Doherty, Dennis v Wright, David T

[1995] FCA 1170

CATCHWORDS

ADMINISTRATIVE LAW - Administrative Decisions (Judicial Review) Act (1977) - ex parte application seeking mandatory injunction directing the National Capital Planning Authority and the Commonwealth of Australia to approve an application for the erection of temporary structures within the parliamentary zone - whether applicant had a legitimate expectation that approval would be granted.

Judiciary Act 1903 (Cth) - s 39B
Administrative Decisions (Judicial Review) Act 1977 (Cth) - s 5, s 6

DENNIS DOHERTY, AUSTRALIAN ANTI-BASES CAMPAIGN COALITION and LEONARD JOHN LINDON v DAVID T WRIGHT, TONY CAMPBELL, NATIONAL CAPITAL PLANNING AUTHORITY and COMMONWEALTH OF AUSTRALIA

No. NG 903 of 1995

FOSTER J
30 NOVEMBER 1995
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )    No. NG 903 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:DENNIS DOHERTY

First Applicant

AUSTRALIAN ANTI-BASES CAMPAIGN COALITION

Second Applicant

LEONARD JOHN LINDON

Third Applicant

AND:DAVID T WRIGHT

First Respondent

TONY CAMPBELL

Second Respondent

NATIONAL CAPITAL PLANNING AUTHORITY

Third Respondent

COMMONWEALTH OF AUSTRALIA

Fourth Respondent

JUDGE MAKING ORDERS:    FOSTER J

DATE:     30 NOVEMBER 1995

PLACE:    SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1.The application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )    No. NG 903 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:DENNIS DOHERTY

First Applicant

AUSTRALIAN ANTI-BASES CAMPAIGN COALITION

Second Applicant

LEONARD JOHN LINDON

Third Applicant

AND:DAVID T WRIGHT

First Respondent

TONY CAMPBELL

Second Respondent

NATIONAL CAPITAL PLANNING AUTHORITY

Third Respondent

COMMONWEALTH OF AUSTRALIA

Fourth Respondent

CORAM:    FOSTER J

DATE:     30 NOVEMBER 1995

PLACE:    SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:   This is an ex parte application made to the Court at short notice by Mr Lindon, the third applicant.  He is a barrister of the State of Victoria and appears as counsel
on his own behalf and on behalf of the first applicant, Dennis Doherty, and the second applicant, an organisation referred to as the Australian Anti-Bases Campaign Coalition. 

It appears that the applicants sought permission to erect certain structures in relation to a proposed political demonstration to take place in the area known as the Federation Mall, which lies within the "parliamentary zone". 

The permission was properly sought from the National Capital Planning Authority ("the Authority") which is empowered to grant permission of this kind.  The application received a reply on 13 November 1995 over the signature of Mr David T. Wright, the Director of Statutory Planning.  I must assume, of course, and I do assume that he was in all respects empowered to write the letter and express in it the decision of the Authority as at that point of time.

That letter indicated that the land where the proposed demonstration was to take place outside Parliament House, Canberra, was within the parliamentary zone and was National Land managed by the Authority.  It further indicated that permission to temporarily occupy unleased Commonwealth land, which I infer is the proper description of the land in respect of which the protest was sought to be organised, was provided for under the Trespass on Commonwealth Lands Ordinance of 1932.  It was indicated in the letter that the range of activities for which a permit could be issued was limited and did not include a permit for the making of a political protest on the land.

The letter provided some suggestions as to how the applicants might seek permission for the erecting of temporary structures on the basis that those structures could properly be described as "works proposed within the parliamentary zone".  They were advised that details of the proposed works should be forwarded to the Parliamentary Joint Standing Committee on the National Capital and External Territories prior to the Authority granting approval.  I assume that this was meant to indicate that the information would have to be provided before any question of a granting of approval could be considered.

An application for "works approval" was provided so that the application could be made.  It appears that the application was made on the form provided and that some correspondence and discussion was thereafter entered into.  The application was for the erecting of four marquees, two port-a-loos and one stage to be used for the proposed demonstration.  The application was apparently considered and an answer was given, again by Mr Wright, on 24 November. He referred to his earlier letter and then stated:

"As you are aware, the issue of protests and associated structures on National Land in the Australian Capital Territory is currently being considered by the Parliamentary Joint Standing Committee on the National Capital and External Territories.  In view of this Inquiry the Authority considers it inappropriate to approve any structures associated with political demonstrations until such time as the Committee reports its findings.  This policy will continue until such time as the Committee makes recommendations on guidelines for the administration of such activities."

The application was rejected with regret and the applicants advised that their application fee would be refunded. 

The decision has understandably occasioned disappointment to the applicants.  This disappointment is apparently founded to a considerable extent upon conversations that took place with relevant persons.  The affidavit of Mr Lindon indicates that he had been informed by the first applicant that on 24 November the first applicant had a telephone conversation with the Chairman of the Joint Standing Committee in which he sought the Committee's views.  Mr Lindon was told, according to the affidavit, that Mr Chynoweth MP had said to the first applicant words to the effect that the Committee of Inquiry into the Right to Legitimately Protest on National Land had not directed or suggested that no further approvals occur while the Committee was conducting its inquiry, and that his view was that the previous policy to allow structures to be approved should continue.

It is also stated in the affidavit that another member of the Committee had said words to similar effect to Mr Ogle, a member of the second applicant. 

By these proceedings the applicants seek an ex parte mandatory injunction directed to the National Capital Planning Authority and other respondents associated with it, as well as the Commonwealth of Australia, to approve the application previously made. Jurisdiction for the making of such an order is said to arise pursuant to s 39B of the Judiciary Act 1903 (Cth) and as I understand the argument, also pursuant to ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

I have been addressed very comprehensively and eloquently on this matter by Mr Lindon.  However I cannot see my way clear on the evidence that has been placed before me to make any such order.  A very significant difficulty arises from the fact that it is sought ex parte.  I would be disinclined to make any such order without persons who have been referred to in the affidavit of Mr Lindon having an opportunity to put their point of view.  However, more fundamentally than that is the difficulty that necessarily arises from the fact that the National Capital Planning Authority is charged with the making of decisions of this kind.

It not infrequently happens that in bureaucratic decision making, indications are given in good faith that a certain course will probably be taken, or that a person who may be involved in the decision making process holds at a particular point of time a favourable view to a particular application.  It can happen and does happen, of course, that even in those circumstances views change and decisions are made which are contrary to expectations that may have been generated.  I can understand the disappointment that has impelled this particular application. 

However, I have considered as carefully as I can in the time available what has been put to me and I regret to say that I can see no basis upon which I can make the order sought.  Consequently, the application is dismissed.  Of course, in the circumstances, no question of costs can possibly arise. 

I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment herein of the Honourable Justice M. L. Foster.

Associate:

Date:   30 NOVEMBER 1995

A P P E A R A N C E S

COUNSEL FOR THE APPLICANTS:       MR L. LINDON

DATE OF HEARING:                 30 NOVEMBER 1995

DATE OF JUDGMENT:                30 NOVEMBER 1995