Darwin International Airport Pty Ltd v Diah (NT) Pty Ltd - [2024] NTCA 4

CITATION:Darwin International Airport Pty Ltd v DIAH (NT) Pty Ltd [2024] NTCA 4
PARTIES:DARWIN INTERNATIONAL AIRPORT PTY LTD
v

DIAH (NT) PTY LTD AS TRUSTEE FOR THE AIRPORT HOTEL TRUST

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:AP 1 of 2024 (22401616)
DELIVERED:  3 September 2024
HEARING DATE:  1 July 2024
JUDGMENT OF:  Brownhill, Huntingford and Reeves JJ
CATCHWORDS:

APPEAL – Whether Supreme Court erred in finding there was a denial of procedural fairness – Where an appeal contains allegations of denial of procedural fairness the appeal Court must first address that issue – Rejection of evidence upon which there was no cross examination – Local Court obliged to provide procedural fairness – Procedural fairness not afforded – Defect in the administration of justice which adversely affects public confidence – Orders need to address the public interest in the integrity of the administration of justice – No error by Supreme Court.
APPEAL – Whether Supreme Court erred in finding apprehended bias – Where an appeal contains allegations of apprehended bias the appeal Court must first address that issue – Whether decision is impugned by apprehended bias – Reasons of Local Court detailed and cogent – Local Court’s decision not affected by apprehended bias – Error by Supreme Court.
APPEAL – Local Court order set aside for denial of procedural fairness – Retrial by Local Court would be futile as vacant possession of land already provided – No remitter to Local Court – Supreme Court erred in determining other grounds of appeal and making findings of fact – Appeal allowed in part – Supreme Court’s orders set aside.

Browne v Dunn (1893) 6 R 67 (HL), Charisteas v Charisteas (2021) 273 CLR 289, Concrete v Parramatta Design and Developments (2006) 229 CLR 577, Conway v R (2002) 209 CLR 203, Crown Melbourne v Cosmopolitan Hotels (2016) 260 CLR 1, Development Consent Authority v Phelps 27 NTLR 174, Haritos v Commissioner of Taxation (2015) 233 FCR 315, Jorgensen v Fair Work Ombudsman (2019) 271 FCR 461, Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419, QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65, Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88, Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, Stead v State Government Insurance Commission (1986) 161 CLR 141, Sullivan v Trilogy Funds Management (2017) 255 FCR 503, Tiver Constructions v Clair (1992) 110 FLR 239, Windoval Pty Ltd v Donnelly (2014) 226 FCR 89 referred to.
Local Court (Civil Procedure) Act 1989 (NT) s 19.
Supreme Court Act 1979 (NT) s 55.
REPRESENTATION:
Counsel:
Appellant:W Roper SC with T Silvester
Respondent:  A Harris KC with D Lorbeer
Solicitors:
Appellant:Mills Oakley
Respondent:  HWL Ebsworth Lawyers
Judgment category classification:    B
Number of pages:  22

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Darwin International Airport Pty Ltd v DIAH (NT) Pty Ltd [2024] NTCA 4

No. AP 1 of 2024 (22401616)
BETWEEN:

DARWIN INTERNATIONAL AIRPORT PTY LTD

Appellant

AND:

DIAH (NT) PTY LTD AS TRUSTEE FOR THE AIRPORT HOTEL TRUST

Respondent

CORAM: BROWNHILL, HUNTINGFORD and REEVES JJ
REASONS FOR JUDGMENT
(Delivered 3 September 2024)
Introduction

