Canberra Tradesmens' Union Club Inc v The Commissioner for Environment, Land & Planning

[1998] FCA 260

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 19   of   1998

BETWEEN:

CANBERRA TRADESMEN'S UNION CLUB INCORPORATED

AND

LICENSED CLUBS ASSOCIATION ACT INC
APPLICANTS

AND:

THE COMMISSIONER FOR ENVIRONMENT, LAND & PLANNING
FIRST RESPONDENT

CASINO CANBERRA LTD
SECOND RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

2 MARCH 1998

WHERE MADE:

CANBERRA (DELIVERED IN SYDNEY)

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicants pay the respondents’ costs of the application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 19  of 1998

BETWEEN:

CANBERRA TRADESMEN'S UNION CLUB INCORPORATED

AND

LICENSED CLUBS ASSOCIATION ACT INC

APPLICANTS

AND:

THE COMMISSIONER FOR ENVIRONMENT, LAND & PLANNING
FIRST RESPONDENT

CASINO CANBERRA LTD
SECOND RESPONDENT

JUDGE:	FINN J
DATE:	2 MARCH 1998
PLACE:	CANBERRA (DELIVERED IN SYDNEY)

REASONS FOR JUDGMENT

This is an application for leave to appeal against the judgment of Crispin J of the Supreme Court of the Australian Capital Territory refusing both a stay of the decision of, and an injunction from further acting upon or in consequence of the decision of, the Administrative Appeals Tribunal (ACT) (“the Tribunal”). That decision was that neither of the present applicants, the Canberra Tradesmen’s Union Club Incorporated (“the Club”) and the Licensed Clubs Association ACT Inc (“the Association”), had standing pursuant to s 276 of the Land (Planning and Environment) Act 1991 (ACT) (“the L(P&E) Act”) to apply for a review of the decision of the first respondent, the Commissioner for Land and Planning (“the Commissioner”), varying the lease purpose clause of the lease owned by the second respondent, Canberra Casino Ltd (“the Casino”), so as to add (inter alia) the use “club” to the approved purposes.

The consequence of this variation, as I understand it, is that a club operating from on that leasehold property will be lawfully entitled to install and operate poker machines.  As both the Casino Control Act (ACT) and the Gaming Machine Act (ACT) preclude the Casino from operating poker machines within the Casino premises, if such machines are to be operated on the leasehold the entity so doing must be legally separate from the Casino.  Stripped down, the opposition mounted by the Club and the Association has been to forestall this eventuality by seeking to prevent the lease purpose change.  The reality of the matter concerns who should be able to operate poker machines in the ACT.

My concern in this application is far more prosaic.

Background Matters

1. The Statutory Setting

For present purposes I need only mention several provisions of a number of ACT statutes.  First the L(P&E) Act. The Act contains a scheme for giving approvals to lease purpose variations, and for objections to the grant of such approvals.  It likewise has a sequence of provisions which require an approval in turn to be registered in the Registrar-General’s Office by way of a Lease Variation.  I note in passing that such in fact has occurred in the present case and has itself given rise to complaint by the present applicants.

It is sufficient here to note that s 276 of the L(P&E) Act provided at the relevant time that:

“276. (1)        A person may apply to the Administrative Appeals Tribunal for a review of a decision of the relevant authority to approve an application under section 230 or 245 if -

(a)       the person making the application is -

(i)        a person who objected under section 237;  or

(ii)a person who the Administrative Appeals Tribunal has reasonable grounds for believing was, in the circumstances, unable to object within the prescribed period;

(b)the rights of the person are substantially and adversely affected by the decision;  and

(c)the application is made within 28 days after the day on which the person was notified of the decision.

...

(4)       If regulations are made for the purposes of subsection 229(8) then, in respect of a decision in respect of which those regulations apply (other than in respect of a matter to which subsection (5) of this section applies), subsection (1) of this section does not apply, and any person whose interests are substantially and adversely affected by the decision may apply to the Administrative Appeals Tribunal for a review of the decision.”  (Emphasis added)

I would note that subsequent to the date of the Tribunal’s hearing, but before the Tribunal’s decision, s 276 of the L(P&E) Act was amended in the following way: 

“(a)     by omitting from paragraph (1) (b) ‘rights’ and substituting ‘interests’;  and

(b)      by adding at the end the following subsections:

‘(8)     In this section -

‘person’ includes an unincorporated association.

‘(9)     For the purposes of this section, an organisation or association of persons, whether incorporated or not, shall be taken to have interests that are substantially and adversely affected by a decision if the decision relates to a matter included in the objects or purposes of the organisation or association.”

Again I note in passing that the Tribunal applied the section in its unamended form and its so doing, I am informed, constitutes one of the errors assigned to its decision in the appeal against it that the two applicants have made to the Supreme Court of the ACT under s 46 of the Administrative Appeals Tribunal Act 1989.

For its part, the objection provision - s 237 - provides, relevantly, as follows:

“237.   (1)       Any person who may be affected by the approval of an application may, within the prescribed period, object to the grant of the approval.”

