Deepcliffe Pty Ltd & Anor v Gold Coast City Council & Anor [2000] QSC 411

SUPREME COURT OF QUEENSLAND CITATION: Deepcliffe Pty Ltd & Anor v. The Council of the City of Gold Coast & Anor [2000] QSC 411 PARTIES: DEEPCLIFFE PTY LTD (ACN 010 336 606) (As Trustee of the Deepcliffe Unit Trust) (first plaintiff) AND CARKAZIS PARAGON INVESTMENTS PTY LTD (ACN 008 495 2610 (As Trustee of the Carkazis Family Trust) (second plaintiff) v. THE COUNCIL OF THE CITY OF GOLD COAST (first defendant) AND KEITH THOMPSON (second defendant) FILE NO: SC No 195 of 1995 DIVISION: Trial Division DELIVERED ON: 15 November 2000 DELIVERED AT: Brisbane HEARING DATE: 9 October 2000 – 27 October 2000 JUDGE: Chesterman J ORDER: 1. Judgment for the defendants 2. Plaintiffs to pay the defendants’ costs of the action including reserved costs to be assessed on the standard basis but limited to the District Court scale from 19 May 2000 CATCHWORDS: LOCAL GOVERNMENT – REGULATION AND ADMINISTRATION – TORTS – restrictive parking signs erected around restaurant – claim that parking difficulties caused decline in business – whether signs lawfully erected by Council TORTS – MISCELLANEOUS TORTS – OTHER CASES – whether misfeasance in public office by Alderman – whether signs installed to intentionally inflict harm on restaurant – whether intention to inflict harm needed to be the actuating motive or merely a motive for erection of signs to satisfy tort -- 1 of 35 -- 2 TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – LOCAL AUTHORITIES – whether duty of care owed by Council when making laws for regulation of parking TORTS – NUISANCE – WHAT CONSTITUTES – PUBLIC NUISANCE – RELEVANT PRINCIPLES – whether erection of parking signs constituted public nuisance TORTS – NUISANCE – WHAT CONSTITUTES – PRIVATE NUISANCE – RELEVANT PRINCIPLES – whether erection of parking signs constituted private nuisance TORTS – MISCELLANEOUS TORTS – OTHER CASES – whether tort of wrongful interference with business by unlawful means exists in Australia – whether should be considered on facts Acts Interpretation Act 1954 (Qld) s 20B Local Government Act 1936 (Qld) ss 20(2), 31(18) Local Government Act 1993 (Qld) ss 117, 472 Traffic Act 1949 (Qld) ss 5, 44B(2A), 44B(2B), 44B(3)(a), 44B(3A), 44B(4) – (17) Bienke v Minister for Primary Industries (1996) 63 FCR 567, considered Cunard v Antifyre [1933] 1 KB 551, followed Henley v Mayor of Lyme 130 ER 995, followed Home Office v Dorset Yacht Co Ltd [1970] AC 1004, considered James v The Commonwealth (1939) 62 CLR 339, applied Lonrho Plc Fayed [1992] 1 AC 448, considered Northern Territory of Australia v Mengel (1996) 185 CLR 307, followed Pyrenees Shire Council v Day (1998) 192 CLR 330, considered Rowling v Takara Properties Ltd [1988] 1 AC 473, considered Sanders v Snell (1998) 196 CLR 329, considered Southport Corporation v Esso Petroleum Co Ltd [1956] AC 218, followed Sutherland Shire Council v Heyman (1984-1985) 157 CLR 424, considered Tampion v Anderson [1973] VR 715, followed Three Rivers District Council v Governor and Company of the Bank of England [2000] 2 WLR 1220, considered Victoria Park Racing and Recreational Grounds Co Ltd v -- 2 of 35 -- 3 Taylor (1938) 58 CLR 479, considered Wellbridge Holdings Ltd v Municipality of Greater Winnipeg [1971] SCR 957, considered COUNSEL: N M Cooke QC with E J Howard for the first and second plaintiffs G S Gibson QC with R S Litster for the first and second defendants SOLICITORS: Adamson Bernays Kyle & Jones for the first and second plaintiffs Witheriff Nyst for the first and second defendants [1] CHESTERMAN J: The largest restaurant in Queensland, and perhaps in Australia, is located at 528 Ashmore road, Ashmore, on the Gold Coast. That road runs roughly north-south and the restaurant is on the western side. The southern boundary of the site is formed by Reed street across which lies the Royal Pines golf course. Reed street runs roughly east-west. To the north is Glenmore drive which also runs west from Ashmore road. Another road, Ainsley avenue, intersects it. That street’s initial axis is north-south but it turns sharply to the west to run parallel with Reed street and Glenmore drive. The restaurant is thus bounded by Ashmore road, Reed street and the curve of Ainsley avenue. The area north and west of the restaurant is residential in character. [2] The restaurant is operated by the second plaintiff in a local commercial shopping centre owned by the first plaintiff. Both plaintiffs are corporate trustees of unit trusts. The second plaintiff is the beneficiary of the first plaintiff’s trust. The families of four brothers are beneficiaries of the second plaintiff’s trust. The two surviving brothers, Nicholas and James Carkazis, control the plaintiffs’ businesses. In addition to the restaurant the centre, at times relevant to the action, consisted of a neighbourhood supermarket, a video shop, a take-away food outlet, a hairdresser and a real estate agent. They were all tenants of the first plaintiff’s. [3] The first defendant is the local government with responsibility for the area of the Gold Coast. The second defendant was one of its councillors, elected by the ratepayers of Division 5 within which the restaurant was situated. He was first elected in 1979 and lost office in the elections of March 1995. [4] The restaurant pre-dates the golf course and most of the residential development to its west. When first built it was in a relatively “rural” setting. Ashmore road was then a two-lane carriageway with a wide gravel verge. It has since become a sub- arterial road, kerbed and channelled, four lanes in width with a median nature strip. The residences have increased in number and extent over the years. [5] The first plaintiff bought the land and established the centre, including the restaurant, in about 1984. Its seating capacity was then 80. In 1986 the capacity was increased to 156 and then again to 220. Three years later, in 1989, it again increased in size this time to accommodate 384 diners. The next year, 1990, it was extended to seat 664 patrons and in 1993 its final extension saw it able to seat 970. -- 3 of 35 -- 4 The steady expansion of the restaurant is a measure of its success as well as the acumen and hard work of the brothers Carkazis. The restaurant, known as “Ashmore Steak and Seafood” has become widely known on the Gold Coast as well as in all the places from which come tourists to that city. It commends itself by its substantial portions of good quality food sold at reasonable prices. Its financial success has been built upon high volume trade with low profit margin. [6] Most patrons of the restaurant travel to it by private motor car. It has a small lunchtime trade and a substantial dinner trade, particularly on Friday and Saturday nights. As residences have gone up in its vicinity there has been increased competition for parking space and the usual resentments caused by the close juxtaposition of commercial and residential land usage. [7] The plaintiffs’ directors appreciated the need to provide adequate car parking for the restaurant patrons as it grew in size. In about 1990 the first plaintiff sought permission from the (then) Main Roads Department to use part of the reserve for Ashmore road as an extension to the existing car park at the front of the complex. Permission was granted and paving was extended from the existing car park into the road reserve which was physically separated from Ashmore road by a masonry wall. In addition in November 1991 the first plaintiff bought the adjoining property to the north, 10 Ainsley avenue, and in March 1992 applied to have it rezoned to allow an extension to the shopping centre and additional car parking. In October of that year the first defendant approved the rezoning but only for car parking. An appeal to the Planning and Environment Court was instituted by some neighbours. Through misunderstanding or oversight the first plaintiff did not become a respondent to the appeal which was then compromised in 1993 by the objectors and the first defendant. By consent an order was made that the appeal be allowed and the rezoning approval be set aside. Late in 1993 the plaintiffs were advised that they would lose the use of part of the Ashmore road reserve which they had occupied as a car park because the first defendant (whom I shall sometimes call “the council”) had had transferred to it the responsibility for that road and planned to upgrade and widen it. In January 1994 the first plaintiff reapplied to the council for the rezoning of 10 Ainsley avenue to allow additional car parking. The application was refused by the first defendant on 11 March 1994. [8] By the end of 1993 the restaurant was open for business to as many as 1,000 customers at a time. The space available for parking on site, which was insufficient for the numbers of cars attending the restaurant on Saturday nights, was to decrease. The council had blocked any extension of parking space. Cars overflowed into the surrounding streets which were now densely residential. These pressures and the defendants’responses to them have given rise to this action. [9] On 24 March 1994 council employees erected a number of signs in Reed street and Ainsley avenue which imposed parking restrictions. In Reed street the signs were positioned from the junction with Ashmore road for about 100 metres to the west. There was a total prohibition on parking on both sides of the road for a distance of -- 4 of 35 -- 5 about 20 metres from the intersection. Beyond that parking was limited to an hour between 6.00 pm and midnight Monday to Friday. There were similar restrictions in Ainsley avenue from the intersection with Glenmore drive to about 100 metres west of the restaurant, the Saturday night trade of which was not affected. About two weeks later the signs were replaced with others which extended the restriction to all days of the week. The restrictions were an obvious inconvenience for restaurant patrons who could not complete a meal in the hour allowed. By-law officers employed by the council to enforce its regulations patrolled the streets around the restaurant most Saturday nights and at other times. Infringement notices were issued for cars which overstayed the limit. [10] The signs remained in place until 15 December 1994 when they were removed for reasons not explained in the evidence but apparently connected to litigation instituted by the plaintiffs against the first defendant for judicial review of the decision to put the parking signs in place. It may have been thought that the signs had not been properly authorised. In these proceedings the defendants strenuously argued that the processes which led to the erection of the signs were valid and that the parking restrictions advised by them were lawful. The signs were replaced almost immediately by others which imposed a two hour limit which was in turn enforced vigorously by council officers. [11] The plaintiffs claim that their trade suffered by reason of the imposition and subsequent enforcement of the parking restrictions which had the effect of discouraging patrons from attending the restaurant because of the difficulty of parking. They claim to recover as damages the loss of income resulting from the downturn in trade occasioned by the decline in numbers of people parking and doing business at the shopping centre and restaurant. It is said that the defendants’ actions in imposing the one hour parking limit was a misuse of their office in that it was intended to harm the plaintiffs’ businesses. It is also claimed that the installation of the parking signs, being invalid, constituted a nuisance which damaged the businesses. There is also an allegation that the invalid installation of the signs was an act of negligence on the part of the first defendant which has also caused damage. Legal Efficacy of Signs [12] The plaintiffs put at the forefront of their case the proposition that the erection of the signs was an unlawful exercise of the first defendant’s powers. The argument concerning the invalidity of the signs occupied a considerable part of the addresses, but stripped of adornment, the respective contentions are straight forward. I pause to remark that the lawfulness of the signs does not matter to the ultimate outcome of the action but because it does have a bearing on some of the causes of action and because it was argued so fully I should deal with it. [13] The signs were erected by employees of the first defendant who worked in its “traffic section” and were subject to the control of the council’s chief engineer whom the second defendant approached to put the signs in place. The work was done pursuant to “dockets”, or written directions for the performance of works, issued by or on behalf of the chief engineer. The point to which the plaintiffs draw attention is that there was no meeting of the first defendant by which it resolved to -- 5 of 35 -- 6 implement parking restrictions in Reed street or Ainsley avenue, or to erect signs giving effect to such a scheme. [14] The powers of a local authority to regulate parking on streets within its area has its origin