Canberra Tradesmen's Union Club Inc & Anor v Minister for the Environment, Land & Planning & Anor Licensed Clubs' Association Act Inc Minister for the Environment, Land & Planning
[1998] FCA 1188
•18 SEPTEMBER 1998
FEDERAL COURT OF AUSTRALIA
CATCHWORDS
APPEALS FROM ADMINISTRATIVE AUTHORITIES – Administrative Appeals Tribunal – “decision” of the Tribunal – mere findings or rulings not reviewable by Supreme Court – ‘steps along the way’ not reviewable – whether essential preliminary issues determined prior to making of final order are reviewable – reviewability applicable only to final, operative or determinative decisions – “decision” characterised by discretion to determine otherwise – whether Tribunal’s order requiring fulfillment of further conditions to be effective is a reviewable “decision” of the Tribunal – Tribunal’s decision held to be provisional in substance and form – no right of appeal to Supreme Court in absence of final or ultimate decision – Administrative Appeals Tribunal Act 1989 (ACT), s46(1).
ADMINISTRATIVE APPEALS TRIBUNAL – review of “decisions” – mere findings or rulings not reviewable – ‘steps along the way’ not reviewable – Reviewability applicable only to final, operative or determinative decisions – Minister’s decision to conduct or not conduct a preliminary assessment of development application is a ‘step along the way’ and not a reviewable “decision” – Land (Planning and Environment) Act 1991, ss113, 275(4).
Land (Planning & Environment) Act 1991 (ACT), ss113, 230, 245, 275
Administrative Appeals Tribunal Act 1989 (ACT), subss46(1)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 at 337; discussed and applied
Whim Creek Consolidated NL v Colgan and Another (1991) 31 FCR 469; considered
CANBERRA TRADESMEN’S UNION CLUB INC. & ANOR v MINISTER FOR THE ENVIRONMENT LAND AND PLANNING & ANOR
LICENSED CLUBS’ ASSOCIATION ACT INC. v MINISTER FOR THE ENVIRONMENT LAND AND PLANNING & ANOR
JUDGES: HIGGINS, HEEREY AND MANSFIELD JJ
PLACE: CANBERRA
DATED: 18 September 1998
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
) AG 11 of 1998
CANBERRA DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: CANBERRA TRADESMEN’S UNION CLUB INC
First Appellant
RAYMEL HOLDINGS PTY LIMITED ACN 071 324 851
Second Appellant
AND: THE MINISTER FOR ENVIRONMENT LAND & PLANNING
First Respondent
REBENTA PTY LIMITED
Second Respondent
AG 12 of 1998
BETWEEN: LICENSED CLUBS’ ASSOCIATION ACT INC
Appellant
AND: MINISTER FOR THE ENVIRONMENT LAND & PLANNING
First Respondent
REBENTA PTY LIMITED
Second Respondent
JUDGES: HIGGINS, HEEREY AND MANSFIELD JJ
PLACE: CANBERRA
DATE: 18 September 1998
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed.
The Appellants pay the Respondents’ costs of the appeal.
The matter be remitted to the Administrative Appeals Tribunal for final determination.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
) AG 11 of 1998
CANBERRA DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: CANBERRA TRADESMEN’S UNION CLUB INC
First Appellant
RAYMEL HOLDINGS PTY LIMITED ACN 071 324 851
Second Appellant
AND: THE MINISTER FOR ENVIRONMENT LAND & PLANNING
First Respondent
REBENTA PTY LIMITED
Second Respondent
AG 12 of 1998
BETWEEN: LICENSED CLUBS’ ASSOCIATION ACT INC
Appellant
AND: MINISTER FOR THE ENVIRONMENT LAND & PLANNING
First Respondent
REBENTA PTY LIMITED
Second Respondent
JUDGES: HIGGINS, HEEREY AND MANSFIELD JJ
PLACE: CANBERRA
DATE: 18 September 1998
REASONS FOR JUDGMENT
HIGGINS J:
On 21 May 1997 the Australian Capital Territory Administrative Appeals Tribunal (The Tribunal) substantially dismissed an appeal from a decision made by the Minister for the Environment, Land and Planning (the Minister). That decision had been to approve a development application in relation to Block 1 Section 8 Braddon, upon which is situated the Canberra Rex Hotel (the Hotel). The Tribunal “provisionally” supported that approval subject to two further conditions which were to be satisfied. The “development application” proposed that the existing purpose clause of the Crown Lease be varied to add to the authorised purposes “a licensed club not exceeding 1100m² of gross floor area”.
