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Estoppel by Representation in Administrative Law

Published online by Cambridge University Press:  24 January 2025

Joshua Thomson
Joshua Thomson*
Affiliation:
(University of Western Australia), Crown Solicitor's Office of Western Australia
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Extract

Traditionally, estoppel by representation cannot interfere with the exercise of a statutory power or the performance of a statutory duty by an administrative body. According to this principle, referred to below as “the traditional rule”, the public purpose served by the statute prevails over the private interest of an individual who may have been misled to the extent of relying on a misrepresentation to his or her detriment. This article begins by examining the ambit of this rule.

The second part of the article analyses the basis for estoppel in administrative law. It will be argued that public law estoppel must be based on analogous private law principles, and not on some unique public law doctrine.

The remainder of the article then considers transposing private law estoppel into a statutory context. Specifically, it deals with the application of estoppel to representations about intra vires exercises of power, and then examines representations about ultra vires administrative action.

Type
Research Article
Information
Federal Law Review , Volume 26 , Issue 1 , March 1998 , pp. 83 - 113
Copyright
Copyright © 1998 The Australian National University

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Footnotes

The views expressed in this article are my own and do not reflect the views of the Crown Solicitor's Office. I would like to thank Dr James Thomson, Mr Graham Delaney, Dr Nicholas Seddon and Professor Dennis Pearce for their assistance and encouragement in preparing this article. I accept responsibility for any errors.

References

1 Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 417 at 423-424 per Lord Parker CJ; Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204 at 219 per Megaw LJ. Note also Rocca v Ryde Municipal Council [1962] NSWR 600 at 604-605 per Sugerman J; Wormald v Gioia (1980) 26 SASR 237; Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648 at 678 per McHugh J; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17 per Mason CJ.

2 In this article “administrative body”is used broadly to designate any entity entrusted with statutory functions,including natural individuals such as Ministers of the Crown.

3 “[People] must tum square comers when they deal with the government”: Rock Island Railroad Co v United States 254 US 141 at 143 (1920) per Holmes J;approved in Federal Crop Insurance Corporation v Merrill 332 US 380 at 385 (1947) per Frankfurter J.

4 See cases in n 1.

5 (1990) 21 FCR 193.For another example see Churchill Fisheries Export Pty Ltd v Director General of Conservation [1990] VR 968.

6 Ibid at 196 per Neaves J,at 200-201 per Ryan J and at 210-11,214-15,218-19 per Gummow J.This case is discussed further below.

7 [1962] 1 QB 417. Similarly Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204; Wormald v Gioia (1980) 26 SASR 237.

8 This analysis of Southend-on-Sea v Hodgson (Wickford) Ltd [1962) 1 QB 417 is supported by Windeyer Jin Brickworks Ltd v Warringah Corporation (1963) 108 CLR 568 at 577.

9 See generally The Laws of Australia, Administrative Law Vol 2.4 para [178).

10 Minister for Immigration v Kurtovic (1990) 21 FCR 193 at 211 per Gummow J.See also Day v Hunkin (1938) 61 CLR 65 at 79-80 per McTiernan J; Re Chan and Minister for Immigration (1977) 17 ALR 432 at 441-442 per SmithersJ.There is a presumption that a statutory power is exercisable from time to time:for example,Acts Interpretation Act 1901 (Cth), s 33(1).

11 (1963) 108 CLR 568.

12 Ibid at 576 (Planning Scheme Ordinance, cl 41(3)).

13 Ibid at 579.

14 [1962] 1 QB 416.

15 (1963) 108 CLR 568 at 577.

16 Ibid: “[T]he case is not, as I see it, one in which a consent once given could be withdrawn.”

17 Ibid at 579.

18 Windeyer J's analysis is weakened because it was obiter. Also, he was the only judge to discuss the issue.

19 This conclusion draws support from three cases: Rocca v Ryde Municipal Council [1962] NSWR 600 at 604-605 per Sugerman J; Coffs Harbour Shire Council v Ben Hall Industries Pty Ltd (1983) 48 LGRA 391 at 396-397 per Perrignon J; Jurkovic v Corporation of the City of Port Adelaide (1979) 23 SASR 434 at 440-441 per Wells J. Little weight should be placed on cases which adopt Windeyer J's comments without evaluating them, for example Wyong Shire Council v Associated Minerals Consolidated Ltd [1972] 1 NSWLR 114 at 142 per Hope J (Later appealed to Privy Council where the question of estoppel was not in issue: [1975] AC 538 at 560); Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1989) 67 LGRA 238 at 245 per Morling and Wilcox JJ; Rubrico v Minister for Immigration (1989) 86 ALR 681 at 703 per Lee J (this case is considered further below); Vanden Pty Ltd v Blue Mountains City Council (1992) 77 LGRA 16. A number of decisions have referred to Windeyer J in Brickworks Ltd v Warringah Corporation but distinguished this case without adopting it eg, Trimboli Penrith City Council (1981) 48 LGRA 323 at 336 per McClelland CJ; Baulkham Hills Shire Council v Cosmopolitan Homes No 2 Pty Ltd (1986) 61 LGRA 200 at 203 per Perrignon J.

20 Always provided that it has complied with any requirements of procedural fairness relating to the new exercise of power.For example,the decision-maker must be careful not to defeat any legitimate expectation which its representation about the past exercise of power mayhave raised.However,an action for denial of natural justice cannot,of itself,give binding effect to the past representation and preclude the repository of power from changing its decision once natural justice has been accorded: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 20-23 per Mason CJ, at 37-40 per Brennan J, and at 53-54 per Dawson J; Minister for Immigration v Teoh (1995) 183 CLR 273 at 291 per Mason CJ and Deane J, at 302 per Toohey J, and at 313 per McHugh J.

21 (1990) 21 FCR 193.

22 Ibid at 214 (criticising Lee J's proposition, considered below, in Rubrico v Minister for Immigration (1989) 86 ALR 681 at 703; 23 FCR 208 at 229).

23 [1981] 2 All ER 227.

24 Ibid at 233 per Lawton LJ,and at 235 per Eveleigh LJ.

25 Ibid at 234 per Lawton LJ, at 234 per Eveleigh LJ, and at 237 per Sir Stanley Rees concurring. See also The New South Wales Trotting Club Ltd v The Council of the Municipality of the Glebe (1937) 37 SR (NSW) 288 at307 per Jordan CJ.