Darwin International Airport Pty Ltd (‘Airport’) is the head lessor from the Commonwealth, and operator of, the Darwin International Airport. In 2015 it subleased an area of land at that airport to DIAH (NT) Pty Ltd, (‘Hotel’). Hotel used that land and a large number of demountable buildings that it placed on it, to operate a short-term accommodation facility catering to, among others, fly in fly out workers.
After the sublease expired on 30 June 2017, Hotel continued to occupy the land under a monthly tenancy. That situation continued until March 2021 when Airport applied to the Local Court at Darwin under s 131 of the Business Tenancies (Fair Dealings) Act 2003 (NT) (‘Act’) for an order that Hotel give it vacant possession of the land.
In August 2021, following a contested hearing, a Local Court judge ordered that a warrant of possession be issued in respect of the land.[1] On 28 August 2021, Hotel appealed that order to the Northern Territory Supreme Court.
In September 2021, Airport effectively provided Hotel with vacant possession of the land.
Appeal to the Supreme Court
As they emerged in the Supreme Court’s reasons[2] and excluding the ground related to costs, Hotel’s grounds of appeal were, in summary:
(a)The Local Court did not afford it procedural fairness when rejecting as unreliable, without notifying it, in circumstances where there was no cross examination or other challenge to its reliability, the evidence of its director, John Robinson, about a conversation he had with Airport’s CEO, Ian Kew, where he stated that Airport would give Hotel “plenty of notice to remove the improvements” if Airport required vacant possession of the land.
(b)There was a reasonable apprehension that the question concerning the reliability of Mr Robinson’s evidence would not be dealt with impartially by the Local Court.
(c)In the circumstances outlined above, Mr Robinson’s evidence with respect to the conversation should have been accepted.
(d)Accordingly, its sublease of the land was varied to require Airport to give either “plenty” or “reasonable notice” of its termination and/or a collateral contract was concluded to the same effect.
(e)Alternatively, a promissory estoppel operated to prevent Airport terminating the tenancy without giving such notice.
It should be noted that this summary differs from the one that appears in the Supreme Court’s reasons.[3] Importantly, for the purposes of this appeal the first two grounds described above do not appear in that summary. As will appear later in these reasons, this disparity affects the orders that the Supreme Court ultimately made.
In December 2023, the Supreme Court upheld Hotel’s appeal in respect of the first four grounds described above but dismissed the fifth ground.[4] However, because Hotel had, in the meantime, vacated the land,[5] no order was sought, or made, to set aside the vacant possession order issued by the Local Court.
Appeal to this Court
Airport has now appealed that judgment to this Court. While its amended notice of appeal contains only two numbered grounds of appeal, on closer examination, it becomes apparent that it actually identifies four separate alleged errors on the part of the Supreme Court. They are that the Court erred in:
(a)holding that there had been a breach of the rule in Browne v Dunn[6] and/or a failure to afford procedural fairness on the part of the Local Court – numbered ground 1(i),
(b)treating ground 3 before the Court as an allegation of apprehended bias; then proceeding to deal with that allegation without first notifying it of that intention and providing the opportunity to make submissions with respect to it; and finally, in concluding that the Local Court had demonstrated apprehended bias – numbered grounds 1(iii), (iv), (v) and (vi),
(c)failing to remit the matter to the Local Court for a retrial and instead making findings of fact and disposing of the matter based thereon – numbered grounds 1(ii) and (vii), and
(d)finding that the words spoken by Mr Kew resulted in a variation of the sublease and/or finding that a collateral contract was formed with respect thereto – numbered ground 2.
Proper approach to the appeal
In Concrete v Parramatta Design and Developments,[7] Kirby and Crennan JJ (Gummow J agreeing) gave the following instructions concerning the order and manner in which this Court should deal with these issues:
An intermediate appellant court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues. Even if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias.[8] [citations omitted]
Their Honours added:
Furthermore, if, as here, an intermediate appellate court finds the allegation made out, but grants no relief because it otherwise finds in favour of the party making the allegation, a defect in the administration of justice has been found to have occurred which, in the absence of any successful appeal on the point, will remain unremedied. Inevitably, this adversely affects public confidence in the administration of justice. [9]
The Court recently reiterated this approach in Charisteas v Charisteas,[10] emphasising the words in the quotation above: “strike[s] at the validity and acceptability of the trial and its outcome”.[11] Furthermore in Jorgensen v Fair Work Ombudsman,[12] the Full Court of the Federal Court extended this ruling to a denial of procedural fairness more broadly.[13]
