The Overthrow of Attorney-General v.Gill: Cooney v. Ku-Ring-Gai Municipal Council1
| Author | J. E. Richardson |
| Published date | 01 March 1964 |
| Date | 01 March 1964 |
| DOI | 10.1177/0067205X6400100105 |
| Subject Matter | Comment |
COMMENT
THE OVERTHROW
OF
ATTORNEY-GENERAL
v.
GILL:
COONEY
v.
KU-RING-GAI MUNICIPAL COUNCIL'
The refusal
of
the High Court in Cooney
v.
Ku-ring-gai Municipal
Council to follow Attorney-General
(ex
rei. Lumley)
v.
T.
S. Gill &Son
Ply
Ltd
2should be received enthusiastically by public lawyers and others
who consider that individuals should be restrained from breaking the
law
if
their activities operate to the disadvantage
of
members
of
the
public living in the vicinity. The long reign
of
Attorney-General
v.
Gill has ended. In Gill's case in
1927
the Full Court
of
the Supreme
Court
of
Victoria declined to grant the Victorian Attorney-General an
injunction to restrain the defendant from continuing with the erection
of
afactory on land situated in aresidential area contrary to aby-law
of
the City
of
Prahran. The Attorney-General had sought the injunc-
tion on the relation
of
Lumley, aratepayer
of
the municipality, who
alleged he was injuriously affected by the defendant's acts which, accord-
ing to the allegation, also amounted to an invasion
of
the rights
of
the
ratepayers generally and
of
the public. The municipality had made no
attempt to enforce its own by-law although an offence against the by-law
could be punished by fines and continuing penalties.
According to the Court there was no doubt about the place
of
the
Attorney-General as the guardian
of
public rights and interest,
but
when he sought an injunction, relief would be afforded only
if
the
interests he desired to safeguard were
of
acharacter which equity would
protect. Delivering the judgment for the Court, Dixon A-J. said:
The required interest must present those features which belong to
the wide category
of
rights recognized in equity as proprietary, and
provide the ground upon which the jurisdiction to restrain their
violation depends.3
Those features were found in the case such as those dealing with the
adequate width
of
new streets, the alignment
of
buildings upon astreet
frontage, and uniformity in the width
of
astreet. But the by-law
of
the City
of
Prahran, though it tended
to
promote the general welfare
of
the community, nevertheless
did'
not take the form
of
any positive
interest susceptible
of
enjoyment by His Majesty's subjects
as
of
common
right
'.4
That nothing analogous
to
an interest was created by the
by-law derived support from consideration
of
the doctrines affecting
restrictive covenants. Arestriction
of
the kind prescribed by the by-
law when imposed by covenant was enforceable by injunction only
if
1(1963)
37
A.L.J.R.
212.
High Court
of
Australia; Dixon C.J., Kitto, Taylor,
Menzies and Windeyer JJ.
2[1927] V.L.R.
22.
3Ibid.
31.
4Ibid.
33.
122
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