in the Traffic Act 1949. Section 44B(2A) provided that: “A local authority may prohibit, regulate and control parking in accordance with the provisions of this Act on any road within its area . . . Subsection 2B goes on: “. . . a local authority may install official traffic signs for the purpose of prohibiting, regulating and controlling parking . . .” Subsection 3 is entitled “traffic areas” and provided:- “A local authority from time to time may by by-law – (a) define any part of its area to be a traffic area; (b) . . . (c) . . . (f) . . .” Subsection 3A said: “The local authority shall install on a road at any place where a boundary of a traffic area crosses the road, an official traffic sign indicating such boundary, the hours during and the days upon which regulated parking should be operative within such traffic area, and the maximum period of time for which a vehicle may be parked in such traffic area during those hours and on those days.” Subsections 4 to 17 make provision for the regulation of parking by a local authority. It is necessary to set out some of the provisions. “(4) With respect to all roads and parts of roads . . . in a traffic area parking shall be by regulated parking and not otherwise and in relation to and for the purposes of regulated parking the local authority may exercise the powers, authorities and functions prescribed by subsections (5) to (17). (5) In respect of any traffic area a local authority may by by- law – (a) . . . (b) prescribe the hours during, and days on which regulated parking . . . operates in a traffic area. -- 6 of 35 -- 7 (7) A by-law made under subsection (5) may authorise the local authority to determine by resolution any matter which the local authority is empowered by that subsection to prescribe or fix by by-law. (8) Such an authority includes power to the local authority by resolution to make from time to time such determination in respect of the subject matter of the authority as it deems necessary or desirable . . .” [15] By chapter 32 of the first defendant’s by-laws “the whole of the City of Gold Coast . . . is pursuant to the Traffic Act . . . deemed to be a traffic area . . . under s 44B(3)(a) . . .” By-law 3(c) of chapter 32 provided that “the days upon which regulated parking shall be operative shall be Monday to Sunday inclusive”, and by by-law 3(f) “no vehicle shall be allowed to remain in any one parking space for more than two hours”. By-law 4 provided that “the Council is hereby authorised to determine by resolution any matter described or fixed by by-law 3 of this Chapter.” The plaintiffs’ point is that because the whole of the first defendant’s area was made a traffic area the regulation of parking could only be effected by a by-law (s 44B(5)) or by a resolution where a by-law authorised the first defendant to proceed that way to determine questions of parking regulation. (s 44B(7)). By-law 4 of Chapter 32 does provide such an authorisation but, as I have mentioned, the signs in question were not erected pursuant to any resolution of the council. [16] The defendants have two answers. The first is that there was a resolution of the council authorising the regulation of parking in Ainsley avenue and Reed street and the erection of signs to give effect to that regulation. The resolution in question was passed on 21 March 1986, and is general, not specific. By it the council delegated to its chief engineer its powers to regulate traffic subject to its own periodic review of the measures taken by the chief engineer for that purpose. The plaintiffs do not agree that the resolution has that effect, so it is necessary to recite it in full: “That in view of the fact the whole of the City has been gazetted as a regulated parking area, that in future the Chief Engineer be authorised to have Two Hour Regulated Parking Signs erected where considered appropriate.” This resolution in terms allows the chief engineer discretion only as to where signs should be erected to give notice of and to implement the city-wide two hour regulated parking scheme. It does not allow any greater power. This apparently is not what was intended and the council at a subsequent meeting, on 27 June 1986, noted: “At the time it was intended that this authority would be extended to include the installation of traffic regulations, however, this aspect was not included . . . this additional authority relates to the standard “traffic sign installation” plans which are submitted to council from time to time following discussion with the relevant Division -- 7 of 35 -- 8 Alderman. To minimise the delay between the justifiable installation of traffic devices following receipt of public and/or Aldermanic requests, it is proposed that the Chief Engineer be authorised to have these devices installed where considered appropriate.” The council therefore resolved: “That the Chief Engineer be authorised to approve the installation of specific traffic regulation signs where considered appropriate and following discussion with the relevant division Alderman . . . subject to subsequent reference to council of decisions made under the delegated authority.” The “traffic signs” or “traffic regulation signs” referred to, were meant to include parking signs. These latter fall within the definition of “official traffic sign” found in s 5 of the Traffic Act. See also s 44B(3). [17] The delegation of power to the chief engineer would not be valid under the Local Government Act 1993, s 472 of which does not include the chief engineer among the persons to whom powers may be delegated. If, however, the delegation was authorised by the superseded Act, the Local Government Act 1936, s 20(2) and s 20B of the Acts Interpretation Act 1954 would give it continued validity and force despite the repeal of the 1936 Act and the enactment of the 1993 Act. [18] The parties’ argument did not go beyond the existence of a resolution to effect the regulated parking of the streets adjacent to the restaurant. There was no argument about the validity of the 1986 resolution delegating to the chief engineer the power to control parking. It is apparent, however, that this matter needs consideration, because if the council’s powers were lawfully delegated to the chief engineer the signs in question were validly erected, and the system of regulated parking was lawful, as was the action to enforce it. The contrary result would follow if the delegation was unauthorised. It appears that the delegation was not authorised. The legislation in force at the relevant time was the Local Government Act 1936- 1985. As far as I can see the only reference to delegation of powers by a local authority to its officers appears in s 31(18) which provided that such delegation was to be by by-law. Having expressed one means by which a delegation of powers could be effected the legislation implicitly excludes any other. The chief engineer was not authorised to erect traffic signs pursuant to a by-law but only by resolution. I express the conclusion with some hesitation because the parties did not address the point and I have not had the benefit of submissions. Nevertheless the result appears to be as I have indicated. It follows that the defendants’ first answer is insufficient. [19] The second was that the council by a resolution of 16 December 1994, the day after the signs were removed, ratified the earlier installation. The first defendant resolved: “(1) That council direct the installation of parking restrictions in Ainsley avenue . . . and in Reed street . . . with the signs -- 8 of 35 -- 9 providing for a one hour limit during the period 6.00 pm to 12 midnight. (2) That, as soon as possible, council place two hour parking signs in the area where the signs were temporarily taken down on 15 December 1994. (3) Council officers proceed with haste to draft a local law that will enable council to reintroduce, as a matter of urgency, the original parking signs.” The resolution is confusing and contradictory. It is impossible to tell from its terms whether the first defendant resolved to erect parking signs allowing one hour or two hours parking. What happened in fact is that two hour signs replaced the one hour signs. Relevantly it is to be observed that the resolution does not in terms ratify the earlier installation of signs or purport to validate their installation. If the council were empowered to resolve retrospectively to install the signs it did not purport to do so by this resolution which is not therefore authority for the installation of the signs in March 1994. [20] It follows that both answers are ineffective to counter the plaintiffs’ point. The Chief Engineer did not have authority to install the signs. Their placement was not a lawful act of the council. [21] The plaintiffs advanced another argument: that the by-laws contained in Chapter 32 which made the Gold Coast a traffic area in which parking was allowed (subject to irrelevant exceptions) for no more than two hours was invalid. I cannot see how the argument is relevant because the subject matter of the statement of claim is the restriction of parking in Ainsley avenue and Reed street to one hour for the period 24 March to 15 December 1994. No complaint is made about the existence or enforcement of the city-wide two hour limit. However the plaintiffs’ counsel submitted that the mode of enforcing the two hour limit subsequent to 15 December 1994 provides evidence of vindictiveness against the second defendant and thereby gives rise to an inference that the earlier, different, restriction was implemented maliciously. It will be necessary to discuss this evidence when dealing with that aspect of the claim, but the legal validity of the two hour limit does not matter to that argument. There is no doubt that the first defendant and its officers believed that Chapter 32 was valid. [22] Because the matter was argued I will address it. For the Chapter to be valid there must have been “on a road . . . where the boundary of a traffic area crosses the road an official traffic sign indicating such boundary, the hours during and days upon which regulated parking shall be operative.” The plaintiffs contend that none of the roads into the Gold Coast area from the west had signs indicating that motorists were entering a traffic area in which parking was limited to two hours. The statutory precondition found in s 44B(3)A is therefore said to be unsatisfied. The evidence that there were no advisory signs on the western approaches to the Gold Coast came from Mr Stacey Kennedy, Mr Nicholas Carkazis’ son. I am unable to accept it. The task of ascertaining whether or not such signs existed was clearly an important one. Mr Kennedy was asked to perform a special function, observing whether such signs were in place on all relevant roads. His errand can only have -- 9 of 35 -- 10 arisen in connection with the plaintiffs’ anticipated legal action against the first defendant and it must have been undertaken as a consequence of legal advice. Despite these factors Mr Kennedy made no note of his investigation. He could not recall the date of it except that it was sometime between March when the signs were erected and December when they were removed. Not only did he make no note of his observations he did not take a photograph of the area where signs should have been. Such an omission is remarkable given the purpose of his observations. It is also noteworthy that he claims to have been accompanied by Mr Ettridge who was not called to corroborate his involvement, or the absence of the signs. [23] The defendants led evidence from Mr Denton, the manager responsible for the enforcement of regulated parking, that the advisory signs were in existence. I was no more impressed by his evidence. His recollection of important events is clearly faulty. His evidence was tendered to corroborate some important aspects of the by- law officers’testimony, but it is clear he was not present on occasions he claimed to be and can only have imagined that he was. I do not have any confidence that he did not similarly imagine that he saw the signs he claims actually to have seen. I cannot therefore find whether or not signs existed. It would be a strange oversight not to have put them on all the main roads into the city. Even Mr Kennedy concedes that they were plainly visible on the Pacific highway at the northern and southern limits of the Gold Coast. I am certainly unable to conclude that Chapter 32 was invalid. Misfeasance in Public Office [24] The limits of this tort have now been defined by the judgments in Northern Territory of Australia v Mengel (1996) 185 CLR 307. According to Deane J (at 370): “Its elements are: (i) an invalid or unauthorised act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his . . . public duties; (v) which causes loss or harm to the plaintiff.” [25] The act necessary to constitute the first element probably has to be administrative in character. Mengel at 355-6 per Brennan J. That requirement may pose a problem for the plaintiffs because the act complained of, the erection of parking signs, as I explain later when dealing with the issue