Central Queensland Speleological Society Incoporated v Central Queensland Cement Pty Limited

[1989] HCATrans 101

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B9 of 1989

B e t w e e n -

CENTRAL QUEENSLAND SPELEOLOGICAL

SOCIETY INCORPORATED

Appellant

and

CENTRAL QUEENSLAND CE:MENT

PTY LIMITED

Respondent

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

Speleological(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 MAY 1989, AT 10. 18 AM

Copyright in the High Court of Australia

Cl T 1 / 1 / SDL 1 10/5/89

MR H.G. FRYBERG, QC: · May it please the Court, I appear

with my learned friend, MR S.J. KEIM, for the

appellant. (instructed by Stephen Comino &

Caminos)

MR J.H. BYRNE, QC:  May it please the Court, I appear with

my learned friend, MR P.H. MORRISON, for the respondent

to the appeal which is itself an applicant for an order rescinding the grant of special leave.

(instructed by Morris Fletcher &.Cross)

MASON CJ: Yes, Mr Byrne.

MR BYRNE:  Is it convenient to the Court to deal firstly

with our application to rescind special leave?

MASON CJ: What is the attitude of your opponent to that

course?

MR FRYBERG:  We have no .. ews as to the proper course,

Your Honour, but we would certainly be opposing

the application.

MASON CJ: Yes, I follow that. Very well, we will hear

from the respondent first on the respondent's

application to rescind the grant of special leave

to appeal.

MR BYRNE: If the Court pleases. Special leave to appeal

was granted on 17 March. About two weeks later,

on 30 March, orders were made by the Supreme Court

of Queensland which had the effect of facilitating

an early trial. The trial of the action is due

to commence in Brisbane on 13 June. Since that

order was made the pleadings between the parties

have closed. The affidavits of documents have

been exchanged and today, in accordance with an

order made by Mr Justice de Jersey in the Supreme
Court of Brisbane, the parties are to exchange

statements; statements which set out in substance

th_e evidence which the non-expert witnesses would

gfve at the trial.

Within a week the parties are, in accordance

with Mr Justice de Jersey's order to complete
the process of indicating the nature of the evidence
they intend to adduce at the trial by providing
the reports of the experts.

Your Honours, in these circumstances, the

trial will commence, we anticipate, within about

a month. It will resolve any disputed questions

of fact, not only with respect to standing, which

is the only question alive before the Court today.

ClTl/2/SDL	2	10/5/89
Speleological(2)
MR BYRNE (continuing):	I say that because	if the application

which we make for rescission of	the grant of special
leave is refused, we would not,	were the appeal to
_ be argued, rely upon any of the	grounds in our

notice of contention.

MASON CJ:	But does that mean that those grounds are no longer
live as far as the suit is concerned?
MR BYRNE:	No, Your Honour, it does not, in the sense that they
may well give rise, depending upon the facts found
at the trial, to questions of law.  But whether that
is so or not will ultimately depend upon the findings of fact that are made. For example, in relation to whether or not there is a case of breach of section 54 of the FAUNA CONSERVATION ACT because fauna is taken, the factual issue to be resolved at a trial includes whether the aven in which these
·ohost bats have in the past roosted during some winters, ?
is a nest.
MASON CJ:	Do I take it from what you say that at the trial
you regard all issues on the pleadings as being open
in the sense that you would not be asking the trial judge to dismiss the suit for want of locus standi on the basis of the Full Court decision on that point?
MR BYRNE:	That is correct, Your Honour, yes.  We take the view
that all that the Full Court has decided is that on
the material which was before the primary judge and before it, no arguable case of standing had been shown, but I should say that, since that time, the appellant has indicated by the pleadings which it has
filed, that it intends to rely on facts other than
those which were relied upon to establish an arguable case of standing below. So there will be further and
other evidence with respect to the question of standing at the trial and we accept that all the issues
alive on the pleadings, including the questions of law which were adverted to in the notice of contention,
are matters which will need consideration bv the trial
j~ge once the facts are found.  ·

Your Honours, in those circumstances, in our

respectful submission, if the question of law

concerning standing is ultimately to be resolved, it is distinctly preferable that it be done against the background where the facts are no longer contentious,

they having been resolved by a trial.

(Continued on page 4)

ClT2/l/VH	10/5/89
Speleological(2)
MASON CJ:	Now, what about interim protection in the meantime?
What are you prepared to offer in relation to that?
MR BYRNE:	Your Honours, we offer an undertaking until trial

or further order in the terms in which the

interlocutory injunction would be granted were the

appeal to succeed.

When the application for special leave was made, orders were made for interlocutory protection

until the Court could hear the appeal. The orders,

Your Honours, are at pages334 and 335 of the appeal

book where the Court, until further order, granted injunctions in substantially the form in which the appellant sought them and we are willing to offer

to the supreme court on the usual undertaking as to

damages from our opponents, an undertaking in those

terms.

TOOHEY J:  Mr Byrne, the judgments of the majority in the

Full Court go beyond an expression of opinion as
to the arguability or otherwise of the question of
standing and, in fact, as I read them, hold that,
at least, on the material then available, there was
no standing. Is that likely to present any sort of
difficulty in the matter being argued afresh before

the trial judge; that is, the question of standing?

MR BYRNE:  We would not have thought so, Your Honour, for this

reason: that those reasons are really expressed in
that form because they were responding to a submission

from our learned friends that it was inappropriate to

embark upon any consideration of the question of

standing and we have accepted that the way in which

the Full Court, when their reasons are considered

in their whole ought to be understood, is that a

majority of the court has decided only that, on the

material, there was not a seriously arguable case of

standing which was made out. So, we would not be

wishing to contend that there is some issue

estoppel or that otherwise the appellant is precluded

from relying upon, not only the facts adduced in
evidence already, but also any additional facts upon
which it relies to establish its entitlement to

standing.

