Deepcliffe Pty Ltd & Anor v Council of the City of Gold Coast & Anor [2001] QCA 342

SUPREME COURT OF QUEENSLAND CITATION: Deepcliffe P/L & Anor v The Council of the City of Gold Coast & Anor [2001] QCA 342 PARTIES: DEEPCLIFFE PTY LTD (ACN 010 336 606) AS TRUSTEE OF THE DEEPCLIFFE UNIT TRUST (first plaintiff/first appellant) CARKAZIS PARAGON INVESTMENTS PTY LTD (ACN 008 495 261) AS TRUSTEE OF THE CARKAZIS FAMILY TRUST (second plaintiff/second appellant) v THE COUNCIL OF THE CITY OF GOLD COAST (first defendant/first respondent) KEITH THOMPSON (second defendant/second respondent) FILE NO/S: Appeal No 10673 of 2000 SC No 156 of 1995 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 31 August 2001 DELIVERED AT: Brisbane HEARING DATES: 24 May 2001, 25 May 2001 JUDGES: McMurdo P, Williams JA and Helman J Separate reasons for judgment of each member of the Court, each concurring as to the order made. ORDER: Appeal dismissed with costs to be assessed CATCHWORDS: TORTS – THE LAW OF TORTS GENERALLY – DAMAGES - where the erection of parking signs was found to be an unlawful exercise of power – whether the respondent Council’s conduct caused the appellants' business to suffer economic loss – where damages sought for lost trade under the torts of nuisance, interference with business by unlawful means, misfeasance in public office and negligence – where appeal from primary judge’s rejection of all claims TORTS – NUISANCE – WHAT CONSTITUTES – PUBLIC NUISANCE – RELEVANT PRINCIPLES – whether the -- 1 of 30 -- 2 erection of signs restricting parking constituted an unlawful interference with the use or enjoyment of the appellants' land – whether the erection of the signs constituted an actionable nuisance – where neither the erection nor enforcement of the parking restrictions amounted to interference with the appellants' rights of use and enjoyment of the land – the conduct alleged to constitute the nuisance did not deprive patrons the opportunity of attending the restaurant – the tort of nuisance is not made out. TORTS – MISCELLANEOUS TORTS – INTERFERENCE WITH CONTRACTUAL AND OTHER RELATIONS – RELEVANT PRINCIPLES – whether the tort of interference with business by unlawful means exists in Australia – whether the tort is made out in this case – where the evidence does not establish such a tort TORTS – MISCELLANEOUS TORTS – MISFEASANCE IN PUBLIC OFFICE – whether the tort of misfeasance in public office was established – where a public officer who has acted without power is not liable for resulting loss merely because the act is done ultra vires – where malice or the intentional infliction of harm should be the actuating motive – where insufficient evidence that the actuating motive of the respondent was an intention to cause harm to the appellants' business TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – LOCAL AUTHORITES – whether the Council owed a duty of care not to be careless in the exercise of its powers to regulate parking and to exercise its powers in such a way as not to cause economic loss to the applicant – where a public authority may be subject to a common law duty of care when it exercises a statutory power or performs a statutory duty – where a duty of care does not arise in relation to acts that reflect the policy making and discretionary elements involved in the exercise of statutory discretions – where the installation and enforcement of parking signs are policy matters to which the tort of negligence does not apply Local Government Act 1936–1985 (Qld), s 31(18) Local Government Act 1993 (Qld), s 117(1)(a), s 117(2)(b) Traffic Act 1949 (Qld), s 12G(1), s 44B(2A) Andrae v Selfridge & Co [1938] 1 Ch 1, referred to Acrow (Automation) Ltd v Rex Chainbelt Inc [1971] 3 AllER 1175, referred to -- 2 of 30 -- 3 Beaudesert Shire Council v Smith (1969-70) 120 CLR 145, referred to Benning v Wong (1969-70) 122 CLR 249, referred to Brodie v Singleton Shire Council [2001] HCA 29, 31 May 2001, considered Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202, referred to Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529, referred to Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, referred to Deasy Investments Pty Ltd & Anor v Monrest Pty Ltd Appeal No 1659 of 1996, 22 November 1996, considered Dunlop v Woollahara Municipal Council (1982) AC 158, referred to Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343, referred to Hargrave v Goldman (1963) 110 CLR 40, considered J T Stratford & Son Ltd v Linley [1965] AC 269, referred to Lyons, Sons & Co v Gulliver [1914] 1 Ch 631, considered Northern Territory of Australia v Mengel (1995) 185 CLR 307, considered Patrick Stevedores Operations Pty Ltd v The Maritime Union of Australia [1998] WASCC 120, 23 April 1998 Perre v Apand Pty Ltd (1999) 198 CLR 180, referred to Pinky’s Pizza on the Run Pty Ltd v Pinky’s Seymour Pizza & Pasta Pty Ltd Appeal No 8092 of 1997, 17 November 1997 Pyrenees Shire Council v Day (1998) 192 CLR 330, referred to Sanders v Snell (1998) 196 CLR 329, considered The Council of the Shire of Sutherland v Heyman (1985) 157 CLR 425, referred to Three Rivers District Council v Governor and Company of the Bank of England [2000] 2 WLR 1220, referred to Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106, referred to Vanderpant v Mafair Hotel Co [1930] Ch 138, distinguished Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, referred to Wallace Edward Rowling v Takaro Properties Ltd [1980] AC 473, considered Walsh v Ervin (1952) VLR 361, distinguished Yuen Kun Yeu v Attorney-General for Hong Kong [1988] 1 AC 175, referred to COUNSEL: N M Cooke QC with B G Cronin for the appellants G J Gibson QC with R S Litster for the respondents SOLICITORS: Adamson Bernays Kyle & Jones for the appellants Witheriff Nyst for the respondents -- 3 of 30 -- 4 McMURDO P: The background facts [1] The second appellant is the operator of a large restaurant, "Ashmore Steak and Seafood", situated in a local shopping centre owned by the first appellant. The shopping centre borders Glenmore Drive, Ashmore Road (a four lane divided arterial road), Reed Street (across from which is the Royal Pines Resort golf course) and Ainsley Avenue, Ashmore. The appellant companies are trustees of unit trusts. The second appellant is the beneficiary of the first appellant's trust; the families of the four Carkazis brothers are beneficiaries of the second appellant's trust. The two surviving brothers, Nicholas and James Carkazis, control both appellants' businesses, including the restaurant which is a tenant of the first appellant. [2] In about 1984 the first appellant bought the land, which was then in a semi-rural area, and built the shopping centre and restaurant with a capacity for about 80 diners. In 1986 the restaurant capacity was increased to 156 diners; in 1989 to 220; in 1990 to 384; in 1990 to 664 and in 1993 to 970 diners. It has become the largest restaurant in Queensland and perhaps even Australia. As its size suggests, its financial success has been built upon high volume trade combined with a low profit margin. Most patrons travel to the restaurant by private motor vehicle. Since 1984 the character of the local area has progressively changed from semi-rural to residential and some tension has developed between the needs of the restaurant and its patrons and the needs of nearby residents. [3] In 1990, the first appellant was granted permission by the Main Roads Department to pave and extend its existing carpark into the adjacent road reserve for Ashmore Road. In November 1991, the first appellant purchased an adjoining property, 10 Ainsley Avenue, and in March 1992 applied to have that property rezoned to extend the shopping centre and provide additional carparking. The first respondent, "the Council", approved the rezoning only as to the additional carparking. Some local residents appealed to the Planning & Environment Court. Through confusion, the first appellant was not a respondent to that appeal which was subsequently compromised and the rezoning was set aside. Late in 1993 the road reserve was transferred to the Council for the upgrading and widening of Ashmore Road and the appellants lost its use as a carpark. In January 1994, the first appellant unsuccessfully reapplied to the Council for rezoning of 10 Ainsley Avenue for carparking. The available carparking spaces were inadequate for restaurant demand and cars overflowed into the surrounding streets, especially during peak periods on Friday and Saturday evenings, to the chagrin of some residents who complained to their local councillor, the second respondent.1 Subsequently, the adjoining land has been rezoned to provide landscaped carparking. [4] On 24 March 1994, council employees erected signs in Reed Street from its junction with Ashmore Road for about 100 metres to the west, prohibiting parking on both sides of the road for about 20 metres from the intersection and limiting parking to one hour between 6pm and midnight, Monday to Friday, for the remaining distance. Similar restrictions were placed in Ainsley Avenue from its intersection with Glenmore Drive to about 100 metres west of the restaurant. These signs did not affect the busy Saturday night restaurant trade but two weeks later Council employees replaced the signs with signs which similarly restricted parking 1 The second respondent was the local councillor from 1979 until he lost office in March 1995. -- 4 of 30 -- 5 every day of the week. Council officers enforced these regulations, particularly on Saturday nights, issuing infringement notices to vehicles which overstayed the signed limit. [5] The signs remained in place until 15 December 1994 when they were removed for unexplained reasons, apparently connected with litigation instituted by the appellants against the Council for judicial review of the decision to install the parking signs. Almost immediately replacement signs were installed; these imposed a two hour limit which was also vigorously enforced by Council officers. Restaurant patrons did not ordinarily park, order, complete their meals and return to their vehicles either within the original one hour or the later two hour limit. [6] The learned primary judge found that the initial signs were unlawfully erected. Traffic Act 1949 (Qld), s 44B(2A) authorised a local authority to "prohibit, regulate and control parking". Chapter 32 of the Council by-laws deemed the whole of the City of the Gold Coast to be a traffic area under the Traffic Act 1949 (Qld) and limited parking anywhere in the Gold Coast to two hours. A Council resolution of 21 March 1986 delegated the powers to regulate parking by Two Hour Regulated Parking Signs to its chief engineer, subject to periodic reviews. This delegation was not authorised by the relevant legislation; s 31(18) Local Government Act 1936-1985 (Qld) required delegation by by-law (not resolution). On 16 December 1994, the council purported to ratify its earlier installation of parking signs, at the same time replacing the one hour