26 This is contrary to Lee J's view in Rubrico (1989) 23 FCR 208. Reasons for rejecting Rubrico are given below.

27 Minister for Immigration v Kurtovic (1990) 21 FCR 193 at 208 per Gummow J; Maiorana v Minister for Immigration (1993) 42 FCR 119 at 122-3 per Einfeld J. See also Jurkovic v Corporation of the City of Port Adelaide (1979) 23 SASR 434 at 440 per Wells J.In other decisions the extension of private law estoppel by representation to public law has been implicitly assumed:reliance is placed on authority dealing with private law estoppel.For example Robertson v Minister of Pensions [1949] 1 KB 227 at 231 per Denning J relying on Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130; Kurtovicv Minister for Immigration (1988) 86 ALR 99 at 110-111 per Einfeld J; Churchill Fisheries Export Pty Ltd v Director-General of Conservation [1990] VR 968 at 973-976 per Beach J;see also Paino v Woollahra Municipal Council (1990) 71 LGRA 62 at 66per Hemmings J.Note Metropolitan Transit Authority v Waverley Transit Pty Ltd [1991] 1 VR 181 where the Victorian Full Court applied private law estoppel by representation in a public law situation without any comment.

28 Moorgate Mercantile Ltd v Twitchings [1976] 1 QB 225 at 241 per Lord Denning MR; Kenneth Allison Ltdv A E Limehouse & Co [1992] 2 AC 105 at 126-127 per Lord Goff of Chieveley; see also Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674 per Dixon J; Thompson v Palmer (1933) 49 CLR 507 at 547 per Dixon J.

29 United States v Georgia-Pacific Co 421 F 2d 92 at 103 (1970) per Judge Levin;note also Federal Deposit Insurance Corporation v Harrison 735 F 2d 408 at 410-413 (1984) per Judge Kravitch; Phelps v Federal Emergency Management Agency 785 F 2d 13 at 16-17 (1st Cir 1986) per Judge Rosenn; Federal Deposit Insurance Corporation v Roldan Fonseca 795F2d 1102 at 1107-1108 (1st Cir 1986) per Judge Torruella; Heckler v Community Health Services 467 US 51 at 59-61 (1984) per Stevens J.See also NC Seddon, Government Contracts (1995) at 163-164.

30 Section 64 of the Judiciary Act 1903 (Cth) seems to require equivalence,if possible,between public and private law in actionsagainst the Commonwealth or a State: “In any suit to which the Commonwealth or a State is a party the rights of parties shall as nearly as possible be the same,and judgment may be given … as in a suit between subject and subject.”Compare Baillieu v Australian Electoral Commission (1996) 33 IPR 494 at 508-9 per Sundberg J.

31 Shaddock v Parramatta City Council (1981) 150 CLR 225; Sutherland Shire Council v Heyman (1985) 157 CLR 424. See also Northern Territory v Mengel (1995) 185 CLR 307 at 348 and 352- 3 per Mason CJ,Dawson,Toohey,Gaudron and McHugh JJ.

32 Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 427 per Brennan J.Further notes:(1) PP Craig has argued against the conclusion that public law estoppel extends on private law estoppel:“Representations by Public Bodies”(1977) 93 LQR 398 at 411-412 (footnote 58).However,his argument is based 011 a view of equitable estoppel which has become outdated inAustralia.He does not seem to think that detriment is necessary in order to establish promissory estoppel in private law.(2) P Cane also argues against the comparison of estoppel in private and public law: An Introduction to Administrative Law (2nd ed 1992) at 218-219. This is based on the perceived difficulties of reconciling the concept of ultra vires with private law estoppel.This is discussed below.

33 This term is intended to cover all common law and equitable estoppel arising from representations embodied in a person's words or conduct.

34 See the cases cited inn 28:especially Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 671-672 per Dixon J and Thompson v Palmer (1933) 49 CLR 507 at 547 per Dixon J, approved in Legione v Hateley (1983) 152 CLR 406 at 431-432 per Mason and Deane JJ; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 404 per Mason CJ and Wilson J,at 413-414 and 419 per Brennan J,at 449 per Deane J,and at 458 per Gaudron J; Commonwealth v Verwayen (1990) 170 CLR 394 at 409 per Mason CJ,at 431-434 per Brennan J,at 453 per Dawson J,and at 500-501 per McHugh J.

35 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 415 per Brennan J and at 458 per Gaudron J; Commonwealth v Verwayen (1990) 170 CLR 394 at 411 per Mason CJ,at 422 per Brennan J,at 454 per Dawson J and at 500-501 per McHughJ.

36 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 416 per Brennan J.See also Waltonsat 458 per Gaudron J and Commonwealth v Verwayen, ibid at 434-439 per Deane J and the citations in n 47.

37 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 404 per Mason CJ and Wilson J and at 417-419 per Brennan J; Commonwealth v Verwayen (1990) 170 CLR 394 at 411-412 per Mason CJ,at 422 and 428-429 per Brennan J,and at 501 per McHugh J.(Dawson J reserved his judgment on this issue at 454.)

38 Ibid.(Note that Deane J does not subscribe to this view: Commonwealth v Verwayen (1990) 170 CLR 394 at 441-443.)In some circumstances, however, equity can only relieve against the detriment which would flow from not enforcing a representation by upholding this representation.This occurred in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387;see also Commonwealth v Verwayen (1990) 170 CLR 394 at 412 per Mason CJ, at 429 per Brennan J and at 501 per McHugh J.

39 Commonwealth v Verwayen (1990)170 CLR 394 at 409-410 per Mason CJ and at 499 per McHughJ.

40 Legione v Hateley (1983)152 CLR 406 at 432-435 per Mason and Deane JJ; Waltons Stores (Interstate) Ltd v Maher (1988)164 CLR 387 at 399 per Mason CJ and Wilson J,at 428- 29 per Brennan J and at 459 per Gaudron J; Commonwealth vVerwayen (1990)170 CLR 394 at 412 per Mason CJ,at 453 per Dawson J and at 499-500 per McHugh J.

41 In Waltons Stores (Interstate) Ltd v Maher Mason CJ and Wilson J left this common law question open.However,in Foran v Wight (1989) 168 CLR 385 at 411 Mason CJ decided that common law estoppel did extend to promissoryrepresentations.See also Deane J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 452. This approach is yet to be adopted by the majority of the High Court: Commonwealth v Verwayen (1990) 170 CLR 394 at 499-500 per McHughJ.