of negligence, was an exercise in law making which was, or would have been had it occurred correctly by resolution, legislative in character. No doubt the physical activity of installing signs and the antecedent requests by the second defendant and directions given to the workmen by the engineer can be regarded as administrative, but the wider activity is not so easily regarded as having that nature. I put to one side the doubt that the tort can apply to the act of a public corporation which is properly regarded as legislative and assume that the acts in question may constitute the first element of the tort. Certainly the conduct of the second defendant can be regarded as administrative and the first defendant is sought to be made vicariously liable. [26] The act must be invalid or unauthorised. This clearly covers things done for which the public officer had no lawful authority. However it will include acts which the -- 10 of 35 -- 11 officer was lawfully empowered to perform but which he did for an improper purpose, namely the infliction of harm on the plaintiff. This, at least, was the view of Brennan J in Mengel and I respectfully think it to be correct. Brennan J noted (356): “. . . the purported exercise of power must be invalid either because there is no power to be exercised or because a purported exercise of power has miscarried by reason of some matter which warrants judicial review and a setting aside of the administrative action.” It was also the view of the House of Lords in Three Rivers District Council v Governor and Company of the Bank of England [2000] 2 WLR 1220 at 1231 C per Lord Steyn; 1269 D per Lord Hobhouse and at 1274 E per Lord Millett. [27] Conversely it is not necessarily sufficient for a plaintiff to prove that he suffered loss from the exercise of power by a public officer who did not, as a matter of law, possess it. According to Brennan J in Mengel at 356-7: “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. The further requirement relates to the state of mind of the public officer when the relevant act is done . . . malice has been understood to mean an intention to injure . . . the mental element is satisfied either by malice . . . or by knowledge. That is to say 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 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 . . .” The same conclusion is implicit in Deane J’s formulation of the tort, which separately lists an invalid act and malice. [28] The joint judgment of Mason CJ, Dawson, Toohey, Gaudron & McHugh JJ in Mengel expresses the opinion that misfeasance in public office will be made out where there is an intentional infliction of harm or where the public officer knows he is acting beyond power and the act involves a foreseeable risk of harm. Their honours also seemed to have thought it enough that a reckless disregard of the means of ascertaining the extent of power would be equivalent to knowledge that there was no power. -- 11 of 35 -- 12 [29] 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. An argument was advanced that the second defendant ought to have known that signs could not be lawfully erected by means only of the chief engineer’s fiat but, even if this were so, it is not enough to establish misfeasance. See Mengel at 348. I make the findings I have just expressed because 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. The second defendant was a councillor when, in 1986, the first defendant resolved to confer power on the chief engineer to do the very sort of thing that is the subject of complaint. Mr Thompson may have forgotten the resolution but he and other councillors as well as council officers appear to have acted in accordance with it. 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. It would be harsh to label this lack of understanding as reckless when counsel for the plaintiff did not appreciate the point. [30] To succeed in their action, therefore, the plaintiffs must prove that the second defendant caused the signs to be installed maliciously, ie with the intention of damaging the plaintiffs’ businesses. If they do not prove malice it will not matter that the installation of the signs was invalid. If they do prove malice it would not matter if the signs were lawfully put in place. The majority judgment in Mengel refers to “intentional infliction of harm, in the sense that that is the actuating motive”. Brennan J (p 357) spoke of “the absence of an honest attempt to perform the functions of the office” as constituting the abuse of the office. In Three Rivers at 1231 Lord Steyn gave a similar description. Lord Hobhouse (1269) explained the requirement as “the official (doing) the act intentionally with the purpose of causing loss to the plaintiff.” Lord Millett said (1274): “Every power granted to a public official is granted for a public purpose. For him to exercise it for his own private purposes, whether out of spite, malice, revenge, or merely self advancement, is an abuse of the power. It is immaterial in such a case whether the official exceeds his powers or acts according to the letter of the power . . . his deliberate use of the power of his office to injure the plaintiff takes his conduct outside the power, constitutes an abuse of the power . . .” [31] A public officer is someone who discharges a public duty for reward in money or moneys worth: Mengel at 355 per Brennan J citing Henley v Mayor of Lyme 130 ER 995, and who owes duties to the public as to how the office should be exercised: Tampion v Anderson [1973] VR 715 at 720. The second defendant was at the relevant times a public officer. During his term in office his only income was his -- 12 of 35 -- 13 aldermanic salary, and s 177 of the Local Government Act 1993 obliged him to represent the public interest. [32] The plaintiffs’ case is that the erection of the parking signs and the enforcement of the parking restrictions by council employees were instigated by the second defendant. It is said against the first defendant that it authorised the erection of the signs and the enforcement of the restrictions so that, applying the principle explained by Dixon J in James v The Commonwealth (1939) 62 CLR 339 at 360, it too is liable for damages. [33] Counsel for the plaintiffs submitted that they would have proved malice against the second defendant if they establish that, though he acted from several motives, his predominant intention was the infliction of harm on the plaintiffs. The case relied upon for the submission, Lonrho Plc v Fayed [1992] 1 AC 448 is unhelpful because it is concerned with the elements of the tort of conspiracy. It includes no discussion of this point, which is whether a plaintiff who alleges misuse of public office must prove that the intentional infliction of harm was the actuating motive, or whether it is sufficient to prove that it was a motive for the act in question. The cases do not expressly discuss the point but I think the answer may be found in the judgment of Brennan J in Mengel in the passage quoted in paragraph 27, and in the judgment of Lord Millett in Three Rivers quoted in paragraph 30. The tort exists where there is a dishonest use of power which is granted for a public purpose. If used for such a purpose, which it achieves, it does not seem sensible to regard the exercise of power as dishonest. In other words a motive, other than the achievement of a public purpose for which the power was granted, must be the actuating motive. A power which is used to achieve a public purpose, even though it be exercised partly for other motives cannot be said to be dishonesty exercised. To make out this element of the tort a plaintiff must prove that, without the intention to cause harm, the power would not have been exercised as it was. [34] The critical question is whether the plaintiffs have proved that the second defendant procured the implementation and enforcement of the one hour parking limit for the specific purpose of harming the plaintiff’s trade. [35] The second defendant denies acting out of a desire to cause the plaintiffs economic loss and that the parking restrictions were intended to have that effect. The proofs offered by the plaintiffs to establish that, notwithstanding his denial, it was the second defendant’s intention to hurt their trade are necessarily inferential. It is no slight thing to conclude that a public officer holding a responsible office, in this case an elected representative of the public, has, from base motives, abused the powers conferred on him for the advancement of the public interest. The facts from which the plaintiffs invite the court to draw the inference must point cogently in that direction. Those which point only ambiguously towards malice will be insufficient. [36] The plaintiffs argue that the second defendant’s intentions are revealed by the consequences of his actions. The enforcement of the restriction resulted, it is said, in infringement notices being issued to a large number of vehicles parked in Ainsley avenue and Reed street, and the overwhelming likelihood was that these cars had been left by persons dining in the restaurant. The argument proceeds that because it was restaurant goers’ cars that would, in all probability, be parked in -- 13 of 35 -- 14 those streets after 6.00 pm the restriction was “targeted” at restaurant patrons and the enforcement of the restriction likewise fell most heavily on that class of motorist. [37] Between 24 March and 15 December 1994 ninety-one parking tickets were issued to cars in Ainsley avenue or Reed street. Not all tickets were issued for parking for a period longer than the hour permitted. Some were for other offences such as parking where signs indicated “no standing any time”, or parking on a footpath. In the same period a further nine tickets were issued to cars parked in Ashmore road. All but eighteen of the 100 tickets were issued on a Saturday. The number of tickets issued does not completely describe the effect of the restriction. The evidence shows that there was a marked decrease in the number of cars parking in Ainsley avenue and Reed street after the erection of the signs. While a number of motorists continued to park in breach of the restriction it appears that many more complied with the regulation and parked elsewhere or, as the plaintiffs would have it, did not attend the restaurant at all. There is no evidence that any of the cars to which infringement notices were issued between 24 March and 15 December 1994 in Reed street or Ainsley avenue had been parked by a patron or staff member of the restaurant. The plaintiffs make that assumption for the reasons already explained. It is probably reasonable and I would be prepared to infer that most of the cars infringing the parking restrictions were associated with the restaurant. I think 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. It does not, however, follow that the erection of the signs was a dishonest exercise of the defendants’ powers. [38] The second defendant’s request for the installation of parking signs must be seen in context. There was a considerable body of local resentment against the physical intrusion of motor vehicles and restaurant patrons into their streets. I accept the evidence of Mr Baker, Mr Robinson and Mr Black as to the disturbance caused by restaurant parking. Traffic flow along what should have been quiet residential streets was increased and restaurant customers did park inappropriately. Cars were parked on both sides of the road reducing the available carriageway to a width almost inadequate for two cars to pass. Vehicles were left on footpaths and there was excessive noise late at night when customers returned to their cars. There were not infrequent instances of bottles being left on footpaths and in gardens, and perhaps less frequent occasions of inebriates urinating near houses. I also accept what those witnesses said about their attitude towards these occurrences, and that similar opinions were held by all but one or two of the householders in the area. I think there can be no doubt that a substantial number of motor vehicles driving along the streets looking for parking space, parking (sometimes on footpaths) until late at night when the vehicles’ departures were often accompanied by noise and worse, did detract significantly from the residential amenity of the neighbourhood, and that the residents wanted the disruption to stop. [39] It is also plain 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. -- 14 of 35 -- 15 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. [40] The second defendant was well aware of the depth of feeling in the local community about the problems caused by car parking. On 3 July 1992 he had convened a public meeting in a local hall to allow discussion about the first plaintiff’s application to rezone 10 Ainsley avenue from all interested persons. The second defendant sent pro forma letters to persons who were known to have supported, or objected to, the proposal. He also procured the attendance of the Council’s town planner, Mr Hodges. I accept the second defendant’s evidence that the discussion