(Continued on page 5)

ClT3/l/SH	4	10/5/89
Speleological(2)

TOOHEY J:	Does it also follow, and you may not wish to
answer this, that if thematter comes before the
trial judge the question of standing would not be sought to be isolated from the rest of the
action, but would rather be a matter to be dealt
with by the trial judge along with all other issues raised at the hearing.
MR BYRNE:	Yes, that is the approach which we intend to
adopt, Your Honour.
DEANE J:	You would be pressing the trial judge not to
decide it in your favour simply on the basis of
lack of standing?
MR BYRNE:	That is correct. We would ask that all the facts
MASON CJ:	You would press for findings on all issues that have arisen on the pleadings - - -
MR BYRNE:	Yes, Your Honour.
MASON CJ:	- - - with a view to facilitating the determination of any appeal?
MR BYRNE:	Yes.  In those circumstances it seems to us that this appeal becomes unnecessary. All the protection
which the appellant would gain were the appeal to
succeed, we offer by the undertaking pending trial.
Those are our submissions.

MASON CJ: Yes, thank you, Mr Byrne. Well what do you say

about this, Mr Fryberg?

MR FRYBERG:	Your Honours, it is engaging but, with respect, in our submission, it does not sustain itself
when closely analysed.  We submit that leave
should not be rescinded for three reasons.
First, convenience favours the resolution now
of points of law which, inevitably, are going to
arise. Second, it would be most unfair to the
~plaintiff to litigate under the constraint of

"the Full Court decision - and I say that, notwithstanding

what our learned friend has said, as we understand it,

nature in the making of the present application.

for the first time to Your Honours just now.

As to the question of convenience, there will

in broad terms on the appeal arise three major

questions of law. They are: first, whether the

law relating to locus standi should be further

developed an~ if so, how? Second, whether the

nature of the interest shown by the appellant

constitutes a special interest under the existing

learning on the subject? And, thirdly, whether
the doctrine in AMERICAN CYANAMID applies to the

question of locus standi?

ClT4/l/DR	5	10/5/89
Speleological(2)

MR FRYBERG (continuing):  On the third of those questions

would not for resolution at a trial.

DEANE J:  Mr Fryberg, is your client prepared to accept

the decision of this Court on standing on

the present material as conclusive of the

action if it goes against you?

MR FRYBERG:  If Your Honour were to ask that question on

the present material, including the particulars

which have been delivered and which are

exhibited to an affidavit - - -

DEANE J:  No, on the material which was before the

Full Court, which would be the only relevant material on the appeal.

MR FRYBERG:  No, Your Honour. There is an affidavit which

our learned friends have filed on this application

today which exhibits the particulars and they

show four additional matters to which I was

about to refer and we would want to rely upon

those additional matters, though we say they are
matters showing an interest really of the same

nature as that which has already been shown;

they are just quantitatively a bit more evidence

toward that point.

DEANE J:  But there is a simple answer to my question, is

there not, and that is - - -

MR FRYBERG:	No.
DEANE J:	- - -that your client is not prepared - - -
MR FRYBERG:	Yes.
DEANE J:	- - -to accept a decision against you on this

appeal as disposing of the matter?

MR FRYBERG:; That is ultimately correct, yes, Your Honour.

But the convenience of the matter is not resolved,

in our respectful submission, by simply saying

that there is one outcome upon which the resolution

of the Court would not finally dispose of the
matter because when you look at the probabilities

of it, they are such that convenience strongly

favours the Court proceeding.

Have Your Honours been given copies of an affidavit which we received by facsimile last

night of Mr Andrew Greenwood?

CITS/1/JM	6	10/5/89
Speleological(2)
MASON CJ:	Yes.	We have that.

TOOHEY J:  You mean the one in support of the notice of

motion?

MR FRYBERG:  Yes, Your H9nour. Your Honours will see that

there is an exhibit to that setting out the particulars

of the statement of clai~ which is APG2. It

is a very lengthy document and I will not ask

Your Honours to read it but, in summary, there

are only four matters which go beyond the findings

of the Full Court on the present evidence that are

additional and which are of the same nature as

the matters found by the Full Court.	Those
additional four matters are - - -

BRENNAN J:  But they are material matters according to

your answer to Mr Justice Deane, are they not?

MR FRYBERG: 

Yes, Your Honour, they are.

BRENNAN J: 

Well if they are material matters we are not going to pass upon them, are we?

MR FRYBER: 

No.

BRENNAN J: 

Well now how is it then that we should continue

with the hearing on a set of facts which has
no relevance to the ultimate resolution of the
issue?

MR FRYBERG: 

Your Honour, it has a lot of relevance and

that is the point I am trying to make. It is

just not identical.

BRENNAN J: It has some relevance but it is not conclusive.

MR FRYBERG:  Yes, Your Honour, that is correct.

BRENNAN J: Well,why should this Court

MR FRYBERG~ Because the conduct of the trial will be greatly

fnfluenced by what is the law on the topic.

The way that the trial court ultimately has to

approach the matter is to look at what evidence

comes in and resolve whether there is standing.

It must know what the proper test to apply for

standing is on that basis. Therefore, the question

whether there is any development of the law to

take place is material because that may even,

theoretically perhaps,but in our submission practically,

effect what evidence can be admitted.

ClT6/l/AC	7	10/5/89
Speleological(2)

MR FRYBERG (continuing): If there is to be nn

development of the law , no.ne the less,

there are propositions of law inherent in

what the Full Court has found which will be

binding unless that order of the Full Court is

set asida And it is not sufficient for our

learned friends to say that they will not be

asserting the effect of the Full Court in

response to an answer earlier because while it

is technically true that they do not have to

assert that, they none the less, will be quite rightly able to say - and the trial judge will

no doubt be bound to say - that '6n the evidence
as it stands there has been a finding of no

locus standi, therefore, the only question for

me is whether any additional evidence is

sufficient to establish locus standi". And

that is the framework that we will be compelled

to litigate under if the matter goes for trial

with the order of the Full Court extant.

