Federal Airports Corporation v The Council of the Municipality of Botany & Anor; Council of the Municipality of Botany & Anor v Federal Airports Corporation

[1992] HCATrans 222

IN THE HIGH COURT OF AUSTRALIA •

Registry No ClS of 1992

B e t w e e n -

FEDERAL AIRPORTS CORPORATION

Applicant

and

THE COUNCIL OF THE

MUNICIPALITY OF BOTANY

First Respondent

and

THE COUNCIL OF THE

MUNICIPALITY OF ROCKDALE

Second Respondent

Registry No Cl6 of 1992

B e t w e e n -

THE COUNCIL OF THE

MUNICIPALITY OF BOTANY

Airports 1 6/8/92

First Applicant

and

COUNCIL OF THE

MUNICIPALITY OF ROCKDALE

Second Respondent

and

FEDERAL AIRPORTS

CORPORATION

Respondent

Ex parte:

THE ATTORNEY-GENERAL OF THE

COMMONWEALTH

Application for removal of

cause under section 40 of the

Judiciary Act

MASON CJ
BRENNAN J

DEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 AUGUST 1992, AT 2.01 PM

Copyright in the High Court of Australia

MR G. -GRIFFITH, QC, Solicitor-General for the Commonwealth:

If ~he Court pleases, I appear with my learned
friend, MR D.C. BENNETT, for the Attorney-General of

the Commonwealth in the removal matters.

(instructed by the Australian Government Solicitor)

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR A. ROBERTSON, for the

applicant, Federal Airports Corporation, in the

application by it and for it in the other matter.

(instructed by Blake Dawson Waldron)

SIR M. BYERS, QC:  In each of the matters, if the Court

pleases, I appear with my learned friend,

MR R.A. BONNICI, for the Botany Council.

(instructed by Houston Dearn & Associates)

MR D.C. HARPER:  May it please the Court, I appear for the

second respondent of the application, the Council

of the Municipality of Rockdale, in both matters.

(instructed by Abbott Tout Russell Kennedy)

Airports	6/8/92
MR GRIFFITH: If the Court pleases, paragraph 5 of the

affidavit of Gary Rumble, page 26 of the
application book, identifies for the purposes of

the removal applications, issues arising under the

Constitution or involving its interpretation. I

understand, Your Honours, from my learned friends

that there is basic agreement that, subject to the

court order, it would seem that the parties would

expect to be in a position to be agreed as a form

of questions to be reserved to the Full Court and

that perhaps, if the Court made an order for

removal, Your Honour, it could be by arrangement

fixed for hearing before a single Judge for that

purpose.

MASON CJ: Yes, well I would be prepared to sit on a hearing

for that purpose on Monday week in Sydney or any

day shortly thereafter.

MR GRIFFITH: Yes, if Your Honour pleases. Perhaps I should

say on the removal we would expect that those

issues were ones primarily to be identified by the

active parties in the case, but we do apply for the

removal.

MASON CJ:  Now, Mr Solicitor, I should say that your

application is for an order removing the entirety

of the cause. The Court, of course, will hear such

constitutional issues as are raised and as have

been identified. But there is, I suppose, the

possibility that in these proceedings other issues may arise, in particular perhaps, an interlocutory

injunction may be sought. Now, the Court would

want to avoid if possible being committed to

undertaking a hearing of that kind.

MR GRIFFITH:  We can understand that, Your Honour. Of

course, if there were such an application one issue

would be the extent to which an interlocutory

application should be entertained when there was an

issue as to constitutional validity and

Your Honour, we do only intend that the matter be	construction of the Constitution. But,	removed so that the issue suitable for this Court be determined, and if matters arise whereby as an
interim measure there is an issue whether there
should be a remitter of some issue, we suppose that
could be dealt with as it arose. We, of course, do not intend to impose on this Court - - -

MASON CJ: Yes, that is what the Court would have in mind,

that any issues of that kind could be remitted by a

single justice of a court to some other court.

MR GRIFFITH: Yes, Your Honour, and, of course, it

contemplated that it may be that the case itself,

Airports 6/8/92

once the Court had dealt with constitutional

issues, would possibly go off somewhere else too.

MASON CJ: Yes.

MR GRIFFITH:  So the application really was to enable the

Court to grasp the truly constitutional issues and

have them stated for the Full Bench and then deal

with the remainder of the matter as appropriate.

We do not intend to impose inappropriate work on

this Court.

MASON CJ:  Now, what order do you actually seek,

Mr Solicitor?

MR GRIFFITH:  Your Honour, we seek merely an order for

removal of the matters. I have minutes of an order

here which I could hand up.

Your Honour, I have another minute in the same

form for the other action, but it is the same.

MASON CJ:  Yes, Mr Solicitor. Do other counsel wish to make

any comment to the Court?

MR JACKSON:  Your Honours, firstly our application is now

rendered unnecessary because of the removal.	May I
just say two things, however.	In response to what

was said by Your Honour the Chief Justice about

issues which do not involve a constitutional
question, we would not seek to dissent from the

broad proposition which Your Honour put.

However, it is possible, Your Honours, that in

respect of one or perhaps more of the questions, it

might be thought on one view of the case that a

non-constitutional issue is a step on the way to

the constitutional question. I mean particularly

by that, there was one issue raised in the
proceedings, namely whether the corporation is a

body to which, as a matter of interpretation of the

New South Wales enactment, the Act would apply at

all.

That is an aspect of the case which I would

think, at least from our side, I could argue in 10

minutes. It is a short issue involving no - - -

MASON CJ:  There would not be any objection on the Court's

part to that matter being dealt with in combination

with the constitutional questions.

MR JACKSON:  Your Honour, all I wished to indicate was that

it is possible that there is an issue of that kind,

and I simply did not want Your Honours to foreclose

the question at this point. Your Honours, the

second matter is this:  I think the position to be,

Airports 6/8/92

dates at the end of next month, that there would not be an application for an interlocutory

but my learned friend would be able to tell

injunction, but that is my learned friend's

application.

MASON CJ: Sir Maurice, I ought specifically to ask you

whether you want to say anything, apart from just

issuing a general invitation to counsel.

SIR MAURICE:  Your Honour, I took the general to include the

particular, and the answer is no, Your Honour.

MASON CJ:  One of my colleagues thought perhaps the general did not include the particular in this case.

SIR MAURICE: His Honour is always very kind.

MASON CJ: Very well. There will be orders in the two

matters in terms of the minutes of order handed up

and placed with the papers.	The Court will now
adjourn.

AT 2.09 PM THE MATTER WAS ADJOURNED SINE DIE

Airports 6/8/92