These rulings therefore require this Court to consider, first, the issues of apprehended bias and denial of procedural fairness raised by this appeal. Furthermore, if either bias or denial of procedural fairness is made out, this Court is obliged to remedy the defect in the validity and acceptability of the trial and its outcome, regardless of any finding that might be made otherwise in favour of the party making allegations of bias or denial of procedural fairness. In the interests of fostering public confidence in the administration of justice, this Court is obliged to find a means to achieve that remedy.
Of course, the ruling in Concrete applied equally to the appeal before the Supreme Court. Regrettably, neither party drew the Court’s attention to that judgment in their written or oral submissions. Unsurprisingly, therefore, the Court did not require Hotel to make any election with respect to its other three grounds of appeal.
Moreover, while the Supreme Court did deal with Hotel’s denial of procedural fairness and apprehended bias grounds first and, as already noted, upheld both of them, instead of remedying the resultant defect in the Local Court order by setting it aside and remitting the matter for a retrial, the Supreme Court was persuaded by Hotel to proceed to deal with those other three grounds. In the process, the Court drew a number of factual and legal conclusions that were favourable to Hotel. In doing so, the Court was led into error. We will return to this matter later in these reasons. First, it is necessary to deal with Airport’s first two alleged errors described above. That requires a brief review of the factual background to them and some brief observations about the nature of this appeal.
Nature of the appeal
Dealing with the latter first, the appeal to the Supreme Court was brought under s 19 of the Local Court (Civil Procedure) Act 1989 (NT). As the primary Judge noted near the outset of the Reasons, that appeal was confined to “a question of law”.[14] This appeal is brought under s 55 of the Supreme Court Act 1979 (NT). This Court has held that, where it is dealing with an appeal under that section in respect of an appeal that was itself confined to a question of law, the appeal to this Court is similarly confined.[15]
Since the pertinent parts of both these provisions[16] are expressed in similar terms to s 28(1)(f) of the Federal Court of Australia Act 1976 (Cth), if a retrial were still a live issue in the present dispute between the parties, to succeed in this appeal, Airport would need to establish an error on a question of law which error involved it suffering a miscarriage of justice.[17] We will return to this question later in these reasons when we come to consider what, if any, relief Airport is entitled to in this appeal.
It is unnecessary, for present purposes, to consider the authorities bearing on what constitutes a question of law with respect to these first two alleged errors above. That is so because there is no dispute that that phrase extends to a decision impugned by a denial of procedural fairness, or by apprehended bias on the part of the decision-maker.[18]
Factual background
At the Local Court trial, in August 2021, Hotel sought to rely on a conversation its director, John Robinson, said he had with Ian Kew, Airport’s CEO, in June 2017 concerning the notice Airport would give to Hotel if it wished to terminate Hotel’s tenancy of the land. The evidence of that conversation appeared in an affidavit that Mr Robinson made for the purposes of that trial. The pertinent part of his affidavit was as follows:
In about June 2017, I spoke by phone with Ian Kew, who was at the time the Chief Executive Officer of NT Airports. I cannot recall whether I called him or whether he called me, however at the outset of the call one of us said that the purpose of the call was to work out the basis of [Hotel’s] ongoing occupation of the premises (i.e. following on from some of the emails I have referred to above). In the course of that conversation an exchange took place as follows:
I said words the effect of “we don’t have any forward bookings and we have significant rental arrears with [Hotel]. I thought I might be able to do a deal with JKC but not until later in the year.”
Ian said words to the effect of: “yes, you’ve been a good rent paying tenant at the Darwin Airport Resort, Darwin Airport Inn and Darwin Airport Lodge since 2004. I can agree to invoice only outgoings until you find a client.”
“we don’t not [sic] have any plans for the land and as long as you cover so there was no cost to us, I’m happy to agree to 5% of turnover when you find another client.”
“if anything changes will give you plenty of notice to remove the improvements”
I said words to the effect of “alright thanks”.(Paragraph numbering removed)
The Local Court’s treatment of this evidence was at the centre of the appeal before the Supreme Court, as was also the case in this appeal. The relevant circumstances surrounding its receipt at the Local Court trial are critical. The Supreme Court summarised those circumstances as follows:
Mr Robinson’s affidavit was admitted at the hearing. He was not cross-examined, although he was available to be cross examined, should [Airport] have required. His affidavit contained the only evidence of the conversation which on [Hotel’s] case altered the notice requirements of the lease. Mr Kew’s evidence set out in his affidavit, which was before the Local Court for an interlocutory proceeding, was merely that he could not recall if the conversation had taken place.[19]
