Bathurst City Council v Weal

[2001] HCATrans 469

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S306 of 2000

B e t w e e n -

BATHURST CITY COUNCIL

Applicant

and

WILLIAM JAMES WEAL

First Respondent

TWENTIETH SUPER PACE NOMINEES PTY LIMITED trading as SPECIALIZED CONTAINER TRANSPORT

Second Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 23 NOVEMBER 2001, AT 9.37 AM

Copyright in the High Court of Australia

MR M.H. TOBIAS, QC:   If the Court pleases, I appear with MR P.R. CLAY for the applicant.  (instructed by McIntosh, McPhillamy & Co)

MR T.S. HALE, SC:   If the Court pleases, I appear for the first respondent, Mr Weal, with MR E.A. WHITE.   (instructed by Writer Ryan Boesen)

MR TOBIAS:   The second respondent has no further interest in the matter.

McHUGH J:   The Deputy Registrar has certified that she has been informed by the solicitor for the second respondent, Twentieth Super Pace Nominees Pty Limited trading as Specialized Container Transport, that the second respondent does not wish to be represented at the hearing of this matter and will submit to any order of the Court save as to costs.

Yes, Mr Tobias.  We have read the joint submission.  Now, why should the Court grant leave in any event to deal with a case that is now moot?

MR TOBIAS:   It is only moot, your Honour, in terms of the second respondent, true.  It is not moot so far as the Council is concerned, your Honour, on two respects:  firstly, in relation to what we submit is a precedental effect of the decision of the majority as to the legal obligations on an administrative decision‑maker, including a council, who is required by statute to consider nominated matters as part of the decision‑making process.  So, from that point of view, your Honours, it is not moot because in the Council’s view, the decision will impact upon its future consideration, not only of it but of other councils and other decision‑makers.

McHUGH J:   I am not sure that is the case.  I think there is a great deal to be said for the fact that it is a pure question of fact in the circumstances of the case.  I know what the President said about how he interpreted Justice Giles’ remarks.

MR TOBIAS:   Yes, that is in paragraph 14 of his Honour’s judgment on page 98.  But his Honour’s interpretation of that, in our respectful submission, is clearly correct.  It is fairly clear, in our respectful submission, from the passages from Justice Giles’ judgment that we have extracted in our summary at page 153 that his Honour was, indeed, adding a gloss to the test adumbrated by Justice Gummow in Khan that what was required was a proper, genuine and realistic consideration of the matter required to be taken into consideration.

McHUGH J:   What about paragraph 95, line 41:

But the Council’s immediate and own consideration of the noise . . . was important.  The Council had to weigh up all relevant matters calling for consideration –

et cetera, et cetera.  And over the page:

How could it exercise its function without such consideration of the critical issue of noise as would permit it to balance the noise impact ‑ ‑ ‑

MR TOBIAS:   That is the very point, your Honour.  The very point is that what his Honour was saying was that the Council had to give proper consideration, as his Honour perceived it, on the issue of noise before it could carry out that balancing or weighing exercise.

McHUGH J:   I appreciate that but I would have read it that his Honour was saying, “Well, on the facts of this case, they didn’t give proper consideration to it.”

MR TOBIAS:   He is going further than that, in our respectful submission, your Honour.  This is a situation where the majority and Justice Priestley seemed a little bit more reluctant to follow Justice Giles, although Justice Priestley found a different point or an additional point that Justice Giles had not considered necessarily appropriate under the heading of the consideration issue as distinct from the Wednesbury argument and ‑ ‑ ‑

KIRBY J:   But in the light of the joint submission, where does any intervention of this Court lead?  The Council has given ‑ ‑ ‑

MR TOBIAS:   It would lead to, ultimately, a dismissal of the application and an appropriate order for costs.

KIRBY J:   That is what you are really concerned about, the costs.

MR TOBIAS:   No, your Honour, that is ‑ ‑ ‑

KIRBY J:   We have more than enough to do without having to deal with issues that really just now concern costs.  The Council has given the consent.

MR TOBIAS:   It has, your Honour, but it is also faced now in terms of its future consideration of these issues with the majority judgment and the majority judgment, in our respectful submission, clearly places a further legal requirement upon decision-makers, including councils, before it can be legally satisfied that they have taken a matter into consideration.

McHUGH J:   I am not sure that is ‑ ‑ ‑

MR TOBIAS:   That is the point.

McHUGH J:   Well, I am not sure that it is, because this case turns on very special facts.  If you get a different case altogether, then maybe it would be a matter for special leave to appeal, although I have my doubts about whether any of these questions are special leave questions.  They concern the construction of a New South Wales statute.  Why should this Court interfere?  Why should not the Court of Appeal ‑ ‑ ‑

MR TOBIAS:   It is not just a matter of construction of this statute, your Honour, because there are many statutes, one would have thought, where a decision‑maker is required to take matters into consideration and the application under the Environmental Planning Assessment Act of Justice Gummow’s test in Khan was, of course, in the contest of the Judicial Review Act.  So, it is quite common, in relation to any administrative law situation ‑ ‑ ‑

KIRBY J:   I am not with Justice McHugh on the fact.  As Justice Callinan has pointed out, this is the Supreme Court of Australia and we have to deal with the statutes of every State and, that being the case, the fact that it is a New South Wales statute is neither here nor there as far as I am concerned if it is a matter of principle and if it is still live but it sounds very much, in the light of the subsequent developments, to be an advisory opinion you are seeking from the Court, and whilst I, myself, have not the same objection to that, the doctrine of the Court stands strongly against it.  We do not give advisory opinions.

