St Alder & Ors v Waverley Local Council & Anor [2010] HCATrans 100 (23 April 2010)

Last Updated: 4 May 2010

[2010] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S48 of 2010

B e t w e e n -

KEVIN ST ALDER

First Applicant

DENNIS WILSON

Second Applicant

RAYMOND HUMPHRIES

Third Applicant

TANGITIAMAINE MAKLITI

Fourth Applicant

ALTAF KHAR

Fifth Applicant

ANDRE RICARDO MOHAMMED

Sixth Applicant

GILBERT WIRIWETERI HONA

Seventh Applicant

NATHAN BAKER

Eighth Applicant

and

WAVERLEY LOCAL COUNCIL

First Respondent

STATE OF NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 23 APRIL 2010, AT 11.29 AM

Copyright in the High Court of Australia

__________________

MR A.W. STREET, SC: May it please the Court, I appear with my learned friend, MS D. HAWKINS, for the applicants. (instructed by Slattery Thompson Solicitors)

MR J.E. ROBSON, SC: May it please the Court, I appear with my learned friend, MR T.M. FAULKNER, for the first respondent. (instructed by Wilshire Webb Staunton Beattie)

MR M.G. SEXTON, SC Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR R.K.K. GOWENLOCK, for the second respondent. (instructed by Crown Solicitor (NSW))

FRENCH CJ: Thank you. Yes, Mr Street.

MR STREET: If it pleases your Honours, we say that is case is one which involves, essentially, the question of whether there were triable issues in the context of the alleged statutory regime under the Crown Lands Act 1989. We say, in essence, that the causes of action that were articulated in pleading gave rise to triable issues and that the Court of Appeal and the court below erred in the characterisation of that statutory regime. Your Honours, can I turn directly to the statutory provisions and then I will deal with the remaining arguments.

Your Honour, in those statutory provisions the prohibition that is expressed in the language of the Crown Lands Act is directed towards the reserve trust. The reserve trust is a separate corporate entity. The only statutory prescription that one finds in the Crown Lands Act, in section 100(2) or in section 102 or in section 102A of the Crown Lands Act, is in language directed directly to and only to the reserve trust. The language that is used in those provisions does not purport to prescribe or mandate a regime referable, in our respectful submission, relevantly to the State or the first respondent.

In that regard, your Honours, in our respectful submission, the reasoning in respect of the Court of Appeal and its approach to the argument as to the propositions that there were no triable issues in respect of the cause of action in fiduciary duty contract and the like, all turned on the statutory regime, and that reasoning - - -

KIEFEL J: Quite so, because they have turned on the statutory regime, are you really in the area of whether or not there was a triable issue in the strict sense or do you need to show that there was some error in the Court of Appeal’s reasoning on the statute?

MR STREET: Your Honour, we say that there was error in reasoning in paragraphs 35, 36, 37, 40, and 42. If I can take your Honours to it, I will take your Honours to the errors. There are the “thus” errors in respect of paragraphs 35 and 36. The Court of Appeal reasoning there proceeds to advance propositions as to the power, in paragraph 35 on page 40:

to grant leases or licenses without the consent of the Minister . . . was not available to the Council and the appellants cannot rely on that power.

Paragraph 36, the second proposition:

Thus the appellants cannot rely on the Council’s power to grant leases or licenses, with the Minister’s consent, under s 102.

It follows therefore that the Council did not have the statutory power to grant leases or licenses - - -

Now, your Honours, just pausing at that point, the only provision that sought to prescribe conduct was addressed to the reserve trust not to the Council. Your Honour, the same reasoning, in terms of there being no power, appears in paragraph 40, in essence, no legal capacity, and the proposition there is the leap which we say is error in paragraph 40:

In my view therefore the State, and the Council as the reserve trust of Bondi Park –

Your Honour, to the extent that the Court of Appeal has then translated the provisions as having an application to the State and the Council, in our respectful submission, that is a clear error of construction in the application of statutory regime. That error, in our respectful submission, also infects the reasoning that appears in paragraph 42 where, in essence, it is said that therefore there is no power referable to estoppel based again on the same statutory regime and erroneous construction and it feeds into the erroneous reasoning, in our respectful submission, in rejecting the propounded fiduciary duties in this case in paragraph 49 and in paragraph 55 which picks up the same error.