42 Commonwealth v Verwayen (1990) 170 CLR 394 at 500 per McHugh J,referred to with approval in R P Meagher,W M C Gummow and Lehane, J R F, Equity:Doctrines and Remedies (3rd ed 1992) at 431Google Scholar.

43 Mason CJ and Deane J have both decided that there is one unified doctrine of estoppel which operates upon the same principlesat common law and in equity: Commonwealth v Verwayen at 411-413 per Mason CJ and at 431-440 per Deane J; Waltons Stores(Interstate) Ltd v Maher at 447-452 per Deane J.

44 Equitable estoppel will prevail in any situation where there is an overlap,and equitable estoppel covers all situations in which common law estoppel might apply.Compare Meagher,Gummow and Lehane,above n 42 at 431.

45 Ajayi v RT Briscoe (Nigeria) Ltd [1964] 1 WLR 1326 at 1330 per Lord Hodson; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 399 per Mason CJ and Wilson J.

46 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 399-406 per Mason CJ and Wilson J and at 423-424 and 428-429 per Brennan J; Foran v Wight (1989) 168 CLR 385 at 435 per Deane J.Dawson J expressed doubts in Commonwealth v Verwayen (1990) 170 CLR 394 at 455.This is consistent with the approach of Lord Denning: Central London Property Trust Ltd v High Trees House Ltd [1947] 1 KB 130 at 134; Moorgate Mercantile Co Ltd v Twitchings [1976] 1 QB 225 at 241-242.

47 The prevailing view is that equitable estoppel generates a substantive right to obtain relief against the detriment which would be suffered if a representation is not upheld: Commonwealth v Verwayen (1990) 170 CLR 394 at 422 per Brennan J and at 500 per McHugh J.See also above nn 34-38.But note Deane J has consistently answered this question negatively: Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 444-445; Commonwealth v Verwayen (1990) 170 CLR 394 at 434-440.See also Dawson Jin Foran v Wight (1989) 168 CLR 385 at450; Commonwealth v Verwayen (1990) 170 CLR 394 at459-460.

48 [1937] AC 610.

49 Ibid at 620 per Lord Maugham,delivering the reasons of the Privy Council.

50 Ibid.

51 Ibid.

52 Ibid at 621. Note that the Canadian Supreme Court in this case rejected the Privy Council's third proposition: General Dairies Ltd v Maritime Electric Co Ltd [1935] SCR 519 at 527 per Dysart J.This approach was favoured by Lord Denning MR in Laker Airways Ltd v Department of Trade [1977] 1 QB 643 at 707.

53 [1916] 2 KB 198 at 204 per AtkinJ.

54 See also Robertson v Minister of Pensions [1949] 1 KB 227 at 231 per Denning J; Laker Airways Ltd v Department of Trade [1977] 1 QB 643 at 680-681 per Mocatta J;and this point is implicit in Commonwealth v Verwayen (1990) 170 CLR 394.

55 Plimmer v Mayor of Wellington (1884) 9 App Cas 699 at 713-714 per Sir Arthur Hobhouse,delivering the Privy Council's reasons.

56 Crabb v Arun District Council [1976] 1 Ch 179 at 187-188 per Lord Denning MR and at 194-195 per Scarman LJ;Taylor's Fashions Ltd v Liverpool Trustees Co [1982] 1 QB 135 at 147 and 153 per Oliver J.

57 Pawlett v Attorney-General (1667) Hardre's Report 467 at 469;145 ER 550 at 552 per Baron Atkyns cited inDyson v Attorney-General [1911] 1 KB 410 at 421-422 per Farwell LJ.See also FE Farrer, “A Prerogative Fallacy that the Crown is not Bound by Estoppel”(1933) 49 LQR 511 at 515.

58 Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd [1982]1 QB 84 at 103 per Robert Goff J.

59 Looking for legislative intention to exclude estoppel is consistent with the analogous principle that the terms of a statute are paramount in determining the availability of judicial review: Williams v Melbourne Corporation (1933) 49 CLR 142 at 154-155per Dixon J; King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 at 194 per Dixon J. Note the argument of counsel (R K Douglas) in Commonwealth v Hamilton [1992] 2 Qd R 257 at 259.

60 The instances where a statute has expressly excluded estoppel have been negligible, if not non-existent.

61 In another context,the absolute nature of a rule based on presumed legislative intention was recently cut down by the High Court in Bropho v Western Australia (1990) 17 CLR 1 at 21-22 per Mason, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

62 A distinction between estoppel concerning intra vires and ultra vires administrative actionwas recognised in Re Callaghan and Defence Force Retirement & Death Benefits Authority (1978) 1 ALD 227 at231 per Full Tribunal; Formosa v Secretary,Department of Social Security (1988) 46 FCR 117 at 125 per Davies and Gummow JJ.

63 [1975] AC 520.

64 Ibid at 533-535 per Lord Wilberforce.

65 Laker Airways Ltd v Department of Trade [1977] 1 QB 643 at 707 per Lord Denning MR and Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17 per Mason CJ.See also Minister for Immigration v Kurtovic (1990) 21 FCR 193 at210 per Gummow J; Jurkovic v Corporation of the City of Port Adelaide (1979) 23 SASR 434 at 440 per Wells J and G Spencer Bower& A K Turner, The Law Relating to Estoppel by Representation (3rd ed 1977) at 150.

66 An example of such a power might be a power to carry on a commercial trading enterprise(for example,insurance by a governmentoffice).See cases inn 68.