at the meeting convinced him that the supporters of the rezoning which would allow an extension of the restaurant complex and increased on-site car parking came from householders to the east of Ashmore road, ie in areas relatively remote from the site, while those closer to the restaurant to its west and north were almost unanimously opposed to the proposal. [41] It is not clear how the second defendant voted when the proposal was before the Council and obtained its approval. It is possible he supported it, but in early 1994 when the objectors’ appeal was pending before the Planning and Environment Court he urged the Council to support the objection and rescind the approval. This change of attitude, and the time at which it occurred, finds a significance in the plaintiffs’evidence and submissions. I will mention it shortly. [42] The second defendant convened another public meeting on 14 February 1994 to discuss the first plaintiff’s further rezoning application. On this occasion invitations were sent only to those who had objected to the first application. Mr Thompson gave as his reasons for restricting attendance that he had become convinced that the restaurant and its attendant nocturnal activities were inimical to residential tranquillity and that the residents’ case was meritorious. He believed that as the local councillor he should support their objections. He may also have been motivated by the knowledge that council elections were to be held on Saturday 26 March 1994 and a significant number of voters were angry at the prospect of increased commercial activity in their vicinity. The commencement of the public meeting was marked by expressions of dissatisfaction and annoyance with the second defendant’s representation of their interests in council. He was criticised for allowing the problem to reach the proportions it had. Mr Robinson summed up the residents’position: “We just wanted some action. We just wanted the cars off the street.” It will be recalled that the signs were erected on 24 March, two days before the elections. [43] The plaintiffs endeavoured to show the existence of personal animosity which would provide the improper motive for Mr Thompson’s actions. They contend that the animosity had its origin in their rejection of his invitation to pay him $10,000, ostensibly towards his campaign expenses, but in reality, as a matter of innuendo, for his personal benefit. The conversation in which the suggestion was made by the -- 15 of 35 -- 16 second defendant was said by Mr Nicholas Carkazis to have occurred in the foyer of the council chambers in about October 1992 after the first rezoning application but before the second. It is common ground that the plaintiffs had earlier made one or two donations towards the second defendant’s campaign expenses. The amounts paid were $1,500 on one occasion and perhaps about $1,000 on another. The conversation occurred at a time when there was growing local opposition to the restaurant and its impact on the residential amenity. Mr Nicholas Carkazis’ evidence was: “He said I have strong opposition from the neighbourhood because . . . it’s all built and is a lot of votes there for me and I stand to lose . . . but he say you can compensate - “Let’s say we start with $10,000 in cash” I said to him, “What exactly you mean, let’s start with $10,000?” He say “I’ve got to make a living too.” I say “Mr Thompson I did make contributions to your campaign but in a small way but . . . this will look like call it extortion call it corruption. . . I . . . and my brothers – we in this country since 1950. Our record is clear all the way. . . . we haven’t got mixed up in any of this dirty business. I’m afraid I can’t put that to my brothers. Also myself I will have to object to that once and for all. That is not on.” He says to me “Look at it this way. It’s only one Saturday night”, meaning like the profit of one day will be his fee, more or less . . . I told him . . . “This is unethical. This is like a corruption. This is like a stand-over tactic. My brothers and I will never go for it and I’m not even going to put it to them. Therefore I give you my answer right now. It’s out.”” Mr Carkazis claims that from that time onwards he noticed a change in the second defendant’s attitude. To begin with the butcher who was a tenant received a communication from the Council that they would have to move “because they (were) not legally there.” [44] I do not accept Mr Carkazis’ evidence of the conversation. His rather sententious refusal of the second defendant’s overture was unconvincing. The episode is put at the forefront of the plaintiff’s case by way of explaining why the second defendant acted maliciously towards them. In the course of proceedings five statements of claim have been delivered. The allegation first appeared in detail only in the last, delivered on 28 August 2000 though an abbreviated version appeared in the penultimate statement of claim delivered on 9 June 2000. Since the institution of proceedings the defendants have pressed for particulars of the facts relied upon to establish that the second defendant’s actions were motivated by malice. There was a strange reluctance to reveal this important fact. Indeed Mr Carkazis claims to have told his solicitors of the event only “a couple of months” before the trial, though proceedings commenced in 1995 and he must always have been aware of the need to prove malice. In addition Mr Carkazis made no mention of the event in any of his communications with officers of the first defendant, or councillors, despite his having been in frequent communication concerning his attempts to obtain more on-site parking. The communications often contained criticisms of the second defendant. Revelation of the corrupt solicitation must have damaged the second defendant’s reputation and persuaded the first defendant that his opposition -- 16 of 35 -- 17 was improperly motivated. I cannot accept that Mr Carkazis would not have used the occasion to discomfit the second defendant had it occurred. Moreover the correspondence is inconsistent with such an event. It is said, for example, in exhibit 71 that the second defendant’s intention “could be inferred” from certain conduct identified in the letter. Mr Carkazis had better proof, if his evidence is true, but it was not mentioned. It is also noteworthy that in the opening address the butcher was identified as a witness to prove harassment by the council leading to this decision not to remain a tenant of the first plaintiff. He was not called and it emerged in cross-examination that his site was not suitable for his operations and he had no right to extend his lease. [45] There is a similar item of evidence relied upon. In November 1993 the plaintiffs were filling the allotment of 10 Ainsley avenue with road base to bring its surface to the same level as the adjoining car park. It was not, they say, their intention to use the land as additional car parking for the restaurant but to allow family members who lived in the house to park their horse float on the premises. It had formerly been left in the street and attracted parking tickets. On an occasion when the gravel was being placed and compacted the second defendant drove along Ainsley avenue and saw the work in progress. According to Mr James Carkazis he became angry and said: “I know what your doing. I’ll fix you.” The import is that the second defendant wrongly concluded that the work was intended to form an additional car park for the restaurant and that the second defendant had threatened some unspecified act of revenge. I am not satisfied that the exchange occurred. Mr James Carkazis’ evidence suffers the same deficiencies as his brother’s. Even if something like it occurred it is not in my opinion sufficient to show that the second defendant intentionally misused council procedures to implement parking restrictions. Mr James Carkazis conceded that the second defendant’s remarks probably meant no more than he would cause the plaintiff to be prosecuted for a breach of the Town Plan. [46] The third category of evidence relied on for the inference of malice is the second defendant’s stated desire to have the restaurant reduced in size. The context is that the restaurant was located in a zone which allowed it, as a matter of right, to operate and to expand. The use of land for a 1,000 seat restaurant was lawful. It is argued that the second defendant resorted to unlawful means, the imposition of parking restrictions, to make the restaurant inconvenient for diners who could not park on site and so discourage a sufficient number of patrons as to force a reduction in the size of the restaurant. [47] I do not think the evidence sufficiently clearly establishes that the second defendant did endeavour to bring about a reduction by such means. The evidence primarily relied upon is a newspaper report which appeared in the Gold Coast Sun on 30 March 1994 which reported, with respect to the Council’s rejection of the rezoning application on 11 March 1994: -- 17 of 35 -- 18 “However, Cr Thompson successfully moved that rezoning the land for additional car parking spaces was not desirable as it would give “tacit approval” to the size to which the restaurant had grown. Cr Thompson said it was possible the restaurant could be made to decrease its size, depending on the report.” The author of the article was called to verify its contents. I am satisfied of his honesty but he had no recollection of the conversation after the lapse of six years and had discarded his notes of the interview. I accept that the second defendant did mention the possible reduction in size of the restaurant but without knowing the particular context in which he spoke it is not responsible to infer that he intended to misuse Council powers to bring about that end. The evidence does not identify the report referred to in the article but the second defendant’s comment is equally consistent with his expecting a report as to some town planning requirement that might enable the Council lawfully to insist upon a reduction. [48] Attention is also directed to an amendment moved by the second defendant to the Council’s resolution refusing rezoning. The Council’s Planning and Development Committee at its meeting on 8 March 1994 appears to have made three recommendations with respect to the first plaintiff’s application, which was to rezone 10 Ainsley avenue to allow an extension to the shopping centre and additional car parking. The first recommendation was to refuse the application. The second and third recommendations appear to have been offered as alternatives, and proceeded on the basis of a prospective rezoning to allow the use of the land as car parking only. One recommendation was to allow the rezoning subject to strict conditions. The other was to refuse it on the following grounds: “1. The application is not consistent with the . . . strategic plan for this area. It is intended that the subject site be retained for residential uses . . . 2. The proposed uses would constitute a further commercial intrusion into a residential area and would affect the amenity of nearby residents. 3. The proposed uses would exacerbate an existing congested traffic area. 4. The application was incorrectly advertised and a public notice was not erected on the Reed street frontage. 