Your Honour, in our respectful submission, when one looks at the nature of the statutory regime, it is appropriate to pick up what was said by his Honour Justice Gummow in the decision which was actually sought to be advanced against the applicants in Minister for Immigration and Ethnic Affairs v Kurtovic. What Justice Gummow said in that case, on page 211, was that it was a question of interpretation of the statutory provisions. Your Honours, in our respectful submission, that question of interpretation of the statutory provisions in this case would have dictated that it was the reserve trust only that might have been the subject of restraints.

It is not a party to the proceedings, the proceedings were framed against the State and the State was alleged to be the owner of the land and for the purposes of the application, those propositions were taken to be accepted for the purpose of the challenges. In those circumstances, we respectfully submit that the Court of Appeal erred in its approach to that statutory regime. Your Honours, to the extent relevant - - -

FRENCH CJ: As well as Kurtovic, I think there was Chief Justice Mason in Quin, was there not? He said

The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion . . . by binding itself not to perform the duty or exercise the discretion in a particular way - - -

MR STREET: There, your Honour, the question is whether it is subject to that duty, but here the language of the Act does not impose such a duty. It is the same in Pratten’s Case. There, in Pratten’s Case, the learned trial judge, as he then was, is one in respect of whom he was dealing with a constraint in respect of powers of the Council in whom the land was vested which were the subject of or requirement for the Governor’s consent. Your Honour, those statutory provisions are all materially different from the statutory regime before this Court.

More importantly, and turning if I can, your Honours, then to the aspect referable to the application of that statutory regime in relation to the fiduciary duty count that has been propounded, section 98 of the Crown Lands Act picked up, to the extent not inconsistent in respect of this land, the Local Government Act. That Local Government Act then picked up a regime that, your Honours will have identified in our written submissions, actually put into the requirement for issuing of notices to evict people or remove them from Crown property, a requirement to take into consideration whether it would make them homeless in section 131A.

So the statutory regime properly understood, so far as concerns the respondents, in our respectful submission, does not fall into the category of one which prevented there arising either the causes of action advanced in contract or the cause of action sought to have been advanced in relation to fiduciary duty. Your Honours, before I move further in the fiduciary duty allegation, can I also put this. We say in answer to the respondents that if in fact the statutory regime did create an immunity for the State in the present case, that there is a serious constitutional question that would arise in respect of the implication, we say, of a right of suit against the State. We have developed that in our written submissions and we rely upon that as a serious and important question.

KIEFEL J: But you need a right before you have the right of suit, do you not? You have not identified the right.

MR STREET: Your Honour, we say that we have purported to identify and plead on the facts of it.

KIEFEL J: What you are saying is that it is dependant upon you making out a right of the kind that you have listed before, the implied licence, estoppels, fiduciary duties.

MR STREET: There the pleading does articulate, in our respectful submission, material facts to support such a right and they were triable issues, whether there was right and, in essence, to enact provisions that constitute or in substance give rise to State immunity in respect of the alleged causes of action would, in our respectful submission, offend a constitutional implication of considerable importance. That in itself would give rise to this being an appropriate case for special leave. Your Honours, I meant to add that we have received responses from most of the Attorneys, all indicating that if special leave was granted, they would wish to reconsider their position.

Your Honours, turning then, if I can, to the issue of the fiduciary duty, we respectfully submit that the Court of Appeal there erroneously approached the matter as one where the regime was inconsistent with the existence of such a fiduciary duty. For the reasons we have just touched on in relation to the Local Government Act, it is far from inconsistent; it would be utterly consistent with it. Further, the Court of Appeal failed to recognise and address - - -

KIEFEL J: The Court of Appeal said that it was inconsistent with the Council having public duties, is that right?

