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Supreme Court of Victoria |
Pulitano 
Pastoral Pty Ltd v Mansfield Shire Council [2017] VSC 421 (27 July 2017)
Last Updated: 27 July 2017
AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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JUDICIAL REVIEW – Application for orders in the nature of certiorari and mandamus – Remedies – Futility – Discretion – Certiorari granted.
ROADS – Deregistration of a public road from Council’s register of public roads – Need for decision that the road is no longer reasonably required for general public use – Procedural fairness – Private rights of access – Policy decisions – Privative clause – Construction of privative clause – Road Management Act 2004 (Vic) ss 3, 4, 5(2), 7–10, 17, 19, 36, 39, 40, 101.
LOCAL GOVERNMENT – Discontinuance of a public highway – Statutory procedures – Compliance with procedure for submissions – Predisposition – Unreasonableness – Adequacy of reasons – Absence of an intelligible path of reasoning – Local Government Act 1989 (Vic) ss 98, 205, 206, 207A, 223, sch 10 cl 3.
PROCEDURE – Certiorari – Extension of time under r 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Whether special circumstances exist.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Beaumont Lawyers
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For the Defendant
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Ligeti Partners
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INTRODUCTION
Background
1 Pulitano Pastoral Pty Ltd
(‘ Pulitano ’) applies by way of judicial review for orders in the
nature of certiorari to quash
two decisions of the Mansfield City Council
(‘the Council’). It also seeks an order in the nature of mandamus
requiring
the Council to inspect, maintain and repair part of a road known as
Fridays Lane in Bonnie Doone, including a bridge over Glen Creek
near Lake
Eildon.
2 The first decision under challenge is a decision made by the Council on 15 September 2015 to remove part of Fridays Lane from its register of public roads (‘the deregistration decision’) under s 17(4) of the Road Management Act 2004 (Vic) (‘RMA’). The second is a decision of the Council made on 24 March 2016 to discontinue Fridays Lane as a road (‘the discontinuance decision’) under sch 10 cl 3 of the Local Government Act 1989 (Vic) (‘LGA’). The second decision was preceded by a resolution made on 15 September 2015 to commence statutory procedures under the LGA to discontinue Fridays Lane as a road (‘the procedures commencement decision’).
3 Pulitano contends that the two decisions under
challenge should be quashed for error of law on the face of the record and
jurisdictional
error. It says that the deregistration decision did not comply
with procedural fairness requirements. It says that the discontinuance
decision
was unreasonable, and that Council failed to give adequate
reasons.
4 The Council opposes Pulitano ’s
claims, and submits that all decisions were lawfully and properly made.
The property
5 Pulitano is the owner of a farming
property of about 356ha known as ‘Tallawong’ at Fridays Lane, Bonnie
Doone (‘the
property’). The property consists of 14 lots of land in
separate titles. Pulitano purchased all but one of the lots in December
2010.
The remaining lot was purchased in October 2013. The property is in the Farming
Zone of the Mansfield Planning Scheme, and
is used as a farming enterprise.
6 When Pulitano purchased the property, access was
available across the bridge and along Fridays Lane.
7 The bridge over Glen Creek on Fridays Lane was constructed in about 1920. Prior to 20 October 2011, it was about 3.6m wide and 31m long. Its timber piers and abutments were in poor condition. Due to engineering concerns, it had a posted load limit of 5 tonne.
8 On 20 October 2011, the bridge collapsed when a truck greatly exceeding the load limit attempted to cross it. The bridge was effectively destroyed. Council has not subsequently reconstructed the bridge. The cost of rebuilding the bridge is estimated to exceed $500,000 and potentially up to $1 million. The Council has an annual rate base of about $12 million per annum. It is responsible for approximately 250km of sealed roads, 550km of unsealed roads, and 35 road bridges.
9 Five of the lots forming part of the property, comprising 94ha in all, no longer have access to Fridays Lane or any other public road.
10 Prior to 15 September 2015, a 1230m section of
Fridays Lane located to the north of the bridge was included in Council’s
road register. It had been on the road register since June 1995. This part of
Fridays Lane comprised two sections. The first section
of 670m was constructed
on a road reserve owned by the Council. The balance of 560m was constructed on
government road reserve. A
further 240m of road reserve was beyond
Pulitano ’s property gate and was not constructed or maintained by Council.
The last
240m was not included in Council’s road register, and was not
accessible from the north.
11 The property also has access from the sealed section of Glen Creek Road near its intersection with Nix Lane. There is a driveway from the property entrance on Glen Creek Road to the end of the public road section of Fridays Lane. A timber residence and a number of sheds and outbuildings are erected on the property.
Evidence
12 Pulitano relies on the affidavits of
Giuseppe Pulitano , a director, sworn on 20 May 2016 and 12 April 2017
(‘first affidavit’
and ‘second affidavit’ respectively),
and two affidavits of David Hume, its solicitor, sworn on 15 September 2016 and
16 May 2017. The Council relies on three affidavits of Robert Graves,
Council’s Assets and GIS Coordinator, sworn on 22 December
2016, 2 May
2017 and 29 May 2017 (‘first affidavit’, ‘second
affidavit’ and ‘third affidavit’
respectively).
13 Subject to certain evidentiary objections which were allowed, all affidavits were received into evidence. There was no cross-examination.
Correspondence between Pulitano and the Council
14 On 29 March 2010, an employee of
Pulitano observed and photographed the poor state of the bridge. A lengthy
exchange of letters
followed between Pulitano ’s solicitors and the
Council.
15 By a letter dated 16 May 2011,
Pulitano ’s solicitors wrote to the Mayor of the Council:
Our client instructs us that the only access to its property is via a bridge which is a public road with a load-bearing capacity of five tonnes ... We are further instructed that the bridge is in a state of disrepair and poses a foreseeable risk to road users in the short-term.As you are the responsible authority for upgrading, renewing and maintaining the local road infrastructure, you have power to remedy the risk posed by the bridge. Furthermore, you have a duty of care to take reasonable steps in the actual exercise of your powers, and within a reasonable time to effect repairs.
To that end, we require you to perform your statutory and common law obligations including those imposed on you by the Road Management Act 2004 (Vic) to inspect the bridge to ascertain the existence of the potential danger to road users and to prevent there remaining a source of risk, including the repair of the bridge and to maintain it.
16 On 20 May 2011 the Mayor responded,
acknowledging Pulitano ’s concerns about the condition of the bridge on
Fridays Lane.
17 On 24 June 2011, the
Council’s Senior Civil Engineer sent a letter to Pulitano ’s
solicitors:
Further to your letter to Council’s Mayor dated 16 May 2011 on behalf of [the Plaintiff] regarding the condition of a bridge on Friday’s Lane and the potential risk to users, Council acknowledges these comments and have [sic] already commenced developed of improvement options.Council representatives have reviewed the condition and remaining life of the bridge for a number of years now and subsequently Council have made allocation in its 2011/2012 budget to engage bridge consultants to make a final assessment of the bridge condition and to prepare detailed replacement plans. It is anticipated that the physical replacement of the structure will be in the following financial year subject to finalisation of the funding sources and arrangements. This bridge is of high priority for Council action.
For your information, Council has also held discussions with local timber industry representatives regarding their potential interest in the future of the bridge and have indicated that they are considering contributing to short term load capacity improvements. Regardless, Council will continue to plan for replacement above.
18 The Council did not undertake any works or repairs to the bridge prior to its collapse. Subsequently, the Council erected signage to the effect that the road was closed.
19 On 30 July 2012, Pulitano ’s solicitors
again wrote to the Council:
In November, 2011 the bridge collapsed, rendering impassable the only road of access into our client’s property. Since the collapse of the bridge no steps have been taken by you to reinstate the bridge or reinstate access to our client’s property and it remains inaccessible via Fridays lane in which the bridge stood.
20 They wrote again on 5 December 2014:
On or about the 20th October, 2011 the bridge in Fridays Lane collapsed rendering Fridays Lane, which is the only road access into our client’s property, impassable.Despite having been made aware on the same day of the collapse and despite the matters set out in our letter to you of the 30th July 2012, we note that no steps have been taken by you to reinstate, repair or rebuild the bridge ...
The Shire was well aware of the dangerous state of disrepair in which the bridge was in prior to its collapse. The dangerous condition of the bridge had been the subject to [sic] ongoing complaints to the Shire by our client and was the subject of correspondence between our respective offices in 2011
...
The Shire has breached its statutory and common law duties to property repair and maintain the bridge and/or it failed to properly perform any repairs and maintenance which were done by the Shire prior to its collapse. The Shire’s breaches and actions in this regard resulted in the complete collapse of the bridge.
The collapse of the bridge and your failure to reinstate it has caused our client to suffer substantial loss and damage including, but not limited to the following:
...
The Shire has a statutory duty to reinstate the bridge to make the bridge operational and Fridays Lane passable. It has failed in this obligation.
We require confirmation from you that the Shire will take all necessary steps to reinstate the bridge. Unless a satisfactory response is received in this regard from you and unless a resolution can be reached in relation to the payment of damages to our client for the loss which it has suffered and which it continues to suffer, we are instructed to institute legal proceedings against you. In that event we will seek orders of the Court requiring you to reinstate the bridge and also orders with respect to the damages suffered by our client.