5. The documentation lodged with the application is misleading . . . vehicular access . . . to be obtained through . . . Lot 90 . . . was not included in the application.” The Council resolved to act in accordance with the third recommendation and, on the second defendant’s motion, a further ground for refusal was added: “6. Rezoning to allow only additional car parking spaces is not desirable as it would be tantamount to giving tacit approval -- 18 of 35 -- 19 to the size to which the restaurant has grown which is not consistent with the intent of the local shopping zone or the wishes of the local community.” [49] I thought the second defendant’s explanation of his conduct at and following the public meeting of 14 February 1994 less than candid but on reflection I am not persuaded that he intended the parking restrictions to force a reduction in the size of the restaurant. The evidence is equally consistent with his stated concern about the size to which the restaurant had grown and his desire to prevent any further increase. The fear that the restaurant might increase in size if further car parking was made available was not entirely unreasonable. Mr Robinson, whose evidence impressed me, does not support the notion that the second defendant expressed a desire to reduce the restaurant in size or that the meeting expressed such an objective to him. He could not recall “any suggestion being made at the meeting . . that people wanted the restaurant reduced in size. It was simply . . . get the cars off the street and we don’t want the blocks rezoned.” Mr Black similarly could not recall “any talk about reducing the size of the restaurant at (the) meeting.” [50] The plaintiffs next mention an occasion when the second defendant expressed a desire that the restaurant should move from Ashmore road. The event was a meeting arranged by Mr Nicholas Carkazis with members of the Council’s Planning and Development Committee which the mayor, Mr Baildon attended as well as the second defendant and some senior Council officers. On the plaintiffs’ side, as well as Mr Carkazis, there was Mr Kennedy, Mr Ettridge and their consultant town planner Mr Dredge. Mr Carkazis’account of the meeting was that he: “. . . brought to their attention that . . . we have a town planning problem. We have houses right next to the restaurant and we have people complaining. . . . we must look to . . . where the mistake is . . and rectify it. From our side we come with the proposition to give the restaurant . . . with the whole building . . . to the (Council) and . . in return . . . get a piece of land on Nerang Street . . . which is not residential . . . just to give us the land to build there.” This proposal was unworkable because the land was owned by the Crown. Mr Carkazis made a second proposal which was to erect a multistorey car park on their existing land which could be done as a matter or right under the Town Plan. The second defendant responded to this proposal by saying: “I will have you closed before you know it because I’m going to reinforce the noise pollution and one car slam the door and out you go. . . . the fine will be that severe that you will have to close your doors. You wouldn’t be able to afford it.” Mr Carkazis then suggested a rezoning of the properties at 10 Ainsley avenue and 5 and 7 Reed street to allow their use as a car park but the second defendant said that the suggestion was “out of the question”. He, however, then suggested that the plaintiffs should move to an area on Nerang Street to a vacant building identified as the “Max Christmas development”. Mr Carkazis asked who would pay the costs of relocation. The second defendant said “You, of course” and started laughing. -- 19 of 35 -- 20 [51] The second defendant’s account of the conversation was that he had become aware of a change in legislation increasing penalties for noise nuisance and he “attempted to explain that fact to Mr Carkazis, not in a threatening way but in a way that gave him that information”. He does not recall using the words remembered by Mr Carkazis but denies making any threats. He suggested that the plaintiffs move to the “site owned by Max Christmas” which was a commercial area only after Mr Carkazis had “raised as one of their . . . possibilities that they . . . were prepared to move the entire operation to another site.” That was “news” to Mr Thompson and “in the spirit of cooperation” he suggested another site they might consider. It was not an attempt to say “Well go here then . . . it was a genuine attempt to be helpful.” I had reservations about some aspects of the second defendant’s evidence and many aspects of Mr Carkazis’ testimony. On this point however I accept Mr Thompson’s evidence and find that the second defendant’s suggested relocation was not indicative of a desire to hurt the plaintiffs. It is to be noted that the conversation occurred almost three months after the erection of the parking signs. I do not accept it indicates an earlier malicious intention. [52] Next the plaintiffs referred to evidence from Mr James Carkazis that in a conversation with councillor Baildon early in January 1995 the mayor said “Thompson, he wants you out of there”. Mr Carkazis had telephoned the mayor to complain about the issuing of parking tickets to patrons’ cars parked in Ashmore road on New Years Eve. Councillor Baildon’s justification for that activity is said to be found in his statement that the second defendant wanted the plaintiffs “out”. Mr Carkazis’ evidence is in sharp contrast to the account of the conversation he gave to Father Elias, the rector of the local Greek Church, who wrote some letters on behalf of the plaintiffs. Exhibit 69 asserts that: “One of the brothers, Jim Carkazis, informs me that in a telephone conversation he had with your Worship on Tuesday 3rd January 1995 you said “that it was the desired wish of certain members of your Council, not to see increased traffic to the local area.” ” Though he attended at court on the first day of the trial in answer to a subpoena issued by the plaintiffs councillor Baildon was not called by them as a witness. In the absence of corroboration I am not prepared to find that the mayor did assert that the second defendant wanted the plaintiffs “out”. The second defendant denied expressing such a sentiment and the evidence is not an admission against him. [53] The plaintiffs put considerable emphasis upon the manner in which the parking restrictions were enforced by council employees. It is said that the enforcement occurred selectively, the officers issuing tickets only to cars parked by customers or staff members of the restaurant. It is also said that the enforcement of parking restrictions in Ashmore road where cars could not affect the amenity of residents in Reed street or Ainsley avenue demonstrates that action was designed to hurt the plaintiffs rather than to protect the residential neighbourhood. Three instances of selective enforcement are emphasised by the plaintiffs, 31 December 1994, 21 January 1995 and 11 February 1995. It is to be noticed immediately that none involves the enforcement of the one hour parking limit in the period March to December 1994, which is the subject of the action. -- 20 of 35 -- 21 [54] The evidence does not establish that the parking restrictions were enforced selectively in the sense contended for by the plaintiffs. It is true that Council enforcement officers regularly attended the streets around the restaurant, mostly on Saturday nights, with a view to the enforcement of the regulations. The officers appear to have been concerned only with the streets of Surfers Paradise and those adjacent to the restaurant so, to that extent, enforcement was “selective”. However I am satisfied that enforcement action in the streets around the restaurant was consistent. I accept the evidence of Mr Bird and Mr Reick to that effect. Any car that was found to have infringed a parking restriction was given an infringement notice. Perhaps they were not always as punctilious as they should have been when issuing tickets, and I am prepared to find that there were some occasions on which infringement notices were issued where there was insufficient evidence of an infraction. It is likely that the six tickets issued on 26 March 1994 were a result of careless zeal. That was a Saturday night and the signs then in place regulated parking only between Mondays and Fridays. I am satisfied that such occurrences were not systematic. More importantly there is no evidence that the second defendant asked the officers, or their superiors, to enforce the regulations in any particular way. It is clear that the second defendant did not have, and did not give to Council officers, any list of the registration numbers of cars owned by staff members of the restaurant so that they could be “targeted”. On occasions the second defendant attended when by-law officers were patrolling the streets but this was not unusual conduct for a Gold Coast City councillor. These men and women were encouraged, indeed expected, to involve themselves in Council activities in their divisions, even late at night. [55] The western verge of Ashmore road, south of Reed street, offered convenient parking for restaurant goers and staff members. It was a short walk to the restaurant and the cars did not traverse any residential streets approaching or leaving the restaurant. Any noise occasioned by car doors or engines was a very considerable distance from any house in Ainsley avenue and a sufficient distance from the closest house in Reed street as not to be an annoyance. There was evidence from a town planner, Mr Ryter, which I accept, that cars parked off Ashmore road would not constitute any intrusion into the residential area nor affect its amenity. I am re- enforced in this opinion by the view I had of the locality. [56] Late in December 1994, after the removal of the one hour limit signs, the by-law officers appear to have increased their activity and to have concentrated their attention on cars parked in Ashmore road. In the two months 15 December 1994 to 25 February 1995 eighty-five tickets were issued. In the nine months March to December 1994 only 100 had been issued. A number of restaurant staff and patrons parked in Ashmore road in obedience to the restrictions in the other streets. It could not sensibly be thought that these cars were affecting residential amenity. The issuing of infringement notices is, I think, indicative of some vindictiveness. No one was prepared to accept responsibility for the action but I am prepared to find it instigated by the second defendant. [57] The by-law officers attempted to justify their actions by claiming that the parked cars constituted a danger, either to their occupants who had to walk north along the verge of Ashmore road to the restaurant, or to motorists exiting Reed street into Ashmore road who could not see oncoming traffic from the south because of the presence of the parked cars. The latter danger was advanced by Mr Black, a -- 21 of 35 -- 22 resident of Ainsley avenue, who had to travel out of his way to enter Ashmore road from Reed street. The suggested danger cannot be taken seriously. If either parking officers or residents truly believed it was dangerous for cars to park on the grass verge, well off the carriage-way, the appropriate remedy would have been the erection of signs forbidding parking at any time, not the enforcement of a restriction on parking for more than two hours. It cannot have been dangerous to park for two hours and one minute but safe to park for one hour and fifty-nine minutes. [58] A particularly bad example of enforcement action against cars parked in Ashmore road occurred on New Years Eve when twenty-one tickets were issued, thirteen to cars in Ashmore road and eight to cars adjacent to it in Reed street. Mr Newling, accompanied by his manager Mr Denton, went to the area twice, first at about half past eight and later just before eleven. I accept Mr Nicholas Carkazis’ evidence that there were cars parked in Ashmore road not immediately in the vicinity of the restaurant which were ignored by Mr Newling and Mr Denton. Enforcing parking restrictions anywhere on the Gold Coast (except Surfers Paradise) on New Years Eve was exceptional. Councillor Bell, a long serving councillor and former mayor of the first defendant was startled when he heard of the episode. The presence of Mr Denton, a senior manager of the Council, at the scene attests to its singularity. The defendants tried to justify his presence by saying that Mr Newling was the only officer rostered for duty on the evening of 31 December and he needed a partner for security. I do not accept this. Neither Mr Denton’s physique nor manner fitted him for such a role. The activity was instigated by the second defendant who requested the Council’s chief executive officer, or the director responsible for parking enforcement, to have officers attend on New Years Eve. I am satisfied that this was an act of vindictiveness. I am not dissuaded from this conclusion by the facts that 31 December 1994 was a Saturday or that Mr Bone, a resident of Reed street, was vociferous in his demands that restaurant parking be curtailed over the Christmas-New Year period. [59] The next instance, 21 January 1995 can be discussed briefly. On this occasion parking tickets were probably issued to two or three cars which had not infringed the two hour limit because they had been moved and reparked as a test of the officers’ scrupulousness. The incident does not provide any evidence of misconduct against the second defendant. [60] The last instance of alleged selective enforcement, occurred on 11 February 1995, a Saturday evening. The owner of the house in Ainsley avenue immediately to the west of the restaurant, one Edwards, held a party. During the evening council officers were observed issuing tickets. A number of the guests approached the officers to complain that they should not be penalised because they had been invited to the area by a resident. Two of the guests, Messrs Gordon and Allen, both recollected that one of the officers (Mr Bird) explained that they were “targeting restaurant patrons”. The officers left after the conversation. Only two tickets were issued, both to cars parked on a footpath. The defendants called three witnesses to refute this evidence. Two were parking officers, Mr Bird and Mr Reick. The third was their supervisor Mr Denton whom I am satisfied was not present. Mr Reick had no recollection of the occasion although he denied ever “targeting” cars on the basis that their drivers had parked to -- 22 of 35 -- 23 go to the restaurant. The other officer, Mr Bird, denied making the statement attributed to him and that he actually behaved in such a manner. [61] I find the conflict difficult to resolve. I am inclined to accept Mr Bird’s evidence, not only on this point, but I see no