67 See generally The Laws of Australia, Administrative Law Vol 2.4 para [179].

68 United States decisions have held that for estoppel to apply against an administrative body: “the Government must havebeen acting in its private or proprietary capacity as opposed to its public or sovereign capacity” (United States v Vanderau 837 F 2d 1540 at 1541 (11th Cir 1988) per Judge Roney approved in United States v Walcott 972 F 2d 323 (11th Cir 1992); see also Federal Deposit Insurance Corporation v Harrison 735 F 2d 408 at 411 (1984) per Judge Kravitch; United States vGeorgia-Pacific Co 421 F 2d 92 at 100-101 (1970) per Judge Levin; Smale & Robinson Inc v United States 123 F Supp 457 at 461-465 (1954)) per Judge Mathes. The distinction between sovereign and proprietary functions parallels the distinctionbetween powers conferred for the public's benefit and powers conferred for an administrative body's private benefit: Federal Deposit Insurance Corporation v Harrison 735 F 2d 408 at 411 (1984) per Judge Kravitch. See also United States v Georgia-Pacific Co 421 F 2d 92 at 101 (1970) per Judge Levin; Air-Sea Brokers, Inc v United States 596 F 2d 1008 at 1011 (1979) per JudgeMiller; Partmann v United States 674 F 2d 1155 at 1160-1161 (1982) per Judge Cudahy; Smale & Robinson Inc v United States 123 F Supp 457 at 461 (1954) per Judge Mathes. But note Phelps v Federal Emergency Management Agency 785 F 2d 13 at 17-18 (1st Cir 1986) per Judge Rosenn; Federal Deposit Insurance Corporation v Roldan Fonseca 795 F 2d 1102 at 1108 (1st Cir 1986) per Judge Torruella.

69 (1990) 21 FCR 193 per Gummow J, discussed below.

70 See also Andrews, J A in the article “Estoppels Against Statutes” (1966) 29 MLR 1 at 5CrossRefGoogle Scholar.Note the argument of H Woolf as counsel (now Lord Woolf MR) in Turner v Director of Public Prosecutions (1978) 69 Cr App R 70,summarisedby Mars-Jones J at 77.

71 [1976] 1 Ch 179.

72 This is not apparent from the report,but has been assumed: Kurtovic (1990) 21 FCR 193 at 215 (implicit) perGummow J.See also A Bradley, “Administrative Justice and the Binding Effect of Official Acts”[1981] Current Legal Problems 1 at 7-8.

73 See also A Roberts & Co Ltd v Leicestershire County Council [1961] Ch 555; Attorney-General (HK) v Humphrey's Estate (Queen's Gardens) Ltd [1987] 1 AC 114 cited by Gummow J in Kurtovic (1990) 21 FCR 193 at 215.

74 Quilibet potest renunciare juri pro se introducto: Every man is entitled to renounce a right introduced in his favour. Note a similar maxim Omnes licentiam habere his quae prose indulta sunt renunciare: everyone has liberty to renounce those things which are granted for his benefit. See also In re Walker Co Ltd (in liq) [1960] NZLR 523 at 536 per F B Adams J;Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 at 1016 per Viscount Radcliffe, delivering the Privy Council's reasons.

75 Kok Hoong v Leong Cheong Kweng Mines Ltd , ibid. Roach v Bickle (1915) 20 CLR 663 at 671- 672 per Isaacs and Gavan Duffy JJ.Note also Commonwealth v Verwayen (1990) 170 CLR 394 at 404-406 per Mason CJ,at 424-426 per Brennan J,at 456-458 per Dawson J,at 468-469 per Toohey J,at 486-487 per Gaudron J and at 496-498 per McHugh J.

76 Kok Hoong v Leong Cheong Kweng Mines Ltd[1964] AC 993 at 1016 per Viscount Radcliffe. The quote still captures the essence of the principle being considered despite its adherence to the old view of estoppel merely as a rule of evidence. See also H Rajak, “Equity v Statute”,in Goldstein, S (ed), Equity and Contemporary Legal Developments (1992) at 101-107Google Scholar.

77 (1990) 21 FCR 193.

78 [1978] AC 728 at 754.

79 (1990) 21 FCR 193 at 215 (emphasis added);assumed correct in Liv Minister for Immigration,Local Government and EthnicAffairs (1991) 33 FCR 568 at 572-573 per Hill J.

80 The shifting nature of the policy/ operation distinction is noted in Aronson, M and Dyer, B, Judicial Review of Administrative Action (1996) at 168-169Google Scholar.

81 City of Kam/oops v Nielsen (1984) 10 DLR (4th) 641 at 671-673 per Wilson J.This case was concerned with thepolicy/ operation distinction in the tortious context, which is the context in which this distinction was originally developed.

82 [1977] 1 QB 643 at 707. See also HTV Ltd v Price Commission [1976] ICR 170 at 185-186 per Lord Denning MR. In the passage quoted from Laker, Lord Denning does not qualify the way he states the balancing view by saying that the harm to the public interest must only be small. However, this seems to be what he intended - because in the HTV Ltd case he spoke of the need for there to be no “overriding” public interest.

83 (1990) 170 CLR 1 at 18. The only case which appears to have applied this passage is Vanden Pty Ltd v Blue Mountains City Council (1992) 77 LGRA 16 at 19 per Bannon J, and in any event this was obiter dicta.

84 Kok Hoang v Leong Cheong Kweng Mines Ltd [1964] AC 993 at 1016 per Viscount Radcliffe.

85 Ibid.

86 Ibid.

87 (1990) 170 CLR 394

88 Ibid at 405. See also Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 37-40 per Brennan J.

89 Western Fish Products v Penwith District Council [1981] 2 All ER 204 at 221 per Megaw LJ.

90 Western Fish, ibid; Enoka v Shire of Northampton (1996)15 WAR 483 at 497 per Steytler J.See also Minister for Immigration v Kurtovic (1990) 21 FCR 193 at 221 per Gummow J; Roberts v Repatriation Commission (1992) 39 FLR 420 at 425; Gouriet v Union of Post Office Workers [1978] AC 435 at 482 per Lord Wilberforce;M Aronson and BDyer,above n 80 at 167-168.An even more radical view than the balancing view is implicitly supported by Metropolitan Transit Authority vWaverley Transit Pty Ltd [1991] 1 VR 181.The Victorian Full Court estopped an administrative body in the exercise of a discretion, which seems to have been conferred for the public's benefit, because of prior representations made by the administrative body.No weighing process occurred at all.However,it is suggested that it was decided per incuriam because the issues which arise from applying estoppel in administrative law were not canvassed. Private law estoppel was applied without modification.Compare Kurtovic (1990) 21 FCR 193 at 216 per Gummow J; M Allars, Introduction to Australian Administrative Law (1990) at 210; Seddon, N C, Government Contracts (1995) at 166,246-248Google Scholar and 250.

91 See generally, Alister v R (1984) 154 CLR 404 at 412 and 414 per Gibbs CJ, at 431 per Murphy J, at 434-435 and 437-438 per Wilson and Dawson JJ and at 453-454 and 456-457 per Brennan J.