21 The Chief Executive Officer of Council responded by letter dated 28 January 2015:
... We have considered the points you raise and have held a meeting with MrWe have indicated a willingness to conduct a site inspection to gain a full appreciation of the issues. After that time, I will respond further.
22 Pulitano ’s solicitors again
responded by letter dated 26 February 2015:
We refer to your letter dated 28th January, 2015 and note your advice that you would respond further to us after a site inspection was conducted ...We are instructed that a site inspection occurred on the 12th January 2015. Accordingly we now require confirmation from you that all necessary steps will be taken to reinstate the bridge.
We advise that unless we receive confirmation from you in this regard within 14 days, we are instructed to institute legal proceedings against you without further notice.
23 By letter dated 10 March 2015, the Council’s solicitors responded:
We refer to your email to Council of 26 February 2015. Council has recently received our advice and is currently considering its position. Council is also currently preparing its budget for the 2015/2016 period which is expected to go for public exhibition in May.In light of this, Council requests that your client refrains from commencing legal proceedings until it has had an opportunity to fully consider its position. We expect that a position will be reached by 31 May 2015 and we will be in contact with you shortly after that date.
24 Pulitano ’s solicitors
answered by letter dated 19 March 2015:
We refer to your email letter dated 10th March, 2015 and note your request that our client hold in abeyance until June, 2015 to allow your client to consider its position.In order for our client to consider your client’s request and for us to be able to properly advise our client we require details and information regarding your client’s current position. We require confirmation that your client will be discharging its obligation to reinstate the bridge. Your client has had ample opportunity to clarify its position in this regard and we require confirmation of the same.
25 The Council’s solicitors then responded by letter dated 25 March 2015:
As we stated in our correspondence to you of 10 March 2015, Council requires further time to consider its position. We are unable to confirm Council’s current position because it does not have one. Council has not yet made a decision.We repeat Council’s request that your client refrain from commencing legal proceedings until it has had an opportunity to fully consider its position. We expect that a position will be reached by 31 May 2015 and we will be in contact with you shortly after that date.
26 This led to a further letter from
Pulitano ’s solicitors dated 25 March 2015:
Your client has already had an enormous period of time in which to “consider its position” in this matter. We are therefore at a loss to understand why your client would require a further period of three months in which to do so.If you wish us to be able to obtain proper instructions and to advise our client in relation to your request for our client to hold this matter in abeyance.
It is incumbent upon you to provide an explanation as to why your client requires yet a further period of time to determine its position.
In your letter of the 10th March, 2015 you make reference to the preparation of your client’s budget for the 2015/16 period and state that it will go on public exhibition in May. If the delay which your client seeks relates to the financial planning and timing of the required works you should advise accordingly.
In the absence of some reasonable explanation for the requested delay our client can only assume that it merely represents a further continuation of your client’s ongoing refusal and failure to discharge its obligations to reinstate the bridge.
27 A further letter dated 12 June 2015
from Pulitano ’s solicitors followed:
We refer to your letter dated the 10th March 2015 and note that you advised us that your client would finalise its position in relation to this matter by the end of May and advise us accordingly. We note that we have received no further advice from you in this regard.
28 This was the last letter between the parties before Council passed resolutions concerning Fridays Lane at its meeting on 15 September 2015.
An extension of time for judicial review
29 The originating motion in this
proceeding was issued on 20 May 2016. It sought to quash the discontinuance
decision and a declaration
that Fridays Lane remained a public road. It also
sought a declaration that the Council had failed to comply with its duty to
inspect,
maintain and repair the bridge under s 40 of the RMA and an order in
the nature of mandamus compelling compliance with that duty. The grounds relied
on in the originating
motion refer to the procedures commencement decision. They
do not refer to the deregistration decision. The significance of that
decision
may not have been known or understood by Pulitano when the proceeding was
commenced.
30 A proposed amended originating motion dated 16 May 2017 (‘the proposed amended originating motion’) additionally seeks an order in the nature of certiorari quashing the deregistration decision.
31 Under r 56.02 of the
Supreme Court (General Civil Procedure) Rules 2015 (Vic), a proceeding
for judicial review must be commenced within 60 days after the date when grounds
for the grant of the relief or
remedy first arose. Time cannot be extended
except in special circumstances. Pulitano seeks an extension of time so that it
can rely
on the proposed amended originating motion. Effectively, it seeks to be
able to challenge the deregistration decision as well as
the discontinuance
decision.
32 Pulitano ’s solicitor, Mr Hume,
deposes that neither he nor Mr Pulitano were notified by the Council that it
proposed to make
any decisions about Fridays Lane on 15 September 2015. It was
only on 30 September 2015 that they became aware of Council’s
proposal to
discontinue Fridays Lane under the LGA following a public notice in The
Mansfield Courier, the local newspaper. On 27 October 2015, Pulitano made a
written submission to Council opposing discontinuance of Fridays Lane.
33 Council did publish short advertisements in
The Mansfield Courier on 2 and 9 September 2015 of a Council meeting to
be conducted on 15 September 2015. However, the advertisements did not give any
indication of the business to be transacted at that meeting. On about 11
September 2015, Council published an agenda on its website
for its meeting on 15
September 2015. Under the heading ‘Officer Reports’, the agenda
contains items entitled ‘Discontinuance
and Sale of Fridays Lane’
and ‘Ratification of Council Road Register’. Neither Mr Hume nor Mr
Pulitano saw what
was published on Council’s website prior to the meeting.
34 It is common ground that Council did not give
notice to Pulitano or its solicitor (save as set out above) that it intended to
consider
and pass resolutions concerning Fridays Lane under the RMA and the LGA
on 15 September 2015.
35 Council did not submit, or
only faintly submitted, that the notices published by the Council prior to the
meeting on 15 September
2015 met the requirements of natural justice and
procedural fairness to Pulitano in relation to the deregistration decision.
Instead,
Council contended that it was not required to provide natural justice
or procedural fairness to Pulitano in relation to that decision.
36 Pulitano ’s main submissions that an
extension of time should be granted were:
(1) the expression ‘special circumstances’ is by its nature incapable of exhaustive definition;
(2) Pulitano approached the
court seeking judicial review within time and has always maintained that Fridays
Lane is a public road;
(3) this is not a case where a plaintiff has turned up late, or challenged an old or stale decision;
(4) the amendments sought to the originating motion concern the relief to be granted;
(5) in his report
to Council on 15 March 2016, Mr Tawfik, Council’s Engineering and Works
Manager, referred to Fridays Lane
as a public road even though it was
deregistered on 15 September 2015. Pulitano was entitled to act on the basis
that what Mr Tawfik
said in that report was correct;
(6) there is confusion in Council’s records as to the status of Fridays Lane;
(7) Pulitano has
an arguable case and a real prospect of success;
(8) it would be an injustice to take a technical or
pernickety approach to focus only on the date of the first Council meeting (15
September 2015) and ignore everything else that happened, including the
information provided by Council to Pulitano ; and
(9) there is no prejudice to the Council that would be occasioned by the amendment.
37 The Council’s main submissions that an extension of time should not be granted were:
(1) a challenge to the deregistration decision is approximately 18 months out of time;
(2) Pulitano ’s written submissions refer to
the minutes of the Council meeting of 15 September 2015 at which the
deregistration
decision was made;
(3) Mr Tawfik’s report of 15 March 2016 refers to a Council decision on 15 September 2015 on a number of occasions;
(4) the
reason for delay is that Pulitano ’s solicitor did not turn his mind to
reviewing the deregistration decision, or made
a forensic decision not to
contest this decision; and
(5) lack of prejudice to a party is not sufficient to establish special circumstances.
38 In Mann v Medical Practitioners Board of Victoria, Osborn J, as he then was, said:
It is not, in my view, appropriate to seek to judicially define the meaning of the phrase 'special circumstances' in the relevant Rule. The phrase is deliberately flexible and designed to encompass cases which might not easily be anticipated by more prescriptive words.[1]
39 In Lazarevic v Victoria Police, Derham AsJ reviewed numerous authorities concerning the expression ‘special circumstances’ and adopted the following propositions:[2]
(1) the rule requires the Court to be objectively satisfied that special circumstances exist;[3]
(2) what are special circumstances is determined by all the circumstances of a case;[4]
(3) factors relevant to the exercise of the discretion by the Court are:
(i) period of delay;
(ii) reason for the delay;
(iii) whether the plaintiff has a real prospect of success;
(iv) justice to both parties including prejudice to the parties; and
(v) public interest in the finality of the litigation.[5]
40 In the present case, I am of the
opinion that there are special circumstances that justify an extension of time.
Pulitano was not
given notice by the Council of its meeting on 15 September
2015, and was therefore not given the opportunity to attend. It did not
find out
what had taken place until later. When it did find out that there had been a
meeting, it is not clear whether it was informed
or understood that the Council
had made two decisions concerning Fridays Lane under different statutes, being
the procedures commencement
decision under the LGA and the deregistration
decision under the RMA.
