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25.
The reasons why the public interest should prevail over
private interests are somewhat apparent. In emergencies, for
instance if a dangerous building requires demolition or a spill of
dangerous chemicals has to be cleaned-up, the Government must be free
to act quickly and decisively. Equally, in situations where there is
less urgency, for instance if the Government wishes to resume land for a public purpose, the inconvenience that would be caused to the public if the resumption does not proceed far outweighs the effect
upon individuals.
26.
It is arguable that the Government, which acts on behalf of
all citizens, should not necessarily be as equally subject to the law
as individual citizens. Checks and balances exist in order to ensure
that the Government does not abuse its unique position. The
Government is not only subject to the Rule of Law but is also
accountable to the Legislative Council and ultimately to the United
Kingdom Government. No individual is subject to similar constraints
and it is therefore difficult to draw comparisons between appropriate
remedies in public and private law.
27.
Legal - At present, little consideration has been given to the legal effect of granting an interim declaration or as to the criteria upon which they should be granted. These aspects shall
require considerable clarification before the recommendation can be
implemented.
28.
The form and content of an interim declaration suggests
that they should be granted upon the same criteria as apply to the grant of an interim injunction. If so, two significant problems have arisen in those Australian jurisdictions where interim relief is
granted on that basis.
29.
Firstly, in relation to Crown proceedings the applicant's
undertaking as to damages is virtually worthless to the Crown. In general the law regards as "damages" any material loss or loss of profits. The temporary restraint of most Government actions will
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