limit with a two hour limit. The judge found that resolution did not lawfully ratify the installation of the original one hour parking signs; the chief engineer did not have authority to install those signs and their placement was not a lawful act of the Council. The issues [7] The appellants sought damages in the Supreme Court for lost trade arising out of the one hour parking restrictions for nuisance, misfeasance in public office, interference with business by unlawful means and negligence. The learned primary judge rejected all four claims of damage and gave judgment for the respondents. The appellants appeal from that decision. [8] The respondent in a notice of contention claims that the judge should have found that the erection of the parking signs in March 1994 was lawful; the judge's finding that the second appellant suffered loss of profits from this regulated parking was contrary to or unsupported by the evidence and the judge's assessment of the quantum of the loss was not supported by or was contrary to the evidence. Nuisance [9] The appellants' claim in nuisance turns on the learned primary judge's further findings that the parking restrictions were a source of inconvenience to restaurant customers; parking difficulties for the restaurant were widely known; although the restaurant flourished during the period of the parking restrictions, some patrons were disgruntled by the issue of parking tickets and this affected the volume of business and repeat business and the loss of diminution in the rate of increase of restaurant turnover was $59,580.2 2 This finding is challenged in the respondents' notice of contention. -- 5 of 30 -- 6 [10] Whilst the respondent has challenged some relevant findings of fact, I will discuss the claim in nuisance assuming these facts to be properly established. [11] The appellants contend that the facts of this case are analogous to those where queues or obstructions on the highway interfere with the access of customers to a plaintiff's land, see, for example, Lyons, Sons & Co v Gulliver3 and Smith v Wilson,4 and that nuisance is established if potential customers are deterred from visiting the shopping centre or restaurant by the one hour parking restrictions. [12] The essence of the tort of nuisance is interference with the enjoyment of land.5 Since the late 19th century it has been accepted that, subject to any lawful statutory interference it is a public nuisance to unreasonably obstruct or hinder free passage of the public along the highway. Those who consequently suffer injury beyond the general inconvenience and injury suffered by the public have a cause of action for public nuisance: Brodie v Singleton Shire Council6 and Walsh v Ervin.7 There is also an ancillary distinct private right enjoyed by landowners whose property adjoins the highway: Walsh v Ervin.8 [13] The appellants' contention is that the nuisance is the unlawful imposition and enforcement of the one hour parking limit from March to December 1994. If the respondents had proceeded lawfully, they would have been entitled to place signs prohibiting parking for more than two hours and to enforce such a regime. Two hours was no more sufficient than one hour for patrons to park, order, dine, pay and return to their vehicles. The appellants have therefore not established that any loss of profit was caused by the one hour parking regime which is said to constitute the nuisance. [14] Another fundamental difficulty for the appellants is that the one hour parking limitations did not interfere with the enjoyment of the use of their land; it did not block access to the shopping centre or the restaurant.9 Nor have customers of the shopping centre or restaurant been forced to take a longer and more circuitous route to gain access;10 some patrons were able to park on-site in the available parking spaces; there was nothing to discourage a driver from dropping off passengers; the parking limits imposed by the respondents cannot be fairly said to obstruct or hinder free access to the restaurant. [15] The appellants placed reliance on two further cases, Gillingham Borough Council v Medway (Chatham) Dock Co Ltd11 and Andrae v Selfridge & Co.12 Although there was in the former case an interference with the landowners' enjoyment of the land through the volume of movement of heavy goods vehicles along the approach road to the newly constructed commercial port, the English High Court concluded that 3 [1914] 1 Ch 631. 4 (1903) 2 IR 45. 5 See Balkin and Davis, Law of Torts, 2nd ed. Butterworths 1996, 443; Oldham v Lawson [No 1] (1976) VR 654. 6 [2001] HCA 29, 31 May 2001, Hayne J at [259]. 7 (1952) VLR 361. 8 Ibid, 362-363. 9 Cf Lyon, Sons & Co v Gulliver [1914] 1 Ch 631. 10 Cf Smith v Wilson (1903 2 IR. 11 [1993] QB 343. 12 [1938] 1 Ch 1. -- 6 of 30 -- 7 there was no actionable nuisance because the port was operating within a planning framework and those living near the port must accept the increased traffic in the greater public interest. In the latter case, a property owner successfully claimed damages in nuisance from the defendant's building operations which unreasonably created noise and dust and which interfered with the reasonable and comfortable enjoyment of the plaintiff's premises. In both instances, unlike the present case, the plaintiffs' enjoyment of their land was affected. [16] The parking restrictions may have caused some inconvenience to some patrons of the shopping centre and restaurant affecting the volume of business and repeat business but no-one was prevented from gaining access to the shopping centre and restaurant; this inconvenience does not amount to an interference with the appellants' enjoyment of their land. The restaurant and shopping centre remained as suitable as they ever were for use as a restaurant and shopping centre; the respondents' actions have not interfered with the restaurant or shopping centre or with the comfort or enjoyment of patrons at the restaurant or shopping centre: cf Victoria Park Racing and Recreation Grounds Co Ltd v Taylor.13 [17] The learned primary judge rightly concluded that the appellants did not make out a cause of action in nuisance. Interference with business by unlawful means [18] The tort of interference with business by unlawful means was recognised by the House of Lords in J T Stratford & Son Ltd v Lindley14 where the plaintiffs were prevented from carrying out their barge hiring business by an embargo organised by trade union officials. Lord Reid15 noted that "… [i]t was not disputed that such interference with business is tortious if any unlawful means are employed." Viscount Radcliffe came to a similar conclusion noting: "… such actions on the part of the defendants entitle the plaintiffs to damages for the injury done to them."16 [19] Lord Denning MR in Torquay Hotel Co Ltd v Cousins17 also noted that a tort is committed where "one person deliberately interferes with the trade or business of another and does so by unlawful means". The tort established in Acrow (Automation) Ltd v Rex Chainbelt Inc18 where Denning LJ found that the defendant did not intend to harm the plaintiff, stopping supplies only as the plaintiff believed it obliged to do so because of contractual arrangements with another. The House of Lords in Lonrho Plc v Fayed19 rejected the principle then accepted by the High Court of Australia in Beaudesert Shire Council v Smith20 that, independently of trespass, negligence or nuisance but in an action for damages upon the case, a person who suffers harm or loss as the inevitable consequence of the unlawful intention and positive acts of another is entitled to recover damages from that 13 (1937) 58 CLR 479, Latham CJ at 493. 14 [1965] AC 269. 15 At 324. 16 At 329. 17 [1969] 2 Ch 106, 139. 18 [1971] 3 All ER 1175. 19 [1992] 1 AC 448. 20 (1969-1970) 120 CLR 145. -- 7 of 30 -- 8 other.21 Their Lordships held that the tort of interference with business by unlawful means "… requires as an essential element that the unlawful means used were directed at the plaintiff. It must be an actual intention on the part of the defendant to strike at the plaintiff so that but for that intention he would not have practised the unlawful means on the third party",22 throwing doubt on the correctness of the decision in Acrow. See also Merkur Island Shipping Corp v Laughton.23 [20] In Van Camp Chocolates Ltd v Aulsebrooks Ltd,24 the New Zealand Court of Appeal accepted the existence of this tort but similarly stressed that the tort must depend upon the defendant's intention to cause harm. [21] In Australia, the tort has not been widely embraced but its existence has been judicially acknowledged in a number of cases, including by Else-Mitchell J in S R D Ross Agency Pty Ltd v Actors & Announcers Equity Assoc;25 Brooking J in Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots;26 the Victorian Court of Appeal in Pinky's Pizza Ribs on the Run Pty Ltd v Pinky's Seymour Pizza & Pasta Pty Ltd27 and Patrick Stevedores Operations Pty Ltd v The Maritime Union of Australia.28 The learned authors in Balkin & Davis Law of Torts29 question whether this tort should be adopted by appellate courts in Australia. [22] Beaudesert was overturned by the High Court in Northern Territory v Mengel.30 Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ noted: "More recent developments in the United Kingdom suggest the emergence in that country of a tort of interference with trade or business interests by an unlawful act directed at the person injured, although not necessarily done for the purpose of injuring his or her interests. It seems to be accepted that this embryonic or emerging tort does not extend to all unlawful acts and that, at least in that regard, it is in need of further definition. So far as this emerging tort depends on an unlawful act, there is an obvious similarity with the cause of action recognised in Beaudesert. However, there is an obvious difference with respect to intention. The emerging tort requires that the unlawful act be directed at the person injured whereas there is no like requirement in Beaudesert."31 [23] The High Court most recently considered this embryonic tort in Sanders v Snell32 where Gleeson CJ, Gaudron, Kirby, and Hayne JJ noted that the "the law in regard 21 Ibid, 345 "… subject to the qualification that there may be cases in which there is liability for harm caused by unlawful acts directed against a plaintiff or the lawful activities in which he or she is engaged." 22 Ibid, 451. 23 [1983] 2 AC 570, 609-610. 24 [1984] 1 NZLR 354. 25 (1970) 2 NSWR 47, 52. 26 (1991) 1 VR 637, 667. 27 Appeal No 8092 of 1997, 17 November 1997. 28 [1998] WASCC 120, 23 April 1998. 29 2nd ed, Butterworths 1996, 635 30 (1996) 185 CLR 307, 344 31 Ibid, 342-343. 