TOOHEY J:  I rather understood Mr Byrne to have disavowed

any intention to do that, rather that the matter

would be open on all issues that came before a

trial judge.

MR FRYBERG:  Your Honour, the way that our learned friend

could achieve that, if that were his aim, would

be to consent to an order setting aside the

order of the Full Court. That is what should be

done; that is why we are here.

TOOHEY J:  Well, the matter went before the Full Court

on an application for an interlocutory injunction,

did it not?

MR FRYBERG:	Yes, Your Honour.
TOOHEY J:	And the matter was argued, as I understand it,

although not necessarily resolved, on the basis

~that the question was whether there was an

"arguable case of standing and the Full Court held

that there was not, and certainly the content of
the judgment went beyond the question of

arguability, but is this Court being invited to

do any more by the notice of appeal than decide

whether there is an arguable case of standing?

(Continued on page 9)

ClT7/l/JH	10/5/89
Speleological(2)

MR FRYBERG:  The Court is being invited to say several more

things. It is being invited first of all to say
that the proper test should be a different one from

that applied by the Full Court. Second, it is being

invited - or a wider one - second it is being invited

to say that the Full Court went wrong in law in the

way in which it applied the test, and	went seriously
wrong in several ways, in our submission.	And those
errors will be happening again at trial.	The result

will be, we will be fighting the trial under a

considerable disadvantage.

McHUGH J:  The issue of standing may never arise in the end.

You may lose on the merits.

MR FRYBERG:  Your Honour, that is always, theoretically, an

outcome.

McHUGH J: Well, in this case it is more than a theoretical possibility, is it not? Some might think that the

merits are the weakest part of your case.

MR FRYBERG: Well, Your Honours, all we can say to that is that

we have a majority finding on an arguable case below

and our learned friends have withdrawn that aspect

from the notice of contention.

McHUGH J:  But it is still an issue at the trial.

MR FRYBERG:  Yes. It was, of course, a matter which would

have been passed upon by this Court, but for our

learned friend's attitude this morning, and - yes,

that is a possibility, but, of course, it is

pointless of me to try and speculate, Your Honour,
about the outcome of that. The practical matter that

01.rlearned friend referred to, however, of the trial,

is a matter of significance. The material shows that

the trial date is only a tentative trial date and

there are, indeed, a number of matters which have to

be undertaken in the time. For example, discovery

by our learned friends is incomplete. There is a

f~rther affidavit of documents yet to come relating

tu a defence that they have raised which they have

not yet provided quite a large number of documents,

and other matters which I will not trouble Your Honours

with now, which really do suggest an improbability

that the tentative date will be achieved.

TOOHEY J:  It will not matter,will it, from your point of

view? There is an undertaking on the part of the

respondent. It is in the respondent's interests,

one would think, to have the matter brought to

trial while there is an undertaking hanging over its

head.

MR FRYBERG:	It will matter in two ways because we have to give an undertaking as to damages, Your Honour, and
we are in a more vulnerable position, economically,

ClT8/l/FK	9	10/5/89
Speleological(2)

than they are. One of the matters that we have

been beset with throughout this cas has been

applications, and threats of appli ione for

security, and in the latest correspondence, that

is continued.	Can I ask Your Honours to have a
look, perhaps, at that correspondence.	Your Honours

will have been given copies of an affidavit which

we filed by Maria Penelope Comino, and exhibit A

to that is a bundle of correspondence. The question

presently before the Court seems first to have come
up in a letter of 26 April, which I hope is included

in that correspondence, from Morris Fletcher & Cross -

if Your Honours have that - that was the first

suggestion of any undertaking of the present nature

being given.

(Continued on page 11)

ClT8/2/FK	10	10/5/89
Speleological(2)

MR FRYBERG (continuing):  The matter was raised again by our

learned friend on 5 May and relevantly to the point that

we are making now there was ultimately a response of

9 May which is the last letter in that bundle, by

_ Comino and Cominos, which sets out some of the matters to which we refer. Your Honours will see from that

that really there has been considerable oppression

directed toward us in the conduct of this matter and

notice of contention has been filed. We asked

specifically were they proceeding? There was no

suggestion that they were not until yesterday and yet

we were given no intimation of this. Obviously there

has been immense amounts of costs incurred in this
regard and yet we are being harassed and there is a

threat in the letter which I showed Your Honours

immediately before this one, of further applications

for security for costs.	So there is oppression in
it as well.

Your Honours, the major benefit that will flow

from the resolution of the question of law is that

the trial judge will be in a position in assessing

locus standi to apply the correct law. If he is not

in that position there is not only the probability

that the matter will come to this Court on appeal

again when all the costs of today will have been

thrm,m away, but also if evidence does not get in

which ought to have got in, there is the horrendous

possibility after that of a new trial, and that can

be avoided if the trial judge has direction about

what the law is in relation to locus standi.

McHUGH J:	Could you take me to the additional facts which you say may be inadmissibile unless the law of standing
is changed?
MR FRYBERG:	Your Honour, the additional material would depend upon what the Court held as to the test of standing.
He proposed to argue to Your Honours - and I do not
know if it would assist Your Honours to have our
outline in this context - we proposed to argue to
Your Honours that, in addition to the test laid down
in AUSTRALIAN CONSERVATION FOilliDATION, there should
also be recog·:1ized in Australia a category of standing summarized in the term "public interest standing",
and that that should have as its objective
ensuring the proper presentation to the Court of the corr~eting views and ensuring that judicial resources are not squandered on trivialities and
that busybodies are excluded.

Now, evidence relating to those issues wouli

therefore and thereby become admissible.

McHUGH J:	But you must have them set out somewhere on your
statement of claim, have you, in terms of particulars -
this evidence, these material facts?

c·LT9 / 1 /VH	11	10/5/89
Speleological(2)

MR FRYBERG: Well, Your.Honours, what we have alleged is that

we have standing and, because of the state of the law
at the present time, we have not particularized that

for fear of provoking a demurrer. Your Honour is right, we should have those matter particularized

but the intention was to have the Court resolve them

on this appeal and then the trial could go ahead
on the basis of the law as determined by this Court.