Notwithstanding these circumstances, the Local Court did not accept Mr Robinson’s evidence as reliable. Accordingly, the Local Court was not satisfied that Mr Kew said the words that Mr Robinson claimed he had. In its reasons, the Local Court set out in some detail why the Court had concluded that evidence was unreliable. In brief summary they were:[20]
(a)the passage of time between the conversation in June 2017 and 14 April 2021 when Mr Robinson made his affidavit;
(b)the lack of any contemporaneous record of the conversation particularly having regard to the practice of the parties during this period to send confirmatory emails of their meetings and discussions;
(c)the absence of any mention of the notice issue in any of the emails that had passed between the parties at the relevant time; and
(d)the fact that Mr Robinson’s evidence was not tested by cross examination leaving him “with only the brief and unexplored evidence in those few lines of that affidavit to determine a question of the greatest gravity in this proceeding”.
Denial of procedural fairness
These conclusions were pivotal to the denial of procedural fairness ground in the appeal before the Supreme Court and are similarly so in this appeal. Before the Supreme Court, Airport contended that, while it did not positively challenge Mr Robinson’s evidence, Hotel bore the onus to establish that the conversation had occurred, and that it had ‘put Hotel to proof’. It also contended that Hotel was implicitly on notice of its ‘challenge’ from the manner in which its case had generally been conducted.
For its part, Hotel contended that it had received no clear notice, whether express or implied, from Airport that it challenged the reliability of Mr Robinson’s evidence. As well, it contended that during the course of the Local Court trial the Local Court did not express any reservations concerning the reliability of that evidence.
After reviewing the relevant evidence and a number of authorities including Jones v Dunkel,[21] Browne v Dunn,[22] One Flare Pty Ltd v Chernih[23] and Kuhl v Zurich Financial Services,[24] the Supreme Court concluded:
In my view there was clear error by the rejection of the evidence of Mr Robinson on the basis of lack of reliability due to the passage of time, without Mr Robinson being given an opportunity to address the issue through cross examination. It was not clear his reliability would be under challenge, by virtue of the passing of time.[25]
And further:
This was decisive evidence and to reject it required that the witness party be given an opportunity to deal with the criticism….While it is the case that his Honour was not bound to accept the evidence, to exclude it from consideration required that the witness be afforded procedural fairness.[26]
For the following reasons, we do not consider the Supreme Court erred in reaching these conclusions. The consequences that flow from the failure of a party to cross examine a witness called by its opponent were illuminated by Mahoney JA in Seymour v Australian Broadcasting Commission[27] as follows:
Where, in a civil case, a witness is not cross-examined, it may normally be assumed that the evidence of that witness is not in contest. Therefore…in such a case a party who has not cross-examined the witness will not normally be entitled to submit in address that the witness’s evidence should not be accepted.
But the circumstances of the particular case may negative such an assumption. Whether it is right to make such an assumption will depend upon, for example, whether counsel has at the time, given an adequate reason for not cross-examining the witness or otherwise made it clear that it is not a proper case in which to make that assumption.….It may be that the witnesses evidence is fanciful or such as not to warrant cross examination… Or that cross examination is forgone for other adequate reasons, for example, delicacy…
Similarly, failure to cross examine the witness may not found such an assumption, or hinder the course of the trial unfairly if it is clear from the manner in which generally the case has been conducted that his evidence will be contested… The nature of the defendant’s case and the particulars given and otherwise the conduct of it may make it sufficiently clear that such an assumption is unwarranted and that there has been no surprise or prejudice concerning the matter.[28]
None of the exceptions identified above applied in this matter. Airport’s counsel did not explain why it did not cross examine Mr Robinson. Plainly his evidence was not fanciful and nor did it concern a matter of delicacy. Given that it was critical to Hotel’s case, if Airport wished to challenge its reliability, it was incumbent on it to cross examine Mr Robinson to that end. Merely putting Hotel to proof on its case did not suffice. Consistent with its failure to cross examine, it could not, and did not, contend in closing addresses that his evidence should be treated as unreliable. There was nothing else in the conduct of Airport’s case that raised a proper challenge to the reliability of that evidence. To the contrary, the equivocal position expressed in Mr Kew’s affidavit (which was before the Local Court for the purposes of an interlocutory proceeding only) as to whether the conversation had occurred, indicated the opposite.