For completeness I refer to s 161 of the Land Titles Act, 1925.  Its relevance will become apparent below.  It provides (inter alia) that:

“Power of Court

161(1)  In any proceedings in which the corectness or otherwise of the Register is in issue, the Court may require the Registrar-General to correct the Register or direct the Registrar-General to do so.

(2)      In any proceedings in the Court in relation to-

(a)any land;

(b)       any transaction, contract or application relating to land; or
           (c)       any instrument, memorial or other entry affecting land;

the Court may, by order, direct the Registrar-General-

(d)to correct, record, substitute, issue or cancel any certificate or memorial, or to correct, record, substitute, make or cancel any entry in the Register, notwithstanding that the relevant duplicate certificate has not been produced to the Registrar-General; or

(e)otherwise to do any acts and make any entries that are necessary  to giver effect to any judgment or order of the Court given or made in those proceedings;

and the Registrar-General shall give effect to such a direction.

(3)      An order made under subsection (2) is not effective to vest a registrable interest in any person before the appropraite entry is made in the Register.

1. Additional Factual and Other Matters

The effect of the applicants’ being held not to have standing under s 276 was that the prior approval given by the Commission to the variation sought, took effect. Officers of the Territory then put in train the processes which, about four weeks later, led to the variation being registered. In the interim the Casino was assessed for, and paid, a “Change of Use Charge” of $30,000.

The applicants, as I have noted, appealed to the Supreme Court from the Tribunal’s decision, given on 12 January.  On 11 February they filed the motion  - I will refer to it in the singular though there were two separate proceedings at the time - for a stay and an injunction.  The judgment on that motion is the subject of the present leave application.

On the hearing of that motion by Crispin J on 13 February 1998, his Honour was informed that the applicants each had taken proceedings by way of prerogative writ and otherwise challenging the Commissioner’s decision and seeking as well, so I understand, to have the Register corrected under s 161 of the Land Titles Act.

During the course of the hearing before him Crispin J ordered that the applicants’ appeals from the Tribunal and their prerogative writ etc proceedings be consolidated.  His Honour then ordered an expedited hearing of the matter.  I understand it is now set down for hearing in the Supreme Court on 18 May 1998.

Before turning to the Tribunal’s decision I should make the following observations about the two applicants.  The Association is a body corporate the members of which are licensed clubs, though such clubs would only appear to be able to become members by offer from the Association.  I simply observe that the Tribunal, having considered the objects of this body, expressed the view that “the interests of its members would seem to define the high water mark of the Association’s interests”.

For its part the Club is a licensed club that provides the facility of poker machines to its members.

The Tribunal’s Decision

I need refer to this only briefly. The application to the Tribunal was dismissed, as I have foreshadowed, on the grounds that neither applicant had standing under s 276. In reaching this conclusion the Tribunal traversed some range of decisions dealing with standing under the Administrative Appeals Tribunal Act, the Administrative Decisions (Judicial Review) Act, and under specific legislative provisions of the L(P&E) Act type.  From this it concluded that the standing of an objector under s 237 would not be satisfied by a “mere belief or concern” about the application in question, nor would the affect of mere economic competition suffice as an effect for s 237 purposes.

The two suggested grounds said to afford standing as an “objector” for s 237 purposes were rejected - the first because it amounted to no more than to consequences flowing from mere competition;  the second, because the effect referred to in s 237 must relate in some way to “planning considerations” and the effect suggested, insofar as the Association claimed it had a special interest in maintaining the division of function between clubs and the Casino in access to poker machines, did not so relate.

In any event, and irrespective of its conclusions on s 237, the Tribunal found that the requirement of s 276(1)(b) was not satisfied - ie the applicants “rights” were not substantially and adversely affected by the approval decision.

The Supreme Court Decision

Mr Justice Crispin’s oral reasons on the stay application referred to a number of decisions of this court on the burden to be satisfied in establishing a case for a stay - ie that the applicant for a stay “demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour”:  see Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65.

His Honour appears to have assumed that there were at least arguable grounds of appeal and concerned himself initially with the question of whether a stay was necessary to secure the effectiveness of the hearing and termination of the appeal.  The applicants had argued before him (a) that if a club was established on the Casino’s lease this might impact upon the subsequent proceedings in the Tribunal should the appeal to the Supreme Court succeed;  and (b) that the possibility of a grant of a sub-lease to a club might prejudice subsequent proceedings under s 161 to strike down the registration of the new lease.  His Honour appeared to consider the prospect of later s 161 proceedings too remote from the question before him, but in any event he thought it appropriate to focus upon considerations relevant to the injunction part of the motion for the reason that granting a stay unrelated to an injunction would have little practical utility in this case.

On the question of balance of convenience his Honour found that (i) having already paid its betterment tax and being entitled to expect that it can exercise its new rights, the Casino’s commercial rights would be impacted upon significantly by an injunction;  but (ii) it seemed “conversely to be unlikely that any countervailing prejudice will suffered by the applicant”.  Their case he characterised as raising only a potential for later prejudice.  The judge found that prejudice insufficient in the circumstances

Having the appeal expedited was in his Honour’s view the appropriate interlocutory relief to award.

