Compensation for Taking When Both Equity and Efficiency Matter

Darryl Kerrigan is the master of a modest house at 3 Highview Crescent, Cooloroo, on the edge of the Melbourne International Airport. In The Castle, an Australian movie made in the early 1990s, Darryl receives an official notice that his property is to be condemned to make way for an airport expansion. The house with its many unique modifications, including a kennel for his racing greyhounds, is Darryl’s “Castle.” Because it is not just a house it is a “home” he is determined to remain and employs his friend, the solicitor Dennis Denuto, to challenge the condemnation. Denuto, a small time solicitor whose legal experience stretches to doing real estate conveyances, is well out of his depth with this case. Dennis knows Darryl is fighting the “big boys” on an issue that is clearly a constitutional challenge. Nonetheless, Denuto, as an act offriendship, agrees to represent Darryl. In response to a question put by the judge in the first court appearance, Denuto raises a constitutional challenge to the condemnation. Asked directly about the constitutional point, Denuto responds, “It’s the vibe of it [the Australian Constitution].” The judge is puzzled since she cannot recall any part of the Australian constitution that deals with the vibe. Naturally enough, Darryl-Denuto loses the first round. The movie continues to a victorious conclusion for Darryl, when a distinguished QC takes up the case. In the High Court, bewigged judges and all, Darryl’s attorney argues that Section 51 of the Australian Constitution which states “The Parliament shall … have the power to make laws for … the government of the Commonwealth with respect to:….(xxxii) The acquisition of property on just terms….” is the vibe.