the State, and the Council as the reserve trust of Bondi Park, had no legal capacity to enter into a lease or contractual licence in favour of the appellants and the tenancies and contractual licences relied on, even if otherwise established, would be ultra vires and void.
41 These principles would not prevent the State or the Council tolerating a continuing trespass in the Pavilion, or creating ad hoc non-contractual licences at will. However, a tolerated trespasser and a non-contractual licensee only has a legal right to a few days' notice to vacate which the appellants were given in June 2009.
42 If, as I have held, the State and the Council had no power to commit themselves, in the manner alleged in the proposed statement of claim, to any tenancy or contractual licence of the nature relied upon by the appellants, they necessarily lacked the power to bind themselves to such a tenancy or licence by any form of estoppel.
43 The principle is well established. In Pratten v Warringah Shire Council (1969) 90 WN (NSW) 134, 143 Street J, after referring to legislation dealing with drainage reserves vested in a Council, continued:
"The effect of this section is to require the approval of the Governor to any dealing by the council with the land in question … The Governor's approval is no less necessary in a case where it is sought to propound an estoppel against the council than it is in a case where it is sought to allege that the council has expressly by deed purported to deal with a drainage reserve. The approval of the Governor is a statutory pre-requisite to any dealing by the council. To give effect to the estoppel propounded … would allow that estoppel to override this statutory requirement of the Governor's approval."
44 This decision was approved by Gummow J, as a member of the Full Federal Court, in Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 212. The principle is well established and there is no need to cite further authority.
45 The remaining ground relied upon by the appellants is a threatened breach of fiduciary duty by the respondents. Reference has already been made to the facts pleaded in the proposed statement of claim said to establish the existence of such duties.
46 Bondi Park is a reserve trust dedicated for the purpose of public recreation, and managed by the Council which, under s 92(5), has its care, control and management.
47 The use of any part of the reserve for sleeping rough accommodation for the homeless, however worthy in itself, is not a purpose or function of the reserve trust. It has not been suggested that the Council's Plan of Management widened the purposes for which Bondi Park may be used: s 114(3). Under s 114 the reserve trust may only be used for an additional purpose if that is authorised by a plan of management adopted by the Minister.
48 The Council, in its capacity as manger of the reserve trust is subject to public duties, and could not undertake an inconsistent fiduciary or other duty: compare Breen v Williams (1996) 186 CLR 71, 135 per Gummow J.
49 The alleged fiduciary duty of the Council, as sought to be pleaded, must either widen the purposes for which the reserve may be used or override the Council's duties as the reserve trust, or its manager, to use the Park for the purpose of public recreation. The former is not possible without compliance with s 114. The latter is inconsistent with the Council's overriding public duties.
50 The Minister has power under the Act to dedicate land for a public purpose (s 80(1), and to revoke a dedication (s 84(1) and these powers could be used to widen the public purposes for which the Park is held. However their exercise is subject to disallowance by Parliament and other requirements: ss 82, 84 and 85. There is no suggestion that these have been complied with.
51 A fiduciary is a person who is obliged by law to act in the interest of another or who has taken that duty on himself: Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, 68. The State and the Council have no such obligation imposed upon them by law and the proposed statement of claim does not allege facts which establish, or could establish that either or both have taken upon themselves an ad hoc duty to act in the interests of the appellants.
52 The proposed statement of claim characterises the attempts by the State and the Council to obtain vacant possession of the areas occupied by the appellants as action taken "in their own interests".
53 If this allegation means that the Council, and so far as relevant the State, propose to take action in furtherance of the duty of the reserve trust to use the Pavilion for the purposes of public recreation it cannot assist the appellants.
54 If the allegation means that the action would be taken in order to be able to exploit some commercial opportunity there is no allegation that this would be ultra vires the reserve trust or the Council as its manager. The profit from such exploitation would not accrue to the Council for its "personal benefit", but would be held for the reserve trust.
55 In any event the fiduciary duty alleged lacks the essential characteristic of a fiduciary duty because it is prescriptive in substance, imposing a positive duty to the homeless. A true fiduciary duty is only proscriptive forbidding self interested conduct or the pursuit of an inconsistent duty: Breen v Williams (1996) 186 CLR 71, 113 per Gaudron and McHugh JJ.
56 The allegation in the proposed statement of claim that the appellants are "beneficiaries" of the reserve trust cannot be accepted. Bondi Park is held for public purposes, but there is no trust in the technical sense: Bathurst CC v PWC Properties Pty Ltd (1998) 195 CLR 566, 585-7; 589-592. Even if there was a charitable trust this would be a trust for purposes, not persons, and the purposes would not include accommodation for the homeless, and the appellants would not be beneficiaries.
57 The extended notions of fiduciary duty in Canada have not been accepted by the High Court: Breen v Williams (1996) 186 CLR 71. The Canadian and South African cases referred to by Mr Street cannot assist the appellants.
58 For these reasons the appeal fails and should be dismissed.
The appellants jointly and severally, must pay the costs of the first and second respondents.
**********