92 (1997) 45 ALD 16

93 Ibid at 35-36.

94 As to the interaction of fairness and estoppel see below n 107.

95 Mason CJ confined this to cases where the public interest would not be “significantly hindered”. See below textaccompanying n 83.

96 Birkdale District Electric Supply Co v Southport Corporation (1926] AC 355 at 364 per Earl of Birkenhead andat 372-373 per Lord Sumner; British Transport Commission v Westmorland County Council (1958] AC 126 at 142 per Viscount Simonds,at 147 per Lord Morton of Henryton, at 152 per Lord Radcliffe,at 158-160 per Lord Cohen and at 166 per Lord Keith of Avonholm.This latter case involved the dedication of a bridge to the public through long usage,rather than through a contract. However, the principles are the same: Birkdale at 369 per Lord Sumner; Paterson v Provost of St Andrews (1881) 6 App Cas 833 at 847 per Lord Blackburn and at 853-854 per Lord Watson; R v The Inhabitants of Leake (1833) 5 B &AD 468 at 478 per Parke J and at 486 per DenmanCJ; 110 ER 863 at 867,870.In Australia see Watson's Bay and South Shore Ferry Co Ltd v Whitfield (1919) 27 CLR 268; The New South Wales Trotting Club Ltd v The Council of the Municipality of Glebe (1937) 37 SR (NSW) 288 at 307 per Jordan CJ.

97 Ibid.

98 (1962] 1 QB 416.

99 Ibid at 424 per Lord Parker CJ,applied in Rocca v Ryde Municipal Council (1962] NSWR 600 at 605 per SugermanJ.See also Minister for Immigration v Kurtovic (1990) 21 FCR 193 at 200 per Ryan J; Haoucher v Minister for Immigration (1990) 169 CLR 648 at 678 per McHugh J.The limits of the contract analogy are recognised in N C Seddon, Government Contracts (1995) at 163.

100 R v Liverpool Corporation; ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299.

101 Also,a number of representations were made by the Town Clerk to the effect that no decision to increase licences would be made without consulting the Taxi Fleet Operators' Association.However,these representations were not the focus of the case.

102 Lord Denning drew the distinction clearly.Roskill LJ and Sir Gordon Willmer treated the Council's representations as going to the Council's duty to act “fairly”: [1972] 2 QB 299 at 311 and 313.However,whether this duty to act “fairly”was a product of natural justice or equity was not stated. It might be that the whole notion of substantive “fairness” is more properly understood in terms of estoppel: see below n 107.

103 [1972] 2 QB 299 at 308.

104 Ibid at 310.

105 Compare Ganz, G, “Legitimate Expectation” in Harlow, C (ed) Public Law and Politics (1986)at 150 and 159-160Google Scholar.

106 See text above at rm 34-38. This interpretation is consistent with Lord Denning's flexible application of equitable estoppel.For example he looked for the “minimum equity” in Crabb v Arun District Council [1976] 1 Ch 179 at 189-190 (in the event the “minimum equity” required full satisfaction of the representation in Crabb).

107 This explanation of the Liverpool Taxi case accords with P Finn and K Smith, “The Citizen, the Government and 'Reasonable Expectations"' (1992) 66 ALJ 139 at 146-147. Also, this analysis involving the “minimum equity” notion may lie at the basis of the substantive “fairness” doctrine which allows judicial review for the equivalent of “a breach of contract or a breach of representation”: R v Inland Revenue Commissioners; Ex parte Preston [1985] 1 AC 835 at 866-867 per Lord Templeman. Note also R v Jockey Club; Ex parte RAM Racecourses Ltd [1993] 2 All ER 225 at 236 per Stuart-Smith LJ. But see Gummow J in Minister for Immigration v Kurtovic (1990) 21 FCR 193 at 220-222, followed in Tay v Attorney-General [1992] 2 NZLR 693 at 702-704 per Hillyer J. A discussion of “fairness” is beyond the scope of this article.

108 For example a prerogative writ or an interlocutory injunction.

109 There will still be cases where estoppel will be entirely incompatible with the exercise of a power for the public good. An example is the exercise of discretions associated with criminal prosecutions: Churchill Fisheries Export Pty Ltd v Director-General of Conservation [1990] VR 968; Malvaso v R (1989) 168 CLR 227 at 233 per Mason CJ, Brennan and GaudronJJ.

110 [1958] AC 126.Viscount Simonds, at 144,thought that a fetter on a statutory power would be “incompatible” withthe exercise of this power for the public benefit if there was a reasonably foreseeable conflict between the fetter and the exercise of power. Lords Morton and Cohen looked to the “likelihood” of such a conflict (at 147 and 164 respectively). Lord Keith held that the test of compatability was a “pragmatic one”, at 152 and 156, while Lord Keith said that the inconsistency in the case was “unreal”, at 166. The question was whether a presumed public dedication of a footbridge, constructed by the Commission's predecessor, was inconsistent with the Commission's statutory power to discontinue the bridge. This question raised the same issues involved in determining whether a contract (or for that matter an estoppel) could be relied upon to fetter the future exercise of a statutory discretion: Birkdale District Electric Supply Co v Southport Corporation [1926] AC 355 at 369 per Lord Sumner.

111 The reasonable foreseeability test of compatability is favoured by S D Hotop, Principles of Australian Administrative Law (6th ed 1985) at 241; EI Sykes, DJ Lanham and RR S Tracey, General Principles of Australian Administrative Law (3rd ed 1989) at 87. The administrative body bears the burden of showing that estoppel should not avail, by analogy to British Transport Commission v Westmorland County Council [1958] AC 126 at 166 per Lord Keith of Avonholm.

112 This article does not consider the binding effect of a representation made by an agent of an administrative body which is outside the agent's actual authority, but within the agent's ostensible authority. On this see: Attorney-General for Ceylon v Silva [1953] AC 461; Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222; Western Fish Products v Penwith District Council [1981] 2 All ER 204; Drummoyne Municipal Council v Page [1973] 2 NSWLR 566; Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1989) 67 LGRA 238 at 245 per Morling and Wilcox JJ; Wormald v Gioia (1980) 26 SASR 237 at 242 per Mitchell J; Shire of Kil more v Dally [1989] VR 314 at 320 per Southwell J.