The Present Application

The principles to be applied in considering an application for leave to appeal are not in dispute.  The Full Court of this court has on a number of occasions endorsed what, for convenience, I will refer to as the Niemann formula:

1.Is the decision appeal from attended with sufficient doubt to warrant it being reconsidered by the Full Court?

2.        Would substantial injustice result if leave were refused?

See Niemann v Electronic Industries Ltd [1978] VR 431; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

Counsel for the Casino has urged that I consider the substance of the appeal for which leave here is sought, to be on a matter of “practice and procedure” and not of “substantive rights” and hence to be approached with that particular caution urged by Jordan CJ in re the Will of F B Gilbert (dec’d) (1946) 46 SR (NSW) 318 at 323 and endorsed by the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177. This notwithstanding, I consider that in a case such as this where, in the Tribunal, in the Supreme Court appeal and in this application, a live issue is the proper character to be ascribed the “interests” of the applicant and the prejudice these may be exposed to variously by the decision and the refusal of a stay and injunction, it is not appropriate to treat the matter as a dry or bare one of practice and procedure.

The principles by which a Full Court would evaluate his Honour’s exercise of discretion in this matter were leave to be given, are those well known ones referred to in House v The King (1936) 55 CLR 499 at 505. The applicants conceded this. The “sufficient doubt” referred to in the Niemann principles is to be gauged by reference to them.

I should say at the outset I can see no reasonable bases at all for suggesting there is such a doubt created by his Honour’s decision.

I am prepared to accept that the applicants’ have an arguable case to advance on their appeal:  standing issues, and particularly those founded on the meaning of statutory “standing” formulae, have given rise to no little difficulty and divergence of opinion:  for a very recent illustration see Allan v Development Allowance Authority, unreported, Full Court of Federal Court, 27 February 1998.  In saying this I express no view on the prospects of that appeal.

I equally am prepared to approach this application, as the applicants have contended, as if the matter to be evaluated related to his Honour’s treatment of the “balance of convenience”.

The applicants’ case is not that Crispin J acted upon some wrong principle but rather that he did not take some material considerations into account and was affected by irrelevant matters.  As best I understand the case put, it is submitted (i) that his Honour should have inferred that there would be no prejudice to the Casino if the injunction was granted, there being no evidence of prejudice;  and (ii) though the prejudice to the applicants was “potential” only in the sense that it would arise if their appeal was successful, it was such as would result in a significant change to the status quo if they were so successful.  That prejudice was (a) that without the injunction the Casino could sub-let the property - third party rights would thus intervene - and that I should infer from the evidence that the Casino intends to take this course;  (b) that the case before the Tribunal would inevitably be changed if the Casino premises contained a club;  and (iii) that any claim under s 161 of the Land Titles Act would be prejudiced if third party rights intervened.

For my own part I see no error in his Honour’s treatment of any of this.  The prejudice he ascribes the Casino, the betterment levy apart, would appear to be the prejudice of the successful applicant for a decision being held out of its enjoyment.  His Honour did refer to the potential prejudice to be suffered by the applicants.  Whether he gave that prejudice the weight another judge may have is not to the point.  As I read his reasons, that possibly later-to-be-suffered prejudice in the event of a successful appeal was considered and balanced:  see Reasons for Decision pp 6-7.  I can see no basis at all for suggesting there was such an arguable error by his Honour in that process as would generate the “sufficient doubt” required by the Niemann principles.

Further, for my own part I have considerable doubt whether an appeal court would characterise the matters referred to by the applicants as being of moment or else of relevance in any event.  The alleged change to the subsequent proceedings in the Tribunal in the event of a successful appeal seems to me to border on the irrelevant, given the issue the Tribunal would still have to determine. And such apprehension as may arise by virtue of the Casino taking steps to sub-lease its property for the establishment of the club may be a matter that could induce the applicants to seek injunctive relief in aid of such s 161 of the Land Titles Act claim as they have made or will make.  For my own part, it is not a matter sufficiently related to the appeal to the Supreme Court and to any possible subsequent rehearing by the Tribunal as would have or should have, allowed it to loom large in the proceedings before his Honour.  And it did not.

The applicants have sought to argue before me that, on the consolidation of the various claims before his Honour, the injunction sought should properly have been regarded - and was - in aid of a s 161 claim.  Such was not the motion before his Honour.  He did not consider it to be such.  And he did not decide it on such a basis.  There was no error made in this.

I have not adverted to the argument of the Commissioner.  It is, in effect, that whatever happens on the appeal, the lease variation has been registered and that is the end of the matter.  It cannot later be impugned.  I need not express any view on this or upon how the L(P&E) Act and the Administrative Appeals Tribunal Act, s 46 interrelate.

I conclude then that, no proper basis having been made out for the grant of leave to appeal, I should dismiss the application and order the applicants to pay the respondents’ costs of the application.  I order accordingly.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:
Dated:             2 March 1998

Counsel for the Applicant:  I Neil
Solicitor for the Applicant:  Gary Robb & Associates

Counsel for the First Respondent:                P Walker
Solicitor for the First Respondent:                ACT Government Solicitor

Counsel for the Second Respondent:           B Rayment QC
Solicitor for the Second Respondent:           Gardini & Co