Canberra Tradesman's Club & Anor v Cmr for Land

[2000] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Registry  No C9 of 1999

B e t w e e n -

CANBERRA TRADESMEN’S UNION CLUB INCORPORATED

First Applicant

LICENSED CLUBS’ ASSOCIATION

Second Applicant

and

COMMISSIONER FOR LAND AND PLANNING

First Respondent

CASINO CANBERA LIMITED

Second Respondent

THE REGISTRAR GENERAL

Third Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 14 APRIL 2000, AT 9.54 AM

Copyright in the High Court of Australia

_______________

MR M.L.D. EINFELD, QC:   May it please the Court, I appear with my learned friend, MR I.M. NEIL, for the applicants.  (instructed by Gary Robb & Associates)

MR P.A. WALKER:   May it please the Court, I appear for the first respondent.  (instructed by ACT Government Solicitor)

MR B.W. RAYMENT, QC:   May it please your Honours, I appear for the second respondent.  (instructed by Gardini & Co)

McHUGH J:   Yes, Mr Einfeld.

MR EINFELD:   Your Honours, may we deal firstly with the unlawful use point and then, secondly, address the question that arises from the absence of the mandatory preliminary assessment?

McHUGH J:   At some stage you will need to address the question whether this is a suitable vehicle in any event because of the outstanding issue concerning your standing which was assumed in the Full Court.

MR EINFELD:   Yes, well we can perhaps do that quickly now, if that is convenient.  Firstly, your Honours, the standing matter can be addressed briefly.  The Full Court did not determine that issue and reserved its position about the matter and part of the relief we have sought is that the matter be remitted back to the Full Court ultimately for determination of that issue.  In this case, bearing in mind that the relief or the path of appeal through the ‑ ‑ ‑

McHUGH J:   But that is what makes a case a rather abstract exercise, does it not?  We decide this case – let it be assumed that the points are decided in your favour.  It is sent back to the Full Court, the Full Court says there is no standing.  We have wasted our time, apart from giving an advisory opinion on a fairly special set of facts.

MR EINFELD:   We would submit, your Honours, that what your Honour describes as a special set of facts are, in fact, not so.  Each of the two matters we raise expands beyond the scope of the facts of this case.

McHUGH J:   They are special in the sense that your point about unlawfulness depends upon section 76, does it not, of the Casino Act which applies only to this particular applicant, so they are fairly special in that sense.

MR EINFELD:   With respect, not.  The unlawfulness point focuses on that section as well as the overall proposition that the whole regime of the present legislative scheme in the Australian Capital Territory, not only section 76 of the Casino Act, establishes these premises as being suitable solely for use as a casino.

McHUGH J:   Yes, I know, but at the moment, what is there to stop the applicant, or sorry, that is the – well, I will just call them the respondent here, making an application to the legislature to have the legislation changed?

MR EINFELD:   There are two things that can be said about that.  The first thing that can be said about that is that that view which appears to have been adopted by the Full Court, that one can approach the matter on the basis that the law may change, is an illegitimate basis for resolving the question of law adversely to us.  As we pointed out in our written argument the courts have commonly said that the issue is to be determined on the law as it is.  At present the activity is unlawful.

HAYNE J:   Why?

MR EINFELD:   Why, because the earlier provisions of the Casino Act permit only the conduct of the activity of the casino on the land and no other use.

HAYNE J:   Yes.

MR EINFELD:   The use of the premises as a club is not one which is permitted by the provisions of the Casino Act, nothing to do with poker machines or otherwise.

HAYNE J:   It depends entirely what is meant by “club” in this context.

McHUGH J:   You seem to assume that you cannot have a club without having poker machines.

MR EINFELD:   No, no.  We do not make that assumption.  First of all, the approval that was given was an approval for use of the premises as a licensed club.  Now, the concept of a licensed club is one which is established by dint of the provisions of the Liquor Act, irrespective altogether of whether there are poker machines in the premises.  There is a whole regime which involves the entity of a licensed club necessarily under the Liquor Act being an institution which is set up for designated purposes, particular purposes, charitable, social, sporting and the like, community purposes.  It must not make a profit for itself.  It is a non‑profit organisation.  There is a whole separate regime which marks out ‑ ‑ ‑

McHUGH J:   Yes, I know, but what more does section 29, is it, or the Liquor Act of the ACT do than provide that a club licence authorises the club to supply liquor on licensed premises to members of the club and persons who are invited there?

MR EINFELD:   Your Honour, with great respect, that is to us the wrong question.  I will answer it, but it is to ask the wrong question.  The statutory scheme in the Australian Capital Territory is to provide for, unlike the other States, is to provide a regime whereby the casino is distinct and discrete from clubs, hotels and, as it happens, poker machines.  That is entrenched in the law.  Now, what makes the activity unlawful is the fact that it is presently against the law to operate within the casino premises a club of any sort, let alone this club which, as approved, was approved as a licensed club with all of the connotations and all of the consequences of there being a licensed club, namely a non‑profit organisation for communal purposes, quite separately from the private corporation which operates, for profit, the casino on the land.