113 (1) Generally see: Minister of Agriculture & Fisheries v Hulkin (unreported) considered in Minister of Agriculture and Fisheries v Matthews [1950] 1 KB 148 at 153-154 per Cassels J; Howell v Falmouth Boat Construction Co Ltd [1951] AC 837 at 845 per Lord Simonds and at 849 per Lord Normand; Rhyl Urban District Council v Rhyl Amusements Ltd [1959] 1 All ER 257 at 265 per Harman J; The Council of the Shire of Sutherland v James (1963) SR (NSW) 273 at 277-279 per Sugerman and Manning JJ; Nicholas v Western Australia [1972] WAR 168 at 174 per Burt J; Chapman v Commissioner, Australian Federal Police (1983) 50 ACTR 23 at 34 per Kelly J; Formosa v Secretary, Department of Social Security (1988) 46 FCR 117; Roberts v Repatriation Commission (1992) 39 FCR 420 at 425; Chand v Minister for Immigration (1993) 30 ALD 777 at 780; Minister for Immigration v Polat (1995) 57 FCR 98 at 105-7 per Davies and Branson JJ; Minister for Immigration and Ethnic Affairs v Petrovski (1997) 45 ALD 16 at 21 per Burchett J and at 35-37 per Tamberlin J. (2) Statements that estoppel cannot create rights in land where this is ultra vires the express powers of the administrative body: Attorney-General v The Municipal Council of Sydney (1919) 20 SR (NSW) 46 at 58 per Owen AJ; The New South Wales Trotting Club Ltd v The Council of the Municipality of the Glebe (1937) 37 SR (NSW) 288 at 308-309 per Jordan CJ. (3) Statements that estoppel cannot validate disbursements of public funds without statutory authority: Commonwealth v Burns [1971] VR 825 at 830 per Newton J; Attorney-General v Gray [1977] 1 NSWLR 406 at 410 per Hutley JA and at 412-413 per Glass JA.

114 Some United States statutes have manifested express legislative intention to allow the doctrine of estoppel.For example, Portal to Portal Act 1947 Ch 52 §10,61 Stat.89 (1947) (at 29 USCS 259).Similarly, see Molton,Allen and Williams Inc v Harris 613 F 2d 1176 (1980).

115 Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 at 700 per Kirby P.Clear words are required to repeal certain basic common law doctrines.Kirby P is suggesting this should now apply to equitable doctrines.See D C Pearce and Geddes, R S, Statutory Interpretation in Australia (4th ed 1996)Google Scholar at paras [5.16]-[5.18].See also P P Craig, Administrative Law (3rd ed 1994) at 664-665 and generally H Rajak, “Equity v Statute”,in Goldstein, S (ed), Equity and Contemporary Legal Developments (1992) at 100-114Google Scholar.

116 [1992] 2 Qd R 257. See also Nicholas v Western Australia [1972] WAR 168 at 172 per Jackson CJ.

117 Ibid at 265-267 per McPherson ACJ and at 272-274 per Williams J.

118 [1967] 2 All ER 1041.

119 Town & Country Planning Act 1962 (UK), s 43(1).

120 [1967] 2 All ER 1041 at 1044, with Davies LJ concurring at 1046.

121 Ibid at 1050. For a further analysis of this case see below.

122 [1959] 1 All ER 257. See also Pratten v Warringah Shire Council [1969] 2 NSWR 161 at 167-168 per Street J.

123 [1959] 1 All ER 257 at 265.

124 Baulkham Hills Shire Council v Cosmopolitan Homes No 2 Pty Ltd (1986) 61 LGRA 200 at 203 per Perrignon J.See also Coffs Harbour Shire Council v Ben Hall Industries Pty Ltd (1983) 48 LGRA 391 at 398-399 per Perrignon J; Holidays-a-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127 at 130-131 per Stein J; Fairtitle v Gilbert (1787) 2 TR 169 at 171 per Ashhurst J; 100 ER 91 at 93; Attorney-General for Ceylon v Silva [1953] AC 461 at 481 (fhe references to ostensible authority in Silva appear to be misleading. The Privy Council used the phrase “ostensible authority” in this context to denote authority which the Principal Collector may have been represented as having,but which could not have been actually conferred. However,commonly “ostensible authority” means authority which a person is represented as having and which could have been conferred.).

125 Commonwealth v Burns [1971] VR 825 at 830 per Newton J, accepted by Gibbs Jin Maguire v Simpson (1977) 139 CLR 362 at 387-388; Attorney-General v Gray [1977] 1 NSWLR 406 at 410- 411 per Hutley JA and at 412-413 per Glass JA; Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 at 125 per Davies and Gummow JJ; Commonwealth v Hamilton [1992] 2 Qd R 257 at 271-272 per Williams J.

126 Auckland Harbour Board v R [1924] AC 318 at 326-327 per Viscount Haldane, delivering the Privy Council's reasons; Commonwealth v Burns [1971] VR 825 at 827-828 per Newton J; Attorney-General v Gray [1977] 1 NSWLR 406 at 409 per Hutley JA and at 412 per Glass JA.

127 [1967] 2 All ER 1041.

128 Lord Denning MR alternatively suggested that, on the statute's true construction, a formal application may have been unnecessary, and an “implied application” might have sufficed (at 1045).This employs the mandatory/ directory distinction;namely,the written application requirement may have been directory, rather than mandatory,and consequently it would have been of no legal significance if there was no compliance with this requirement. (Compare Victoria v Commonwealth (1974) 134 CLR 81 at 179 per Stephen J.) This approach dispenses with the need for estoppel, because the power exists whether or not there has been compliance with the directory provision.(Compare Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454.) Lord Denning MR expressly chose estoppel asthe basis for his decision in preference to the mandatory/ directory explanation (at 1045).In Minister for Immigration v Kurtovic (1990) 21 FCR 193 at 212 Gummow J explained Wells only in terms of the mandatory/ direction distinction, adopting Western Fish Products v Penwith District Council (1981] 2 All ER 204 at 222 per Megaw LJ. See also Minister for Immigration v Polat (1995) 57 FCR 98 at 106 per Davies and Branson JJ.

129 [1967] 2 All ER 1041 at 1044.

130 The Court of Appeal in Western Fish Products v Penwith District Council [1981] 2 All ER 204 at 223 described Russell LJ's dissent as “very powerful”.

131 [1967] 2 All ER 1041 at 1050.