The Minister, by his delegate, approved an amended purposes clause which added “a club” to previously approved amendments to the original purpose clause. A subsequent clause in the Crown Lease was to be amended so as to restrict the area of that use to no more than 1100m² of gross floor area.
The Tradesmen’s Union Club and a subsidiary of it, Raymel Holdings Pty Limited, objected to the decision. The Tradesmen’s Union Club has an interest in preventing a competitor from being established in the Hotel. Raymel claimed an interest in acquiring a block of land adjacent to the Hotel, currently used by the Hotel as a car park, to erect low cost housing. How that might occur was not explained but no objection to standing was taken. The other objector was the Licensed Clubs’ Association (LCA). It has an interest in opposing the grant of poker machine licences to clubs established within, inter alia, hotels.
The three objectors applied to the Tribunal seeking to have the Minister’s decision set aside. At the hearing Rebenta Pty Limited was joined as a respondent. Rebenta is the lessee under the Crown Lease over the land. The land is also subject to a Units Plan whereby residential units within the Hotel site have been transferred to various unit holders. Rebenta is the applicant named in the development application.
The objectors before the Tribunal relied, essentially, on two contentions. The first was that the proposal had not been subjected to a preliminary assessment pursuant to s113 of the Land (Planning & Environment) Act 1991 (ACT) (L(P&E) Act). That was conceded. It was contended that s114 made such an assessment mandatory. The Minister had taken the view that a preliminary assessment was not mandatory as the change of purpose would represent “…an alteration or addition to an existing situation which does not cause significant change in the scale, size or purpose of the existing situation” – see paragraph II.1 of Appendix II of the Territory Plan (the Plan).
Section 113 provides:
“The relevant Minister in relation to a defined decision, or the Environment Minister, may, by written notice to the relevant proponent within 28 days after the day on which the decision that a preliminary assessment be required is made, direct the proponent to prepare a preliminary assessment of the environmental impact of the relevant proposal.”
Section 114 provides:
“Where a defined decision is of a class prescribed by the Plan, the relevant Minister shall, within the period referred to in section 113, issue a notice under that section in relation to the relevant proposal.”
Schedule 3 of the L (P&E) Act specifies the format and content of the preliminary assessment.
The decision authorising the amendment of the purpose clause of the Crown Lease was a “defined decision”. It was a proposal of a kind referred to at Appendix II in the Plan.
Paragraph II.1 of Appendix II further provides:
“The items listed in the Schedule II.1 below are prescribed classes of defined decisions for the purposes of Section 114 of the Land Act except where one or more of the following applies:
(a)the proposal is an alteration or addition to an existing situation which does not cause significant change in the scale, size or purpose of the existing situation
(b)(not relevant)
(c)(not relevant)
Schedule II.1 of the Plan makes any decision involving the establishment of a club within 150 metres of a Residential Land Use Policy area, a decision requiring a preliminary assessment unless it falls within one of the exceptions referred to in Paragraph II.1.
Of course, the amendment to the purpose clause did not, in itself, effect the establishment of a “club”. It did permit it. It is right, I think, to consider whether, if that purpose was effected, it would result in the “significant change” referred to.
The other objection concerned the adequacy of parking arrangements should a licensed club be established. That was an issue which would, no doubt, have been the subject of any preliminary assessment.
Having heard both the objectors’ submissions and extensive expert evidence, the Tribunal made certain findings.