41 Pulitano promptly
commenced proceedings for prerogative relief following the discontinuance
decision and at all times has contended
that Fridays Lane is and remains a
public road. It has sought declarations to that effect. What it seeks by way of
amendment is to
challenge the deregistration decision in addition to the
discontinuance decision. This concerns the same subject matter as the existing
proceeding for judicial review. When Mr Tawfik presented his report to the
Council meeting on 15 March 2016, he continued to refer
to Fridays Lane as a
public road. This is confusing and may have been unintentionally misleading,
especially for someone who had
not attended the meeting on 15 September 2015,
when Fridays Lane was deregistered as a public road. It is reasonable that
Pulitano
would wait until its written submission to the Council was considered
and determined before taking court action. Council had requested
that Pulitano
not take court action at least twice
before.[6] I am satisfied that
Pulitano did not delay in commencing a proceeding and has acted at all times as
a diligent litigant.
42 In my view, it is in the
interests of justice to both parties that an extension of time be granted. It
would be unsatisfactory
that the complaints advanced by Pulitano about the
Council decision making process be only partially determined by the Court, or
that the remedies available to the Court be limited, particularly when it may
still be within time for Pulitano to bring a further
proceeding seeking
declaratory relief. It is much preferred if all of the challenges made by
Pulitano to the validity of Council’s
decision making process concerning
Fridays Lane are heard and determined by the Court in the same proceeding and at
the same time.
43 As to the merits of the challenge to the deregistration decision, there is at least an arguable case with a real prospect of success, as will later emerge. The Council has not submitted that it would suffer any particular prejudice by reason of an extension of time.
44 Having considered all of the matters relied on
by the parties, the Court is satisfied that there are special circumstances and
that an extension of time under r 56.02(3) should be granted. Leave will be
given for Pulitano to amend its originating motion in
the form of the proposed
amended originating motion.
THE DEREGISTRATION DECISION
The making of the deregistration decision
45 At Council’s meeting on 15 September 2015, there were two items of business affecting Fridays Lane.
46 Item 10.6 concerned the exercise of Council’s powers under the LGA for the discontinuance and sale of Fridays Lane. It was supported by a report from Mr Tawfik. Item 10.6 resulted in the procedures commencement decision, and will be considered later.
47 Item 10.7 concerned the exercise of Council’s powers under the RMA. It sought the ratification of an updated road register, resulting in the removal of Fridays Lane from the register of public roads. It was supported by a report from Mr Graves.
48 Mr Graves’ report requested that Council ratify an updated road register. He noted that Council had adopted a revised road management plan in March 2015. He advised Council that adoption of a road in the register provides formal recognition that the road is one for which Council is the co-ordinating road authority under the RMA, and that the Council is assuming responsibility for inspections and maintenance according to its road management plan. Removal of a road from the register signifies that Council is no longer the co-ordinating road authority for the road, and is not required to undertake inspections or maintain the road. He recommended that Fridays Lane be removed from the road register.
49 In his first affidavit, Mr Graves said that to be included on the road register, the road management plan required a road to satisfy at least seven of 10 criteria:
(i) provide primary access to at least one full-time occupied residence;
(iii) have previously been constructed or maintained by Council;
(iv) contain public utilities (eg AusNet, Telstra);
(v) provide a clear benefit to several property owners (not just one);
(vi) be required for fire access purposes;
(vii) connect into and form part of the wider network of public roads;
(viii) be fenced on both sides;
(ix) be required for vehicular use; and
(x) be the only means of access to abutting property/properties.
50 He considered that Fridays Lane met only 4 of the 10 criteria. They were:
51 Council’s minutes for its meeting on 15 September 2015 record that Council passed the following resolution:
52 Fridays Lane is not mentioned in the resolution. It is necessary to look at the attachment to the resolution to find that Fridays Lane is not listed in the road register.
Relevant RMA provisions
53 Section 3 defines the relevant expressions of ‘public highway’, ‘public road’, ‘road’ and ‘road management function’. The expression ‘public highway’ is defined to mean ‘any area of land that is a highway for the purposes of the common law’. The expression ‘public road’ means ‘a public road within the meaning of s 17’, which is outlined below. A ‘road’ includes any ‘public highway’, ‘ancillary area’ or ‘any land declared to be a road under section 11 or forming part of a public highway or ancillary area.’[7] ‘Road management function’ is defined broadly, including the functions, powers or duties conferred or imposed on road authorities.
54 Section 4 sets out the objects of the RMA. The primary object of the RMA is:
... to establish a coordinated management system that will promote a road network at State and local levels that operates as part of an integrated and sustainable transport system consistent with the transport system objectives under the Transport Integration Act 2010 and the responsible use of road reserves for other legitimate purposes. Part 2 of the RMA describes the rights of road users under the RMA. Section 7 provides that the purpose of Part 2 is ‘to confer specified rights which are legally enforceable on members of the public using roads’. These legally enforceable rights are both public and private.
55 Sections 8 and 10 confer rights on members of the public in relation to roads and public highways:
8 Right of passage
(1) A member of the public is individually entitled as of right to pass along a road.
(2) Members of the public are generally entitled as of right to pass along a road.
(3) The rights conferred by this section extend to a member of the public using any means of public transport along a road.
(4) The rights conferred by this section do not derogate from any right of passage conferred by the common law.
(5) Rights of passage conferred by this section or at common law are subject to any restrictions, limitations or conditions which may be specified by or under this Act or any other Act or law.
...
10 Rights of the public in relation to a public highway
The rights of the public whether under this Act or at common law in relation to a public highway can only be extinguished if the public highway is discontinued as a road in accordance with section 12 or discontinued as a road or permanently closed as a road under a power to discontinue or permanently close a road conferred by or under any other Act.
56 Section 9 confers private rights of access on the owners and occupiers of land adjoining roads:
Rights of owners and occupiers of adjoining land
(1) An owner or occupier of any land which adjoins a road is entitled as of right to access the road from that land.
(2) Rights of access conferred by this section or at common law are subject to any restrictions, limitations or conditions which may be specified by or under this Act or any other Act or law.
57 Section 17(1) defines a public road as including roads that are ‘declared under s 204(1) of the LGA’; ‘a road to which sub-section (3) applies’; or ‘a municipal road declared under s 14(1)’.
58 Section 17(3)–(5) deals with the addition and removal of roads from the register of public roads, and provides:
(3) Subject to section 14(7), the relevant coordinating road authority must register on its register of public roads a road in respect of which the road authority has made a decision that the road is reasonably required for general public use...(4) A road authority must remove a road from its register of public roads if the road authority has made a decision that the road is no longer reasonably required for general public use.
(5) The removal of a public road from the register of public roads or the non-inclusion of a road on the register of public roads does not affect the status of the road as a public highway or affect the right of public use of the public highway.
59 Section 17(4) is expressed in mandatory terms and is the statutory power relied on by Council for the removal of Fridays Lane from the register of public roads.
60 Council is required to maintain a register of public roads under s 19(1).
61 Section 39 is a significant provision which operates to protect policy or policy decisions made by road authorities in the performance of a road management function. It provides:
Road authority may make a policy or policy decision relating to road management functions
(1) Without limiting the decision making processes of a road authority, a road authority may make a policy or policy decision relating to the performance of a road management function.
(2) For the purposes of this Act, a decision made by a road authority is a policy decision if having regard to the broad range of activities of the road authority the decision is based substantially on factors or constraints which are financial, economic, political, social or environmental.
(3) Without limiting the generality of subsection (2), a policy decision includes decisions about—
(a) the circumstances in which a road management function is to be performed;
(b) the manner in which a road management function is to be performed;
(c) the standard to be achieved in performing a road management function.
(4) A road authority is to be taken to have made a policy or policy decision relating to a road management function if the road authority has made a road management plan that includes provisions relating to the performance of that road management function.
(5) For the purposes of any proceedings, unless a policy or policy decision made by a road authority is so unreasonable that no road authority in that road authority's position acting reasonably could have made that policy or policy decision, any decision or standard which is a policy or policy decision relating to the exercise of a road management function by the road authority is to be taken to satisfy the statutory duty and any common law duty of the road authority in relation to the exercise of that road management function.
62 The statutory duty of a road authority to inspect, maintain and repair a public road is described in s 40, which provides:
(1) Subject to Part 6, a road authority has a statutory duty to inspect, maintain and repair a public road—(a) to the standard specified in the road management plan for that public road or a specified class of public roads which includes that public road; or
(b) if paragraph (a) does not apply, to the standard specified in a policy in respect of that public road; or
(c) if no standard is specified for that public road or in relation to a particular matter, to a reasonable level having regard to the matters specified in paragraphs (a) to (e) of section 101(1).
(2) The statutory duty imposed by subsection (1) does not create a duty to upgrade a road or to maintain a road to a higher standard than the standard to which the road is constructed.
(3) The statutory duty to inspect applies to any part of a public road which is—
(a) a roadway;
(b) a pathway;
(c) a shoulder;
(d) road infrastructure.
(4) The statutory duty to inspect does not apply to—
(a) a road which is not a public road; or
(b) any roadside or other area of a public road that has not been developed by a road authority for use by the public as a roadway or pathway; or
(c) non-road infrastructure which is installed in the road reserve.
(5) A road authority has a discretionary power to inspect, maintain or repair a road which is not a public road but this Act is not to be construed as imposing a duty to do so.