It is difficult to put them in at the present time for that reason.

McHUGH J: Well, if your leave is rescinded, you are going

to have to put them in your statement of claim,

are you not?

MR FRYBERG:  I suppose that is right, Your Honour, yes, and then

we will have a demurrer, perhaps, and be back here.

TOOHEY J:	But do not your further and better particulars of
claim go to the question of standing and the various matters upon which the plaintiff relies?
MR FRYBERG:	They really set out what has been found by the Full Court, apart from the additional four matters
that I referred to earlier, Your Honour. The particulars
that are there simply set out the findings of the
Full Court, in effect, with those additional four matters which are four matters that are important to us but are not matters that change the nature
of the sort of standing we assert as a special
interest under the existing law.

(Continued on page 13)

C1T9/2/VH 12 10/5/89

Speleological(2)
MR FRYBERG (continuing): It is the error of the Full Court

in relation to that of which we complain also and

_which will inevitably affect the way the trial is

conducted. We will be litigating, in effect, with

one hand tied behind our back and, in effect, with

the trial judge looking to see simply what more we

can present in addition to the material that was

before the Full Court.

DEANE J:	But that applies to every case where a Full Court
rejects an appeal from a refusal to grant interlocutory
relief. It says nothing to the question whether, absent the threat of action,an appeal to this Court at the
interlocutory stage is appropriate for the purposes of the general administration of justice.
MR FRYBERG:	Your Honour, what it says that is additional in

this case is that the Full Court has made final

findings. Normally a Full Court would simply say,

when rejecting an interlocutory relief application,

that an arguab1e case had not been shown or the

balance of convenience did not favour the matter.

Here, the majority of the Full Court has made final

determinations as to our locus standi and no amount

of re-interpretation by our learned friends can

change that.

DEANE J:	But that does not create an estoppel for the hearing
of the action.

MR FRYBERG: It does unless there is any further evidence, we

would have thought, Your Honour.

DEANE J:  No, it does not. Can you show me authority for the

proposition that a refusal to grant interlocutory

relief on that basis creates an estoppel for the

issue in the actual action because I find it an

extraordinary proposition.

MR FRYBERG:  Not in terms of res judicata, it does not, but in

temns of a finding of an issue estoppel on a collateral
issue that is locus standi.	The way the matter came

up in the Full Court, Your Honour, was that we were

appealing from a refusal of an interlocutory injunction.

In effect, a preliminary point is raised against us

saying, "You do not have locus standi". It was one

of a number of preliminary points. There was another

one, for example, saying the Court had no jurisdiction.

All of these were preliminary points which had to be resolved and which were resolved in the case of the locus standi point, not in a way in which it could have been resolved, by a finding as to an arguable case but, in fact, was resolved by a finding that there was no locus standi.

ClTl0/1/SH	13	10/5/89
Speleological(2)
McHUGH J:	But that places you in this dilemma.	If that was

a finding on what is, in effect, a preliminary

question of law then that is conclusive between the

parties and at the trial you could not lead any

further evidence to change it.

MR FRYBERG:  Yes.

McHUGH J: Well, then, the case would stand or fall on the

facts in the pleadings.

MR FRYBERG:	That is why we need to reverse the order of the Full Court, Your Honour.
McHUGH J:	Yes but, assuming that we upheld the Full Court on

those facts, that would be the end of you, in any

event, on the standing question because you could

not, then, litigate the issue with new facts.

MR FRYBERG:  I do not think we would concede that, Your Honour,

but we would certainly be in great difficulty.

McHUGH J: Well, you must. An interlocutory order cannot found

any form of estoppel, issue estoppel or res judicata.

It is an interlocutory order so it is either final in

the sense it determines something - the Full Court's

judgment either determined something between the

parties or it did not. If it determined something

between the parties finally, well, we can only

decide the case on the material before the Full Court.

MR FRYBERG: Well, Your Honour, it may well be. I mean, I said

no to Your Honour simply because I did not want to

concede unnecessarily but I follow the logic of what Your Honour puts and it may be that if Your Honours

finally are against us that will be the inevitable

outcome. If Your Honours were against us, we would have to face up to that. I did not want to concede

it though.

(Continued on page 15)

ClTl0/2/SH	14	10/5/89
Speleological(2)

MR FRYBERG (continuing):  Your Honours, it is not proper,

in our submission, for a respondent to wait

until just before his appeal is to come on

-and then proffer an alternative form of

relief and say, "Right, it's now no longer a

special leave case. They were all matters

that could have been advanced at the stage of

special leave and yet they were not. These

matters are matters that are now being put

forward at the last minute and they are matters

which have, as we have already put, an oppressive

effect."

Your Honours, I cannot add anything

further to what we have put.

TOOHEY J:	Mr Fryberg, apart from the constraints that you suggest may be imposed upon the trial judge,
and therefore upon the plaintiff by reason of
what has been said by the Full Court, is there any other reason why the matter ought not go to
trial on the basis that has been suggested?
MR FRYBERG:	Your Honours, we would submit it ought to go

to trial on the basis of a finding by this Court

because another reason being there have already

been incurred the costs of coming here; the

matter is all ready to go and the convenience of

having the findings of this Court for the trial

is the major point that we put. The effect

of the Full Court order on the trial is really

only a secondary point; it is the convenience of

having the law resolved that is the major benefit

that will accrue at the trial, because that is the

area where at the moment there is going to be

difficulty at the trial. If we can have the

two major aspects of the law, that is, whether

there is to be any advance in the law and

secondly, whether the Full Court has erred in

law in applying the existing law, if those issues

can be resolved then the conduct of the trial

will be greatly simplified and the costs that have

been incurred in preparing this appeal will not

be wasted. So far, if our learned friend's course

is followed, they will be totally wasted.