Now, the point of general application is that wherever the general law prohibits an activity on land, in our submission, the planning authority may not grant consent, development consent which is what this is deemed to be under the Land (Planning and Environment) Act, may not grant development consent for use of land for a purpose which is declared by the law to be unlawful.

HAYNE J:   Why do we ever get to such a question of generality?  Why is the question not one of the intersection, if any, of two particular pieces of identified unique legislation?

MR EINFELD:   Because, whilst one speaks of the uniqueness of the legislation, the problem is symptomatic of a very broad planning issue faced in every planning case where development consent is sought for a use which is prohibited.  It happens that in the Australian Capital Territory the development consent is provided by the planning authority by dint of a variation to the purpose clause of the Crown lease.  That has a direct counterpart in other States of the grant of development consent by the local council or the executive planning or consent authority.

It is no less a proposition that is applicable to the planning law throughout Australia simply because what we are dealing with here is variation of a Crown lease which, under this legislation is deemed to require a development application and constitute a development consent, and secondly, nor is the significance of the point narrowed by the proposition that we are dealing with the intersection of some specific legislation because ‑ ‑ ‑

McHUGH J:   Yes, but you have to argue that this decision should be set aside on the ground that it authorises unlawful acts.

MR EINFELD:   Yes.

McHUGH J:   The Full Court pointed out that mere authority to use the premises as a club does not involve any illegalities.

MR EINFELD:   It is manifestly wrong in that view, your Honour.  Necessarily incorrect.  This is one of the three critical errors, we submit, that underlie the approach of the Full Court.  As a matter of high constitutional principle this Court has said in Hayden’s Case and other authorities that it is fundamental to the legal system that the executive has no power to authorise or approve a breach of the law by granting approval or authority to use this land for a purpose which is prohibited by the general law, in this case the Casino Act.  In the decision to which we have referred of this Court in IW in Perth it was the equal opportunity legislation.  There would be a wide variety of legislation which will impact upon the grant of development consent.

Can I just provide this illustration?  If I were to apply to the development authority, to the planning authority for development consent to use land for the sale of drugs, the sale of heroin, for example, it would be our submission that a grant of development consent by whatever form would fly in the face of that important principle described as fundamental to the legal system in Hayden’s Case, that the executive would be granting authority or approval to a breach of the law, that is use of ‑ ‑ ‑

McHUGH J:   Yes, but why do you say that mere authority to use the premises as a club constitutes illegality?

MR EINFELD:   One, because for the reasons we have explained, use of the premises as a club is prohibited by the general law, namely, in this case, or the statute law in this case, the Casino Control Act.  The Act does not permit use of the premises for any purpose other than that of a casino.  That is the first point.

McHUGH J:   Yes, but what is the casino depends upon what the minister designates.  Now, do we know whether there is an identity between what the minister has approved and otherwise?

MR EINFELD:   Yes.  In this case the whole of the premises are gazetted for use as a casino.  The Act provides that for a variation to be made to that designation it now must be made by regulation which requires the approval of the Legislative Assembly.  Now, this is a case, your Honour, in which, for the reasons we have said, one cannot look prospectively or speculate as to what change of the law might eventuate, either by regulation or modification of a gazettal.  As it stands use of the premises as a club would be a use which is not permitted by the legislation which controls the operation of the casino.  That is what makes use of the club unlawful.

More importantly, in our submission, and we have provided authority – Ramsay’s Case is one in this Court which stands as authority for the proposition that one cannot determine matters on the basis of speculation as to changes in the law which might in future take place.  The courts act on the law as it is and may not, said this Court, speculate as to possible future changes and the variation of the purpose clause in the Crown lease does not authorise the use of the premises for a club for the reasons we have explained.

The very purpose of this development application was to obtain approval for a use which was not then permitted, otherwise the whole approval process would not have been required if it was a permitted use.  Once you get to the proposition that the court must determine the question on the law as it is and once you get to the proposition that the proposed activity, once approval is granted, is one which becomes authorised and approved by the executive, then one has the problem which, in our submission, is one deserving of special leave because of its wide ramifications, not confined to this particular legislation, but important to planning and environmental decision making throughout the Commonwealth and that is that as was referred to in the obiter remarks of Justice Gummow in the IW Case ‑ ‑ ‑

McHUGH J:   Would you quickly take me to section 4 of the Act because you maintain that that prohibits the use of a club and it is quite fundamental to your submission, is it not?  You assert that section 4 requires the area designated as a casino to be used solely as a casino.

MR EINFELD:   Yes.  If one turns, firstly, to the definition section, section 3.  It is on the second page of the extract, about point 4 on the page, “casino” is defined to mean:

an area designated under paragraph 4(1)(a) –

McHUGH J:   Yes.

MR EINFELD:   Now then, if one goes to section 4 on page 8 of the extract:

The Minister may…..by notice…..designate ‑

(a) an area to be the casino –

McHUGH J:   Yes.

MR EINFELD:   Now the consequence of that is that within given land, within given premises, the activity for which that land is authorised is that of the casino.  There is no issue between the parties in this case that the whole of the subject land, the whole of the premises, the whole of the building is designated for use as a casino.