Grounds relating to the deregistration decision
63 Pulitano relies on 3 grounds in
challenging the deregistration decision. Grounds 1 and 3 are set out below. It
is unnecessary to
set out Ground 2.
Ground 1 – no jurisdictionThe purported decision of the Council to discontinue Fridays Lane is vitiated by a jurisdictional error by reason of the matters outlined in the particulars below.
Particulars
(a) A prerequisite to the Council removing a road from its register of public roads under section 17(4) of the Road Management Act is that it has made a decision that the road is “no longer reasonably required for general public use”.
(b) The Council made no decision before it purported to remove Fridays Lane from its register of public roads that Fridays Lane was “no longer reasonably required for general public use”.
(c) Accordingly, the Council had no power to remove Fridays Lane from its register of public roads, and its decision to do so involved a jurisdictional error.
...
Ground 3 – denial of procedural fairness
The purported decision of the Council to remove Fridays Lane from its road register involved a denial of procedural fairness to [
Particulars
(a) An exercise of power by the Council under section 17(4) of the Road Management Act to remove Fridays Lane from its register of public roads was apt to affect at least the interests (if not also the rights) of [
(b) In the circumstances of this case, the Council was required to hear from [
(c) The Council did not hear from the
(d) Accordingly, the Council’s purported removal of Fridays Lane from its register of public roads is affected by jurisdictional error.
Ground 1 – no jurisdiction
64 Section 17(4) of the RMA requires a road authority to decide that a road ‘is no longer reasonably required for general public use’ before it can make a decision to remove it from the register of public roads. The resolution passed by Council on 15 September 2015 did not state that Council had decided that Fridays Lane was no longer reasonably required for general public use when it ratified the revised road register. Fridays Lane is not mentioned in the resolution at all. It is only by looking at the attachment to the resolution that it can be discerned that Fridays Lane no longer appears in the list of public roads and is therefore deregistered. It was not suggested that there was any relevant delegation of decision making authority to a Council officer.
65 A similar issue was considered by the Appeal Division of the Supreme Court of Victoria in Constante v City of Preston.[8] Section 528 of the Local Government Act 1958 (Vic) empowered a council of a municipality to discontinue a road subject to compliance with certain prerequisites. The Council was required to be of the opinion that the road or part thereof ‘is not reasonably required as a road for public use’.
66 The Court unanimously held that as the Council did not resolve that it was of opinion that the road was not reasonably required for public purposes the exercise of power under s 528 was invalid.[9] In support of this finding, Tadgell J with whom McDonald J agreed stated:
The only way in which a body such as the council can be of any opinion is to pass an appropriate resolution at a meeting of its members duly convened and held.[10]
67 While it was not found to be necessary that the council should actually have expressed an ‘opinion’ or used the word ‘opinion’, it was necessary that there be a resolution from which it could be discerned that the council did consider the question upon which it was required to form the relevant opinion and that it did form such an opinion.[11]
68 It does not, in my view, make any difference that the previous form of the LGA referred to forming an opinion that the road or part thereof ‘is not reasonably required as a road for public use’ whereas the RMA speaks of making a decision that ‘the road is no longer generally required for public use’. Other than by delegation (which is not suggested here), the only way that a council can make a decision is by resolution. It is not permissible to infer a council’s purpose from an officer’s report. [12]
69 In the present case, Council’s resolution on 15 September 2015 under its RMA powers does not state that Fridays Lane is no longer reasonably required for general public use. Nor is it possible to discern from any words in the resolution actually passed that Council was making a decision of the type required by s 17(4) of the RMA. As a result, ground 1 must be upheld.
Policy decisions under the RMA
70 Senior Counsel for the Council did not submit that there were any words in the resolution making the deregistration decision to the effect that it had made the decision required under s 17(4) of the RMA. Rather, he referred to Council’s road management plan and submitted that the deregistration decision was a policy decision of the Council in support of a road management function and was therefore protected by s 39(5) of the RMA.
71 Road management plans are made under pt 4 div 5 of the RMA. While they may set or incorporate relevant standards or policies, the requirements of s 17(2)–(4) must nonetheless be met before a road can be added to or removed from the register of public roads. The adoption of a road management plan is an administrative decision of Council. It was not contended by Council that a road management plan could confer any power additional to the statutory powers in s 17 that would permit a public road to be added to, or removed from the road register.
The effect of s 39 of the RMA
72 Section 39(1) of the RMA empowers a road authority to make a policy or policy decision relating to the performance of a road management function. Section 39(2) provides that a decision made by a road authority is a policy decision if, having regard to the broad range of activities of the road authority, the decision is based substantially on factors or constraints which are financial, economic, political, social or environmental. Section 39(3) provides that a policy decision may include decisions about the circumstances or manner in which a road management function is to be performed or the standard to be achieved in performing a road management function. The making of a road management plan, including any provisions relating to the performance of the Council’s road management function, is a policy or policy decision under s 39(4).
73 Section 39(5) is a privative clause. It provides, with one exception, that for the purposes of any proceedings a road authority’s decision or standard which is a policy or policy decision relating to the exercise of a road management function is to be taken as satisfying the relevant statutory and common law duties. The exception is a claim that the road authority has made a decision so unreasonable that no road authority in that authority’s position acting reasonably could have made it.
74 The application of s 39(5) was considered by the Court of Appeal in Kennedy v Shire of Campaspe:[13]
In our view, s 39(5) is directed at resisting challenges to the policy decisions or policies of road authorities on road management functions as contrary to their statutory or common law duties with respect to those functions on any basis other than Wednesbury unreasonableness. In other words, s 39(5) is aimed at protecting road management authorities against findings of breach of statutory or common law duties simply on the basis of the policy, or policy decision, that a road management authority has adopted, with the exception of Wednesbury unreasonableness. Where a complaint arises as the result of a policy decision that addresses the allocation of resources based on factors or constraints that are financial, political, social or environmental, the road management authority can rely upon the policy or policy decision it has made in its defence.[14]
75 During the present hearing, the question arose as to whether a privative clause such as s 39(5) could protect a Council decision if the decision were itself invalid and of no effect because of non-compliance with a provision of the RMA, such as s 17(4) or a failure to provide procedural fairness.
76 After considering these issues, Senior Counsel for the Council conceded that if the Court were of the view that if Council is to make a decision under s 17(4), it is necessary to first decide that the road is no longer reasonably required for general public use, and that decision had not been made, the decision to remove the road from the register of public roads would not be saved by the application of s 39(5).
77 In my opinion, the concession was fairly and properly made and is consistent with the conventional statutory interpretation of ss 17(4) and 39(5). In Kirk v Industrial Relations Commission of NSW, six members of the High Court said:
Understanding the law relating to privative provisions must begin from the proposition, stated by Dixon J in R v Hickman; Ex parte Fox and Clinton, that:
"if in one provision it is said that certain conditions shall be observed, and in a later provision of the same instrument that, notwithstanding they are not observed, what is done is not to be challenged, there then arises a contradiction, and effect must be given to the whole legislative instrument by a process of reconciliation".[15]
78 In Plaintiff S157/2002 v Commonwealth, the plurality of the High Court expanded on the principles outlined by Dixon J in Hickman:
In Hickman, a question arose as to the effect of reg 17 of the National Security (Coal Mining Industry Employment) Regulations 1941 (Cth), made under the National Security Act 1939 (Cth) and thus supported by the defence power. Regulation 17 provided that a decision of a Local Reference Board, which had a general power to settle disputes as to any local matter likely to affect the amicable relations of employers and employees in the coal mining industry, "[should] not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court on any account whatever". Dixon J said of reg 17:
The particular regulation is expressed in a manner that has grown familiar. Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of reg 17 is well established. They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body."
