Estoppel by Representation in Administrative Law
| Author | Joshua Thomson |
| Published date | 01 March 1998 |
| Date | 01 March 1998 |
| DOI | http://doi.org/10.22145/flr.26.1.4 |
| Subject Matter | Article |
ESTOPPEL
BY
REPRESENTATION
IN
ADMINISTRATIVE
LAW
*
Joshua Thomson
Traditionally,1 estoppel
by
representation cannot interfere
with
the exercise of a
statutory
power
or
the performance of astatutory
duty
by
an
administrative body.2
According to this principle, referred to below as "the traditional rule", the public
purpose
served
by
the statute prevails over the private interest of
an
individual
who
may
have
been
misled to the extent of relying
on
amisrepresentation to his or
her
detriment.3This article begins
by
examining the ambit of this rule.
The second
part
of the article analyses the basis for estoppel
in
administrative law.
It
will be
argued
that
public
law
estoppel
must
be based
on
analogous private
law
principles,
and
not
on
some
unique
public
law
doctrine.
The
remainder
of the article then considers transposing private
law
estoppel into a
statutory context. Specifically,
it
deals with the application of estoppel to
representations
about
intra
vires
exercises of power,
and
then examines representations
about
ultra
vires
administrative action.
*
1
2
3
LLB
(Hons) (University of
Western
Australia), BCL
(axon),
Crown
Solicitor's Office
of
Western
Australia.
The
views
expressed
in
this article
are
my
own
and
do
not
reflect
the
views
of
the
Crown
Solicitor's Office. I
would
like to
thank
Dr
James
Thomson,
Mr
Graham
Delaney,
Dr
Nicholas
Seddon
and
Professor
Dennis
Pearce for their assistance
and
encouragement
in
preparing
this article. Iaccept responsibility for
any
errors.
Southend-on-Sea Corporation vHodgson (Wickford) Ltd [1962] 1QB 417
at
423-424
per
Lord
Parker
CJ;
Western Fish Products
Ltd
vPenwith District Council [1981] 2All ER 204
at
219
per
Megaw
LJ.
Note
also Rocca v
Ryde
Municipal Council [1962] NSWR 600
at
604-605
per
Sugerman
J;
Wormald vGioia (1980) 26 SASR 237; Haoucher v
Minister
for Immigration &
Ethnic Affairs (1990) 169 CLR 648
at
678
per
McHugh
J;
Attorney-General
(NSW)
v
Quin
(1990) 170 CLR 1
at
17
per
Mason
CJ.
In
this article "administrative body" is
used
broadly
to
designate
any
entity
entrusted
with
statutory
functions,
including
natural
individuals
such
as Ministers
of
the
Crown.
"[People]
must
turn
square
corners
when
they
deal
with
the
government": Rock Island
Railroad
Co
vUnited States 254 US 141
at
143 (1920)
per
Holmes
J;
approved
in
Federal Crop
Insurance Corporation vMerrill 332 US 380
at
385 (1947)
per
Frankfurter
J.
84
Federal
LauJ
RevieuJ
Volume 26
AMBIT
OF
THE TRADITIONAL RULE
Representations
about
future
performance
of
statutory
functions
Does
the
traditional
rule
4entirely
preclude
estoppel arising from representations
about
an
administrative body's
statutory
functions?
Obviously, the traditional rule prevents apromissory representation from being
binding. For example,
in
Minister
for
Immigration v
Kurtovie5
the respondent,
who
was
not
an
Australian
citizen, killed his parents-in-law
and
was
sentenced to
ten
years
imprisonment. The Minister
decided
to exercise his
power
to
deport
Kurtovic
under
s12
of
the
Migration Act 1958 (Cth). Kurtovic successfully
appealed
this decision
before
the
Administrative Appeals Tribunal which
recommended
revocation of the
deportation
order. The Minister
adopted
this recommendation. Kurtovic alleged
that
when
the
Minister revoked the deportation
order
he
also represented
that
he
would
not
make
another
order
under
s12 unless Kurtovic re-offended. This alleged
representation
was
promissory:
it
concerned the future exercise of the Minister's
power
to
deport
Kurtovic. Kurtovic
endeavoured
to rely
on
this to estop the Minister from
enforcing a
subsequent
deportation
order
issued
when
he
had
not
re-offended. The
Federal
Court
r~ected
Kurtovic's estoppel
argument
because of the traditional rule
against estoppel.
Arepresentation
may
concern the future performance of
an
administrative body's
statutory
functions,
even
though
the representation does
not
relate to the
manner
in
which these functions will
be
performed. This occurs
where
arepresentation is to
the
effect
that
adiscretionary
power
will
not
arise to
be
exercised,
or
a
duty
will
not
need
to
be
performed.
Such
representation
may
be
eX~cit,
or
it
may
be
implicit as
in
Southend-on-Sea
Corporation
v
Hodgson
(Wickford)
Ltd.
Hodgson
(Wickford) Ltd
wished
to
use
apiece of
land
as abuilder's yard. The
company
had
to obtain
planning
permission from the Southend-on-Sea Corporation
unless
an
existing
user
right attached to the land. If the
company
used
the
land
without
planning
permission
or
an
existing
user
right,
then
the Southend-on-Sea Corporation
was
empowered
by
statute to serve
an
enforcement notice. The Southend-on-Sea
Corporation
told
the
company
that
the
land
had
an
existing
user
right as abuilder's
yard,
and
that
planning
permission
was
unnecessary. This
was
an
implicit
representation
by
the
Southend-on-Sea Corporation
that
its
statutory
power
to serve
an
enforcement notice
would
not
arise
in
the future. As such,
the
representation
concerned
the
future
exercise of
the
Corporation's statutory discretion to serve
an
enforcement notice -because
if
the Corporation
was
bound
by
its representation
then
the discretion
could
not
be
exercised. The Southend-on-Sea Corporation
was
incorrect
in
telling the
company
that
the
land
had
an
existing
user
right. The
company
tried to
use
estoppel
by
representation to contest the validity of
an
enforcement notice
served
by
the
Corporation. However, because the Corporation's representation concerned
the
4
5
6
7
See cases
in
n1.
(1990)
21
FeR
193. For
another
example see Churchill
Fisheries
Export Ply Ltd vDirector
General
of
Conservation [1990] VR 968.
Ibid
at
196
per
Neaves
J,
at
200-201
per
Ryan J
and
at
210-11, 214-15, 218-19
per
Gummow
J.
This case is discussed
further
below.
[1962] 1
QB
417. Similarly Western
Fish
Products
Ltd vPenwith District
Council
[1981] 2All
ER 204; Wormald v
Gioia
(1980) 26 SASR 237.
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