Cohen, B., Minister for Arts, Heritage & Environment v Honourable L.F. Bowen

[1986] FCA 576

S 3 /6 .

' C .

IN THE FEDERAL COURT OF AUSTRALIA )

DISTRICT =ISTRY	)	NO. NTG9 OF 1986
GENERAL DIVISION	)

ON APPEAL from an interlocutory

judgment of His Honour Mr Justice

Beaumont dated 24 November 1986.

BEXWEZN:

THE HONOURABLE BARRY COHEN

MINISTER FOR ARTS, HERITAGE	AND
ENVIRONMENT

First Appellant

AND:

THE HONOURABLE LIONEL FROST B O W .

ATTORNEY-GENERAL FOR THE

COMMONWEALTH OF AUSTRALIA

Second Appellant

AND :

Respondents

- -

COURT: Bowen C. Lockhart J., Jackaon nd JJ. . I > -.

-._-	.	' .z
-._ .

pLAcE: Sydney '. '

DATE: 24 November 1986

MINUTE OF ORDER

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.

2 . The applicant pay r spondents' he costs of he

application.

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

IN THE FEDERAL COURT OF AUSTRALIA )

DISTRICT REISTRY	)	NO. NTG9 OF	1986
GENERAL DIVISION	1

ON APPEAL from an lnterlocutory

judgment of His Honour Mr Justice

Beaumont dated 24 November 1986.

BETWEEN:

THE HONOURABLE BARRY COHEN

MINISTER FOR ARTS, HERITAGE	AND
ENVIRONMENT

First Appellant

AND:

THE HONOURABLE LIONEL FROST BOWEN.

ATTORNEY-GENERAL FOR THE

COMMONWEALTH OF AUSTRALIA

Second Appellant

AND :

PMO-WALLSEND LIMITED

P M 0 EXPLORATION LIMITD

PMO-WALLSEND OPERATIONS LIMITED

ELECTROLYTIC ZINC CO.	OF AUSTRALIA
LIMITED

Respondents

M TEMPORE REASONS FOR JUEMENT

BOWEN C.J.:

This is a motion for leave to appeal from an

interlocutory judgment of Mr Justice Beaumont given this morning.

The application for leave was listed for 2.15 today before a Full the extreme urgency and importance of the matter.

2

It concerns the listing of Kakadu Stage 11. The World

Heritage Committee is sitting in Paris commencing today and it

was thought that the order which had been made by his Honour

should be subject to an appeal to be heard before the order was

implemented. The applicant sought an opportunity to show that

there was error and that leave should be granted.

Under sub-section 24(1A) of the Federal Court of

Australia Act 1976:

A n appeal shall not be brought from a judgment

referred to in subsection 1 -

(that is an interlocutory judgment) -

unless the court or a judge gives leave to appeal.

There is therefore a necessity for the applicant to make

out the case for leave to appeal from an interlocutory judgment

such as this I s .

Due to the importance of the matter we listed it, as I

have said, urgently and in circumstances where, as the parties

are aware, the reasons for judgment of the judge below were not

yet available. However, this enabled the applicant to have an

opportunity of demonstrating, if he could, manifest error on the

record without being able to	p int to anything in the reasons for
judgment.

We have listened carefully to the arguments and it

appears to us that there are complex questions of fact and law to

be determined. We do not see, in the absence of reasons, that

error has been shown which would require the intervention	by the
grant of leave to appeal.

In these circumstances the application must be refused

and the normal consequences as to costs will follow. Leave is

a .

Kef used.

That is the judgment of the court: Application for leave

refused. Costs to be paid by the applicant.

MR BENNEPT: Would your Honours be prepared to grant a stay of

the Order until tomorrow morning, perhaps tomorrow

lunchtime for the purpose of enabling an appllcation to

be made to the High Court, a continuous stay?

B O W CJ: If you wish to have a stay I think you should make that

application to the High Court if you are going there, Mr

Bennett? Since the effect of a stay would be to reverse

the Order temporarily in effect I do not think that

having refused leave we should grant a stay but you, of

course, are completely at liberty to apply	to the Hiqh
Court for a stay.

MR B : - May I just say this, your Honour, there is, of

course no prejudice to the other party if a stay is

granted, until tomorrow evening, for the reasons which

have been canvassed. There is, of course, a practical

difficulty in approaching the High Court this afternoon

which, the High Court is in Canberra at the moment and

the day is dawning in Paris and it may be that the

possibility of being able to exercise a right to seek a

stay or an interlocutory Order from the Hiqh Court would

be lost unless we have a stay overnight but I am in your

Honour’s hands in relation to it.

BOWEX CJ: I will hear MK Conti on it. MR CONTI: We would oppose the stay.

1 . . _ .

B O W CJ: You oppose it?

MR CONTI: Yes. your Honour.

BOWEN CJ: Stay is refused. Court will now adjourn.