It should be noted at once that, in the passage last quoted, Dixon J was not speaking of reg 17, but of privative clauses generally. Even so, it is important to appreciate that his Honour's observations were confined to "decision[s] ... in fact given". Moreover and as later decisions of this Court have made clear, the expression "reasonably capable of reference to the power given to the body", has been treated as signifying that it must "not on its face go beyond ... power". Thus, even on this general statement, a privative clause cannot protect against a failure to make a decision required by the legislation in which that clause is found or against a decision which, on its face, exceeds jurisdiction.It follows from Hickman, and it is made clear by subsequent cases, that the so-called "Hickman principle" is simply a rule of construction allowing for the reconciliation of apparently conflicting statutory provisions. Once this is accepted, as it must be, it follows that there can be no general rule as to the meaning or effect of privative clauses. Rather, the meaning of a privative clause must be ascertained from its terms; and if that meaning appears to conflict with the provision pursuant to which some action has been taken or some decision made, its effect will depend entirely on the outcome of its reconciliation with that other provision.[16]
79 Referring to the Migration Act 1950 (Cth), the Court said:
(1) a decision affected by jurisdictional error cannot be regarded as ‘a decision ... under this Act’; and
(2) this Court has clearly held that an administrative decision which involves jurisdictional error is ‘regarded in law, as no decision at all’.[17]
80 In coming to this conclusion, the plurality of the Court found:
The ... basic rule, which applies to privative clauses generally, is that it is presumed that the Parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies. Accordingly, privative clauses are strictly construed.[18]
81 To the same effect are the words of Dawson and Gaudron JJ in Public Service Association (SA) v Federated Clerks Union:
Privative clauses ... are construed by reference to a presumption that the legislature does not intend to deprive the citizens of access to the courts, other than to the extent expressly stated or necessarily to be implied.[19]
82 In Bare v IBAC, Warren CJ said that there cannot be any doubt that privative clauses should be narrowly construed.[20] Santamaria JA also expressed the view that privative clauses should be strictly construed.[21] Tate JA, after summarising the relevant authorities, concluded:
The basic rule of construction of privative or ouster clauses is thus an illustration of the principle that it is to be assumed that even the most general words used were intended by the Parliament to be subject to the right of access to the courts in the absence of express language or necessary implication to the contrary.[22]
83 In my view, as a matter of statutory construction, s 39(5) does not take effect to exclude or reduce the jurisdiction of the Court upon an application for orders in the nature of certiorari or prohibition other than for a policy or policy decision made by a road authority relating to a road management function. If there is no valid policy or policy decision made by a road authority then there is nothing that stands to be protected by s 39(5).[23] It may also be the case at least in some circumstances that a purported decision made by a road authority without having satisfied the necessary statutory requirements for the decision to be made, is so unreasonable that no reasonable road authority in the road authority’s position could have made that policy or policy decision. It would be outside the ‘framework of rationality’ imposed by the RMA. [24] It would lack any evident or intelligible justification.[25] Such a case would fall within the exception stated in s 39(5) which permits the decision of a road authority to be challenged for unreasonableness.
Ground 3 – denial of procedural fairness
84 Pulitano also submitted that the
Council was required to comply with the requirements of procedural fairness and
natural justice
before it could pass a resolution removing Fridays Lane from the
register of public roads.
85 In support of this
proposition, Pulitano relied on Kioa v
West,[26] seeking to distinguish
decisions which apply to a small and identifiable group of people from those
which affect the general public.
86 Pulitano ’s main submissions
were:
(1) Pulitano is the owner of the affected
parcels of land which lose access to the public road system;
(2) the individual or class affected is very small and capable of identification. There is no reason why individual interests should not be taken into account;
(3) the Council’s case shows why procedural fairness should apply. As Fridays Lane serves only one landowner, the Council says that it is not reasonably required for general public use;
(4) Council contends that
it was not affordable to spend the funds that would be required to rebuild the
bridge if Fridays Lane is
to continue to be a public road. The Council also
contends that Pulitano has or could construct access to the affected properties
over its own land. These contentions highlight the direct effect of
Council’s decision on Pulitano ;
(5) Pulitano
is affected in a profoundly different way from any other member of the public.
It is unreal to suggest that a Council
decision negating the status of Fridays
Lane is one that affects Pulitano as a member of the general public. Pulitano
and its solicitors
have repeatedly pointed out why Fridays Lane and the bridge
over it are important to Pulitano ; and
(6) the
correspondence between Pulitano and the Council prior to and after the bridge
collapse shows Pulitano ’s interest in
the deregistration decision.
87 Council’s main submissions were:
(1) Pulitano does not have an interest in the
deregistration decision greater than that of the general public. The
deregistration
decision only affects the interests of Pulitano as a member of
the public or class of the public.
(2) the proposition that procedural fairness does not apply is consistent with the scheme of the RMA which specifically refers to notification and the receipt of submissions associated with:
(i) a decision to discontinue a road under s 12;
(ii) a decision by VicRoads to make declarations concerning certain roads under s 14; and
(iii) the making or amending of a road management plan under s 54; and
(3) procedural fairness obligations do not apply to the deregistration decision.
Private rights of access
88 The private right of access to a public highway from adjoining land has long been recognised as a common law right. In Walsh v Ervin, Sholl J undertook a comprehensive review of authority, concluding that an interference with a private right of access may be actionable in damages, or result in a declaration of right. [27]
89 In McMahons Road Pty Ltd v Frankston City Council, Dodds-Streeton J accepted that an owner of freehold land has both a public right of passage upon an adjoining public highway and a private right to access the highway.[28] In ss 8 and 9, the RMA acknowledges these rights of passage and access. Each section provides that the rights conferred by the section or at common law are subject to any restrictions, limitations or conditions which may be specified by or under the Act or any other Act or law.[29]
90 The right of an owner of land adjoining a highway to free and uninterrupted access to and from the highway from any point on the land contiguous with it was accepted by Osborn J in Roads Corporation v Love.[30] In that instance, the common law right was constrained by a planning scheme requirement for a permit to create or alter access points onto the adjoining public road.[31]
91 In the present case,
Pulitano has a private right of access from its land onto Fridays Lane and then
to the public road system.
If Fridays Lane is deregistered as a road or the
bridge is not rebuilt, the benefits of the right of access under s 9 of the RMA
in respect of 5 lots is very adversely affected and for all practical purposes
lost.
Procedural fairness analysis
92 In Kioa v West, Mason J said:
The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention... But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision:
"... which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a 'policy' or 'political' decision and is not subject to judicial review".[32]
93 Mason J emphasised the flexible nature of the notion of procedural fairness and the need for a strong manifestation that it be excluded in a class of case in which it would ordinarily be implied.[33]
Two distinct but closely related questions can be perceived in the cases relating to the exercise of a statutory power: the first, or threshold, question is whether the exercise of the power is conditioned upon observance of the principles of natural justice; the second question, arising when the exercise of the power is so conditioned, is what the principles of natural justice require in the particular circumstances. It is seldom possible to say that the legislature intends to exclude observance of the principles of natural justice in the exercise of a statutory power which is apt to affect individual interests and the more difficult and more frequently addressed question is what the principles of natural justice require in the particular circumstances.[34]
95 In Saeed v Minister for Immigration and Citizenship, five judges of the High Court said in a joint judgment:
In Annetts v McCann Mason CJ, Deane and McHugh JJ said that the principles of natural justice could be excluded only by "plain words of necessary intendment". And in The Commissioner of Police v Tanos Dixon CJ and Webb J said that an intention to exclude was not to be assumed or spelled out from "indirect references, uncertain inferences or equivocal considerations." Their Honours in Annetts v McCann added that such an intention was not to be inferred from the mere presence in the statute of rights consistent with some natural justice principles.The presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, derives from the principle of legality which, as Gleeson CJ observed in Electrolux Home Products Pty Ltd v Australian Workers' Union, "governs the relations between Parliament, the executive and the courts." His Honour said:
"The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law."[35]
96 In CPCF v Minister for Immigration and Border Protection, Gageler J stated:
The implication of procedural fairness is the product of a strong common law presumption applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests.[36]
97 In Stonnington City Council v Roads Corporation, Osborn J concluded that the obligation to afford procedural fairness to a particular party is first and foremost a question of statutory construction.[37]
98 His Honour distinguished between a decision ‘apt to affect individual interests’ where the law would ordinarily imply such a duty, and a decision affecting the rights, interests or expectations of a class of citizens generally. In the second situation, the law would not ordinarily imply a duty of procedural fairness, and such a decision would be regarded as a ‘policy’ or ‘political’ decision not subject to judicial review.[38]
The statutory framework of the RMA
99 I now turn to consider the statutory framework. Under s 17(3), a road authority is under a duty to include a road in its register for which it has made a decision that the road is reasonably required for general public use. Conversely, under s 17(4), a road authority must remove a road from its register if the road authority has made a decision that the road is no longer reasonably required for general public use.
100 These provisions are found in Part 3 of the RMA. Importantly, Part 2 speaks in terms of rights, and has the purpose of conferring specified rights ‘which are legally enforceable’ on members of the public using roads. As I have said, those rights include both public and private rights.[39] It is plain that there is a myriad of factual situations where the powers in s 17(3) and (4) might be exercised by a Council. In my view, it is not possible or desirable to state any universal rule as to the applicability of procedural fairness when those powers are exercised. The application of procedural fairness to decision making under the RMA must be approached on a case by case basis.
Extent of the class of persons affected
101 It is not disputed in the present
case that only one person is affected and that is Pulitano , being the owner and
occupier of
the 5 lots that will lose access to a public road. The very small
size of the class of persons affected by a decision of the Council
concerning
Fridays Lane points to the applicability of procedural fairness. Only one party
must be heard by the Council; adherence
to procedural fairness in this instance
presents no practical difficulty.
The nature of the affected rights
102 The nature of the rights affected
is also a telling consideration. Here private rights of access to the public
road system are
lost in relation to 5 lots. These are common law rights and they
are also private statutory rights under s 9 of the RMA. They are
not rights
enjoyed in conjunction with members of the general public. Not only does the
purported decision interfere with the private
rights of Pulitano but, as I have
said, s 7 states the purpose of Part 2 of the RMA to be to confer specified
rights ‘which
are legally enforceable’ on members of the public
using roads. The fact that the legislature has expressly created ‘legally
enforceable’ rights also points to the availability of procedural fairness
to protect those rights.
The absence of a statutory code
103 Particularly in older cases, courts have sometimes held that the adoption of an exhaustive procedural code in an enactment can be said to demonstrate that Parliament intended to exclude any additional requirements of procedural fairness.[40] While there are provisions in the RMA which provide for affected persons or councils to be heard by road authorities,[41] it is impossible to discern any clear statutory intent to exclude procedural fairness generally.