132 Commonwealth v Verwayen (1990) 170 CLR 394 at 497.

133 Compare by analogy in Commonwealth v Verwayen (1990) 170 CLR 394 at 406 per Mason CJ; Australian Iron and Steel Ltd v Hoogland (1962) 108 CLR 471 at 488-489 per Windeyer J.Note also The Laws of Australia Administrative Law Vol 2.4 para [183]-[184].

134 [1959] 1 All ER 257.

135 (1989) 23 FCR 208.

136 Prior to being granted an unconditional entry permit into Australia in September 1981 Rubrico, a Filipino citizen, told the Department she had no children. In October 1981 she revealed to the Department that she had a 3 year old child in the Philippines. Rubrico returned to the Philippines for 4 visits between 1981 and 1986, and each time was granted an unconditional entry permit on returning to Australia. The Department relied on the fact that her last permit did not have an endorsement saying that she had made a materially false statement in 1981 before receiving her first permit in order to claim that the last permit was invalid and Rubrico was liable for deportation. One issue was whether the Department had represented to Rubrico that her misstatement in 1981 was not a material one, given that it had issued further re-entry permits without endorsements while knowing all the facts. If so, was the Department tied to that representation by estoppel? (See generally at 229-231 per Lee J.)

137 Assuming that Ms Rubrico's statements were materially false. (The estoppel aspect of Lee J's decision was in fact obiter dicta.)

138 (1989) 23 FCR 208 at 231 per Lee J.An American case in which it would seem that the principle in Wells could have been applied, but was not, is Phelps v Federal Emergency Management Agency 785 F 2d 13 (1st Cir 1986).

139 Contrast Rubrico with Minister for Immigration and Ethnic Affairs v Petrovski (1997) 45 ALD 16, where estoppel did not assist Petrovski. Petrovski was mistakenly issued with an Australian passport on two occasions over a number of years after furnishing all relevant details and acting in good faith at all times.Further,Petrovski had moved to Australia and married. The Department was able to maintain that Petrovski was an illegal entrant.

140 See the cases cited above inn 1.

141 See Ganz, G, “Estoppel and Res Judicata in Administrative Law” [1965] PL 237 at 243-244Google Scholar.Otherwise,Parliament could have extended the discretion,or introduced a discretion,which allowed the administrative body to consider the individual merits of a case.

142 Most of these are compiled (with supporting cases) in M Alexander, “Equitable Estoppel: Does Governmental Immunity Mean Never Having to Say You're Sorry?” (1981) 56 St. John's Law Review 114 at 116 (footnote 10).

143 English concern has also been expressed about information from administrative bodies drying up if government officers do not feel free to help those who ask for advice: Brooks & Burton Ltd v Secretary of State for the Environment (1976) 75 LGR 285 at 296 per Lord Widgery CJ. (Later appealed, but without affecting this point:[1978] 1 All ER 733.)

144 M Braunstein, “In Defence of a Traditional Immunity - Toward an Economic Rationale For Not £stopping the Government” (1982) 14 Rutgers Law Journal 1.

145 Note, “Equitable Estoppel Against the Federal Government”(1990) 104 Harvard Law Review 286at290.

146 [1935] SCR 519.

147 Maritime Electric Co Ltd v General Dairies Ltd [1937] AC 610.

148 [1935] SCR 519 at 527 per Dysart J.

149 Ibid at 523 per Dysart J.

150 Ibid at 529 (emphasis in original).

151 [1937] AC 611 at 620 per Lord Maugham. See the second section of this article.

152 Ibid at 620-621 per Lord Maugham.

153 Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 at 74-75 per Mason J;see also Birkdale District Electric Supply Co v Southport Corporation [1926] AC 355 at 364 per Earl of Birkenhead.The statutory duty in Maritime Electric was arguably a “private” one.The Privy Council said that it was enacted “for the benefit of a section of the public”; but only “on grounds of public policy in a general sense”at 620 per Lord Maugham (emphasis added).It was argued above,text accompanying nn 84-91,that only a statutory provision which was enacted to give effect to a specific social policy could be described as a “public”provision in the relevant sense. Compare Waitemata Electric Power Board v King Builders Ltd [1993] 1 NZLR 312.

154 Falmouth Boat Construction Co Ltd v Howell [1950] 2 KB 16 at 26 per Denning LJ. See also Robertson v Minister of Pensions [1949] 1 KB 227 at 232 per Denning J.

155 Howell v Falmouth Boat Construction Co Ltd [1951] AC 837 at 843 per Lord Simonds and at 849 per Lord Normand. See also A Bradley, “Administrative Justice and the Binding Effect of Official Acts” [1981] Current Legal Problems1 at 3-4.

156 496 US 414 (1990). In Australia compare Roberts v Repatriation Commission (1992) 39 FCR 420; Glass v Defence Force Retirement and Death Benefits Authority (1992) 38 FCR 534; Minister for Immigration and Ethnic Affairs v Petrovski (1997) 45 ALD 16.

157 Kennedy J joined by Rehnquist Ch J, O'Connor and Scalia JJ,with White and Blackmun JJ concurring in a separate judgment.

158 496 US 414 (1990) at 423-424 per Kennedy J and at 434 per White J.

159 The full extent of the analysis appears to be: “All parties here agree that the award [Richmond] seeks would be in direct contravention of the federal statute upon which his ultimate claim to the funds must rest … it follows that Congress has appropriated no money for the payment of the benefits [Richmond] seeks … ”: ibid at 424 per Kennedy J.See also Note, “Equitable Estoppel Against the Federal Government”(1990) 104 Harvard Law Review 286.These justices went on to analyse,at length,the constitutional effect of estoppel if it were to be allowed to circumvent legislative authority.In this respect it was concluded that the separation of powers doctrine in the American Constitution prevented estoppel validating the disbursement of funds without Congressional approval,at 425-433 per Kennedy J.Note that the separation of powers consideration was bolstered by the fear that estoppel would cause collusion between administrative bodies and the public in order to extend the powers of these bodies, at 427-428 per Kennedy J. However,this was only of secondary importance. For a lucid statement of the separation of powers consideration in the estoppel context, see Kennedy v United States 965 F 2d 413 at 420 (7th Cir 1992) per Judge Wood Jr.

160 496 US 414 at 435-436.