Tribunal Findings on Preliminary Assessment
The Tribunal disagreed with the Minister’s view that the proposed use of the Hotel site to include a licensed club fell within the exception referred to in Appendix II of the Plan.
It followed, therefore, that s.114 of the L(P&E) Act made it mandatory for the Minister to have directed the preparation of a preliminary assessment.
The Tribunal considered, however, that it had power under s284 of the L(P&E) Act to excuse that non-compliance.
That section provides:
“Where a person appeals, or purports to appeal, under this Act-
(a)to the Administrative Appeals Tribunal; or
(b)against a determination or decision of the Administrative Appeals Tribunal to the Supreme Court;
and it appears to the Tribunal or Court, as the case may be-
(c)that the appeal, or purported appeal, or the decision, or the purported decision, against which the appeal, or purported appeal, has been brought is affected by a failure to comply with a requirement of this Act; and
(d)that to exercise the powers conferred by this section would not be unjust or inequitable;
the Tribunal or Court may order that, subject to any specified conditions, the requirement concerned be dispensed with to the necessary extent.”
As the primary ground for objection, namely, the sufficiency of parking arrangements, had been fully canvassed before it, the Tribunal considered it would not be “unjust or inequitable” to excuse the non-compliance. Indeed, it went further and concluded that no useful purpose remained for the preliminary assessment to perform.
Tribunal Finding on Car Parking Provision
There were two issues raised as to provision for parking. The first was the calculation of the number of spaces to be provided to serve the need for parking expected to be generated by the Hotel after a licensed club was established as intended.
That issue was hotly contested. The experts engaged to address it on behalf of each party, unsurprisingly, came to different conclusions. There was a document produced in evidence entitled “Draft ACT Parking and Vehicular Access Guideline” (the “Guideline”). It was used as the basis for these conflicting opinions.
The Tribunal accepted that the “Guideline” provided “administrative guidelines” with no independent statutory force. They said at para 35:
“The law as to the use by a statutory decision maker of administrative guidelines is quite clear. The decision maker is entitled to adopt guidelines for general guidance, but is not entitled to apply them to particular cases without being prepared to consider the individual circumstances of any case.”
With that in mind, the Tribunal made its own evaluation of the parking needs of the Hotel. It considered an additional 54 spaces would be required. Existing and proposed on and off-site parking areas could accommodate that requirement.
There was however a further aspect to the objection relating to the adequacy of parking. It was that part of the available land then used for parking, which would be necessary to meet the projected parking requirements, was situated on unleased Commonwealth land, being Block 1 Section 13 Braddon. Thus, it was contended, that parking could not be counted towards satisfying the requirements of the Plan because its continued availability could not be guaranteed. It was further objected that the other off-site areas, though owned by the Hotel, were held in separate titles and, theoretically, could be separately sold.
The relevant planning authorities had previously concurred in the use of the unleased land for parking, though it was part of a Residential Use area. The Tribunal saw no reason to assume that that use would not continue for the foreseeable future. After all, it reasoned, the land had been so used for the last 35 years. It had been developed as a car park with appropriate curbing, paving and lighting at least partly at the Hotel’s expense. It had made at that time a substantial monetary contribution of £5780.
The Tribunal therefore determined that the objections were insufficient to prevent approval of the development application. However, it considered that the proposed variation to the Crown Lease of the Hotel should not be supported unless certain perceived deficiencies were addressed.
The form of orders proposed was:
“55.The Tribunal therefore provisionally decides that the development application to add to the permitted uses that of a licensed club not exceeding 1100m² in area be approved, subject to the existing permitted use for a passenger coach terminal being deleted and appropriate action being taken to ensure that Block 1 Section 8 Braddon and Blocks 21-23 Section 13 Braddon remain in common ownership.
56.The Tribunal will also order, pursuant to section 284 of the Land Act, that the requirement for a preliminary assessment of the development application under section 114 of the Land Act, be dispensed with.