104 The object of the Act is consistent with the application of procedural fairness.[42] In addition, s 34(3) of the RMA provides that, in seeking to achieve its functions, a road authority should ‘consult with the community and disseminate information in relation to the exercise of those functions’. This statement by the legislature that it intends for road authorities to consult with and inform the community when exercising its functions is another signpost that procedural fairness is intended to be available to the community in relation to the functions and powers of road authorities.
105 I conclude that there is no exhaustive procedural code in the RMA which would exclude the application of procedural fairness where that doctrine might otherwise apply to the exercise of functions and powers by road authorities.
106 Procedural fairness is a flexible notion and its application is dependent on the relevant statutory framework and the circumstances of the case. The facts and circumstances of the present case are very different from those in the authorities relied on by the Council. Those authorities included Stonnington City Council v Roads Corporation and Fay v Roads and Traffic Authority (NSW) (No 2), where the public at large or a class of the public were affected.[43]
Conclusion
107 In summary, in my opinion, an obligation of procedural fairness did attach to the Council in deciding whether to remove Fridays Lane from its register of public roads, primarily because:
(1) Pulitano is the primary and only person
affected by the decision to deregister part of Fridays Lane as a public
road;
(2) Pulitano is directly affected as a
property owner and occupier. It loses access to Fridays Lane and to the public
road system
in respect of 5 lots;
(3) the effect of
the deregistration decision can be seen in Pulitano ’s need to construct an
alternative road to provide access
to the affected lots;
(4) the chain of correspondence between Pulitano
and the Council before and after the collapse of the bridge over Glen Creek
shows
Pulitano ’s interest as plainly being greater than that of the public
as a whole;
(5) the RMA creates and recognises
both public and private rights. In addition to the effect of the deregistration
decision on Pulitano ’s
rights as a member of the public, Pulitano ’s
private rights of access as the owner and occupier of land adjoining Fridays
Lane
are affected and rendered nugatory in respect of 5 lots. The affected lots
lose access to Fridays Lane and to the public road system;
and
(6) the fact that the RMA prescribes a procedure for some processes under the RMA is not sufficient to lead to the conclusion that procedural fairness is not to be implied in other circumstances.
THE DISCONTINUANCE DECISION
The procedures commencement decision
108 Mr Tawfik provided a report to
Council at its meeting on 15 September 2015. The report stated that Fridays Lane
was no longer
required for public use and recommended that the Council initiate
procedures to discontinue Fridays Lane and negotiate for the sale
of the land to
Pulitano .
109 Council’s minutes for its meeting on 15 September 2015 record that Council passed the following resolution:
(a) Commences the statutory procedures to discontinue the Road status of Fridays Lane;(b) Gives, under Sections 207A and 223 of the Act, public notice of the proposed discontinuance in the Mansfield Courier with such notices stating that, if discontinued, Council proposes to either retain or sell the land to the abutting owners;
(c) Considers submissions received under Section 223 of the Local Government Act 1989 at the next full council meeting held at least 28 days after the publication of the notices;
The making of the discontinuance decision
110 Pulitano ’s written
submission to the Council was prepared by Counsel instructed by Mr Hume. It was
in the form of a letter
from his office dated 27 October 2015.
111 After setting out the background and a summary of dealings with Council, the submission referred to:
(1) the construction of a temporary access track from Glen Creek Road across the property since the collapse of the bridge;
(2) the fact that the track was not formed or compacted, was not comparable to a Council road, and was a temporary measure;
(3) the statements made by Council’s Senior Civil Engineer in his letter of 24 June 2011 that the bridge would be replaced;
(4) the importance of the road and bridge to
Pulitano ; and
(5) the belief that the real reason for closing Fridays Lane was to avoid the cost of replacing the bridge.
112 Pulitano ’s written submission stated that
the officer’s report of 15 September 2015 contained ‘not one word
of
the substantial history of dealings with [ Pulitano ]’, but referred to the
financial cost avoided by Council in not replacing
the bridge. It noted that
Council did not see fit to advise Pulitano personally of the proposal to close
the road.
113 Pulitano ’s written submission
also referred to Council’s statutory duty under s 40 of the RMA to
inspect, maintain and repair Fridays Lane, including the bridge, highlighting
the adverse effect that the loss of access
had caused on the value of the
property. It urged Council not to discontinue Fridays Lane, but to instead
replace the bridge.
The discontinuance decision
114 Council considered the discontinuance and closure of Fridays Lane under the LGA at its meeting on 15 March 2016. It was assisted by a report from Mr Tawfik. The report advised Council that the section of Fridays Lane after the bridge was accessible by only one landowner, and was no longer required for public use. Since the bridge collapse, Fridays Lane was surrounded by private land and had no connection to the wider road network. It connected only to a section of unused government road reserve covered by a grazing licence.
115 In his report, Mr Tawfik referred to Council’s meeting on 15 September 2015. He noted that Council had ratified the removal of the road from the road register, observing that the road did not meet the requirements to be on the road register.
116 Mr Tawfik addressed Pulitano ’s
written submission, setting out his response to each point. In his responses, he
referred
to the removal of Fridays Lane from the road register, noting that
Fridays Lane remained a public highway until closed and
discontinued.
117 Council’s minutes for its meeting on 15 March 2016 record that Council passed the following resolution:
That Council, acting under Clause 3 of Schedule 10 to the Local Government Act 1989 and being of the opinion that the section of road running along the road reservation comprising Lot 1 TP 928328 from Glen Creek Road to the south east corner of Lot 2 LP201355 (“Fridays Lane”) is not reasonably required as a road, and having considered submissions from the public concerning the closure and discontinuance, authorise the Chief Executive Officer, or delegate, to:
118 Following the discontinuance
decision, Mr Tawfik wrote to Pulitano enclosing a copy of his report to the
Council meeting. The
letter was dated 18 March 2016 and said:
Council considered your objection to the closure as submitted via Beaumont Lawyers, but concluded that it did not provide a compelling argument to keep an inaccessible road open.
119 This was the only reason provided
to Pulitano by Council for the discontinuance decision. The Council did not
contend that any
other reason had been notified to Pulitano . The letter also
advised that Council would like to sell the land encompassing the road
reservation to Pulitano .
120 On 24 March 2016, a notice of the discontinuance of Fridays Lane was published by Council in the Victorian Government Gazette.
Relevant LGA provisions
121 Section 205 of the LGA gives councils the care and management of specified highways and roads, including all public highways vested in the council. Under s 206(1), the powers of a council in relation to roads in its municipal district include the powers set out in sch 10. The powers over roads given to councils in sch 10 are extensive, and include the power to discontinue a road by notice published in the Government Gazette, and to sell land from that road if not Crown land.[44]
122 Section 207A provides that a person may make a submission on the proposed exercise of specified powers under s 223, including those in sch 10 cl 3.
123 Section 223 defines the submission procedure, providing:
(1) The following provisions apply if a person is given a right to make a submission to the Council under this section ...(a) the Council must publish a public notice—
(i) specifying the matter in respect of which the right to make a submission applies;
(ii) containing the prescribed details in respect of that matter;
(iii) specifying the date by which submissions are to be submitted, being a date which is not less than 28 days after the date on which the public notice is published;
(iv) stating that a person making a submission is entitled to request in the submission that the person wishes to appear in person, or to be represented by a person specified in the submission, at a meeting to be heard in support of the submission;
...
(d) the Council ... must—
(i) consider all the submissions made under this section ...;
(ii) notify in writing, each person who has made a separate submission, and in the case of a submission made on behalf of a number of persons, one of those persons, of the decision and the reasons for that decision.
(2) If a proposal by the Council involves the exercise of powers at the same time under more than one section giving a right to make a submission and written submissions are received under more than 1 of those sections the submission procedure may be carried out in respect of all the written submissions at the same time.
(3) Despite section 98, a Council may authorise the appropriate members of Council staff to carry out administrative procedures necessary to enable the Council to carry out its functions under this section.
...
124 Under s 98, a council is prohibited from delegating to its staff any power, duty or function of the council under s 223. The powers of a Council under s 223 must be exercised by the Council itself or a committee of the Council. Section 223(3) empowers Council to authorise appropriate members of staff to carry out administrative procedures to enable the Council to carry out its functions under s 223.
125 There is an important distinction between the powers, duties and functions of a Council under s 223, which must be exercised by the Council itself or by a committee of the Council, and administrative procedures which can be performed by staff, if authorised by the Council to do so. The substantive functions under the s 223 process must be performed by the Council itself.
126 The powers, duties and functions of a Council under s 223 include consideration of submissions, the making of the relevant decision and the determination of reasons for the decision. Each of these actions are pivotal to the decision making process and go well beyond administrative procedures. However, authorised council staff may assist in sending out notices or communications to submitters and perform other administrative steps required to give effect to the s 223 process. They may not, however, perform the functions of council in considering, deciding or determining reasons for the decision of the Council. The making of a decision about a submission, and the determination of the reasons for decision are matters for the Council itself.