32 (1999) 196 CLR 329. -- 8 of 30 -- 9 to what have become known as the 'economic torts' is far from settled. In particular, developments in the United Kingdom suggest the emergence there of a tort of interference with trade or business interests."33 Their Honours did not find it necessary to decide whether this tort should be recognised in Australia because it had not been made out but observed:34 "The tort that is emerging, or has emerged in the United Kingdom, is a tort of interference with trade or business interests by an unlawful act directed at the persons injured. The element of unlawfulness is essential to the definition of the tort. Otherwise conduct of the most unremarkable kind would be tortious. … The fact that the conduct is engaged in deliberately or is directed specifically at the person who suffers economic detriment is not enough to make the conduct tortious. ...35 In Mogul Steamship Co v McGregor Gow & Co, Bowen LJ suggested that intentional conduct 'calculated in the ordinary course of events to damage, and which does, in fact, damage another in that other person's property or trade, is actionable if done without just cause or excuse.' … it is not necessary in this case to attempt to define what would be the boundaries of unlawfulness for the purposes of a tort of interference with trade or business interests by unlawful means.36 In Mengel the court overruled Beaudesert Shire Council v Smith. It thus rejected the proposition for which Beaudesert stood … . And it did so having first noted that the preferable view of Beaudesert (and the view favoured in later cases that had considered it) was that an 'unlawful act' was intended to refer to an act forbidden by law rather than an unauthorised act in the sense of an act that is ultra vires and void. The majority judgment in Mengel noted that it seemed that the 'embryonic or emerging tort' of interference with trade or business interests by an unlawful act does not extend to all unlawful acts and 'at least in that regard, it is in need of further definition'. Their rejection of Beaudesert is, however, consistent with confining what is an unlawful act for the purposes of this tort (if, that is, the tort is to be recognised in this country). It is also consistent with (or at least not inconsistent with) excluding from the definition of what is an unlawful act for this purpose acts whose only 'unlawful' aspect is that they are unauthorised in the sense that they are ultra vires and void.37 … 33 Ibid, 338. 34 Ibid, 346. 35 Ibid, 341-342. 36 Ibid, 342. 37 Ibid, 343-344. -- 9 of 30 -- 10 … if the knowledge or intention required for the tort of misfeasance is of a different kind from the knowledge or intention required for [this tort], the potential for expanding the liability of public officials by resorting to a tort of unlawful interference with trade or business interests is obvious (especially if both torts are enlivened by the same kinds of unlawful act). Because misfeasance in public office is concerned with performance of public duties, and because the tort of unlawful interference is concerned primarily with private, not public interests, misfeasance in public office should not be subsumed in some wider economic tort. In particular, what is an unlawful act for the purposes of one tort is not necessarily an unlawful act for the purposes of the other.38 … If the appellant's conduct amounted to misfeasance in public office and his conduct caused damage to the respondent he will be liable to the respondent on that account. If, however, his conduct did not amount to misfeasance in public office (because he lacked the requisite intention for the tort) he should not be held liable for a wrongful interference in the economic interests of the respondent when his interference did not constitute his procuring a breach of the employment agreement. … Existing forms of liability, for negligence and for misfeasance in public office, provide adequate constraints on public officials and adequate avenues for compensation to those who suffer wrong."39 [24] Accepting for present purposes that the tort is recognised in Australia, it seems to me that three relevant principles emerge from these passages. First, any tort of interference with business by unlawful means requires the doing of an unlawful act in the sense that the act is forbidden by law; such an act is not an act which is unauthorised only in the sense that it is ultra vires and void. Second, the tort requires an intentional act calculated in the ordinary course to cause harm. Third, the tort is not made out where the actions complained of are done in the exercise of public office affecting public not private interests so that any actionable tort will be by way of the tort of misfeasance in public office, or, in appropriate cases, negligence. [25] It is significant that none of the cases where the emerging tort has been considered involved a public authority or holder of public office but rather involved commercial business dealings or union activities. It is also noteworthy that the tort does not seem to have been successfully established in Australia since the High Court's failure to embrace its incorporation into the law of torts in this country in Sanders v Snell. [26] The learned primary judge found that the parking signs were erected without authorisation40 in that their erection by the chief engineer was ultra vires, not that 38 Ibid, 345-346. 39 Ibid, 346. -- 10 of 30 -- 11 the Council was forbidden by law to erect them. The respondents contend the erection of the one hour parking signs was forbidden under s 12G(1) Traffic Act 1949 (Qld) which makes it an offence punishable on conviction for any person without lawful authority to install an official traffic sign.41 The Council was entitled to erect parking signs under the Traffic Act 1949 (Qld) but these signs were unlawfully erected in that the Council delegated its power to erect them to the chief engineer by resolution rather than by-law. The decision of the respondents to erect the parking signs was unlawful, not in the sense that it was prohibited by law but because it was ultra vires; it was not an unlawful act for the purpose of this tort. [27] In any case, the learned primary judge found that the respondents did not intend to damage the appellants' business by the enforcement of the regulated parking scheme. The challenge to that finding is considered and dismissed later in these reasons. That finding supports his Honour's conclusion that the respondents' conduct was not intended or calculated to harm the appellants. [28] The respondents have not made out a cause of action for the tort of wrongful interference with business by unlawful means. Misfeasance in public office [29] The tort of misfeasance of public office is committed when a holder of public office by an invalid or unauthorised act maliciously in the purported discharge of the officer's duties causes loss or damage to a plaintiff.42 [30] It is accepted that both respondents are within the concept of "public office" necessary to establish this tort: see for example Dunlop v Woollahra Municipal Council.43 [31] This tort has most recently been discussed by the High Court of Australia in Mengel.44 Whilst recognising that the precise limits of the tort remain undefined, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ noted that: "… it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power.45 … … Liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm. If misfeasance in public office is viewed as a counterpart to the torts imposing liability on private individuals for the intentional infliction of harm, there is much to be said for the view that, just as with the tort of inducing a breach of contract, misfeasance in public office is not confined to actual knowledge but extends to the situation in 40 The respondents contest this finding in their notice of contention. 41 Traffic Act 1949, s 12G(1) was amended by s 9 of Act No 33 of 1971 (An Act to Amend the Traffic Act 1949-1969) which came into force on 1 July 1994. 42 Mengel (1996) 185 CLR 307, Deane J, 370. 43 (1982) AC 158, 172. 44 (1996) 185 CLR 307. 45 Ibid, 345. -- 11 of 30 -- 12 which a public officer recklessly disregards the means of ascertaining the extent of his or her power. … Once foreseeablility is accepted as a requirement in cases based on actual knowledge, it follows that the argument that a public officer is liable for misfeasance if the officer ought to know that he or she lacks power is, for practical purposes, the same as saying that the officer is under a duty not to exceed his or her power if there is a risk of foreseeable harm. … If it were the case that governments and public officers were not liable in negligence, or that they were not subject to the same general principles that apply to individuals, there would be something to be said for extending misfeasance in public office to cover acts which a public officer ought to know are beyond his or her power and which involve a foreseeable risk of harm. But in this country governments and public officers are liable in negligence according to the same general principles that apply to individuals. And, in that context, the argument that misfeasance in public office should be reformulated to cover the case of a public officer who ought to know of his or her lack of power can be disposed of shortly. So far as unintended harm is concerned, the proposed reformulation suffers the same defect in relation to the law of negligence as does the principle in Beaudesert, namely, it serves no useful purpose if there is a duty of care to avoid the risk in question and is anomalous if there is not. And it serves no purpose if the public officer is actuated by an intention to harm the plaintiff for that constitutes misfeasance in public office whether or not the officer knows that he or she lacks authority."46 [32] Brennan J (as he then was) noted: "A number of elements must combine to make a purported exercise of administrative power wrongful. The first is that the purported exercise of power must be invalid … the history of the tort shows that a public officer whose action has caused loss and who has acted without power is not liable for the loss merely by reason of an error in appreciating the power available. Something further is required to render wrongful an act done in purported exercise of power when the act is ultra vires. It has now been accepted that if a public officer engages in conduct in purported exercise of a power but with actual knowledge that there is no power to engage in that conduct, the conduct may amount to an abuse of office. … … The mental element is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. These are states of mind which are inconsistent with an honest attempt by a public 46 Ibid, 347-348. -- 12 of 30 -- 13 officer to perform the functions of the office. Another state of mind which is inconsistent with an honest attempt to perform the functions of a public office is reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce. The state of mind relates to the character of the conduct in which the public officer is engaged - whether it is within power and whether it is calculated (that is, naturally adapted in the circumstances) to produce injury. In my opinion, there is no additional element which requires the identification of the plaintiff as a member of a class to whom the public officer owes a particular duty though the position of the plaintiff may be relevant to the validity of the public officer's conduct. For example, the officer's administrative act may be invalid because he or she did not treat the plaintiff with procedural fairness. It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office. Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff. Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office. If the impugned conduct then causes injury the cause of action is complete."47 [33] Deane J observed: "In the context of misfeasance in public office, the focus of the requisite element of malice is injury to the plaintiff or injury to some other person through an act which injuriously affects the plaintiff. Such malice will exist if the act was done with an actual intention to cause such injury. The requirement of malice will also be satisfied if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury. Finally, malice will exist if the act is done with reckless indifference, deliberate blindness to that invalidity or lack of power and that likely injury. Absent such an intention, such knowledge and such reckless indifference or deliberate blindness, the requirement of malice will not be satisfied."48 [34] These quoted passages demonstrate that a public officer who has acted without power is not liable for resulting loss merely because the act done is ultra vires and void. Malice must also be demonstrated. To establish malice the appellants must show either that the respondents imposed and enforced the parking scheme intending to inflict injury on the appellants; or knew that the scheme was invalid and that it would cause or be likely to cause financial injury to the appellants; or acted with reckless indifference or deliberate blindness to its invalidity and the 47 Ibid, 356-357. 48 Ibid, 370-371. -- 13 of 30 -- 14 likely injury the scheme was calculated to produce. See also Three Rivers District Council v Governor and Company of The Bank of England.49 [35] It is convenient to next deal with the appellants' contention that the learned primary judge erred in not finding malice on the part of the respondents. [36] The judge found the following facts. Between 24 March and 15 December 1994, 100 tickets were issued to cars in the vicinity of the restaurant for parking infringements, all but 18 on a Saturday. A small number of tickets were wrongly issued on the Saturday evening before Saturday parking was also regulated. Most motorists complied with the signage and parked elsewhere. There was no selective enforcement against vehicles parked to attend the shopping centre or restaurant during March-December 1994. The learned primary judge inferred that the majority of vehicles infringing the parking restrictions were associated with the restaurant. His Honour concluded that whilst the purpose of the parking restrictions was to reduce the number of cars parked to attend the restaurant, the erection of the signs was not a dishonest exercise of powers. The evidence from local residents established that restaurant parking reduced the available carriageway in adjacent streets to a width which was almost inadequate for two cars to pass; vehicles were left on footpaths; there was excessive noise late at night when restaurant patrons returned to their cars, sometimes drunk, and there was occasional offensive behaviour such as public urination near homes. This detracted significantly from the residential amenity of the neighbourhood and residents wanted an end to the situation. Residents voiced their concerns to the second respondent at public meetings in July 1992 and February 1994, just before the establishment of the regulated parking scheme. The enforcement of parking restrictions was effective in improving the residential amenity; the second respondent believed the chief engineer was authorised to erect the parking signs;50 the chief engineer acted in accordance with a formal resolution of Council delegating power in parking matters to the chief engineer; the respondents did not improperly use their power to limit parking in achieving this improvement in the residential amenity. Although there was some vindictiveness on the part of the second respondent after the removal of the one hour parking signs in December 1994, this was because he resented the appellants' victory which was a humiliating set back to his objective of regulating the parking in this residential area. [37] The appellants contend that the learned judge gave insufficient weight to the evidence of Mr Ryter, a town planner called by the appellants, who said that the tension between the popularity of the restaurant and the neighbourhood amenity could only be resolved by either increasing the offstreet carparking or reducing the seating capacity of the restaurant; as the respondents refused to consider the former, their conduct in enforcing the parking restrictions must have been aimed at the latter. Mr Ryter's evidence is not inconsistent with His Honour's finding that whilst the parking restrictions reduced the number of cars parked to attend the restaurant, 49 [2000] 2 WLR 1220, Lord Steyn at 1231, Lord Hobhouse of Woodborough at 1269-1270 and Lord Millett at 1274-1275. 50 This finding was supported by the evidence of former long-serving Councillor Bell, who said the normal practice for a councillor with a parking problem was to request advice or action from the Council Traffic Department. -- 14 of 30 -- 15 the respondents' intention in installing the signage was to improve the residential amenity; it did not compel a contrary finding. [38] The appellants next contend that the trial judge erred in not finding malice on the part of the second respondent because of his comments to a newspaper journalist that rezoning the land near the restaurant for additional carparking was undesirable as it would give tacit approval to the size to which the restaurant had grown; it was possible the restaurant could be made to decrease in size, depending on a report. The judge found that these comments were consistent with the second respondent awaiting a report as to town planning requirements which might lawfully enable the Council to insist upon a reduction in restaurant size. His Honour had the advantage of observing the second respondent give evidence over three days; his Honour carefully considered the second respondent's evidence and on occasions, but by no means invariably, accepted it. Significantly, his Honour firmly rejected the serious allegation made by Mr Nicholas Carkazis that the second respondent attempted to extort $10,000 from him in October 1992, a claim not raised until 28 August 2000 in the last of five statements of claim, despite the long-standing dispute between them. That finding is not disputed in this appeal. The journalist's evidence did not compel his Honour to find the second respondent maliciously intended to reduce the size of the restaurant in introducing the parking scheme. [39] The appellants contend that the learned primary judge should have accepted evidence from Messrs Gordon and Allan rather than that of by-laws officer, Mr Bird. Mr Bird denied targeting restaurant patrons only; he issued parking tickets to all vehicles infringing the parking signs. Although he had no memory of the incident, on being shown a parking ticket he agreed that in 1995, outside the period of the unlawful parking signage, he noted on its back "We have nothing to do with the restaurant". His invariable practice when queried about the issuing of parking tickets was to suggest that any problems be referred to the Town Clerk. Mr Gordon attended a party at Ainsley Avenue one evening in early 1995 and at about 9pm noticed two men writing parking tickets. His host, Mr Edwards, now deceased, approached the officers saying, "These cars aren't restaurant patrons; they're people from my party." The officer said that the tickets could be revoked if the explanation was given to Council officers where the payment was to be made; tickets could not simply be discarded. In cross-examination he agreed the conversation with the parking officer was to the effect that the parking officer was only doing his job; the cars were parked illegally; any issues should be taken up with the Council later. A second party-goer, Mr Allan, heard the parking officer say to Mr Edwards, "Well, we're just targeting the restaurant patrons." Neither witness was asked to recall the incident until requested by Mr Edwards in 2000. There was no evidence that the parking tickets were revoked by the Council or that the second respondent intervened to achieve such an outcome. The evidence did not compel a finding of malice on the part of the respondents and was not consistent with the judge's conclusion that parking in the vicinity of the restaurant was targeted from March to December 1994 to improve the amenity of a residential neighbourhood. [40] The appellants next contend that the first respondent through its CEO should have known the signs were illegally erected because on 21 July and 17 November 1994 the Council's CEO wrote to the Director-General, Local Government Services, asking for advice as to regulated parking laws, fees and penalties under the Traffic Act 1949 (Qld). These letters do not suggest that the CEO was aware that it was -- 15 of 30 -- 16 unlawful to delegate to the chief engineer by resolution rather than by-law. The primary judge was entitled to conclude on the evidence that the respondents believed the chief engineer was authorised to erect the parking signs and enforce the parking scheme. [41] His Honour found that the second respondent sought the parking restrictions as a means of reducing traffic and parking in residential streets in order to enhance the quality of life for those who lived there; that this was a proper exercise of the Council's power to regulate parking within its area; that this exercise of the power was not made unlawful by the demands of the second respondent's constituents driving him to act as he did; that the interests which the constituents wanted protected were legitimate and the use of power was a lawful means of protecting them; that the second respondent's motive was to protect the amenity of part of his division rather than to damage the appellants and that the respondents did not know the regulated parking scheme between March and December 1994 was unlawful. Those findings were open on the evidence. Whilst the respondents unknowingly acted ultra vires in imposing and enforcing the parking scheme between March and December 1994, their power to regulate parking was legitimate. It is a long bow to draw from the ultra vires use of a legitimate power that the respondents acted with reckless indifference as to the availability of their power to regulate parking and the financial injury that such actions are calculated or likely to produce. The primary judge did not and was not required on the evidence to draw such a conclusion. The findings made by the learned primary judge exclude the mental element of malice or bad faith essential to establish this tort. The appellants have not established a breach of this tort. Negligence [42] The appellants claim the first respondent owed a duty of care to the appellants not to be careless in the exercise of its power to regulate parking and was required to exercise those powers so as not to cause economic loss to the appellants; the second respondent was negligent in not informing himself as to the way in which the regulated parking signs could lawfully be erected and enforced. [43] A public authority may be subject to a common law duty of care when it exercises a statutory power or performs a statutory duty with consequential damages for negligence: Caledonian Collieries Ltd v Speirs,51 Benning v Wong,52 Sutherland Shire Council v Heyman,53 Crimmins v Stevedoring Industry Finance Committee54 and Brodie v Singleton Shire Council.55 [44] The respondents' decision to regulate parking in the vicinity of the second appellant's restaurant was one of policy governed by social and political factors, namely, the maintenance of the residential amenity of the area: Sutherland Shire Council v Heyman.56 A duty of care does not ordinarily arise in relation to acts and omissions which reflect the policy making and discretionary elements involved in 51 (1956-1957) 97 CLR 202, 219-220. 