There is no practical difficulty, in our

submission, in this regard because the facts on

which this Court will be asked to rule are very

similar to those which will ultimately be the

facts, and that appears on what is before

Your Honours, so that the matters of principle

can be resolved. If the Full Court is wrong

in what it has said a fortiori, it is wrong if

there is a bit more evidence.

CITll/1/JM	15	10/5/89
Speleological(2)

McHUGH J:	What you say about the attitude of the Full Court
seems to be reflected in the passages at
page 326 and back at page 318. At page 326,
in the judgment of Mr Justice de Jersey, at
line 15,he says the trial judge:

was not told, nor were we, of any additional

species of interest which the appellant

would wish to raise. No particular deficiency

in the manner of presentation of the evidence

going to standing was mentioned. There is,

in short, no reason for thinking that given

more time the appellant would mount a case

on standing significantly different from

that summarised above.

At page 318, line 24, Justice Derrington seems

to have taken the view - both judges seem to

have regarded the evidence as conclusive on - - -

MR FRYBERG:  Yes, Your Honour, and can I supplement what

Your Honour put to me by reference to page 327,

line 25?

McHUGH J: Yes. On the other hand, Mr Justice Thomas,

at page 301, although in dissent, took the view

that there was a case fit for trial on the

question of standing.

(Continued on page 17)

CITll/2/JM	16	10/5/89
Speleological(2)

MR FRYBERG:	Yes that cannot in the future have any influence.
But' the practicality of running the trial and
the benefit of having a finding from this Court
on what are substantially the same facts when
all the costs have been incurred in any event,
when everyone is ready to go and argue the point and when there simply is not a practical difficulty
about it.
McHUGH J:	But what if your opponent is prepared to set

aside the judgment of the Full Court - consents

to it being set aside in addition to his undertaking?

MR FRYBERG:  Your Honour, if he is prepared to do that,

as we said in our letter, then there is nothing

we can say. Then it does become a matter of

costs and that is the course we have urged should

be taken if this is - - -

DEANE J:  But that would have no effect. Am I not right

that the trial judge decided the matter against

you on the statutory point?

MR FRYBERG:	Mr Justice Demack, Your Honour means?
DEANE J:	Yes.
MR FRYBERG:	Yes, but the Full Court reversed his reasons.
DEANE J:	I understand that but the order he made was that
you had not complied with the statutory requirements. dismissing an appeal from his refusal to grant -

MR FRYBERG:  No, Your Honour. I am sorry, there were two

appeals to the Full Court only one of which has

come on here. There was another appeal to the

Full Court that dealt with that aspect of it

and which was allowed.

DEANE J:	B~t was not the court's order an order dismissing
~h appeal from Mr Justice Demack's order?
MR FRYBERG:	Yes.
DEANE J:	Then there is no order of the Full Court that
creates an estoppel against you.
MR FRYBERG:	No, Your Honour. It is the matter of convenience

that we put formally, certainly not in the sense

of res judicata - we could not possibly argue

that.

DEANE J:	Then what would be the effect of setting aside
the order of the Full Court dismissing your appeal
from Mr Justice Demack?

ClT12/l/AC	17	10/5/89
Speleological(2)

MR FRYBERG: 

Your Honour, whatever might be the technical

legal effect the practical, psychological effect
at trial would be fairly considerable and that is

DEANE J: 

The effect would be that the Full Court had still

said what it said and Mr Justice Demack's order

refusing interlocutory relief would still stand.

MR FRYBERG: 

Your Honours, that would be true but it would

then be the situation that the order that the

Full Court made consequential upon what it said

would no longer stand and that, in a practical

sense, certainly would have a considerable effect

at trial. Your Honours, the bottom line, as

we said in the letter to our learned friend's

solicitors, is that if they come along here and

consent to the orders we seek in the notice of appeal we cannot force the matter to be argued

and we invited them last week, or I think on

Monday this week when the matter was drawn to

our attention, to do just that: to say that they

would consent to the orders that we seek and

then we would not have to come down and trouble

the Court because we cannot do more than that.

And that course they refused to take. And that,

in our submission, is the - if that is the way

they want to go, that is the way they should

go about it.

TOOHEY J:  Do you mean the orders sought in paragraph 3

of your notice of appeal? Is that what you were

inviting the respondent to consent to - page 338?

MR FRYBERG:  Yes, Your Honour. And, indeed, I should say

tha~ in so far as the actual granting of an injunction
is concerne~ we have no reason to doubt the propriety
of any undertaking. If they have some sensitivity
as to being the victim of an order no doubt they

can say so but we see no reason why they should

not have an order made against them at this stage

a? things have reached. 7 (Continued on page 19)

ClT12/2/AC	18	10/5/89
Speleological(2)

MR FRYBERG (continuing): It is in their own hands really.

They can consent to the orders in paragraph 3 and

that puts an end to the matter. We have invited

them to do that. That is the fair way to resolve

it. We have got an order against us below including

orders for costs below that ought not to stand on

the record. We ought to be allowed to argue to

have those orders set aside. We have an appeal

before the Court and our appeal should be heard.

McHUGH J: Well it is not really the order. The order is set

out at 330. That is fairly harmless.

MR FRYBERG:	I beg Your Honour's pardon?
McHUGH J:	The actual order which is set out at 330 - the
relevant order is set out at 330 - it is harmless
as far as the trial is concerned. It is the
reasons of. the Court: of ·the nnjority that -we a:re concerned with.
MR FRYBERG:	Yes, but the effect of setting aside the order

would be as we put it to Your Honours. Your Honours,

there is just one matter which one of Your Honours

raised with me earlier which we would ask an

indulgence for a moment to get some instructions

about before I sit down.

MASON CJ: 

Mr Fryberg, assume for the moment that the Court

is minded to rescind the order granting special

leave to appeal, what order for costs would you

seek?

MR FRYBERG: 

Your Honours, we should have the costs of the

appeal, we should have the costs in the Full Court
and the costs at first instance should be reserved.