57.The parties are directed to lodge with the Tribunal not later than 28 days from the date of this provisional decision a draft order to give effect to the Tribunal’s conclusions. If the parties are unable to reach agreement, the matter will be listed for a further hearing on the form of the order.”
It is common ground that the parties did not bring in, or settle the draft order referred to in para 57 of the Tribunal’s reasons.
Appeal to the Supreme Court
On 20 August 1997, the appellants filed a notice purporting to appeal to the Supreme Court. The review by the Tribunal had been a review of both the factual and legal findings made by the Minister. It was a merit review.
The right of appeal to the Supreme Court is conferred by s46 of the Administrative Appeals Tribunal Act 1989 (ACT) (AAT Act). It is only in respect of questions of law. Further, to succeed on such an appeal, the appellant carries the burden of establishing not only that a question of law was erroneously answered but also that the error vitiates the decision appealed from.
The notice of appeal as ultimately amended proposed five such questions of law:
“(a)whether the Tribunal properly performed its task as an administrative review body in accordance with the provisions of the Land (Planning & Environment) Act 1991 for the purpose of reviewing the decision of the respondent;
(b)whether the Tribunal’s purported exercise of discretion under Section 284 of the Land (Planning & Environment) Act 1991 was a valid exercise of discretion;
(c)whether the Tribunal’s decision to approve the application made by Rebenta Pty Limited contravened section 8(1) of the Land (Planning & Environment) Act 1991 and the Territory Plan;
(d)Whether the Tribunal, having found that there was a need for overflow or peak parking on Block 1 Section 13 Braddon, could nevertheless conclude that adequate provision could be made for parking so that the application could be approved not withstanding that Rebenta Pty Limited had no legal or equitable interest in Block 1 Section 13 Braddon.
(e)Whether the Tribunal could approve the application without first being satisfied that Rebenta Pty Limited could secure the continued ownership of Blocks 21-23 Section 13 Braddon in common ownership with Block 1 Section 8 Braddon, and secure the continued availability of Blocks 21-23 Section 13 Braddon, having regard to the different land use policy for Blocks 21-23 Section 13 Braddon and Block 1 Section 8 Braddon.”
At the hearing, the respondents pointed to the form of the decision appealed from. They contended that, as the decision was, in form as well as in substance, “provisional”, the appeal was incompetent. There was no final decision made which could properly be made the subject of an appeal under s46 of the AAT Act.
Crispin J, having heard argument on all issues raised by the parties, delivered his decision on 18 December 1997.
His Honour upheld the submission that the decision made by the Tribunal was not in substance or form a final decision. The appeal, therefore, was, his Honour held, incompetent.
Given that decision, his Honour’s further findings as to other issues raised were obiter. However, out of respect for the extensive arguments advanced by Mr Einfeld QC for the appellant, his Honour went on to consider the role to be accorded to the failure to require a preliminary assessment under s113 of the L (P&E) Act.
His Honour accepted a submission by Mr Purnell SC for the respondents, that the Tribunal had been in error in entertaining a challenge to the Minister’s decision not to require a preliminary assessment.
The argument in favour of that submission was that s237 of the L (P&E) Act conferred a right of objection only upon persons affected by “an approval”. Section 222 defines an “approval” as:
“(a) an approval under section 230; or
(b)a decision under another Act that is declared by that Act to be an approval for the purposes of this Part”.
A decision not to require a preliminary assessment is not, therefore, a decision in respect of which s237 confers a right of objection.
Thus, in his Honour’s view, s44(1) of the AAT Act did not confer authority on the Tribunal to review the correctness of such a prior decision despite its relevance to the decision under review.
His Honour did not address the question as to whether s114 of the L(P&E) Act mandated a preliminary assessment, nor whether, if it did, s284 authorised the Tribunal to excuse that non-compliance nor, if it did confer such a power, whether that power was exercised in accordance with law.