MR STREET: Your Honour, they appear to have done it on two bases. They appear to suggest that the Council and the State were the subject of this legislative regime, and we say the state is not on any view and we would have been entitled to maintain that cause of action against the State, we would have said, without question, but to the extent of the Council, they sought to say that it was inconsistent with it and identified the propositions referred to in Breen and purported to advance that the characterisation of the duty was prescriptive rather than proscriptive.

Your Honour, the formulation of the duty in the pleading, and the pleading is one which I should take your Honours to very briefly, is one which we say was a proscriptive duty. It appears on page 89 of the application book where there is the commencement of the allegations in relation to the vulnerability of the applicants to the exercise of power. So there is identified, if I can put it in this way, the subject matter of the alleged fiduciary duty in terms of that power. There is identified a vulnerability in dependence. There is identified the significance of it at a level which goes to and admitted for the purpose of these proceedings, survival.

Your Honours, just in reading those paragraphs, one must also take into account that these are plaintiffs who admitted for the purpose of these proceedings, on page 85, are ones who are not just homeless, they had mental health issues in terms of dependence. So having occupied this area for up to seven years, it is in those circumstances that there is a potential power in respect to which they are vulnerable. We say it falls squarely within the concepts identified both by the Chief Justice in Wik in the passages we referred to in our written submissions and, indeed, to the extent that one goes to the passage advanced by the learned Solicitor-General in Breen, when one looks at the passages quoted by Justice Gummow, that the vulnerability of applicants in the present case is the very type of relationship that would give rise to the central scope for a duty.

FRENCH CJ: The vulnerability and dependence to which you refer arise on your case, is that correct, out of the circumstances of the applicants coupled with the statutory powers of the State and the local Council?

MR STREET: Yes, your Honour, and in that regard, could I just add that his Honour Chief Justice Brennan in Wik at page 82 actually identified – there is a passage, your Honour, in Wik, and I think it is actually on page 87, where his Honour says that it is the statutory regime. Your Honour, it is actually on page 96. What his Honour says on page 96 in 187 CLR 1 about point 5 of the way down the page:

The imposition on the repository of a fiduciary duty to individuals who will be adversely affected by the exercise of the power would preclude its exercise. On the other hand, a discretionary power – whether statutory or not – that is conferred on a repository for exercise on behalf of, or for the benefit of, another or others might well have to be exercised by the repository in the manner expected of a fiduciary.

So that the statutory regime does not, in our respectful submission, in the present case prevent the imposition of the fiduciary duty that is advanced in the present case. The duty is formulated referable to the potential conflict of interests between the interests of the respondents and the interests of the applicants who have been residing there and there are three different formulations of breach referable to the conflict of interest in that regard. In our respectful submission, those matters gave rise to a triable issue in relation to the fiduciary duty.

FRENCH CJ: On one view of it, of course, you may simply be in the territory of what has been described, I think, as a non-justiciable public or political trust which of course does not of itself give rise to a fiduciary duty which is actionable.

MR STREET: Your Honour, ultimately we say it was a triable question. Their Honours approached the matter, it appears, through the lens of some observations extracted from the decision in the Chancery decisions of, I think it was Blout v Layard. Your Honours will have seen in our written submissions in reply that their Honours failed to actually go on to read the balance of that decision where it was identified that that was a jury question. That appears, in terms of the relevant passage, your Honours, in our summary of argument at page 104. Your Honours will see that we have identified the proposition that was not picked up his Honour Justice Handley in his reference to that case. It is quite clear from paragraph 17 on page 36 of his reasons for judgment that this was a most relevant consideration in assessing these claims. We say that when one looks at that aspect, it is one where there must have been in the present case, properly understood, triable issues in relation to these questions.