reason to disbelieve Mr Gordon or Mr Allen. It is suggested that they were asked only recently to recall the incident and that their testimony is a result of prompting from Mr Edwards (who had died before the trial) and their own collaboration. I do not think this is right, but I suspect that each has read more into the occasion than is warranted. I do not think Mr Bird (or Mr Reick) was “targeting” cars believed to be connected to the restaurant, and I think it unlikely that he said he was. I think it more likely that it was one of the guests at the party who said that their cars should not be “targets” or something to that effect, and a misunderstanding has developed over time. The note made by Mr Bird on the reverse of the parking ticket he issued outside Mr Edwards’ house, though succinct, does suggest it was not he who observed the distinction between cars parked in connection with attendance at the restaurant and attendance at the party. [62] On this aspect of the case I am satisfied that the increased enforcement activity in Ashmore road, particularly on New Years Eve, was spiteful and was occasioned by the second defendant. I am not satisfied that the other incidents provide evidence of improper motive against him. The critical question is whether vindictiveness in the enforcement of the two hour parking limit in Ashmore road subsequent to 15 December 1994 is evidence that the installation of one hour limit parking signs in Ainsley avenue and Reed street in March 1994 was the product of malice. It will not be safe to draw that inference if there is some other explanation for the second defendant’s vengefulness. I think there is. The removal of the one hour signs was a set back to the residents’, and the second defendant’s, objective of limiting parking in the streets. It was a victory for the plaintiffs who had conducted a sustained campaign by correspondence and publicity against the restrictions and in support of an augmented capacity for on-site parking The plaintiffs’ letters were provocative and, in some instances, rancorous. Examples may be seen in exhibits 11, 67, 69, 70, 118 and the second defendant’s memorandum of 18 January 1995, part of exhibit 107. As I have mentioned the dispute ended in litigation which the plaintiffs, in effect, won. They exulted in their victory. Mr Nicholas Carkazis had himself photographed for a local newspaper alongside Council workmen removing the signs which were described as “illegal”. The same newspaper reported the second defendant as saying “The battle between the restaurant and the Council was not over by “a long shot””. Whether or not the quotation is accurate I have no doubt that the second defendant was considerably embarrassed by the event. There was also evidence that the residents were angry that the measures taken to protect them had proved to be ineffectual because of errors made by the defendants. I think that the increased enforcement activity can be understood as a product of the second defendant’s hurt pride and his desire to persuade his constituents that he remained zealous in their cause. It does not, I think, point unambiguously to an intention to inflict economic loss of the plaintiffs by the earlier installation of the signs. [63] Another category of evidence relied on is that the inevitable consequence of preventing both off-street parking and an increase in the number of on-site parking spaces was to discourage patrons and bring about a diminution in the number of -- 23 of 35 -- 24 diners. It is said that the obvious logical solution to the problem of excessive incidents of parking in the streets was to provide more off-street parking. To oppose something so manifestly sensible is said to be evidence of an intention to inflict harm. Rezoning the properties for car parking was the solution adopted after the elections of March 1995 and it is apparently successful. No evidence was led that the extended car parking area has given rise to problems of any sort. The solution was said to be plain because the restaurant was a lawful user of the site and was so popular that it continued to attract large numbers of patrons not all of whom could park on-site. Increasing the number of such parks would remove the irksomeness of overflow parking in the street. [64] It is apparent (for example by the second defendant’s memorandum of 15 February 1994, part of exhibit 107) and his evidence at T679.45 that there was insufficient on-site car parking for the restaurant’s needs. Logically two alternatives arose to alleviate the pressure of parking in local streets: to increase on-site parking space or decrease the capacity of the restaurant. The first plaintiff’s application for rezoning was a means of achieving the first alternative. It was steadfastly opposed by the second defendant. [65] The second defendant persistently opposed any notion that land adjoining the restaurant be rezoned to allow an increase in the number of off-street car parks. The Messrs Carkazis appreciated that the only realistic solution to the conflict over parking was to provide additional off-street spaces. In April 1994 they agreed to buy two adjoining properties on the north side of Reed street, numbers 5 and 7, the first of which was immediately adjacent to the restaurant site. They initially endeavoured to conceal their intentions for the properties but it was soon obvious they were meant to become an extended car park. The Carkazis’ efforts to move in one direction, while facing another, caused near outrage among the residents of Reed street who, in turn, prompted the second defendant to action. The result was acrimonious correspondence, strict surveillance of vehicles parking on those properties and an injunction from the Planning and Environment Court preventing their use for car parking. The second defendant consistently refused to contemplate the rezoning of the Reed street properties. He expressed his opposition at the meeting of 10 June 1994, and on other occasions to his fellow councillors. I accept the evidence of Ms Crichlow, and of Mr Nicholas Carkazis who remembered Councillor Baildon saying that an application to rezone the Reed street properties would not succeed because of the second defendant’s opposition. In fact the plaintiffs refrained from making an application for rezoning because of the indications that it would be refused. I am satisfied that the second defendant’s opposition to a rezoning was forcefully, indeed vehemently, expressed. [66] The evidence suggests another reason for his antagonism to rezoning. His own testimony, which in its essentials I accept, was that he disapproved of any alteration to the character of single residential neighbourhoods. These were zoned by the first defendant “residential A” and the second defendant believed such areas should remain intact. He also said that he endeavoured, as a councillor, to represent the wishes of his constituents. They were unanimously antipathetical to the rezoning. I think the second defendant over stated his role as a mere mouthpiece for the residents. I think he had his own opinion on the merits of the rezoning application but I think it coincided with the residents’ and was greatly influenced by them. There was sufficient real cause for annoyance and resentment which was expressed -- 24 of 35 -- 25 to the second defendant as the local representative. It is clear that at a public meeting called to consider the rezoning of 10 Ainsley avenue the second defendant was subjected to criticism for allowing the state of affairs to develop. There were threats, express or implied, that he would lose their electoral support if the impact of the plaintiffs’ business on the neighbourhood was not reduced. I think it clear that the second defendant’s obdurate and outspoken resistance to the rezoning was caused by his own belief that further intrusion into the residential area should not occur and a conviction that anything less than total commitment to that cause would occasion considerable loss of electoral support. [67] I have already noted Mr Robinson’s evidence of his attitude to the rezoning which I am satisfied was typical and was conveyed to the second defendant. He said: “It wasn’t up to me to come up with a solution, it was up to the Council to come up with a solution to get the cars off the street and I didn’t want the blocks rezoned. . . . I bought a house in Ainsley avenue . . . and wanted to protect that asset. . . . I was simply there to protect my investment in my home. My feelings were I didn’t want cars parking on my street and I didn’t want the block rezoned. I guess that’s being a bit simple but that was my attitude . . . I didn’t want cars on the street and I didn’t want the shopping centre expanding into residential A zoning – into my street”. [68] None of the matters advanced by the plaintiffs, considered alone or in combination, persuades me that the second defendant’s request 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 the 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. Negligence [69] The plaintiffs’ claims for damages for negligence are curiously cast. It is pleaded that the defendants owed the plaintiffs a duty of care to exercise their respective powers of local government: (i) in good faith (ii) within the limit of their powers (iii) within the procedural requirements of local government (iv) in conformity with the rules of natural justice and (v) for the benefit of ratepayers generally and not for ulterior motives. It is then alleged the first defendant was in breach of the duty in that it erected the parking signs without any legislative power to do so; and without a resolution authorising their erection; and without giving the plaintiffs an opportunity to make -- 25 of 35 -- 26 representations as to why the signs should not be put up; and intended the signs to cause a reduction in the plaintiffs’patronage and turnover. The second defendant is said to be in breach of the duty of care in that he directed some council employees to erect the signs and other employees to selectively enforce the parking restrictions against customers of the restaurant. It also pleaded that he acted out of malice. There is also an allegation that the first defendant is vicariously liable for the breach of duty of the second defendant by reason of s. 240(2) of the Local Government Act 1993. [70] The first defendant, as a local authority, had the powers given it by the Local Government Act 1993 to make and administer laws for the good government of its area. Its powers to make law were, of course, limited as to subject matter and geography, but within those limits it might legitimately make laws and enforce them, if necessary by prosecution. The regulation of parking in streets within its area was a subject matter with respect to which the first defendant could make laws. The erection of parking signs was itself an act of law making. The signs proclaimed the law and advised motorists what restrictions applied with respect to parking in the places indicated. The plaintiffs’ case is that this was a legally insufficient means of making such a law. They contend it could only be done by a resolution passed by the council. [71] At bottom the plaintiffs’ claim is that the defendants were negligent in the manner in which they made the relevant law, by installing parking signs without a resolution. It is said that the second defendant and the first defendant’s officers who caused the signs to be installed were careless in not inquiring as to the proper mode, a resolution, by which the signs could be authorised. The notion is odd. 