That is what we would get if we were successful

in the appeal and, in effect, what they are doing

is bypassing the appeal by an alternative route

at the last minute, after all these costs have been

incurred and, in the case of the Full Court, while
we are still subject to an order to pay their costs

~hich will, no doubt, be trotted out in evidence

~n the next application for security.

MASON CJ: That is reserved for the determination of the trial

judge, that is the costs at first instance.

MR FRYBERG:  Yes, Your Honour, costs at first instance. Costs

of the appeals should be ours.

MASON CJ: Yes.

MR FRYBERG:  And that is, in effect, the orders that are

sought in paragraphs(d), (e) and (f) on page 339.

Your Honours, I was asked a little earlier, would

we agree to this Court finally determining the

question. I have sought instructions on that to see whether or not we are in a position to agree.

ClT13/l/DR	19	10/5/89
Speleological(2)

We do not have anyone in Court, presently, who can

give those instructions.	We are seeking further
instructions, presently, on that question.	May we

·ask Your Honours' indulgence for a short time

while those instructions are obtained by telephone?

GAUDRON J:  Mr Fryberg, that is on the basis of the material

as it was before the Supreme Court?

MR FRYBERG: Before the Full Court. Yes, Your Honour. In

our words, in answer to the question I gave in

answer to Justice Deane

earlier, I said, "No, we are seeking instructions

on that point to see whether the instructions

we held''- - -

DEANE J:	Mr Fryberg, I should say to you that, for my part,
having heard the discussion, I would not regard the answer to that question of mine as critical.
That is only for my part.
MR FRYBERG:	Yes, Your Honour. Well I know some of Your Honours

appear to have some concern about that and, I suppose~

it is a matter of whether Your Honours feel we

should have time if that does matter.

DEANE J:	Well I did have concern about it, but it seems to
have become engulfed in other concerns, if
I might put it that way.

(Continued on page 21)

C1Tl3/2/DR	20	10/5/89
Speleological(2)

MR FRYBERG:  Your Honours, apart from that matter,

we simply urge upon Your Honours that the

convenience and the benefit at trial of

Your Honours resolving these questions - these
very important questions - and of not allowing

such a late application to succeed in

subverting the appeal are the factors which

ought to lead to a refusal of the motion.

TOOHEY J:  Mr Fryberg, just one other question, if I

may. The further and better particulars of

claim are extensive and on page 9 they paragraph

what is said to be the material facts by which

the plaintiff has a special interest in the

particular physical features. Are you saying

that, four matters aside, those particulars do

no more than reflect matters that were urged

before the primary judge on the application for

an interlocutory injunction?

MR FRYBERG:	Yes, Your Honour.
TOOHEY J:	The four matters themselves are presumably in the particulars?
MR FRYBERG:	Yes, Your Honour.
TOOHEY J:	Can you identify them for us?
MR FRYBERG:	Yes, I can say to Your Honour what they are.

First, one small part of paragraph (viii), that

is detriment - - -

TOOHEY J:  You are speaking of 9(a), are you,

at the moment?

MR FRYBERG:  Yes, and if Your Honour looks at

paragraph 9(a), you will see that it is

subdivided into a number of roman numbered

paragraphs and (viii) - which is quite a lengthy

; one - contains an allegation about the middle

C of it relating to "detriment to the amenity of the camp site".

TOOHEY J:	Yes, thank you.
MR FRYBERG:	That was not before the primary judge.

(xvii) contains a reference to 'some work which

members of the appellant have done in

assisting in research into bats". That was

not before the primary judge.

TOOHEY J:  None of that, in (xviii), was before

the - I am sorry, it is (xvii) is it not?

MR FRYBERG:  I cannot say that absolutely none of it was

before him but the thrust of the paragraph

C1T14/1/JH	21	10/5/89
Speleological(2)

to the "effect that we had assisted in

research" was not before him.

TOOHEY J:	Thank you.
MR FRYBERG:	The third matter was in paragraph (xviii),

that "we have been involved with administrative

and supervisory work with the National Parks and

Wildlife Service"; and the fourth matter is in

(xix), in effect that "if the cave is saved

there is a real possibility of our having a
delegated role from the National Parks and
Wildlife Service in the future management of it".

Those are the only additional matters

particularized beyond what was before

Mr Justice Demack.

BRENNAN J:  Am I right in thinking that the new matter in

paragraph (viii) is intended'to draw some support

from PINGLEN's case?

MR FRYBERG:  Such as it can get, Your Honour. I would

have to say that quantitatively there might not

be thought to be a very close comparison between

a lady who has her view blocked by a building

close up and simply a vizual detriment when the matter is viewed from a camp site some distance

away; but, such support as it could get, we

would seek to draw, Your Honour, yes.

MASON CJ:  Yes, Mr Fryberg, is that all you wish to put

to us?

MR FRYBERG:  Your Honour, subject to get -hose

instructions, those are the mat	which we
would wish to put to Your Honours.

MASON CJ:	Yes, Mr Byrne?
MR BYRNE:	Your Honours, even some of the facts relied on

.:in support of the claim for·standing, which had (Continued on page 23)

}been advanced before, are in dispute.

ClT14/2/JH	22	10/5/89
Speleological(2)

MR BYRNE (continuing):  And it would also be right, I think, to

say that the factual correctness of these additional

four categories of facts identified will also be

in dispute at a trial. The practical result would

be that it is very likely that there will need to

be an effective resolution of these questions before

a determination of this Court in relation to the

question of standing had practical utility, either

for these parties or for the administration of

justice generally. At the moment, we respectfully

submit, the way in which our learned friend

proposes that the Court deal with it, makes the

point, although of some practical value, close to

hypothetical or academic.

The measure of protection which we offer by

the undertaking will preserve whatever interests

they may ultimately establish at a trial and, in
our respectful submission, if these questions are

ultimately to be determined by this Court, it ought

to be against a background where the true facts at

issue are established.