McHUGH J:   Yes, I appreciate that, but I do not see anything in section 3 or section 4 so far which would suggest that you cannot use the casino for anything else.

MR EINFELD:   Your Honour, we submit that it is the clear intent of the Parliament from the definition of “casino” and section 4 and the activities that are authorised and not authorised in the following sections, 5, et cetera, that the area is set aside to be the casino.  Once it is set aside to be the casino ‑ ‑ ‑

McHUGH J:   Can you have a dining room there?

MR EINFELD:   Yes.  Those activities which form activities as part of a casino or in the operation of a casino would be permitted.  Car parking, perhaps a bar, something of the kind.  Now, the response below has been, what is the difference between that and how does one distinguish between that, on the one hand, and activities of a casino on the other.  That is to miss the point.

McHUGH J:   On its face it seems to authorise something to be done which would otherwise be unlawful.  It says nothing else about what you can do there.

MR EINFELD:   What you cannot do is conduct a licensed club there.

HAYNE J:   Why?

MR EINFELD:   Because the licensed club is a creature of the Liquor Act which requires ‑ ‑ ‑

HAYNE J:   Well, does section 4 plus 3 permit, for example, the casino to sell liquor?

MR EINFELD:   Yes, if it is an adjunct.

HAYNE J:   Why?

MR EINFELD:   If it is an adjunct of the operation of the casino.

HAYNE J:   Why?  Why is that not regulated by whatever the relevant liquor control legislation is?

MR EINFELD:   Because it is an adjunct of the casino, but a licensed club is not because the licensed club, which is the use approved, is established by an entirely discrete, separate, legislative regime.

McHUGH J:   Yes, but the minister may have designated an area to be the casino.  It does not mean that the people who run the casino have to use all that area as the casino.

MR EINFELD:   It means it cannot be used for any purpose other than a casino.

McHUGH J:   I do not see that in the legislation.  You have to read it in.

MR EINFELD:   Once the whole of the area is designated to be the casino, then, bearing in mind that there is a use purpose clause in the Crown lease which permits it to be operated as a casino in ancillary purposes, once one establishes that the application, avowedly, was to use the land as a licensed club with poker machines ‑ ‑ ‑

McHUGH J:   Mr Einfeld, I have to tell you for a moment I thought there might have been something in this point.  It seems to me there is nothing at all in this point.  Section 4 does nothing but describe what the land is.  The critical section is section 5.  It authorises the casino operation.

MR EINFELD:   Yes, yes it does.

HAYNE J:   To play games.

MR EINFELD:   That is what I have said, your Honour.  I have said to your Honours that one has to read 4 with the other provisions which identify the activities which may take place on the premises.  Now, your Honours, I will not overstay the welcome.  Having regard to the yellow lights I should move to the second point, if I may.

The point we primarily make in relation to the second aspect of the matters that are raised, the second matter that is raised, is that the –

HAYNE J:   Is the preliminary assessment point?

McHUGH J:   Yes.

MR EINFELD:   The preliminary mandatory assessment was a necessary pre‑condition to the grant of approval authorised by section 231 of the Land Act.  In our submission, Justice Gyles in the Full Court’s recent decision in the related Rex Hotel litigation exposed the flaw in the Full Court’s reasoning below.  In the passages we have extracted in the supplementary written argument which we provided, his Honour demonstrates, we submit correctly, in particular in paragraph 4 of our written supplementary argument at page 2 towards the end of the passage cited, that the views hitherto expressed in this case below are incorrect.

As his Honour points out, the statutory requirement imposed by the legislation for the preliminary assessment imposes a duty such that the absence of the assessment exposes the ultimate development approval decision to challenge on that account and Justice Finn, as we have pointed out in the written argument, provides some support for that view and support is also provided in the first of the judgments in the Rex Case in the Full Federal Court.

McHUGH J:   Yes, I know, but part of the problem you have in this case is that the minister thought it came within the exceptions to the plan.

HAYNE J:   Plus the fact the minister is not a party to these proceedings.

MR EINFELD:   Your Honour, with respect, that makes no difference.  The fact that the minister is not a party is irrelevant.  If Justice Gyles is right, then the minister had a duty, not a question of decision making and no discretion, had a duty if the facts were established, if the court is satisfied as to the facts, if there were significant change in the nature of the activity, the minister had a duty to require the mandatory assessment to be provided.  The decision maker is deemed by the - is described by the legislation as being the relevant authority which may or may not be the minister or the commissioner.  That is a matter of coincidence.

McHUGH J:   I see your time is up, Mr Einfeld.

MR EINFELD:   Yes.

McHUGH J:   We have read your written submissions and your supplementary submissions.

MR EINFELD:   May it please, your Honours.

McHUGH J:   We need not hear you, Mr Walker or Mr Rayment.

The Court is of the view that there is no reason to doubt the correctness of the decision below having regard to the facts of the case.  The application is therefore dismissed.

MR WALKER:   We ask for costs, if your Honours please.

McHUGH J:   There is nothing you can say about that, Mr Einfeld?  The application for special leave is dismissed with costs.

The Court will now adjourn to hear matters on the video link.

AT 10.18 AM THE MATTER WAS CONCLUDED