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. Putting such considerations to one side the point that immediately attracts attention is whether the law recognises such a duty as that pleaded. Did the defendants, or the first defendant, owe the plaintiffs a duty to take care when making laws for the regulation of parking in the streets of Ashmore? [72] I think the answer is no. In Pyrenees Shire Council v Day (1998) 192 CLR 330 Brennan CJ said (at 347): “No duty, breach of which sounds in damages, can be imposed when the power is intended to be exercised for the benefit of the public generally and not for the protection of the person or property of members of a particular class.” His honour was discussing the tortious liability of a local authority. In the same case (at 393-4) Gummow J said: “Nor is this a case within that “core area” of policy making which in Heyman Mason J regarded as immune from any liability in negligence. Further, officers of the Shire were not exercising the -- 26 of 35 -- 27 policy making powers and functions of a “quasi-legislative character” which Deane J identified in the same case. . . . The preferable view is that the policy/operational classification is not useful in this area. Rather, the class of case to which Deane J referred in Heyman is not cognisable by the tort of negligence. This precludes the application of negligence to quasi-legislative activity of public authorities such as zoning prescriptions and to . . . inter- governmental dealings . . . it would be consistent with the line of Canadian authority commencing with the judgment of Laskin J in Wellbridge Holdings Ltd v Greater Winnipeg. In Wellbridge the Supreme Court of Canada decided that no action in negligence lay in respect of the passing by the defendant of a by-law, later declared invalid, which had caused economic loss to the plaintiff. This line of authority was discussed . . . by the Full Federal Court in Bienke v Minister for Primary Industries . . .” In Sutherland Shire Council v Heyman (1984-1985) 157 CLR 424 Mason J said (469): “The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognise that a public authority is under no duty of care in relation to decisions which involved or are dictated by financial, economic, social or political factors or constraints . . .but it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction . . .” At p. 500 Deane J said: “The existence of liability on the part of a public governmental body to private individuals under those principles will commonly, as a matter of assumed legislative intent, be precluded in cases where what is involved are actions taken in the exercise of policy making powers and functions of a quasi-legislative character . . ." These are the passages referred to by Gummow J in the passage quoted above in Day. [73] The case in the Federal court referred to by Gummow J, Bienke, (1996) 63 FCR 567 contains, at 590-596 an extensive review of the authorities on this point. The court (Black CJ, Davies and Sackville JJ) quoted from Wellbridge (1971 SCR 957 at 967- 8): “A rezoning application merely invokes the defendant’s legislative authority and does not bring the applicant in respect of his particular interest into any private nexus with the defendant, whose concern is a public one in respect of the matter brought before it. The applicant in such a case can reasonably expect honesty from the defendant but -- 27 of 35 -- 28 not a wider duty. . . . I would accept . . . what the late Jackson J said in dissent in Dalehite v United States . . . “When a [municipality] exerts governmental authority in a manner which legally binds one or many, (it) is acting in a way which no private person could. Such activities do and are designed to affect, often deleteriously the affairs of individuals, the courts have long recognised the public policy that such [municipality] shall be controlled solely by the statutory or administrative mandate and not by the added threat of private damage suits” A municipality at what may be called the operating level is different in kind from the same municipality at the legislative . . . level where it is exercising discretionary statutory authority. In exercising such authority, a municipality . . . may act beyond its powers in the ultimate view of a court . . . it would be incredible to say in such circumstances that it owed a duty of care giving rise to liability in damages for its breach . . .” The court (at 592) also quoted from the judgment of Lord Diplock in Home Office v Dorset Yacht Co Ltd [1970] AC 1004 at 1065: “In exercising his rule-making power, at any rate, it would be inconsistent with what are now recognised principles of English law to suggest that he owed a duty of care capable of giving rise to any liability in civil law to avoid making a rule the observance of which was likely to result in damage to a private citizen. . . . the only limitation on this power which courts of law have jurisdiction to enforce depends not on the civil law concept of negligence, but on the public law concept of ultra vires.” The court concluded: “A public authority may be held to have breached a relevant duty of care where direct physical injury or damage was caused by a negligent act: Wyong Shire Council v Shirt (1980) 146 CLR 40. The duty of care may be held to arise if damages have flowed from a negligent misstatement by a public authority: San Sebastian Pty Ltd v Minister Administrating Environmental Planning and Assessment Act 1979 (NSW) (1986) 162 CLR 340. And a public authority may be held liable for the negligent performance of an operational act provided that a duty of care subsisted: Sutherland Shire Council v Heyman. But in no case in Australia has a Minister of State or a public authority been held liable for the negligent proclamation of a policy or the making of an invalid rule or regulation or the issue of a plan for which statute makes provision.” [74] The same doubts were expressed in Rowling v Takaro Properties Ltd [1988] 1 AC 473 at 503 in which the appellant, the Minister of Finance in the New Zealand -- 28 of 35 -- 29 government, had refused the respondent’s application to acquire a majority interest in a New Zealand company. The refusal was unlawful because it was affected by irrelevant considerations. The Privy Council held that the minister was not negligent and questioned whether a duty of care could arise out of the decision making process. [75] The judgment of Brennan J in Mengel is also relevant and contrary to the notion that a duty of care existed in the present case. His honour said (359): “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 officer’s 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 functions of the office which it is his . . . duty to perform and the freedom of the individual from unauthorised interference with interests which the law protects. The balance that is struck is not to be undermined by applying a different standard of liability – namely, liability in negligence – for a plaintiff whose loss is purely economic and the loss is attributable solely to a public officer’s failure to appreciate the absence of power required to authorise the act or omission which caused the loss.” [76] Although the act impugned by the statement of claim, the erection of parking signs, was a physical activity which may be regarded as an administrative act forming part of the routine operations of the first defendant, the essence of what is involved was making a law to regulate parking. The authorities reviewed clearly establish, in my opinion, that in performing such functions a local authority does not come under a duty to exercise care so as to avoid economic loss to those who may suffer by the passing of an invalid law. I conclude that the plaintiffs have no case in negligence. Nuisance [77] The substance of this claim, as pleaded, is that: (i) Customers or prospective customers of the restaurant were entitled to park their motor vehicles in any public street unless prevented from doing so by a valid restriction. (ii) the one hour limit signs were not lawfully installed and were not therefore a valid restriction. (iii) the erection of the signs and the selective enforcement of the limit against customers or potential customers of the restaurant constituted a nuisance caused and maintained by the defendants. [78] The case as pleaded requires both the invalidity of the signs and the selective enforcement of the limit. I have found that the signs were not authorised by the first defendant but there is no satisfactory evidence that the parking restriction was -- 29 of 35 -- 30 selectively enforced only against vehicles believed to have been parked by those wishing to attend the restaurant or shopping centre. I am not satisfied that during the period March to December 1994 that the council’s by-law officers in fact sought to issue tickets only to cars of the type just described and I am satisfied that no such instruction was given by the second defendant or by Mr Denton or by Mr Briggs. Counsel for the plaintiffs argued that the unauthorised erection of the one hour signs and the enforcement of that restriction was sufficient to constitute a nuisance. [79] The tort of nuisance is to some extent still undefined and the concepts underlying it remain to some extent nebulous (see eg Fleming The Law of Torts 9th ed p 457, 460) but I cannot think that the nature of the interference to the first plaintiff’s land or the second plaintiff’s business is such as to constitute an actionable nuisance. [80] It must be remembered that the city-wide two hour parking limit applied to the streets in question. Members of the public had no right to leave their vehicles in Ainsley avenue or Reed street for more than two hours at a time. The nuisance complained of is the act of the defendants by which they purported to halve that duration. The act complained of is the notification, conveyed by the signs, that an offence would have been committed by anyone who parked a motor vehicle for more than an hour. The notification was, however, erroneous. The signs did not correctly express the law. The restriction could have been ignored with impunity by any motorist of sufficient resolve. [81] In the vast majority of cases, private nuisances are constituted by an interference, for a substantial length of time, by owners or occupiers of property with the use or enjoyment of neighbouring property. See Cunard v Antifyre [1933] 1 KB 551 at 556; Southport Corporation v Esso Petroleum Co Ltd [1956] AC 218 at 224 and Salmond & Heuston on the Law of Torts 18th ed p 48. The definition is not exhaustive but it is clear that the conduct complained of does not fall within it. There was no activity which intruded onto the plaintiffs’ land nor was there any interference with their use or enjoyment of the land. What is complained about is the diminution in profits earned by businesses conducted on the land. The case is therefore similar to Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1938) 58 CLR 479 in which the defendant’s conduct did not amount to a nuisance. [82] A public nuisance occurs where an unlawful act endangers the property or comfort of the public, or is one by which the public are prevented from exercising or enjoying any right common to all. Obstructing a highway or access to or from a highway are, of course, the best known examples of public nuisance. Persons who suffer particular damage to their business by reason of such an obstruction may recover damages for the resulting loss of trade or increased cost of operating. To be actionable the obstruction must be unreasonable in extent and/or duration. The right of the public with respect to roadways is to pass and repass over them, ie 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. It is probably right to say that there was a statutory right conferred on the public to park for a maximum of two hours, but I do not think that the unauthorised reduction of this right makes the public intimation of the reduction and, the implicit threat of prosecution, a public nuisance. -- 30 of 35 -- 31 [83] The cases of public nuisance relied upon by the plaintiffs are all instances of physical impediments to highways, or dangers created on them. Here there has been no obstruction of a road. If anything it became easier to pass along the roads because the parking restrictions resulted in fewer cars parked along them. Nor was there any obstruction to the plaintiffs’access to and from the roadway. [84] The act said to be the nuisance is in my opinion too abstract, too intangible, to come within the concept underlying the tort. The cases of both private and public nuisance referred to in counsels’ submissions, and noted in the text books, all involve some physical phenomenon which affected the plaintiff’s use or enjoyment of his land, or his or his customers access to land. The phenomena include such things as noise, smells, dust, vibrations, crowds (whether of theatre or brothel goers) or flood waters. In every case the nuisance had a physical manifestation observable by the senses. Here there was an incorporeal prohibition, a constraint which though it was intelligible was nevertheless impalpable. [85] Without authority or compelling principle which would suggest that a condition of the kind in question should be regarded as a nuisance I do not think it right to make the innovation. I can see no such principle in support of the extension and reason against it. The arguments against imposing liability in negligence against a local authority which makes an invalid rule indicates that, at the least, the law should hesitate before making the consequences of such rule making actionable in nuisance. [86] Additionally the extent of the restriction is probably inadequate to give rise to a public nuisance, even if it be accepted that the existence of the parking restriction is capable of being such. It operated only in two streets for a distance in each of about 100 metres and only between the hours of 6.00 pm and midnight. The effect of the restriction was to reduce by one hour the time for which a vehicle could be left. Neither time limit (2 hours or 1 hour) was enough to allow the occupants of a car to walk to the restaurant, enjoy a meal and return. The shorter limit did not materially alter the position. It is irrelevant, though nonetheless ironical, that if the plaintiffs’ submission that the city-wide two hour limit was invalid, was accepted there was no right to park and hence no infringement of a right creating an entitlement to damages. [87] Accordingly I would rule that the plaintiffs have not made out their cause of action