As to the issue of the adequacy of parking, his Honour rejected the view that, because the Tribunal had proposed that the four off-site parking lots “remain in common ownership”, it followed that without such assurance there was inadequate provision for parking. In his Honour’s view, that was merely to confirm that the decision appealed from was substantively “provisional”. A proposal would have had to be presented and accepted in respect of the proposed commonality of ownership of all four blocks. No final decision could have been made without such a proposal being formulated and accepted.
His Honour also rejected the view that the Tribunal was not entitled to accept that the status of Section 1 Block 13 Braddon, over which the Hotel had no legal title, prevented the Tribunal from being able to give even the “provisional” approval which it gave. No doubt the proposal contemplated by the Tribunal would have addressed that issue.
The Appeal to the Federal Court
On 30 January 1998 the appellants filed a notice of appeal to this Court.
That notice raised a number of issues. Grounds one and two challenged his Honour’s finding that the appeal to the Supreme Court was incompetent. Ground three asserted that approval for use of the Hotel premises as a club could not be given in the absence of the mandatory preliminary assessment. Ground four was related to ground three. It challenged the decision of the Tribunal to excuse non-compliance with ss113 and 114 of the L (P&E) Act.
The fifth ground asserted that it had not been open to the Minister or, on review, the Tribunal, to permit use of the Hotel site for the purposes of a licensed club, as such a use would contravene subss34(4A) of the Liquor Act 1975 (ACT) (Liquor Act), as well as the “public policy considerations” behind ss30B and 30C of the Gaming Machine Act 1987 (ACT). The challenge to the Tribunal’s decision to dispense with the preliminary assessment was repeated.
Ground six challenged the finding made by his Honour that the Minister’s decision, even if erroneous, to dispense with the preliminary assessment, was not legally open to objection before the Tribunal.
Ground seven challenged the finding of the Tribunal that it could approve the application though not satisfied that the Hotel had secure title to all the areas of land required to provide adequate parking facilities for the additional permitted uses.
Submissions on the Hearing of the Appeal
Mr Einfeld QC, for the appellants, submitted that the appeal to the Supreme Court had been competent. He contended that the findings of the Tribunal had amounted, in substance, to a final decision, leaving only the form of the orders to be settled.
Thus, Mr Einfeld QC submitted, Crispin J should have agreed with the Tribunal’s finding that a preliminary assessment was mandatory. A failure to require one, contrary to the view adopted by the Tribunal and his Honour, vitiated the decision to approve the application. It was not a defect able to be excused under s284 of the L(P&E) Act and, in any event, should not have been. In so submitting, Mr Einfeld QC challenged the finding by Crispin J that a decision under s113, even if wrong, was not reviewable by the Tribunal in the context of a challenge to a reviewable decision to which it related.
It was further contended that, even if the original decision was not vitiated by the failure of the Minister to require a preliminary assessment, it was vitiated by reason of inconsistency between the proposal and subss34(4A) of the Liquor Act. Further, the finding that adequate provision for parking had been made was said to be vitiated by the lack of tenure that Rebenta had over Block 1 Section 13 Braddon and the lack of common title with the Hotel site over the other three off-site blocks.
The Submissions of the Respondents
The respondents did not attempt to argue that the Minister had been correct in taking the view that no preliminary assessment was required.
The respondents conceded that subss34(4A) of the Liquor Act would prohibit the grant of a Club Licence in respect of premises situated on land under a lease, on which land there are also premises in relation to which there is in force a “General Licence”.
The respondents contended, however, that the decision whether to grant a Club Licence was for the relevant decision maker under the Liquor Act, not the Minister or his delegate. Such a proposal might well face a serious obstacle if the General Licensee was unwilling to surrender it. But, they submitted, that would not amount to a legal reason why, even in the absence of a proposal to surrender the General Licence presently held in respect of some or all of the existing Hotel premises, the development proposal could not be approved.
There is some force in that submission.
The main thrust of the respondents’ submission was that the appeal was not competent.
Competence of the Appeal
The right of appeal is conferred by subss46(1) of the AAT Act. That sub section provides:
“A party to a proceeding before the Tribunal may appeal to the Supreme Court on a question of law from any decision of the Tribunal in that proceeding.”