52 (1969-1970) 122 CLR 249, 307-308. 53 (1984-1985) 157 CLR 424, Mason J (as he then was) at 458, Deane J at 500. 54 (1999) 200 CLR 1. 55 [2001] HCA 29, 31 May 2001. 56 (1984-1985) 157 CLR 424, 469. -- 16 of 30 -- 17 the exercise of statutory discretions: Anns v Merton London Borough Council,57 Sutherland Shire Council v Heyman;58 Rowling v Takaro Properties Ltd;59 Chan v Minister for Immigration;60 Yuen Kun Yeu v Attorney-General for Hong Kong;61 Bienke v Minister for Primary Industries and Energy62 and Pyrenees Shire Council v Day.63 [45] The second respondent, as councillor was necessarily concerned with matters of policy; he was under a statutory obligation to represent and serve the public interest of his division: ss 177(1)(a) and (2)(b) Local Government Act 1993 (Qld). [46] A public authority may be liable for the negligent performance of an operational act, for example, if a negligently installed parking sign fell down and caused a patron travelling by car to the second appellant's restaurant to swerve and crash, resulting in personal and property damage. But a public authority has not, to my knowledge, been held liable in Australia for a negligent policy decision analogous to establishing in an ultra vires manner a parking scheme for which statute makes provision. If there is any remedy for such an action it will ordinarily be by way of judicial review or, if done with bad faith or malice, damages for misfeasance in public office: see Mengel.64 There is nothing in this case which justifies the extension of these presently established boundaries. [47] The appellants placed some reliance on the recent High Court case of Crimmins v Stevedoring Industry Finance Committee.65 That case dealt with a statutory stevedoring authority's duty of care to a worker suffering from mesothelaemia caused by the inhalation of asbestos fibres, who was not employed by the authority but over whom the authority had some disciplinary powers, including registration; during the course of his employment the worker was required to unload asbestos. The questions for determination which the majority answered affirmatively were first, whether the authority owed the plaintiff a duty of care and second, whether the liability of the authority was transferred to its successor.66 The case considered the obligation of a statutory authority in these circumstances to take affirmative action to ensure some standard of safety for workers.67 Crimmins has no relevance to the present case. [48] The respondents' actions in installing the parking signs and in enforcing the parking regime were policy matters to which the tort of negligence does not apply. The learned primary judge was right to conclude that the appellants have no case in negligence. It is unnecessary to consider the appellants' additional difficulty that the loss was purely economic so that any duty of care will depend on the 57 [1978] AC 729. 58 (1984-1985) 157 CLR 424, 468. 59 [1988] 1 AC 473, 500, 501-502. 60 (1995) 63 FCR 567. 61 [1988] 1 AC 175, 198. 62 (1996) 63 FLR 567. 63 (1998) 192 CLR 330, Brennan J (as he then was), 347, Gummow J, 393-394. 64 (1995) 185 CLR 307, Brennan J (as he then was), 359. 65 (1999) 200 CLR 1. 66 McHugh J, 25. 67 McHugh J, 34-51. -- 17 of 30 -- 18 combination of factors discussed in Perre v Apand Pty Ltd.68 See also the comments of Brennan J (as he then was) in Mengel.69 [49] As all grounds of appeal raised by the appellant are unsuccessful, it is unnecessary to consider the matters raised by the respondents in their notice of contention. [50] I would order the appeal be dismissed with costs to be assessed. [51] WILLIAMS JA: The learned trial judge, Chesterman J, made detailed findings of fact in his reasons for judgment. Therein the location of the streets in question and the relevant premises, in particular the restaurant operated by the second appellant, are fully detailed. Those findings have not been challenged and I will not repeat them herein. All of the relevant land and roads are within the area controlled by the Council of the City of Gold Coast, the first respondent. [52] At the material time the second respondent was an elected alderman for the division of the Council in which the land and roads in question were located. The whole of the area under the jurisdiction of the first respondent was lawfully designated a traffic area, and at all material times parking within the whole of that area was limited to 2 hours duration except as otherwise signed. [53] For the period from 24 March 1994 to 15 December 1994 signs limiting parking to a maximum duration of 1 hour were erected covering about 100 metres of Reed Street and also about 100 metres of Ainsley Avenue. Each of the areas of parking limited to 1 hour in those streets was near to the land owned by the first appellant on which the second appellant's restaurant was located. For purposes of the appeal it is sufficient to say that those traffic signs limited parking to the 1 hour duration only between 6pm and midnight each day. The signs in question were erected by or at the direction of the Chief Engineer after representations made to him by the second respondent who claimed to be responding to concerns of residents as to the effect on their amenity of cars parked in the streets in question at night. [54] The appellants contend that the signs as erected were "an unlawful exercise" of the powers of the first respondent. After considering certain statutory provisions and by-laws and resolutions of the first respondent the learned trial judge concluded that the "Chief Engineer did not have authority to install the signs. Their placement was not a lawful act of the Council". The first respondent clearly had power to impose those parking restrictions, but the point was that the appropriate procedural steps had not been taken. It was the purported delegation of power to the Chief Engineer which was really in issue. [55] On the hearing of the appeal, pursuant to a Notice of Contention, the first respondent challenged that conclusion. There is force in some of the submissions made by counsel for the first respondent. But in the circumstances I am content to accept for purposes of the appeal that the conclusion of the learned trial judge was correct. There have been significant changes in the relevant legislation since 1994, and in consequence there is little point in this Court embarking on a detailed consideration of the competing submissions. 68 (1999) 198 CLR 180. 69 (1996) 185 CLR 307, 359-360. -- 18 of 30 -- 19 [56] The contention of the appellants is that as a result of the restrictions on parking imposed by those signs, and the enforcement by the first respondent of those parking restrictions, the business of the restaurant suffered significant losses which can be recovered as damages because one or more of the following torts were established by the evidence: (i) nuisance; (ii) interference with business by unlawful means; (iii) misfeasance in public office; (iv) negligence. [57] The learned trial judge considered the claim under each of those heads and concluded that the evidence did not establish any of those torts. In consequence the claim of the appellants was dismissed. Before this Court senior counsel for the appellants contended that each of the four torts was made out by the evidence. [58] As will become obvious, for the appellants to succeed they would have to overturn at least some of the findings of fact made by the learned trial judge. As is evident from reading the careful reasons for judgment of the learned trial judge many findings of fact were dependent upon evaluating and weighing up credibility issues. Counsel for the appellants recognised the problems created by that, and in the end the most significant attack on findings of fact related to the inferences (particularly as to state of mind) which the learned trial judge drew from objective facts. It will be necessary to refer to such issues when dealing with each of the causes of action in turn. [59] Nuisance Counsel for each party accepted that nuisance was "unlawful interference with a person's use or enjoyment of land, or of some right over, or in connection with it"; They were the words of Winfield cited with approval by Windeyer J in Hargrave v Goldman (1963) 110 CLR 40 at 59. [60] Prospective patrons of the restaurant were entitled to park lawfully in the streets adjacent to the restaurant for up to 2 hours; at the end of that period they would have to move their vehicle or risk incurring a parking fine. The unlawful parking restriction limiting parking in portions of Reed Street and Ainsley Street to a maximum of 1 hour duration between 6 pm and midnight each day was, as the learned trial judge found, a source of inconvenience to restaurant customers. Members of the public would have believed the parking restrictions to be valid and enforceable and in consequence would have had to move a vehicle parked in those particular locations after an hour. It can be accepted that most restaurant patrons at night would have taken more than 1 hour to complete their wining and dining; but as the learned trial judge observed even two hours was probably not enough time to allow occupants of the car to park, walk to the restaurant, enjoy a meal and return to the car. [61] The submission of counsel for the appellants is that the respondents' action in erecting the parking signs in question was an unlawful