Grounds relating to the discontinuance decision
127 Pulitano relies on 3 grounds in
challenging the discontinuance decision. The grounds are:
Ground 1 – inadequate reasonsThe purported decision of the Council to discontinue Fridays Lane is vitiated by an error of law on the face of the record by reason of the matters outlined in the particulars below.
Particulars
(a) The Council was required by section 223(1)(d) of the Local Government Act to notify the Plaintiff of the reasons for its decision to discontinue Fridays Lane.
(b) Without limiting particular (a), the Council was required by section 223(1)(d) of the Act to set out the actual path of reasoning by which the Council made the decision in sufficient detail to enable the Court to see whether the decision does or does not involve an error of law.
(c) The [reasons] contained a statement of the Council’s reasons for its purported decision to discontinue Fridays Lane.
(d) However, the [reasons] failed to comply with the requisite standard for reasons under section 223(1)(d) of the Act.
(e) By operation of section 10 of the Administrative Law Act 1978, the [reasons] are taken to form part of the Decision and accordingly be incorporated in the record of the Council’s purported decision.
(f) Accordingly, there is an error of law on the face of the record of the Council’s purported decision to discontinue Fridays Lane.
Ground 2 – actual or ostensible bias
The purported decision of the Council to discontinue Fridays Lane is vitiated by actual or ostensible bias.
Particulars
(a) On 24 March 2016, the Council purported to discontinue Fridays Lane by publishing the Notice under clause 3 of Schedule 10 to the Local Government Act on the basis that Fridays Lane was “not reasonably required as a road”.
(b) Despite previously publishing a public notice on 30 September 2015 under section 223 of the Local Government Act which sought submissions in relation to what was described in the notice as a “proposed” decision to discontinue Fridays Lane, the Council had in fact already formed the opinion that Fridays Lane was “not reasonably required as a road”.
(c) The Council had formed the opinion that Fridays Lane was “not reasonably required as a road” on 15 September 2015 – in advance of receiving any the Plaintiff’s submission under section 223 of the Local Government Act.
(d) Accordingly, the purported decision of the Council on 24 March 2016 to discontinue Fridays Lane by publishing the Notice under clause 3 of Schedule 10 to the Local Government Act on the basis that Fridays Lane was “not reasonably required as a road” is affected by actual or ostensible bias in the nature of prejudgment.
Ground 3 – legally unreasonable exercise of power
The purported decision of the Council to discontinue Fridays Lane involves a legally unreasonable exercise of the Council’s discretionary power to discontinue a public road under clause 3 of Schedule 10 to the Local Government Act.
Particulars
(a) The only reason identified by the Council as to why it purported to discontinue Fridays Lane was that the Plaintiff’s “objection” to the discontinuation of Fridays Lane “did not provide a compelling argument to keep an inaccessible road open”.
(b) Fridays Lane was “inaccessible” only because the Council had, since the collapse of the Bridge on 20 October 2011 at the latest, failed to comply with its duty under section 40 of the Road Management Act to inspect, maintain and repair the Bridge.
(c) It was a legally unreasonable exercise of the Council’s power to discontinue Fridays Lane on the basis that Fridays Lane was “inaccessible”, when Fridays Lane was “inaccessible” only due to a past and continuing failure by the Council to discharge its legal duty.
(d) Further or alternatively, it was a legally unreasonable exercise of the Council’s power to discontinue Fridays Lane in circumstances where the Council knew, or ought to have known, that a consequence of its decision was to render many of the Plaintiff’s properties without any direct access to any road.
Analysis
128 It is convenient to consider all 3 grounds together.
129 Council submitted that the procedures under the LGA to close part of Fridays Lane had been sufficiently complied with and that the Court should uphold the discontinuance decision.
130 Despite Council’s submission, it is clear that the procedures under the LGA to discontinue part of Fridays Lane have legally miscarried. No doubt this has occurred despite the best intentions of Council staff and all concerned.
131 There are three major defects in the procedure adopted by Council, which vitiate the discontinuance decision.
132 First, as Pulitano
submits, the procedures commencement decision prejudges the issue to be
considered by Council. The resolution
passed by Council on 15 September 2015 in
Item 10.6 goes well beyond the commencement of procedures under s 223 of the
LGA. It contains
the opinion of Council as to the ultimate outcome of the
inquiry, namely that Council acting under sch 10 cl 3 of the LGA is ‘of
the opinion that the [relevant part of Fridays Lane] is not reasonably required
as a road’. Such an opinion could only be lawfully
formed by the Council
following the receipt of submissions in the manner prescribed by s 223.
133 The adoption of such an opinion at this
preliminary stage of the process was therefore beyond the powers of Council.
Section 207A
of the LGA provides for persons to make a submission under s 223 on
‘the proposed exercise of any power’ under certain
provisions,
including those relating to the discontinuance of a
road.[45] For decisions made under
the provisions identified in s 207A, the LGA states that the Council must
publicly seek submissions.[46]
Accordingly, it is not permissible to record by resolution Council’s view
on the ultimate issue that can only be decided following
the receipt and
consideration of submissions without having first done so. Pulitano submitted
that the Council’s expression
of a clear view as to a question of fact
constituting a live and significant issue to be addressed in the course of the s
223 process
might give rise to a reasonable apprehension of bias on the part of
the fair-minded observer.[47] While
this may be so, it is plainly beyond power for the Council to express a final
view on the discontinuance of a public highway
under sch 10 cl 3 without having
completed the process directed by s 223.
134 The second major defect arises because the discontinuance decision is predicated on the lawful and effective delisting of Fridays Lane from the road register. This is highlighted in Mr Tawfik’s report to Council of 15 March 2016. However, for the reasons that I have given, this had not lawfully occurred. While Mr Tawfik’s report to the Council is not to be taken as representing Council’s opinion,[48] both his report and the Council in its deliberations were proceeding on the fundamental misunderstanding that Fridays Lane had been removed from Council’s road register by the deregistration decision. This was not legally the case. As at 15 March 2016, Fridays Lane remained a public road under the RMA, listed on the road register.
135 In my view, a decision to discontinue a public road in these circumstances is a legally unreasonable exercise of power in the sense used by the High Court in Minister for Immigration and Citizenship v Li.[49] Given that Fridays Lane remained on the road register as a public road under the RMA, a decision to discontinue it as a public road under LGA powers would lack any rational foundation. There would be no evident or intelligible justification.[50] It would be outside the framework of rationality that constrains the exercise of a statutory discretion under the LGA. Section 40 of the RMA imposes on the Council a statutory duty to inspect, maintain and repair a public road to the standard specified in the Council’s road management plan, or in a policy in respect of that public road. If there is no such standard, then the public road must be maintained to a reasonable level having regard to the matters specified in s 101(1)(a)–(e) of the RMA. It would make no sense given the statutory framework of the RMA and the LGA for Council to discontinue a public road under the LGA when that public road was also a public road on its road register and the Council continued to have the statutory duties of inspection, maintenance and repair under s 40 of the RMA.
136 The third major defect arises because of non-compliance with the requirement imposed on the Council by s 223(1)(d), that is, after having considered the submissions made, to notify each person who has made a submission of the decision and the reasons for it.
137 As I have said, the Council cannot delegate its duty to make a decision or determine reasons for that decision, by acting through a delegate appointed under s 98 of the LGA. It can only be assisted by council staff under s 223(3) with respect to administrative procedures necessary to enable the Council to carry out its functions under s 223.
138 Mr Tawfik’s letter of 18 March 2016
plainly does not meet the requirements in s 223(1)(d)(ii) for notification of
the decision
and reasons of Council to Pulitano . The resolution as passed by
Council on 15 March 2016 may have contained one reason for the decision,
namely
that Council was of the opinion that the relevant part of Fridays Lane was not
reasonably required as a road, although the
Council did not contend that it did.
However, Mr Tawfik’s letter of 18 March 2016 does not contain this reason
and Council
did not submit to the contrary. Mr Tawfik did give one reason
attributed to the Council, that the objection to closure provided by
Pulitano ’s solicitors ‘did not provide a compelling argument to keep
an inaccessible road open’.
139 Senior Counsel for the Council described this reason as a pithy one liner, and submitted it was sufficient to satisfy the statutory requirement to give reasons. I do not agree. Firstly, as I have said, the reason was not seen or authorised by Council. Secondly, it is not a reason discernible from Council’s resolution. Thirdly, it does not set out the actual path of reasoning leading to the ultimate conclusion by which Council decided to discontinue Fridays Lane.[51] It is not in sufficient detail to enable a court to see whether it involved any error of law.[52] All that is said was that Council had concluded that the submission did not provide ‘a compelling argument’ to keep an inaccessible road open. The first part of the reason is a mere assertion, and provides no path of reasoning at all. The second part of the reason, that the road is inaccessible, does not provide any intelligible path of reasoning as to why it should be closed. It suffers from circularity. The road is inaccessible only because Council closed the road and failed to keep it open. To the contrary, the fact that part of the property is inaccessible may be a very good reason to keep the road open. It provides no rational justification as to why Council chose to act as it did.
CONCLUSION
Remedies
140 Pulitano contends that the Court
should appoint VicRoads as the decision maker to reconsider and decide the
future of Fridays
Lane. In my view, this is neither desirable nor appropriate.