161 Ibid at 436.Compare Reno v Catholic Social Services,Inc. 125 L Ed 2d 38 (1993) at 72-73 where Stevens J (dissenting) would have granted equitable relief to further,rather than frustrate, congressional intent.See also Thompson, D K, “Equitable Estoppel of the Government”(1979) 79 Columbia Law Review 551 at 566CrossRefGoogle Scholar.

162 496 US 414 at 438-439. The only authority cited by the minority to support its generalisation that the Court had “often” interpreted a statute to allow relief when a claimant was not prima facie entitled to it was Moser v United States 341 US 41 (1951). However, Moser appears to be inconsistent with the long line of Supreme Court authority: Utah Power & Light Company v United States 243 US 389 at 408-409 (1917) per Van Devanter J; Federal Crop Insurance Corporation v Merrill 332 US 380 at 383-385 (1947) per Frankfurter J; Montana v Kennedy 366 US 308 at 314-315 (1961) per Harlan J; United States Immigration & Naturalization Service v Hibi 414 US 5 at 8-9 (1973) per curiam; Schweiker v Hansen 450 US 785 at 788-790 (1981) per curiam; Heckler v Community Health Services 467 US 51 at 60-61 (1984) per Stevens J. See also Davis, KC and Pierce, R J, Administrative Law Treatise Vol 2 (3rd ed 1994) at238-240Google Scholar.

163 For example, Monongahela Valley Hospital Inc v Sullivan 945 F 2d 576 (3rd Cir 1991); Ingalls Shipbuilding Inc v Director, Office of Workers' Compensation Programmes 976 F 2d 934 (5th Cir 1992); US v Guy 978 F 2d 934 (6th Cir 1992); State of Michigan v The City of Allen Park 954 F 2d 1201 (6th Cir 1992); Kennedy v United States 965 F 2d 413 (7th Cir 1992); Olsen v United States 952 F 2d 236 at 241 (8th Cir 1991); United States v Hatcher 922 F 2d 1402 (9th Cir 1991);United States v Fawler 913 F 2d 1382 (9th Cir 1990); see also Watkins v US Army875 F 2d 699 (9th Cir 1989).

164 Ibid.

165 366 US 308 at 314 (1961) per Harlan J delivering the opinion of the Court (Douglas J dissenting without filing an opinion): “In this light the testimony by petitioner's mother as to what may have been only the consular official's well-meant advice … falls far short of misconduct such as might prevent the United States from relying on petitioner's foreign birth. In this situation, we need not stop to enquire whether, as some lower courts have held, there may be circumstances in which the United States is estopped to deny citizenship because of the conduct of its officials.”

166 US Immigration & Naturalisation Service v Hibi 414 US 5 (1973) at 8-9 per curiam; Schweiker v Hansen 450 US 785 (1981) at 788 per curiam; Immigration & Naturalization Service v Miranda 459 US 14 (1982) at 17-19 per curiam; Reno v Catholic Social Servuces, Inc. 125 L Ed 2d 38 (1993) at 67-68 per O'Connor J.

167 In Richmond 496 US 414 (1990) the majority of the Supreme Court foreclosed the possibility of an affirmative misconduct exception with respect to payments from public funds, and overturned the Court of Appeal's decision based on this exception. (See at 419 per Kennedy J for the basis of the Court of Appeal's decision.)

168 This quote is a modification of the words of Stevens J in Heckler v Community Health Services of Crawford County Inc 467 US 51 (1984) at 60-61 who said: “Though the arguments the Government advances for the rule [against estoppel] are substantial, we are hesitant, when it is unnecessary to decide this case, to say that there are no cases in which the public interest in ensuring that the Government can enforce the law free from estoppel might be outweighed by the counter-vailing interest of citizens in some minimum standard of decency, honour, and reliability in their dealings with the Government.” In Watkins v US Army 875 F 2d 699 (9th Cir 1989) at 706-707, Judge Pregerson quoted this passage and based the affirmative misconduct exception on the fact that Stevens J had refused to hold that there was no case where the counter-vailing interest of citizens might not prevail. Further, in order to justify the affirmative misconduct exception, Judge Wood Jr in Kennedy v United States 965 F 2d 413 (7th Cir 1992) at 420 altered Stevens J's statement to read “[there may be cases] in which the public interest” etc. In Minister for Immigration and Ethnic Affairs v Petrovski (1997) 45 ALO 16 at 37-38 Tamberlin J considered Stevens J's statement in the Australian context.

169 Laker Airways Ltd v Department of Trade [1977] 1 QB 643 at 707 per Lord Denning MR; Attorney-General (NSW) v Quin (1990) 170 CLR at 18 per Mason CJ.

170 Roberts v Repatriation Commission (1992) 39 FCR 420 at 425; Enoka v Shire of Northam (1996) 15 WAR 483 at 494-497 per Steytler J.Contra PP Craig, “Representations By Public Bodies”(1977) 93 LQR 398, Administrative Law (3rd ed 1994) at 664-667; but Craig's view is subject to critical analysis in Aronson and Dyer, above n 80 at 167-168.Craig's arguments are generally covered in the text of this article.In particular Craig draws analogies with situations where judges have balanced the public interest in the proper administration of justice against other public interests.See above text accompanying nn 89-91.

171 [1959] 1 All ER 257.

172 Compare by analogy Deane and Gaudron JJ's comments in Mabo v Queensland (1992) 175 CLR 1 at 112-113.They discussed the possibility of giving effect to equitable native title With all the rights and incidents of common law native title,where commonlaw native title had been unlawfully extinguished.

173 If a statute allowed a licence to be granted for a specific period of time,the Council could not repudiate a court-ordered licence as an invalid fetter on its power to create exclusive licences: Dowty Boulton Paul Ltd v Wolverhampton Corporation [1971] 1 WLR 204 at 210 per Pennycuick V-C.See also ABC Containerline NV v New Zealand Wool Board [1980] 1 NZLR 372 at 383 per Davison CJ; Windsor & Maidenhead Royal Borough Council v Brandrose Investments Ltd [1981] 1 WLR 1083 at 1089 per Fox J; City of Camberwell v Camberwell Shopping Centre Pty Ltd [1994] 1 VR 163 at 182-186 per Marks and Gobbo JJ.

174 Compare Minister for Immigration and Ethnic Affairs v Petrovski (1997) 45 ALD 16 at 36-37 per Tamberlin J.

175 Proverbs 28:2 (Living Bible Translation).