interference with the appellants' use and enjoyment of the land on which the restaurant was located and therefore constituted an actionable nuisance. It was submitted that the situation was analogous to those cases where queuing on or otherwise obstructing the highway interfered with the access of customers wanting to get to the land on which the -- 19 of 30 -- 20 plaintiff's business was conducted. It can be accepted, as acknowledged by the learned trial judge, that the categories of nuisance are not closed; the real issue is whether the tort is established by the circumstances here. [62] The first point made by counsel for the respondents was that neither the erection of the parking signs nor the enforcement of the 1 hour limit interfered in any physical way with the use or enjoyment of the relevant land by the appellants. Access to and from the restaurant was in no way impeded, either directly or indirectly. In consequence it was submitted that, assuming that the natural and probable consequence of the erection of the signs and enforcement of the parking restriction was to deter persons from parking in close proximity to the restaurant, it did not follow that there was any interference with the rights of the appellants to use or enjoy the land in question. [63] That was indeed the conclusion of the learned trial judge: "There was no activity which intruded onto the plaintiffs' land nor was there any interference with their use or enjoyment of the land". His Honour also observed, correctly in my view, that the "right of the public with respect to roadways is to pass and repass over them, i.e. drive or walk along them. There is no right, apart from statute, to remain stationary on a road save for a purpose and period incidental to the journey. There is no right to stop for the purpose of transacting business". [64] In a case such as this there is a distinction to be recognised between the right of the owner of land adjoining a road to free and uninterrupted access to the highway (subject to any contrary statutory provision) and the public right to use the highway for the purposes of lawfully passing and repassing thereon; in the latter case interference with the right of an individual to so use the highway may give rise to an action in nuisance if the individual can show particular damage was occasioned to him. Those matters are discussed by Sholl J in Walsh v Ervin (1952) VLR 361; I would gratefully adopt his analysis of the principles and the reported cases. [65] In Walsh v Ervin the defendant ploughed up the road at the point where the plaintiff, as a land owner adjoining the roadway, had access to it. In those circumstances the plaintiff was entitled to damages. There have been few other recent cases dealing specifically with a denial of access in that sense. In Vanderpant v Mafair Hotel Co [1930] 1 Ch 138, Luxmoore J was concerned with a claim that the plaintiff had been obstructed in the access to his house by the use of the roadway made by people associated with the hotel which also abutted that roadway. Luxmoore J said at 154 that if it was established that the defendant "has interfered substantially with the reasonable access to the plaintiff's house" the plaintiff would have satisfied the necessary conditions to enable him to maintain the action; in those circumstances he would have "sustained an injury affecting him particularly, in a manner beyond that which other members of the public are in fact affected". It is immediately obvious that the test there being applied was that more appropriate to the public nuisance situation. The probable explanation is that it was the user of the road by people associated with the hotel, a use which they had essentially as of right, which was alleged to constitute the nuisance. It is also significant that at 160 Luxmoore J again spoke of the test being whether there had been "substantial obstruction of the access to his house". -- 20 of 30 -- 21 [66] I cannot see that the appellants here can make out a case that they were denied free uninterrupted access to the roadway by the conduct of the respondents in imposing (or purporting to impose) the parking restriction in question. True, the parking restrictions were in adjacent streets, but it cannot be said that access to and from the roadway was denied or seriously impaired. [67] Counsel for the appellants relied heavily on the queuing cases, particularly Lyons, Sons & Co v. Gulliver [1914] 1 Ch 631 ("the Palladium case"). Interestingly Sholl J in Walsh v Ervin (and the reasoning of Luxmoore J would appear to be similar) placed that line of authority in the public nuisance category. But whether such cases are properly categorized as private or public nuisance is not determinative for present purposes. In the Palladium case, people wanting to attend the morning and afternoon sessions queued either along the footpath or along the roadway itself in front of the premises from which the plaintiff carried on its business as lace merchants and wholesale drapers. The trial judge, Joyce J, found that the people in the queue were marshalled so as to form a stationary crowd standing on the pavement or in the road by the kerbstone in front of the plaintiff's premises, sometimes as many as five deep (634). In consequence "pedestrians going from or to the plaintiff's premises had, at the time when the queue was there, to make their way through the crowd forming the queue or go around by the end so as to get inside the queue; and vehicles were prevented, and necessarily prevented, or hindered, from access to the side of the pavement immediately in front of the plaintiff's premises". On appeal Cozens-Hardy MR rejected at 640-1 the proposition that potential customers could elbow their way through the crowd, or politely ask them to make way. In his view queuing such as was found constituted "a serious nuisance and annoyance, by which the plaintiffs are specially affected". It should also be noted that it was pointed out by both Cozens-Hardy MR and Swinfen Eady LJ that their reasoning did not mean that a "queue is at all times in all places and under all circumstances necessarily a nuisance". [68] I agree with the learned trial judge that the facts in this case do not call into play the queuing cases. It must be remembered that the conduct here said to constitute the nuisance was that of lowering the parking limit from 2 hours to 1 hour maximum for about 100 metres in each of two streets near the plaintiffs' land. As the learned trial judge observed: "The shorter time limit did not materially alter the position". The fact that parking was unlawfully limited to 1 hour duration in portions of two streets near the restaurant could not in law constitute an actionable nuisance on the ground that potential customers were prevented from getting to the restaurant. [69] Bearing in mind as already noted that a motorist does not have a common law right to remain stationary on a roadway save for a purpose and period incidental to a journey, and bearing in mind the exigencies of parking anywhere on a roadway (there may be no space left) it is difficult to see how the conduct in question of the respondents constituted a nuisance. Both Reed Street and Ainsley Avenue were in a residential area and (leaving aside the question of the 1 hour limit) all the available parking space could have been taken by residents and their visitors at any given point of time. [70] It is not as if the conduct of the respondents alleged to constitute the nuisance completely deprived an intending patron of the restaurant, travelling thereto by motor car, the opportunity of parking and going to the restaurant. Further, and in -- 21 of 30 -- 22 my view significantly, not one witness was called to say that he or she was prevented or deterred from visiting the restaurant because of the conduct of the respondents alleged to constitute the nuisance. In that regard it is interesting to note that such a consideration affected the thinking of Luxmoore J in the Mayfair Hotel case (160). Whilst witnesses associated with the ownership of the land and the restaurant spoke in terms of decline in patronage, the fact that not one person could be identified as having been deterred from attending the restaurant over an 8 month period because parking was limited to 1 hour instead of 2 hours in the portion of the streets in question demonstrates that there is no substance in the appellants' case on nuisance. [71] I agree with the reasoning of the learned trial judge in concluding that a case in nuisance was not made out. [72] Interference with business by unlawful means The appellants contend that there is a well established tort in England, the essential elements of which are the interference with trade or business by an unlawful act, and that such a tort should be recognised by this court. The learned trial judge expressed the view that it was "extremely doubtful" whether such tort existed as part of the law of Australia, but in any event concluded that the essential elements of such a tort had not been made out. Firstly, he was of the view that to be an "unlawful act" the conduct had to be forbidden by law rather than merely an unauthorised act, in the sense that it was ultra vires and void. Secondly, he concluded that neither respondent had an intention to harm the appellants' business by the imposition and enforcement of a parking scheme. [73] Counsel for the appellants relied on the fact that s 12G(1) of the Traffic Act, as it was during the material time, provided that any "person who without lawful authority installs on a road an official traffic sign is guilty of an offence" punishable by a fine or imprisonment. It was submitted that because of that statutory provision the act of the respondents in question, namely erecting the parking signs limiting parking to 1 hour in the designated areas, was a forbidden act and not merely one that was unauthorised in the sense of being ultra vires and void. [74] In Sanders v Snell (1998) 196 CLR 329 at 341, Gleeson CJ, Gaudron, Kirby and Hayne JJ stated that they did "not think it necessary to decide in this case whether a tort of interference with trade or business interests by an unlawful act should be recognised in Australia". Callinan J, the other member of the court, agreed with that observation. The reasoning of the court in Sanders v Snell follows that of the court in Northern Territory of Australia v Mengel (1995) 185 CLR 307. In the light of the reasoning of the High Court in those two authorities it is not for this Court, in my view, to hold that such a tort does exist in Australian law. [75] But even if there were such a tort, the necessary elements are not established by the findings in this case. The reasoning in Sanders v Snell (especially at 344-6) strongly suggests that any such tort should be limited to conduct of a private, rather than a public, character; where conduct of a public character is involved, if any tort is established, it will be the tort of