The issue to be determined is whether the “provisional” decision made by the Tribunal in this case qualifies as a “decision” within the meaning of subss46(1).
It is the decision to approve or not approve an application made under s230 of the L (P&E) Act which may be reviewed by the Tribunal under subss275(4) of the L (P&E) Act. If the result of that review qualifies as a “decision of the Tribunal” that decision may, pursuant to subss46(1) of the AAT Act, be taken on appeal on a question of law to the Supreme Court.
It should be noted that it was open to the Minister to approve an application subject to conditions – see s245 L (P&E) Act. The fact that conditions are specified does not, therefore, mean that no decision to approve an application has been given. For example, approval subject to amendment in a specified way of the proposed plans and specifications would amount to an “approval” that could be the subject of review under subss275(4) of the L(P&E) Act and hence the subject of review under subss46(1) of the AAT Act.
However, preliminary rulings or findings, even if they render the content of the consequent decision inevitable are not themselves “decisions” within the meaning of provisions such as that to be found in subss46(1) of the AAT Act.
It has consistently been held that the term “decision” in that context refers to a “final decision”. In Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 the High Court held that the making of “findings” does not constitute a reviewable decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act). However the determination of an issue which is an essential preliminary to the making of the ultimate order will be reviewable.
Mason CJ formulated the guiding principle in the following terms, at 337:
“…a reviewable “decision” is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment”.
(Brennan, Deane, Toohey and Gaudron JJ agreed with those comments)
It is a characteristic of a “decision” that there was a discretion to determine otherwise. Whim Creek Consolidated NL v Colgan (1991) 31 FCR 469 illustrates the distinction. To form a belief that goods are “forfeited goods” liable to seizure was not a reviewable decision. However, a decision to seize the goods in consequence of that belief was reviewable, there being a discretion not to seize the goods even though they are “forfeited goods” in consequence of that antecedent opinion.
The provisions of the L (P&E) Act specifying the decisions under it which are reviewable by the Tribunal assists to determine the “final or operative” nature of its decision so as to be capable of appeal under subss46(1) of the AAT Act. Under the L (P&E) Act the decisions which are not declared reviewable by the Tribunal appear to be in the nature of a “step along the way” to a “final or operative” decision. The decisions which s275 of the L (P&E) Act declares to be reviewable by the Tribunal seem to have the common characteristic of having a “final or operative and determinative” effect. A decision to direct or not a preliminary assessment pursuant to s113 is of no consequence save as a step on the way to a final decision to approve or not a development application. That seems to me to be consistent with its exclusion from s275 and to make it inappropriate to characterise a decision not to require a preliminary assessment under s113 as a “reviewable decision” in itself.
The Tribunal described its approval of the development application in this case as “provisional”. That does not, of course, determine the matter.
The further matters which the Tribunal required should be addressed before it would regard the approval of the application as other than “provisional” were twofold:
· That an existing permitted purpose, ie use for a passenger coach terminal, be deleted.
· That “appropriate action” be taken to ensure that Block 1 Section 8 Braddon and Blocks 21-23 Section 13 Braddon remain in common ownership with the Hotel site.
It was open to the Tribunal to have, by order, given effect to the first reservation. It was not within its power to order the second. That would have required the approval of a further development application concerning the title to each of the 4 blocks in question.
Whilst the reasons given by the Tribunal do not explain why this latter reservation was deemed to be of critical importance, it may be surmised that it considered that, as the current lessee of the Hotel need not continue as such and could dispose of Blocks 21-23 Braddon separately for residential development, some further guarantee was required that the future availability of those blocks of land for parking would survive that eventuality.
That proposal might itself require a Ministerial approval and be subject to objection. It may be impracticable. The Tribunal has not determined what proposal for securing parking should be approved so as to enable the development application to be regarded as “approved”. The “condition” standing in the way of final approval was, therefore, neither specified nor then capable of being specified. It follows that the “decision” of the Tribunal was in substance, not merely in form, “provisional”.