in nuisance. Wrongful interference with business by unlawful means [88] The plaintiffs argue that there is a tort by this name which is constituted by unlawful acts directed against a plaintiff, or the lawful activities in which a plaintiff is engaged, whereby loss is suffered. The facts of this case are said to give rise to the commission of the tort. The erection of the parking sign was an unlawful act directed against the plaintiffs’ lawful activities as a result of which they suffered loss of income. -- 31 of 35 -- 32 [89] It must be extremely doubtful whether the tort exists at the moment as part of the law of Australia. In Mengel at 345 Mason CJ, Dawson, Toohey, Gaudron & McHugh JJ said: “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, the Beaudesert principle should be overruled.” (emphasis added) More recently in Sanders v Snell (1998) 196 CLR 329 Gleeson CJ, Gaudron, Kirby & Hayne JJ did not find it “necessary to decide . . . whether a tort of interference with trade or business interests by an unlawful act should be recognised in Australia.” For two reasons I think the present case is inappropriate for considering whether the plaintiff should have some redress by means of this emerging tort. [90] The first is that the act in question, the erection of parking signs, was unlawful because the first defendant did not authorise their erection as it could have done by resolution. They were installed by direction of the chief engineer who lacked lawful power himself to regulate parking. In Sanders it was held that the unlawful act which is an essential element of the tort is “an act forbidden by law rather than an unauthorised act in the sense of an act that is ultra vires and void.” (para 35). The act in question is not unlawful in that sense. [91] The second reason is that I have found the second defendant did not intend to damage the plaintiffs’ business by the enforcement of a regulated parking scheme. It does not seem possible therefore to say that the creation and implementation of the scheme was directed against the plaintiffs’ activities. There is no question that the first defendant had any such intention. [92] It follows that this cause of action is not made out. Damages [93] Although the plaintiffs have failed to make out any of their causes of action it is necessary to make an assessment of losses suffered by reason of the signs. There are separate claims by both plaintiffs. The first plaintiff claims: (a) $6,387.20 lost by reason of its inability to increase rents in accordance with CPI adjustments for the years 1994-1995 and 1995/1996. (b) $66,376.86 for loss of rental in consequence of a reduction in the area of the supermarket tenancy. (c) Cost of fitting out the video tenancy $12,000.00. I accept the defendants’ submissions that these claims have not been proved. It is noteworthy that claims in these terms were first advanced by the first plaintiff in the -- 32 of 35 -- 33 fifth statement of claim delivered on 9 June 2000. The claims previously advanced by the first plaintiff were very different in character and amount. [94] The only evidence in support of the first claim comes from Mr Nicholas Carkazis who said that the first plaintiff did not exercise its rights to increase rent in accordance with the terms of leases because the lessees’ profitability could not sustain an increase. I have grave reservations about Mr Carkazis’ evidence. I have no doubt he genuinely believed that the plaintiffs’ businesses were put in serious jeopardy by the Council’s actions but his evidence was, on the whole, overly emotional and imprecise. He did not attempt to make any objective assessment of the impact of the parking restrictions which, it must be emphasised, were in place for only nine months. The terms of the tenancies were not satisfactorily proved nor was there convincing evidence that the parking signs could have affected the lessees’ profitability eighteen months after their removal. Such evidence as there is in relation to the major tenant, the supermarket, suggests that it was unable to pay any increases in rent in accordance with the CPI adjustment contained in its lease for the years prior to the erection of the signs. This is the only lease in respect of which there is evidence that there was provision for inflationary increases of rent. It is difficult to understand how the trade of the video shop or takeaway food outlet could be effected by the restriction which operated only after 6.00 pm and then allowed parking for an hour. I am not persuaded that it was because the Council’s by-law officers issued parking tickets to cars parked for less than an hour. The evidence establishes that the officers made their patrols nearly always on a Saturday evening after about 7.00 pm. [95] The second claim precedes from the relocation of the video shop from its own premises into part of the area occupied by the supermarket. That of course led to a reduction in the rent paid by the owner of the supermarket. It should be noted that the combined rent of the video shop and supermarket for the space earlier occupied only by the supermarket exceeded that paid by the supermarket. The claim is really for the lost rental from the space vacated by the video shop but it does not appear that any serious attempt was ever made to find a tenant for that space and the reason for the relocation is not satisfactorily shown to have been a downturn in business caused by the parking restriction. It is clear that the video shop moved to obtain more space to allow it to become part of a franchise with economic benefits to the video franchisee. It is hard to resist the defendants’ argument that the supermarket wished to reduce its floor area because its business was struggling. It was poorly exposed, badly located, very small and in a shopping centre without appropriately supportive tenancies. The supermarket seems to have traded very poorly well before the introduction of parking restrictions. The business changed hands six times in six years. Its proprietor at the relevant time was not called as a witness though he was identified in the opening address as someone who would testify. [96] The third claim depends entirely upon the oral evidence of Mr Nicholas Carkazis, quite uncorroborated by the production of invoices or cheque butts which must exist if the claim were genuine. In any event, as I have explained, I am not satisfied that the move by the video shop into the demised area of the supermarket was caused by the parking restriction. [97] The second plaintiff’s claim is that (a) it paid the penalties incurred by patrons who had infringed the parking restrictions between 24 March 1994 and 15 December -- 33 of 35 -- 34 1994 and (b) suffered a loss of profits in the sum of $121,181.00 which includes an amount of $11,040.00 for additional wages incurred to assist customers and staff avoid the consequences of the parking restrictions. Two of these heads of claim can be shortly disposed of. There is no acceptable evidence that the second plaintiff paid penalties on behalf of customers or staff. No documentary records of such payments exist. Moreover Mr James Carkazis said that customers who complained about a parking ticket was promised a discount on their next meal if they returned. There is no record or even any estimate of the number or amount of any such discounts. [98] Similarly there is no evidence that the second plaintiff incurred additional wage costs in employing additional staff to assist with car parking. The evidence was that an existing employee Mr Hakelija, was given that task which he performed with the assistance of his young children. There was no evidence that Mr Hakelija’s redeployment resulted in any lost productivity measurable in moneys worth, or that the re-allocation of duties caused any identifiable financial loss. [99] The real claim was for loss of profits. There is an immediate difficulty because no proper comparison can be made of the second plaintiff’s turnover for a period when the parking restrictions were in force and a corresponding period when they were not. This is for the reason that the restrictions commenced about twelve weeks after the restaurant increased in size by about 50 per cent. It became, at least in scale, a new business in January 1994, just before the imposition of the restriction. With the increase in capacity the second plaintiff’s turnover and profits increased. It contends that the increase would have been greater but for the parking restriction. The defendants argue that it is impossible to know what, if any, effect the restrictions had and the second plaintiff has therefore failed to prove any loss. In particular the defendants, and their accountant Mr Cooper, argue that the number of tickets issued to cars in the nine month period of the restriction is too small to have had any effect on a restaurant of such a size. I think this overlooks the point that the effectiveness of the restriction cannot be gauged merely by the extent to which it was infringed. It must be accepted that many motorists refrained from parking in the affected streets because of the restrictions. That apart there is considerable substance in Mr Cooper’s criticisms of the second plaintiff’s assessment of its loss. [100] That assessment was undertaken by Mr Dooley, a chartered accountant experienced in litigation. His examination of the second plaintiff’s financial records led him to conclude that the expected increase in turnover from the increase in restaurant capacity was delayed by twelve months and that the cause of the delay was the difficulty in parking in adjacent streets. Mr Dooley demonstrated that the increase in sales for the year ended 31 December 1994 over the sales achieved in the previous year was 12 per cent. The increase in sales for the year ended 31 December 1995 over the sales for the year ended December 1993 was 27.4 per cent. Mr Dooley’s opinion was that the increased seating capacity brought about increased patronage and turnover and the imposition of parking restrictions offers the only explanation why the increase did not occur earlier. [101] The defendants complain that Mr Dooley has assumed that which had to be proved. There is some force in the submission but I think that Mr Dooley’s approach is basically correct. Although I am sceptical of much of the evidence given by Messrs -- 34 of 35 -- 35 Carkazis I do accept that the parking restrictions were a source of inconvenience to their customers. Their dispute with the Council over the installation of parking signs was conducted very publicly and much local media attention was given to the debate. The difficulties with parking was widely known. Moreover I accept that a number of patrons were disgruntled by the issue of parking tickets and it is not fanciful to conclude that the volume of business and repeat business was affected. It is equally clear that the restaurant flourished during the period of the parking restrictions and the takings and profits increased over the previous year. [102] The point is difficult but despite the lack of direct evidence of depressed turnover I am inclined to the view that there must have been some diminution in the rate of increase that would otherwise have been expected from the increased capacity. I think Mr Dooley has over estimated it by not taking into account the matters raised by Mr Cooper in his report, in particular (i) by not adjusting for the saving in costs occasioned by the diminished turnover, and (ii) in not adjusting for the fact that in December 1994 and January 1995 the level of sales achieved by the second plaintiff were greater than Mr Dooley’s notional levels of sale. The second point is this. Mr Dooley concluded that the increased turnover was delayed by a year. He therefore postulated that, adjusted for inflation, the sales achieved in the period December 1995 to November 1996 would have been achieved in the preceding year but for the restriction. He then compared those notional receipts with actual receipts. For the months December 1994 and January 1995 the actual takings exceeded the expected figures. Mr Dooley did not reduce his calculated loss to take this discrepancy into account. I think he was wrong not to do so, especially as the signs were removed in mid December, prior to the peak holiday period, amidst much publicity. I think it unlikely that the parking restrictions had any lasting effect. [103] In my opinion the closest one can get to an assessment of loss suffered by the second plaintiff is found in Mr Cooper’s calculation utilising Mr Dooley’s basic approach. That yields a figure of $59,580.00. Conclusion [104] For the reasons I have expressed there will be judgment for the defendants. The plaintiffs must pay the defendants’ costs of the action including reserved costs which should be assessed on the standard basis but limited to the District Court scale from 19 May 2000 when the plaintiffs applied to have the action transferred to the District Court. The order for costs just made reflects the agreement of the parties when they were offered a speedy trial in this court. -- 35 of 35 --