misfeasance in public office. Here the impugned conduct (even that of the second respondent) is essentially conduct by a public official in the exercise of a power conferred by virtue of office. If the reasoning in -- 22 of 30 -- 23 Sanders v Snell is correct then a tort of interference with business by unlawful means has not been established. [76] In Sanders v Snell at 343-4 the court also considered what would constitute an unlawful act for the purposes of the tort if it were held to be part of Australian law. It is clear from that reasoning that something more is needed than the doing of an act in an unauthorised way. In that case the court did not categorise the failure of a decision maker to afford procedural fairness as unlawful conduct for purposes of such a tort. It was in that context that the court referred (at 343-4) to an act forbidden by law rather than an unauthorised act in the sense of an act that is ultra vires and void (wording taken from the judgment in Mengel at 336-7). [77] Here the first respondent had full power to lawfully erect signs limiting parking to a maximum 1 hour duration in the streets in question. The unlawfulness as found by the learned trial judge stems from the fact that proper procedures were not taken to delegate that power in the particular instance to the Chief Engineer; in those circumstances the unlawfulness in question would be categorised as ultra vires. As the learned trial judge said: "Had due care been taken a resolution would have authorised the signs: the parking restrictions would have been valid and the plaintiffs would have no claim". [78] The learned trial judge concluded on the evidence that the parking restrictions were imposed in response to the concerns of the local residents as to parking in Reed Street and Ainsley Avenue; some of the complaints were referable to noise made by occupants of parked vehicles late at night. Against that background the learned trial judge concluded that "the plaintiffs are also right when they contend that the purpose of the restriction was to reduce the number of cars parked for the purpose of their occupants attending the restaurant". [79] At trial the appellants endeavoured to establish that the second respondent intended to damage the plaintiffs' business by encouraging the imposition of the parking restrictions in question. But the learned trial judge expressly found that the second respondent did not intend to damage the plaintiffs' business by the enforcement of a regulated parking scheme. He also noted in his reasons for judgment that there was "no question" that the first respondent had any such intention. [80] In order to succeed in establishing this tort the appellants would have to overturn those findings of fact made by the learned trial judge. It is sufficient to say that the findings in question were amply supported by the evidence which was carefully analysed in the detailed reasons for judgment. [81] I am not satisfied that Australian law recognises a tort of interference with business by unlawful means, and I am also satisfied that it is not for this Court to recognise the existence of such a tort for the first time. But in any event, for the reasons given, the evidence would not establish that tort as it is emerging in England. [82] Misfeasance in public office The learned trial judge commenced his reasoning with respect to this tort by setting out the elements of it derived from a consideration of the judgments in Mengel, especially that of Deane J at 370. He noted the elements as follows: (i) an invalid or unauthorised act; -- 23 of 30 -- 24 (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his public duty; (v) which causes loss or harm to the plaintiff. His Honour then noted, referring to the reasoning of Brennan J in Mengel at 356-7, that the "purported exercise of power must be invalid" and "a public officer whose action has caused loss and who has acted without power is not liable for the loss merely by reason of an error in appreciating the power available". The relevant state of mind is "malice"; that is, the public officer "engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury". Those statements accurately state the law in Australia. [83] That then led the learned trial judge to make relevant findings of fact on the evidence before him. The following extracts from his reasoning are of critical importance: "I am satisfied that the second defendant did not know (a) that the erection of signs required a resolution or (b) that the delegation of powers needed to be by by-law and (c) was not reckless in failing to appreciate the chief engineer's lack of authority . . . I accept the second defendant's evidence that he believed the chief engineer was authorised to erect parking signs and that this mode of proceeding was commonly followed by councillors who wished to have traffic or parking regulated in their divisions. I also accept his evidence that he believed that if the chief engineer was not authorised to install signs he would have been told so . . . I do not think it fair to criticise the genuineness of the second defendant's belief when he acted in accordance with a formal resolution of the Council and when other councillors and officers did likewise apparently believing their conduct to be lawful. No more can the second defendant be accused of recklessness in not ascertaining that the delegation of power to the chief engineer required a by-law for its validity". His Honour then considered the motives of the respondents in purporting to impose the parking restrictions. In that regard he said that if the "limit on parking was imposed to restore and maintain the amenity of a residential area it could not, in my opinion, be regarded as an improper use of power". Ultimately his Honour found that that was the relevant motivation for erecting the signs. He inferred that "most of the cars infringing the parking restrictions were associated with the restaurant" and concluded that "the parking restrictions which were enforced, mostly on a Saturday night, were efficacious in reducing the number of vehicles in the roads and the scale of irritation". [84] In making those findings his Honour rejected a deal of evidence which, if accepted, might have provided a basis for a finding of an improper motive. For present purposes it is sufficient to record that there was ample justification for his Honour rejecting the evidence in question, and the relevant findings of fact made were clearly supported by evidence. [85] The learned trial judge concluded his reasoning with respect to this tort by saying: "None of the matters advanced by the plaintiffs, considered alone or in combination, persuades me that the second defendant's request -- 24 of 30 -- 25 that signs be erected was intended by him to result in economic loss to the plaintiffs. The opinion which I have formed from the evidence is that the second defendant sought the parking restrictions as a means of reducing traffic and parking in residential streets in order to enhance the quality of life for those who lived there. This was a proper exercise of the power given to the first defendant to regulate parking within its area. The exercise of the power was not made unlawful by the fact that the second defendant was impelled by popular clamour to act as he did. The interests which the electors wanted protected were legitimate and the use of power was a lawful means of protecting them. The second defendant's motive was to protect the amenity of part of his division. It was not to damage the plaintiffs". For the appellants' attack on this portion of the judgment to succeed a number of findings of fact made by the learned trial judge would have to be overturned. To succeed the appellants would, at least, have to have substituted for the findings of fact actually made a finding that the "actuating motive" for the erection of the 1 hour parking signs was to cause harm to the business of the appellants. In my view no sufficient basis has been established for upsetting the findings of fact made by the trial judge. [86] The law for present purposes is summarised in the following passages from the joint judgment of Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ in Mengel: " . . . the weight of authority here and in the United Kingdom is clearly to the effect that it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power". (345) "The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or principle. Policy and principle both suggest that liability should be more closely confined . . . And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm . . . or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach". (347) . . . " . . . there is much to be said for the view that, just as with the tort of inducing a breach of contract, misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power". (347) To those passages can be added references to the judgments of Brennan J at 356-7 and Deane J at 370-1. -- 25 of 30 -- 26 [87] It is also clear from the joint judgment in Mengel at 347 that attention should focus on the "actuating motive"; in other words, for the tort to be established the intentional infliction of harm should be the "actuating motive". That is the approach that the learned trial judge adopted in this case. [88] It is also significant, as already noted, that not even a single witness came forward to say "I was prevented or deterred from eating at the restaurant because of the 1 hour parking limitation". It would be difficult, if not impossible, to conclude that the actuating motive of the respondents was an intention to cause harm to the restaurant business when, at worst for the intending patron, an additional walk of some 100 metres or thereabouts was involved. There was ample parking available outside of the 100 metre sections in question in Reed Street and Ainsley Avenue and in the absence of more specific evidence a conclusion of intention to harm the business could not be inferred. The learned trial judge in his reasons on a number of occasions noted that there was other convenient parking for restaurant patrons and staff members in the general vicinity. [89] The learned trial judge was correct in rejecting the claim under this head. [90] Negligence The asserted claim in negligence is one which I have difficulty in coming to terms with. In the final version of the Statement of Claim the appellants defined in para 16 the duty of care which they alleged the respondents owed them, and in the following paragraphs (17 to 20 in particular) they alleged how and why that alleged duty was breached. In those paragraphs the appellants apparently felt constrained to plead particulars of "malice and/or bad faith and/or ulterior motive" which, at least in my view, are not ordinarily to be regarded as essential elements of a cause of action in negligence. That highlights perhaps a difficulty which the appellants have in making a claim in negligence on the facts of this case. Brennan J in