MR TOBIAS:   The difficulty, your Honour, with that is that no doubt the granting of the consent became necessary for whatever reason that was then under consideration but, inevitably, the issue ‑ ‑ ‑

KIRBY J:   Well, it was a sensible solution to the problem.

MR TOBIAS:   But, your Honour, that may not always be the case.

KIRBY J:   If you had not given consent, I would have asked you, “Is that not the solution to the problem?”.

MR TOBIAS:   I understand that, your Honour, but sometimes that does not occur.  It does not occur because ‑ ‑ ‑

KIRBY J:   It did occur here.  It has occurred here and therefore, really, the issue is now addressed to an issue of principle with which I am very sympathetic to the President’s view, and a question of costs.  But the practicality has evaporated.

MR TOBIAS:   I accept that the cost is neither here nor there so far as this Court is concerned, but there is still a live issue and there is a question of the precedential effect of the majority’s decision.  There is a question of principle.  This is as good a vehicle for this Court to consider that issue and determine the law for the future rather than let the majority judgment hang out there in the air, as it were, to be utilised by parties in future litigation, which inevitably it will be.

KIRBY J:   It is an interesting question and if we had more time it might be a persuasive argument, at least as far as I am concerned, but we have to spend about a third or 40 per cent of our time on immigration cases which we have to deal with, we cannot deflect them, so I just do not think it is possible.  Somebody will one day fix that up.  I hope it will be done in the present Parliament. 

MR TOBIAS:   That may be, your Honour.  I can understand the point of view of the Court’s workload and ultimately this matter, in our submission, can be determined when the Court has time to deal with it.  There is no urgency about it, in one sense.

McHUGH J:   Yes, but it does affect the number of cases that we can take these days.  Special leaves are increasing dramatically.  They have increased 787 per cent since 1987.  This week alone I have had to study 24 applications.  That takes ‑ ‑ ‑

MR TOBIAS:   I have seen it in the newspaper, your Honour.  I can sympathise.

KIRBY J:   Anyway, there is no point our complaining to you.

MR TOBIAS:   If I could write you a cheque, I would, I really would.

KIRBY J:   Justice McHugh was the first to draw attention to the impact of the migration cases and you just have to look at the workload of the Court, but even if that had not been here, if we just study this, if you had not given the consent we would have asked, “Is that not the solution?”.  The Council having given the consent, the practical problem has evaporated.  You just want advice on, and maybe correction of a matter of principle, but that sounds very much like an advisory opinion.

MR TOBIAS:   Your Honour, to a degree it is, I must accept that because of what has happened, but that is not to say that given that this is a matter that arises in courts practically on a weekly basis when there is challenge to decisions, be it in the Federal Court or in the Supreme Court ‑ ‑ ‑

KIRBY J:   If that is so, it will come up again in a case where it is a live issue.

MR TOBIAS:   It will come up again.

KIRBY J:   It will come up in a live issue.

MR TOBIAS:   But then why not deal with it now?

KIRBY J:   It is not a practical issue in this case.  You are in a cleft stick because if you had come up without giving consent, we would have said, “Well, can’t you solve this by giving consent?”.  Once you have given consent ‑ ‑ ‑

MR TOBIAS:   Sometimes that cannot happen because, for instance, there had been a change in the constitution of the Council.

KIRBY J:   Yes, I understand that.  I think, if this had been a live issue, this is an interesting and important question of administrative law and I am sympathetic to the view of the President but ‑ ‑ ‑

MR TOBIAS:   That is the problem we have.  You see, your Honour Justice McHugh has said that he thinks it is just a question of fact.  If it was true and it was only just a question of fact, then it would have no precedential value and therefore the harm perceived by decision‑makers ‑ ‑ ‑

KIRBY J:   The one thing Justice McHugh and I agree on was the matter with which he opened his questions to you, “Is it not now effectively moot?”.

MR TOBIAS:   I understand that but my problem is, your Honour – and I am sorry to take your Honour’s time – but we are in the situation now where your Honour Justice Kirby thinks that there possibly is a question of principle there and Justice McHugh does not because he thinks it is a question of fact.

KIRBY J:   I see principle everywhere.

McHUGH J:   But all these cases are a question of fact.  The meaning of a statute is a question of fact.  Well, that is the accepted ‑ ‑ ‑

MR TOBIAS:   Well, it is supposed to be a question of law I always thought.

McHUGH J:   No.  Well, you are long way out of date.

KIRBY J:   1940.

MR TOBIAS:   …..your Honour.  That is still the law, is it not?

McHUGH J:   Yes, and it does not decide the meaning of a statute is a question of law.

KIRBY J:   If it is an ordinary English word, but in any case if it was still a live matter, you would have me but it is not and therefore you have lost me.

MR TOBIAS:   What can I say?

KIRBY J:   I am being candid to you because you are a very experienced counsel.

MR TOBIAS:   No, I know your Honour is being candid.  I am not going to be repetitive of what I have put, but there is a question.  It is an issue.  It will occur again.  This is as good a vehicle to deal with it as any.

KIRBY J:   When it recurs again come back and hope I am sitting.

MR TOBIAS:   Thank you, your Honour.  I tried.

KIRBY J:   Not only did you try but you persisted, which is your duty, and I appreciated it.

MR TOBIAS:   Thank you, your Honour.

McHUGH J:   Yes, we need not hear you, Mr Hale.

Given the fact that the Council has now consented to the development, subject to conditions, the Court is of the view that this is not a suitable vehicle to determine the questions that the applicant seeks to have determined.  The application is dismissed and must be with costs.

AT 9.49 AM THE MATTER WAS CONCLUDED