It follows that his Honour was right to conclude that there has been no final or ultimate decision made from which an appeal to the Supreme Court lay.
It follows that the Tribunal must now be left to complete its task. It would not be appropriate for this Court to pre-empt its decision. It is equally inappropriate to comment on the other issues raised concerning the consequence, if any, of the refusal of the Minister to require a preliminary assessment or the appropriateness or otherwise of the provision for parking.
However, it should not be assumed that I agree with his Honour’s finding that the decision not to require a preliminary assessment was irrelevant because it was not itself reviewable. It seems to me that it would be open to conclude that the remarks of Mason CJ in Bond at 338 may be applicable to that decision:
“To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made.”
It is inappropriate, however, to express any concluded view on that issue.
The appeal must be dismissed with costs and the matter remitted to the Tribunal for final determination.
I certify that this and the fifteen (15) preceding pages are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins
Associate:
Date: 18 September 1998
Counsel for the Appellants: MLD Einfeld QC with S G Habib
Instructing Solicitors: Gary Robb & Associates
Counsel for the First Respondent: P Walker
Instructing Solicitors: ACT Government Solicitor
Counsel for the Second Respondent: F J Purnell SC with D Mossop
Instructing Solicitors: Vandenberg Reid
Date of hearing: 7 July 1998
Date of judgment: 18 September 1998
IN THE FEDERAL COURT OF AUSTRALIA
CANBERRA DISTRICT REGISTRY
AG 11 of 1998
ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY
BETWEEN:
CANBERRA TRADESMEN’S UNION CLUB INC
FIRST APPELLANTRAYMEL HOLDINGS PTY LIMITED
ACN 071 324 851
SECOND APPELLANTAND:
THE MINISTER FOR ENVIRONMENT LAND & PLANNING
FIRST RESPONDENTREBENTA PTY LIMITED
SECOND RESPONDENTAG 12 of 1998
BETWEEN:
CANBERRA TRADESMEN’S UNION CLUB INC
FIRST APPELLANTRAYMEL HOLDINGS PTY LIMITED
ACN 071 324 851
SECOND APPELLANTAND:
THE MINISTER FOR ENVIRONMENT LAND & PLANNING
FIRST RESPONDENTREBENTA PTY LIMITED
SECOND RESPONDENT
JUDGES:
HIGGINS, HEEREY AND MANSFIELD JJ
DATE:
18 SEPTEMBER 1998
PLACE:
CANBERRA
REASONS FOR JUDGMENT
HEEREY J:
I agree with Higgins J.
I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey
Associate:
Dated: 18 September 1998
IN THE FEDERAL COURT OF AUSTRALIA
CANBERRA DISTRICT REGISTRY
AG 11 of 1998
ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY
BETWEEN:
CANBERRA TRADESMEN’S UNION CLUB INC
FIRST APPELLANTRAYMEL HOLDINGS PTY LIMITED
ACN 071 324 851
SECOND APPELLANTAND:
THE MINISTER FOR ENVIRONMENT LAND & PLANNING
FIRST RESPONDENTREBENTA PTY LIMITED
SECOND RESPONDENTAG 12 of 1998
BETWEEN:
CANBERRA TRADESMEN’S UNION CLUB INC
FIRST APPELLANTRAYMEL HOLDINGS PTY LIMITED
ACN 071 324 851
SECOND APPELLANTAND:
THE MINISTER FOR ENVIRONMENT LAND & PLANNING
FIRST RESPONDENTREBENTA PTY LIMITED
SECOND RESPONDENT
JUDGES:
HIGGINS, HEEREY AND MANSFIELD JJ
DATE:
18 SEPTEMBER 1998
PLACE:
CANBERRA
REASONS FOR JUDGMENT
MANSFIELD J:
I have read in draft the reasons for decision of Higgins J. I agree with those reasons and the orders proposed.
I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey
Associate:
Dated: 18 September 1998
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