We turn, then, to the obligations of the Local Court to provide procedural fairness to Mr Robinson and to Hotel in the treatment of Mr Robinson’s evidence. Those obligations were described by the Full Court of the Federal Court in Jorgensen – a case dealing with the conduct of a judge of the Federal Circuit Court – as follows:
There is no question that the primary judge was obliged to afford Mr Jorgensen procedural fairness. Procedural fairness extends to require a decision‐maker to identify to a person who may be affected by a decision any adverse conclusion which has been arrived at which would not obviously be open on the known material, though the decision‐maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision. There will be a denial of procedural fairness and a substantial miscarriage of justice where a trial judge makes findings of impropriety against a witness in circumstances where the witness was not given an opportunity to address that issue in cross‐examination.[29]
This obligation of fairness arises more starkly where a court decides to reject evidence upon which there was no cross examination: “if a tribunal of fact rejects that evidence in those circumstances, the result may be a wrong finding of fact, or, to use other language, an unreasonable…or even a perverse finding of fact”.[30]
In rejecting Mr Robinson’s evidence as unreliable, without first notifying him or Hotel that he intended to do so, the Local Court did not comply with any of these guidelines and therefore did not afford them procedural fairness. The Supreme Court was correct to conclude that was so.
Apprehended bias
The apprehended bias issue arises from another part of the Local Court’s reasons. It was the following comment: “I know of my own knowledge after nearly 40 years in Darwin that John Robinson is widely known as “Foxy” Robinson, I believe because his hair was red.”
Before the Supreme Court, Hotel contended that these comments indicated that the Local Court had had regard to matters not the subject of evidence before him which did not constitute matters he could take into account as judicial notice. It contended that when this was coupled with the “minimal evidence”[31] before the Local Court in respect of Mr Robinson’s credibility, these comments could “reasonably cause the hypothetical lay observer to question the decision making process”.[32]
In considering these contentions, the Supreme Court first noted that this was not a case of actual bias and then set out the test for apprehended bias by reference to the “double might” test expounded in Ebner.[33] The Court then observed that that test required a two-step determination: “First, there must be identification of what might lead a judge to decide a case other than on its merits. Second, there must be a logical connection between that matter in the apprehension that the judge might not determine the matter on the merits.”[34]
Thereafter, the Supreme Court considered a number of authorities dealing with the hypothetical observer standard[35] in the course of which was quoted the following observations of the High Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:[36]
Being “fair-minded”, the observer “is neither complacent nor unduly sensitive or suspicious”. Yet the observer is cognisant of “human frailty” and is all too aware of the reality that the judge is human. The observer understands that “information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making”.
As for the first step in the requisite two-step determination, the Supreme Court noted Hotel’s contention that the Local Court “brought to bear undisclosed knowledge… to the proceedings”.[37] As for the second step, the Supreme Court noted Hotel’s contention that this knowledge “was possibly brought to bear on the finding of [Mr Robinson’s] unreliability”.[38]
Ultimately, the Supreme Court concluded that: “the totality of the circumstances here, including how the observer would not be insensitive to the impression that the circumstances might reasonably create in the mind of the appellant lead to the conclusion there existed, at the time of the reasons being published, a reasonable apprehension that the question of reliability would not be dealt with impartially”.[39]
For present purposes it does not assist to consider Airport’s assertion that this issue was not properly raised before the Supreme Court.[40] The fact is that the Supreme Court considered it and drew conclusions in respect of it. The pertinent question is whether those conclusions are correct.
The reasons the Local Court gave for rejecting Mr Robinson’s evidence as unreliable are set out above.[41] They are, in our view, detailed and cogent. In that light, to conclude that the Local Court might have acted on some other unidentified and undisclosed reason would, in our view, attribute to the fair-minded observer an unduly cynical or suspicious mind. It follows that we consider the Supreme Court was in error to reach the conclusion that the Local Court’s decision was affected by apprehended bias.
Consequences of denial of procedural fairness and no apprehended bias
These conclusions mean that Airport’s second alleged error above[42] should be rejected, but its first alleged error[43] should be accepted. That, in turn, means that, while the defect in the Local Court order connected with the Supreme Court’s apprehended bias finding will be removed, the conclusion concerning the Local Court’s failure to afford procedural fairness to Hotel will remain.