Your Honours, can I just stand back from the viewpoint of the consequence of the Court of Appeal’s reasoning. If the Court of Appeal is correct that there is a statutory regime that, in essence, prevents any cause of action arising in the present case of practices of these kinds either in contract or in equity, the consequence for homeless persons is one of significant adverse position. They would be in a position where no rights could be created and it would be, in our respectful submission, an extraordinary result that, in essence, the State could immunise itself through legislation from rights in contracts and equity. Your Honours, in our respectful submission, that goes to the constitutional question that we have sought to articulate and I will not seek to further expand on.

Your Honours, there are some further errors in the reasoning which we say are of some significance. Can I take your Honours to page 87 of application book. The applicants say that they have never received any relevant proper notice of termination. That appears in paragraph 11(j) at the top of the page on page 87. That absence of notice is one where the only notice that they did receive was something perhaps somewhat offensively called a Notice of maintenance and cleansing. Your Honours, that appears in our submissions in terms of its content. If I can take your Honours to page 58 where your Honours will see the heading, the description of the notice was a “Notice of maintenance and cleansing of the covered area”.

The content of the body of the notice is set out in the footnote. There was no notice to vacate. The notice to vacate was an error in the reasoning adopted by the court, in our respectful submission, in its approach both to the temporary licence and whether there was a triable issue in that regard. The Court of Appeal adopted a position, in paragraph 34 on page 40, that a temporary licence under section 108 would have had to have been pleaded in terms of a legal characterisation. We say there were material facts that we plead in agreement and even if it was a temporary licence, it was capable of application.

The reasoning in paragraph 33 that the period must have expired, in our respectful submission, is wrong to the extent that the continued occupation does not give rise to a termination of the past licences; it gives rise to a continuing or current temporary licence and the period would not

have yet expired. So your Honours, in our respectful submission, that aspect as well gives rise to it being appropriate in the present case for these issues to be agitated.

Finally, your Honour, there is the issue which we address in our written submissions relating to the scope of public recreation and there, your Honours, we say that that is a concept that is broad in meaning and content and it is apparently the case in the reasoning of the Court of Appeal that they have treated the occupation in circumstances of survival of the applicants as being within that purpose as far-fetched. That appears in application book page 37, paragraph 18.

In our respectful submission, that the applicants in their circumstances were within the potential scope of the public dedication purpose is a further error in the reasoning of the Court of Appeal that would warrant in the present case a grant of special leave. In our respectful submission, both on the basis of the questions advanced and on the basis of a visitorial jurisdiction, given the consequences for the applicants in this case, we respectfully submit it is an appropriate case for special leave. If the Court pleases.

FRENCH CJ: Thank you, Mr Street. We will not need to trouble you, Mr Robson and Mr Solicitor.

The applicants for special leave are homeless men who have lived for some years in part of the Bondi Pavilion, Sydney. The land is a Crown reserve which has been gazetted for the purpose of public recreation. The first respondent is trustee and manager of the lands for the said purpose.

The applicants claimed rights pursuant to implied licences as tenants or arising by estoppel. They claimed that the respondents owed them a fiduciary duty. The claims were dismissed summarily by the Supreme Court of New South Wales and an appeal from that decision was dismissed by the Court of Appeal. The Court of Appeal gave detailed reasons explaining the limits upon the powers of the respondents and that no statutory power had been exercised by the first respondent. The applicants could assert no private right. Neither respondent could be said to be subject to any fiduciary duty.

We see no reason to doubt the correctness of their Honours’ decision. The argument which the applicants say was not dealt with, which relied upon a constitutional right of suit against the State, does not further advance the applicants’ claims to a right which might be the subject of proceedings. There are, in our opinion, insufficient prospects of success to warrant the grant of special leave to appeal. The application is dismissed.

We will briefly adjourn to reconstitute.

AT 11.50 AM THE MATTER WAS CONCLUDED