Finally, may I add that our learned friend,

notwithstanding having been invited to do so, did

not, we apprehend, identify any particular piece of

evidence which he says would be excluded on the

application of the established principles in the

AUSTRALIAN CONSERVATION FUND case and ONUS V ALCOA,

which would be admitted if the Court opted for

some wider-interest test and decided to overrule

those cases. Those are our submissions.

MASON CJ:	Mr Byrne, do you want to say anything in response to
the submission that Mr Fryberg made as to the order
for costs that should be made in the event that
your application is successful?
MR BYRNE:	Your Honours, we would respectfully submit that it
is appropriate that the question of costs be reserved.
We make that submission because ultimately the view a~out who ought to bear them might well depend upon tne findings which are made at a trial.
MASON CJ:	But reserve for whose determination? I mean, one of
the possibilities is that, if you are successful in this application and the matter goes to trial, the case may never get back to this Court.
MR BYRNE:	Yes.  Your Honours, we have indicated to our learned friends that if the Court thought it appropriate,
we would ourselves undertake to apply under
Order 71 .rule 39 of the High Court Rules to a single

ustice to determine the question of costs if ever

that became necessary.

GAUDRON J: Well, that would not be the costs of the Full Court,

though, would it?

ClTlS/1/VH	23	10/5/89
Speleological(2).

MR BYRNE: Well, Your Honour, we would not wish to submit that

the rule did not extend, in cases where the Court

exercises its appellate jurisdiction, to costs

below.

GAUDRON J: If you were successful, the one thing this Court

would not be doing is exercising its appellate

jurisdiction.

MR BYRNE:	No.	We would also be content, rather than trouble the Court with what are essentially questions of
costs, with an order that the costs here and, if
need be, in the Full Court, be costs in the cause.
TOOHEY J:	Mr Byrne, Order 71 rule 39 seems to presuppose that
there is a proceeding on foot. There would be no
proceeding to which this application could attach,
would there?
MR BYRNE:	Your Honour is quite right.

DEANE J: That could be overcome if leave were revoked by

simply adjourning the application for leave, leaving

it on foot.

MR BYRNE:	Yes, and we could then apply to a single Justice
to resolve the question if the parties cannot otherwise agree.
DEANE J:	Am I correct that the Full Court made no order as

to costs?

MR BYRNE:	No, Your Honour.	The Full Court dismissed the appeal
with costs.

DEANE J: What am I looking at on page 333? That is the other

one?

MR BYRNE:	Yes.
DEANE J:	I see, that is the other appeal.  (Continued on page 25)

ClT15/2/VH	24	10/5/89
Speleological(2)

TOOHEY J: Could I ask you this, Mr Byrne: could the

arguments now before the Court in support of
the motion to revoke special leave has been
urged before the Court on the application for
special leave or, perhaps, putting it more
directly, is there any reason why those arguments
could not have been urged at the application for

special leave?

1v1R. BYRNE:  Yes. We have brought this application, I might

say, having given our opponents some two weeks'

notice of our intention to make it because we now
have a trial date and we are confiaent that we are

now going to have a trial which will finally resolve

all the aspects of this case. When the application

for special leave was heard on 17 March, that was not

the position and it is true, no doubt, that we, like

any litigant, might have capitulated at that stage but

we had the benefit of determinations in the courts

below that, if we had, we would have been submitting

to an unjust demand.

So, Your Honour, from our point of view, the

critical feature now is the imminence of a trial which

will resolve the questions. Those are our submissions.

MASON CJ:	Thank you, Mr Byrne.
1v1R FRYBERG:	Your Honour, may I just correct one matter, with

respect to our learned friend just then, we have not

had two weeks' notice of this.at all. There was a

proposal a little under two weeks ago that both

parties should jointly approach the Court. Last

Friday we received a threat of an application and

yesterday we were told that an application was being

brought. That is the sequence. On 26 April, there

was a proposal for the parties to approach the Court

jointly. Last Friday there was a threat that they

would make an application but not actually notice of it and yesterday we got the notice and the trial is,

not the issue. It is doubtful, in any event, whether	agitating Your Honours' minds in any event. That is in~our respectful submission, not a matter that is
it will go on.

MASON CJ: Yes, thank you, Mr Frybere. The Court will take an adjournment in order to consider the course it

will take in this matter.

AT 11.15 AM SHORT ADJOURNMENT

ClT16/l/SH	25	10/5/89
Speleological(2)

UPON RESUMING AT 11.59 AM:

MASON CJ:  AT the commencement of the hearing of this appeal,

the respondent moved for an order rescinding the

order granting special leave to appeal made on

17 March 1989. The ground relied upon by the

respondent to the appeal is that the action has been

listed for trial in the Supreme Court of Queensland

on 13 June 1989, and that at the trial the

respondent's counsel will be pressing the trial judge

to make findings on all issues arising on the

pleadings, including the issue of standing, and

that the respondent will offer, pending the determination

at the trial or until further order of the Supreme

Court, appropriate undertakings.

The appellant resists the rescission of the grant of special leave to appeal, contending that it will

be prejudiced at the trial by reason of the existing

Full Court decision that the appellant lacks locus

standi. The appellant submits that it is entitled

to present its appeal in this Court against that
decision and have it overturned so that the trial
judge is not constrained by the authority of the

decision on the issue of standing.

The appellant intends at the trial to adduce

further evidence on that issue, but is prepared to

treat a decision of this Court on the issue as

Tl7	decisive of the issue, and if against i~, of the action. On the other hand, a decision by this Court on the issue of standing in the appellant's favour might not
dispose of even that issue since the Court was informed
that some of the alleged facts upon which the appellant
relies to establish standing are in dispute. In all
the circumstances, we have come to the conclusion
that the appropriate course is to rescind the grant of special leave to appeal.

:  There are other questions of law which arise on

tlie pleadings and were debated in the Full Court.