Two questions therefore arise. First, what, if any, order is Airport entitled to in this appeal? Secondly, having regard to the ruling in Concrete, how should this Court remove that taint on the Local Court trial and outcome?
In oral submissions at the hearing of this appeal, Hotel’s counsel attempted to answer the latter question by urging this Court to adopt the approach taken by the Court in Jorgensen. In that matter, having dealt with the denial of procedural fairness issues first, as required by Concrete, and having found for Mr Jorgensen, the Court decided to proceed to deal with his other grounds of appeal because they did not, in any event, support the course advanced by him, namely to dismiss the respondent’s primary application without a retrial.[44] Their Honours added:
It is also possible to address the legal issues that are raised by the remaining grounds of appeal without considering the evidence in any great detail and without expressing views about factual matters which will need to be considered afresh on remittal to the Circuit Court. It would, in all the circumstances, be desirable to address the legal issues so as to provide guidance for the purposes of the retrial.[45]
We do not consider this course provides an answer to the latter question. That is so for two reasons. First, in circumstances where neither party before the Supreme Court sought a retrial, on the common basis that a retrial would be futile where vacant possession of the land was provided by Hotel back in September 2021, and where both have confirmed that position before this Court, there is no occasion for this Court to provide guidance in respect of the issues that might be considered in that non-existent trial.
This conclusion coincidentally answers the former question posed in paragraph [36] above and disposes of Airport’s other two alleged errors.[46] That is so with respect to the former question because Airport’s mixed success in this appeal together with the common position of the parties that a retrial would be futile mean that Airport has not suffered any miscarriage of justice that calls for a remedy.[47] That futility applies equally to the other two errors it has alleged in this appeal, along with Hotel’s related grounds of appeal before the Supreme Court. This state of affairs also serves to highlight the error the Supreme Court made in determining those three grounds of appeal, relevantly unassisted, by counsel for either party with respect to the ruling in Concrete.
This mention of Concrete brings us to the second reason. It is that Hotel’s proposed course before this Court, and the one it persuaded the Supreme Court to pursue, does not remove the “…defect in the administration of justice [that] has been found to have occurred [in these two appeal proceedings, thus] adversely affect[ing] public confidence in the administration of justice”.[48]
The most obvious answer, therefore, to the latter question posed above, is for this Court to make an order setting aside the tainted Local Court order in the public interest. In our view, this should be done despite the fact that the order has long since achieved its purpose, namely vacant possession of the land concerned. While that private controversy between the parties may have been quelled, the public interest in the integrity of the administration of justice has not been addressed.
In our view, it would also be prudent to set aside those of the Supreme Court’s orders that are not consistent with the ruling in Concrete. In that respect there is a difficulty. Regrettably, those orders were never formally extracted by Hotel. The Court was told at the hearing of this appeal that the only record of the orders is contained in the Supreme Court’s reasons[49] where they are expressed somewhat ambiguously by reference to Hotel’s grounds of appeal. The ambiguity arises also from the absence of any express mention of the first two grounds that the Supreme Court determined,[50] the disparity in the numerical references used in the Supreme Court’s summary of Airport’s grounds of appeal and, in that context, what is meant by the words “in part”.[51]
To address all these complications and to reflect the matters discussed above, we consider that the following are the appropriate orders to be made in this appeal:
(a)The appellant’s (Airport’s) appeal is allowed in part.
(b)The orders of the Supreme Court made on 29 November 2023 are set aside and in their place this Court orders that:
(i)   The appellant’s (Hotel’s) appeal to the Supreme Court is allowed with respect to the following ground of appeal: That the Local Court did not afford Hotel procedural fairness when rejecting as unreliable, without notifying it, in circumstances where there was no cross-examination or other challenge to its reliability, the evidence of its director, John Robinson, about a conversation that he had with Airport’s CEO, Ian Kew, where he stated that Airport would give Hotel ‘plenty of notice to remove the improvements’ if it required vacant possession of the land.
(ii)    The appellant’s (Hotel’s) appeal to the Supreme Court is otherwise dismissed.
(iii) The respondent’s (Airport’s) notice of contention in the Supreme Court is dismissed.
(iv)   The order of the Local Court made on 3 August 2021 is set aside.
(v)     There is to be no rehearing in the Local Court.
As regards the question of costs, we will hear from the parties, noting that neither party has had any significant measure of success given the conclusions on this appeal as to the futility of the appeal before the Supreme Court and before this Court.