Mengel at 359 said: "Where a public officer takes action that causes loss to a plaintiff . . . and the sole irregularity consists of an error as to the extent of the power, available to support the action, liability depends upon the officers having one of the states of mind that is an element in the tort of misfeasance in public office. That element defines the legal balance between the officer's duty to ascertain the function of the office which it is his or her duty to perform and the freedom of the individual from unauthorised interference with interests which the law protects". That essentially is the situation here. The error, if any, established by the evidence on the part of the respondents was as to the extent of the power available to the Chief Engineer to erect signs limiting parking not expressly supported by a by-law. In other words the cause of action available to the appellants, if any, is misfeasance in public office. [91] But despite that the appellants have sought to raise a separate and distinct claim in negligence. It is significant that in paras 18 and 20 of the final Statement of Claim allegations of bad faith are made against each respondent. Perhaps those allegations were made because in para 16 of that Statement of Claim the duty was defined as including an obligation to act "in good faith" and "not for ulterior motives". But that strongly suggests that the claim is not strictly based on -- 26 of 30 -- 27 negligence. Rather significantly in the outline of argument with respect to the claim in negligence the appellants have dropped any reference to "good faith" and "ulterior motive" and concentrated on the actual conduct of the respondents. In the outline the following is asserted as the basis for the claim in negligence: "The respondent in this case owed a duty of care to the appellants not to be careless in the exercise of its powers to regulate parking. And to exercise its powers in such a way as not to cause economic loss to the plaintiffs by the illegal erection of signs and the enforcement of the restrictions purportedly imposed by the illegal signs". In this case, as already noted, there is a legal argument either way as to the power or authority of the Chief Engineer to erect these signs without the support of a formal by-law. The evidence, unchallenged, was to the effect that the procedure followed here was one which had been adopted many times in the past. The legal issue is one on which trained minds could differ. That brings to mind the observations of the Privy Council in Wallace Edward Rowling v Takaro Properties Ltd [1988] 1 AC 473 at 502: "The second is that, in the nature of things, it is likely to be very rare indeed that an error of law of this kind by a minister or other public authority can properly be categorised as negligent. As is well known, anybody, even a judge, can be capable of misconstruing a statute; and such misconstruction, when it occurs, can be severely criticised without attracting the epithet 'negligent'." That is a hurdle which the appellants have to overcome in this case. They have to establish that the error by the Chief Engineer, namely that he had authority in the circumstances to erect the signs, amounted to negligence. If it be relevant, it must again be noted that the finding of fact made by the learned trial judge based on ample supporting evidence was that there was no intention on the part of the respondents, or the Chief Engineer, maliciously to inflict harm on the appellants. [92] Here the damage allegedly suffered by the appellants in consequence of the asserted negligence was pure economic loss. Because of that there was extensive reference in the course of argument to the reasoning in Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529 and Perre v Apand Pty Ltd (1999) 198 CLR 180. Those cases highlight the considerations which require limitations to be imposed on the extent to which pure economic loss can constitute recoverable damage in a negligence action. As Gleeson CJ said in Perre v Apand at 192, quoting from earlier authority, a duty to avoid any reasonably foreseeable financial harm needs to be constrained by some intelligible limits to keep the law of negligence within the bounds of commonsense and practicality. [93] As already noted, the first respondent had clear power to impose the parking restrictions in question provided that appropriate procedural steps were taken. For purposes of this appeal the assumption is that the necessary procedural steps were not taken and the parking restrictions in question were in consequence unlawful. One question must therefore be, in failing to take the necessary procedural steps was the first respondent negligent, and secondly, was any loss suffered by the appellants in consequence thereof within the bounds of commonsense and practicality. -- 27 of 30 -- 28 [94] Against that background one must return to a number of points already made in these reasons for judgment. The parking limitation in question reduced the maximum legally allowed period from 2 hours to 1 hour. Further, that parking restriction only applied for a distance of approximately 100 metres in each of two streets adjacent to the restaurant in question. As found by the learned trial judge, there was parking generally available in the area though a consequence of the purported restrictions meant that patrons for the restaurant had to walk a greater distance from where they parked. Finally, there was no direct evidence that any specific potential customer of the restaurant was deterred from attending because of the parking limitation in question. [95] In the course of argument reference was made by counsel to The Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424 and Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 especially at 220. Those authorities clearly establish that a power conferred by statute must be exercised with reasonable care; but they do not establish that the authority is strictly liable where something is done beyond power. Where, as here, there has been an act done beyond power, but without malicious intent, and where reasonable minds could differ as to whether the act was in power, there is no cause of action in negligence. [96] Finally counsel for the appellant made extensive reference to the reasoning of the High Court in Pyrenees Shire Council v Day (1998) 192 CLR 330 and Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1. The members of the court in those cases revisited the requirements of the law of negligence in general, but I can discern nothing therein which indicates that the appellants here, on the evidence, established a viable cause of action in negligence against the respondents. In particular it appears to me that the learned trial judge correctly applied Pyrenees Shire Council v Day and Sutherland Shire Council v Heyman in arriving at his conclusion. [97] In submissions to the learned trial judge, in the reasoning of the learned trial judge, and in submissions to this Court there was reference to the distinction between a legislative and administrative act in determining whether or not the conduct of the respondents in question here amounted to negligence. In all the circumstances I do not find it necessary to embark upon any further consideration of that aspect. Whether the acts in question be categorised as legislative or administrative one must, in my view, arrive at the conclusion that the tort of negligence has not been established. [98] The observations made herein confirm that the learned trial judge was correct in concluding that this tort had not been established. [99] Liability It therefore follows that the appeal fails on all grounds against the conclusion of the learned trial judge that the appellants had not made out any cause of action against the respondents. [100] Damages By their notice of contention the respondents alleged that the evidence did not support the finding of the learned trial judge that, if liability was established, damages in the sum of $59,580 was established by the evidence. The only evidence -- 28 of 30 -- 29 of loss was an alleged falling off in trade; or perhaps, more accurately, a failure of trade to increase as expected. [101] In this regard the respondents relied on the unreported decision of this Court in Deasy Investments Pty Ltd & Anor v Monrest Pty Ltd (Appeal No 1659 of 1996, 22 November 1996). There, as here, there was no direct evidence of any actual loss suffered by the plaintiff as a result of the defendant's conduct. The allegation there, as here, was that there was a falling off in business which ought to be attributed to the defendant's conduct and that ought to indicate the measure of the plaintiffs' loss. [102] As previously noted, in this case there was no evidence that any potential patron of the restaurant was deterred from eating thereat because of the existence of the parking limitation in question. Decline in trade could have been due to any number of factors; there was no evidence directly linking the parking limitation in question (that is, limiting parking for some 100 metres in two streets from 2 hours to 1 hour) to the asserted fall off in trade. [103] In Deasy, Fitzgerald P said: "The underlying premises of the respondent's case were that, but for the appellant's conduct, a growth of turnover would have occurred, whereas there was a downturn in business which was otherwise unexplained. The evidence did not support any element of that theory". Pincus JA in that case said: "The respondent bore the onus of showing to what extent it was damaged by the presence on the car park of vehicles which parked there at the invitation of the appellants. It would have been possible, without a great deal of effort, to obtain some solid information as to the extent to which customers of the video shop occupying the car park prevented persons who wished to shop for spare parts. At the least, one could perhaps have obtained some reliable impression of the extent to which parking for the video shop was a problem by estimating, by a sampling process, how often and for what length of time the car park was full". The reasoning in that case demonstrates that here there was no solid basis on which the learned trial judge could make an assessment of any loss suffered by the appellants. He rejected, quite rightly, much of the accounting evidence in relation to damages called by the appellants. But, in my view, it was mere speculation to say that the appellants lost profits in the sum of $59,580 in consequence of the respondents' conduct. [104] If, contrary to my view, liability was established by the evidence, I would set aside the award of damages and order a retrial with respect to the assessment of damages only. [105] Orders It follows that the appeal should be dismissed with costs. [106] HELMAN J: I agree with the order proposed by McMurdo P and Williams JA and with their reasons. -- 29 of 30 -- 30 ORDER: Appeal dismissed with costs to be assessed. -- 30 of 30 --