These questions are likely to fall for determination on any appeal as well as·the issue of standing. The

resolution of these questions will be facilitated if

they are determined on the basis of relevant findings

of fact. The rescission of the grant of special leave

will allow the trial to go forward. If the trial judge makes findings on all issues arising on the pleadings and does not confine himself to the issue of

standing, an appeal may proceed to the Full Court or,

conceivably, direct to this Court if the circumstances

justify it, with all relevant facts having been found.

If this Court is to embark on a consideration of the

question of standing and the other questions of law

which have been debated below, it is preferable that

ClT18/l/RB	26	10/5/89
Speleological(2)

this Court should do so on the footing that all facts

have been found. We would point out that the

decision of the Full Court on the issues, including

the issue of standing, being interlocutory, cannot be

conclusive as Mr Byrne, Queens Counsel, for the

respondent acknowledged. The undertakings offered

by the respondent's counsel will adequately protect

the appellant in the meantine.

In the circumstances the Court makes these

orders:

Upon the respondent, by its counsel, undertaking to this Court to give undertakings to the

Supreme Court until the determination of the

action or until further order of the Supreme

Court in terms of the orders made by this

Court at page 334 of the appeal book, subject

to the appellants giving the usual undertaking
as to damages; rescind the order for special
leave to appeal made on 17 March 1989 and stand
over the application for special leave to appeal.

Any outstanding question of costs, including

any questions of costs which are the subject of

an order in the Supreme Court, can be determined
in the light of the final disposition of the

matter by the Supreme Court.

(Continued on page 28)

ClT18/2/RB	27	10/5/89
Speleological(2)

MASON CJ (continuing): Yes, Mr Fryberg?

MR FRYBERG: _ Would Your Honours stay the order for costs

- in the Full Court and at first instance?

MASON CJ:	They would be included in the comment I made
at the end of stating the orders of the Court. for special leave to appeal, we envisage that
it would be possible to deal with these questions
of costs if it became necessary to bring that application on at some later date.
MR FRYBERG:	We would trust that no attempt would be made

to enforce the orders in the meantime.

MASON CJ: Yes, the Court would certainly contemplate that

no attempt would be made to enforce the orders in the meantime. There is no difficulty about

that, is there, Mr Byrne?

MR BYRNE:	No, Your Honour.
MASON CJ:	The other thing is this, Mr Byrne:  you will
abide by the orders already made that are
noted at page 334 of the appeal book? In other words, you give an undertaking to abide by those orders, or give an undertaking in terms of those orders, until such time as you give
an undertaking directly to the Supreme Court of Queensland?
MR BYRNE:	Of course, Your Honour, yes.
MASON CJ:	So that the appellant is completely protected
from this point onwards?
MR BYRNE:	Yes.
DEANE J:	Mr Byrne, I am just wondering what happens to

~e injunctions we granted.	Were they limited
to - - -

MR BYRNE: Until further order, Your Honour.

DEANE J: Unless a further order is made, they will still

apply?

MR BYRNE:	I had understood that a further order has now
been made.

DEANE J: Yes, I suppose that is so.

MR FRYBERG:  Has Your Honour dealt with the costs of the

appeal today?

CIT19/l/JM	28	10/5/89
Speleological(2)

MASON CJ:	No,_ there has not been any order made in relation to the costs of today, but again, the costs of the proceedings in this Court are included -in the outstanding questions that are wrapped up in the adjournment of the special leave application.
MR FRYBERG:	We would seek an order for the costs of the

appeal to this Court in so far as those costs

have been totally incurred by the lateness of

the application.

MASON CJ: Yes, we follow that, Mr Fryberg. You made that

application to us; we heard the argument in

support of it and none the less we are making

the order that I have indicated.

MR FRYBERG: Yes, Your Honour.

MASON CJ:	But I should perhaps ask you:	you do give the
usual undertaking as to damages?

T19 MR FRYBERG: Yes, Your Honour.

MASON CJ:  Now, Mr Byrne and Mr Fryberg, Justice Deane points

out that there is a difficulty arising from the

form in which the injunctions were granted on

17 March. They are expressed to continue until

further order and that really contemplates further

order in relation to those injunctions in this Court.

By standing the special leave application over we are,

in effect, giving those injunctions continued life

until such time as we terminate them.

So that, it would seem that we ought now to make

the order an order dissolving those injunctions as
from the time when Mr Byrne gives his undertaking in
the Supreme Court pursuant to the orders already

announced. In other words, the injunctions granted

on 17 March have continued life and force until such

time as Mr Byrne gives his undertaking to the Supreme

Cqurt. In this respect the Court orders as follows:

Order that the injunctions granted on 17 March 1989

be dissolved as from the time when counsel for the

respondent gives the undertakings to the Supreme

Court pursuant to the orders already announced.

MR FRYBERG. The only effect that we can see that might

prejudice us there, Your Honour, would be that the

undertaking, once given to the Supreme Court, would

presumably be then capable of dissolution by the

Supreme Court.

MASON CJ:  But that is appropriate, is it not? We cannot cater

for all contingencies that may arise in the course

of continued litigation.

CIT19/2/JM	29	10/5/89
Speleological(2)

MR FRYBERG: Well, Your Honour, while the application for

special leave remains alive and while the action

remains alive, we would respectfully submit that the

- undertakings ought to remain alive too.

MASON CJ: But, we want to avoid a situation, Mr Fryberg, in

which counsel are coming direct to this Court and

have to come direct to this Court in order to modify

or secure some sort of release from the undertakings.

If we are to continue them indefinitely, that is what we would be subjecting ourselves to, and the parties.

MR FRYBERG:  Well, I take what Your Honour says. The

problem, we expect, will be that there will be an

application to the Supreme Court to relieve them of the undertaking on the basis that we have not

provided sufficient security or that we should provide

more security.

MASON CJ: Well, that is a matter for the Supreme Court to

determine.

MR FRYBERG:	As Your Honour pleases.
MASON CJ:	The Court will adjourn until 10.15 am tomorrow.

AT 12.11 PM THE MATTER WAS ADJOURNED SINE DIE

ClT20/l/RB	30	10/5/89
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