-------------------

[1] Darwin International Airport v Diah (NT) [2021] NTLC 22.

[2] Diah (NT) Pty Ltd as Trustee for the Airport Hotel Trust v Darwin International Airport Pty Ltd [2023] NTSC 99 (‘the Reasons’).

[3] See the Reasons at [2].

[4] See the Reasons at [43]-[44], [60], [63], [77] and [79] respectively.

[5] The Reasons at [62].

[6] Browne v Dunn (1893) 6 R 67 (HL).

[7] (2006) 229 CLR 577 (‘Concrete’).

[8] At [117], with whom Gummow J agreed at [3].

[9] Ibid.

[10] (2021) 273 CLR 289 (‘Charisteas’).

[11] Charisteas at [10] per Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ. See also CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [54]-[55] per Nettle and Gordon JJ.

[12] (2019) 271 FCR 461 at [199] per Greenwood, Reeves and Wigney JJ (‘Jorgensen’).

[13] See Jorgensen at [93]. See also Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9] per Basten JA.

[14] See the Reasons at [3]-[8].

[15] Development Consent Authority v Phelps (2010) 27 NTLR 174 at [9]-[11] per Martin CJ, Mildren and Reeves JJ and Tiver Constructions v Clair (1992) 110 FLR 239 at 255 per Martin and Mildren JJ.

[16] Section 19(6) of the Local Court (Civil Procedure) Act 1989 (NT) and s 55(1)(f) of the Supreme Act 1979 (NT), respectively.

[17] See Conway v R (2002) 209 CLR 203 at [36] per Gaudron ACJ, McHugh, Hayne and Callinan JJ, and Windoval Pty Ltd v Donnelly (2014) 314 ALR 622 at [95]-[96] and [106] respectively per Jacobson, White and Gleeson JJ, citing Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146 per Mason, Wilson, Brennan, Deane and Dawson JJ.

[18] As to a denial of procedural fairness, see, for example, Haritos v Commissioner of Taxation (2015) 233 FCR 315 at [202] noting that special leave to appeal was refused in respect of that judgment, see Crown Melbourne v Cosmopolitan Hotels (2016) 260 CLR 1 at [69], and as to bias see, for example, QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65 at [328] per Jagot J (‘QYFM’).

[19] See the Reasons at [25].

[20] Darwin International Airport v Diah (NT) [2021] NTLC 22 at [63]-[71].

[21] (1959) 101 CLR 298.

[22] (1893) 6 R 67.

[23] [2017] NSWCA 195.

[24] (2011) 243 CLR 361.

[25] See the Reasons at [43].

[26] See the Reasons at [44].

[27] (1977) 19 NSWLR 219 at 236.

[28] See also Sullivan v Trilogy Funds Management (2017) 255 FCR 503 at [265].

[29] See at [199].

[30] See Poricanin v Australian Consolidated Industries Ltd (1979) 2 NSWLR 419 at 426 per Hope and Glass JJA. See also Nominal Defendant v Saleh (2011) 57 MVR 412 at [140]-[142] per McColl JA and One Flare Pty Ltd v Chernih [2017] NSWCA 195 at [34]–[35] and [38] per Meagher JA (Gleeson and Leeming AJJ agreeing).

[31]See the Reasons at [49].

[32]See the Reasons at [49].

[33] See the Reasons at [51], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6].

[34] See the Reasons at [55], referring to Ebner supra at [8].

[35] Including Charisteas v Charisteas supra at [21] and Johnson v Johnson [2000] HCA 48, 201 CLR 488 at [53].

[36] QYFM at [47].

[37] See the Reasons at [56].

[38] Ibid.

[39] See the Reasons at [60].

[40] See [6(b)] above.

[41] See at [17].

[42] See [6(b)] above.

[43] See [6(a)] above.

[44] See Jorgensen at [163].

[45] See Jorgensen at [164].

[46] See at [6(c)] and [6(d)] above.

[47] See at [13] above.

[48] See Concrete at [117].

[49] See the Reasons at [86].

[50] See at [4] above.

[51] Compare the Reasons at [86] with the numbers used in the grounds of appeal set out in the Reasons at [2].