Council is the coordinating road authority for Fridays Lane. Fridays
Lane is a
Council responsibility. It is also Council that must find the funding or procure
funding elsewhere if the bridge is to
be rebuilt.
141 VicRoads has had no past role or involvement in determining the future of Fridays Lane and has no role in this proceeding. It is not appropriate for the Court to appoint VicRoads as the future decision maker when it has no statutory authority to act.[53] This is not a case where there are alternative statutory decision makers.[54]
142 Pulitano also sought an order for mandamus to
compel Council to reinstate the bridge along Fridays Lane. Again, it is not
appropriate
to do so at this stage. The matter should return to the Council to
consider what should be done. Council remains the ultimate decision
maker. It is
not appropriate for the Court to intervene in Council’s decision making
process by making an order in the nature
of mandamus.
Discretion
143 I am not satisfied that the making
of orders in the nature of certiorari would be futile or lacking in utility. In
Minister for Immigration v WZARH, Gageler and Gordon JJ said that where
denial of procedural fairness is established, the granting of curial relief is
justified unless
it could be shown that the failure did not deprive the person
of the possibility of a successful outcome.
[55] The practical injustice in such a
case lies in the denial of an opportunity which in fairness ought to have been
given. The opportunity
for Pulitano to put further submissions to the Council
may result in reconsideration of the future of Fridays Lane by Council or
the
identification of an alternative solution or compromise negotiated between the
parties. It is not a situation where relief should
be refused at the discretion
of the Court because there is no other alternative to the course that the
Council has hitherto chosen
to
adopt.[56]
Finding
144 For these reasons, the deregistration decision, insofar as it affects Fridays Lane (but not other roads on the road register), and the discontinuance decision are invalid and of no effect, and should be quashed. The result is that Fridays Lane remains a public road listed on the road register under the RMA, and a public road under the LGA.
Conclusion
145 The Court will extend time, and
make orders in the nature of certiorari quashing the deregistration decision,
insofar as it affects
Fridays Lane, and the discontinuance decision. No order in
the nature of mandamus will be granted. The future of Fridays Lane stands
to be
considered and determined by the Council after hearing from Pulitano .
[1] [2002] VSC 256 , [18] (‘Mann’), approved in Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [72] (‘Mann’).
[2] [2014] VSC 497, [35] (citations omitted), quoted and approved in Lazarevic v Victoria Police [2015] VSC 13, [36]. These principles were recently followed and applied in Cahill v Legal Services Commissioner [2017] VSC 177, [18].
[3] Mann [2002] VSC 256, [18]; approved in Mann [2004] VSCA 148.
[4] Ibid [19].
[5] Mann [2004] VSCA 148, [57]–[58], [72]; Lednar v Magistrates’ Court [2000] VSC 549; (2000) 117 A Crim R 396, 410–411 [137], [142]–[143]; Young v The County Court of Victoria [2005] VSC 311, [17]; Goodman v Victorian Civil and Administrative Tribunal (2011) 24 VAR 151, 157–158 [29].
[7] For discussion of these definitions see Anderson v City of Stonnington (2016) 217 LGERA 179, 187 [18]–[20].
[8] [1994] VicRp 25; [1994] 1 VR 379.
[9] Ibid 379.
[10] Ibid.
[11] Ibid 388, citing Shire of Lillydale v Gainey [1929] ArgusLawRp 71; [1930] VLR 73, 80.
[12] Johnson v Moyne Shire Council (2012) 192 LEGRA 65, 77–78 [44]–[45], citing Austral Monsoon Industries Pty Ltd v Pittwater Council (2009) 7 NSWLR 169.
[14] Ibid [129].
[15] [2010] HCA 1; (2010) 239 CLR 531, 579 [94], quoting R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, 617 (‘Hickman’).
[16] (2003) 211 CLR 476, 499–501 [56]–[60] (‘Plaintiff S157/2002’) (citations omitted), quoting Hickman [1945] HCA 53; (1945) 70 CLR 598, 614–615.
[17] Plaintiff S157/2002 (2003) 211 CLR 476, 506 [76], citing Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, 614–615 [51]; see also Talacko v Talacko (2016) 312 FLR 159, 201 [215] (Santamaria JA in dissent).
[18] Plaintiff S157/2002 (2003) 211 CLR 476, 505 [72] (citations omitted).
[19] [1991] HCA 33; (1991) 173 CLR 132, 160, cited in Plaintiff S157/2002 (2003) 211 CLR 476, quoted in Bare v IBAC (2015 48 VR 129 (‘Bare’).
[20] (2015) 48 VR 129, 164 [100], citing Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602, 631; Public Service Association (SA) v Federated Clerks Union [1991] HCA 33; (1991) 173 CLR 132, 160; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 505; Herald v Weekly Times Pty Ltd v A [2005] VSCA 189; (2005) 160 A Crim R 299, 300.
[21] Bare (2015) 48 VR 129, 318 [590] (citations omitted).
[22] Ibid 239 [336].
[23] See Brettingham-Moore v St Leonards Municipality [1969] HCA 40; (1969) 121 CLR 509, 526; Attorney General (Vic) v City of Geelong [1989] VicRp 58; [1989] VR 641.
[24] See Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 367 [28].
[25] Ibid [76].
[26] [1985] HCA 81; (1985) 159 CLR 550, 584 (‘Kioa’).
[27] [1952] VicLawRp 47; [1952] VLR 361.
[28] [2005] VSC 522, [20].
[29] Ibid; see also Anderson v City of Stonnington (2016) 217 LGERA 179, 187 [19]–[20]; Victoria, Parliamentary Debates, Legislative Assembly, 4 March 2004, 289 (Robert Cameron, Minister for Agriculture).
[30] (2010) 31 VR 451, 464 [56].
[31] Ibid 464 [57].
[32] [1985] HCA 81; (1985) 159 CLR 550, 584, quoting Salemi v Minister for Immigration & Ethnic Affairs (Cth) (No 2) [1977] HCA 26; (1977) 137 CLR 396, 452 (Jacobs J).
[33] Kioa [1985] HCA 81; (1985) 159 CLR 550, 585, cited in Stonnington City Council v Roads Corporation (2010) 30 VR 303, 340 [205]–[206].
[34] [1985] HCA 81; (1985) 159 CLR 550, 612.
[35] [2010] HCA 23; (2010) 241 CLR 252, 259 [14]–[15] (citations omitted), quoting Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309, 329 [21].
[36] [2015] HCA 1; (2015) 255 CLR 514, 622 [367], citing S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636, 666 [97].
[37] (2010) 30 VR 303, 340 [204].
[38] Ibid; see also King Island Council v Resource Planning and Development Commission (2007) 15 LGERA 52; Transport Action Group Against Motorways Inc v Roads and Traffic Authority (NSW) (1999) 46 NSWLR 598.
[39] Above [55]–[56], [88]–[91].
[40] See Brettingham-Moore v St Leonards Municipality [1969] HCA 40; (1969) 121 CLR 509; Attorney General for Victoria v City of Knox [1979] VicRp 51; [1979] VR 513; Shire of Flinders v T W Maw and Sons (Quarries) Pty Ltd [1971] VicRp 62; [1971] VR 484; Baba v Parole Board of NSW (1986) 5 NSWLR 338.
[41] See Road Management Act 2004 (Vic) ss 12, 14, 54, 57 (‘RMA’).
[43] Stonnington City Council v Roads Corporation (2010) 30 VR 303; Fay v Roads and Traffic Authority (NSW) (No 2) (1991) 25 ALD 201.
[44] Local Government Act 1989 (Vic) sch 10 cl 3 (‘LGA’).
[45] LGA s 207A(a), sch 10 cl 3.
[47] Relying on British American Tobacco Australia Services v Laurie [2011] HCA 2; (2011) 242 CLR 283, 327–328 [126], 331 [139], 333 [145]; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135, 146 [23]; Trombone Investments Pty Ltd v TBT (Victoria) Pty Ltd [2016] VSCA 108, [11].
[48] Johnson v Moyne Shire Council (2012) 192 LEGRA 65, 77–78 [44]–[45], citing Austral Monsoon Industries Pty Ltd v Pittwater Council (2009) 7 NSWLR 169.
[49] (2013) 249 CLR 332, 364–367 [67]–[76].
[50] See Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1, 5–6 [8]–[13]; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158, 172 [65]; SZVFW v Minister for Immigration and Border Protection [2017] FCAFC 33, [39].
[51] Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, [38].
[52] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 499–501 [49], [53]–[54]; East Melbourne Group v Minister for Planning [2008] VSCA 217; (2008) 23 VR 605, 661 [225]–[226], 675–676 [308], 677 [310]; Sun Alliance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, 18; Body Corporate Strata Plan No 4166 v Stirling Properties (No 2) [1984] VicRp 73; [1984] VR 903, 911–912.
[53] RMA s 36.
[54] Cf Sidney Harrison Pty Ltd v City of Tea Tree Gully [2001] SASC 27; (2001) 112 LGERA 320.
[55] [2015] HCA 40; (2015) 256 CLR 326, 342–343 [60].
[56] See Mann [2004] VSCA 148, [17]–[19].
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URL: http://www.austlii.edu.au/au/cases/vic/VSC/2017/421.html