Friend & Anor v Laidley Shire Council

[1998] HCATrans 102

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B50 of 1997

B e t w e e n -

GARY STEPHEN FRIEND and KATHRYN JUNE FRIEND

Applicants

and

LAIDLEY SHIRE COUNCIL

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 17 APRIL 1998, AT 9.42 AM

Copyright in the High Court of Australia

KIRBY J:   You are Mr Friend, are you?

MR G.S. FRIEND:   I am, your Honour.

KIRBY J:   You are appearing in your own interest?

MR FRIEND:   I am, your Honour.

KIRBY J:   Are you going to speak on behalf of your wife as well?

MR FRIEND:   Yes, I am, your Honour.

KIRBY J:   Yes, very well.  Are you Mrs Kathryn Friend?

MRS K.J. FRIEND:   Yes, your Honour.

KIRBY J:   You are happy that your husband speaks on your behalf, are you?

MRS FRIEND:   Yes, your Honour.

KIRBY J:   Very well, thank you.  Just sit down for a moment.  Who appears for the Council?

MR D.R. GORE, QC:   I appear for the Council, may it please the Court.  (instructed by Connor, O’Meara, McConaghy)

KIRBY J:   Yes, Mr Friend.  As you will have heard from the last application, we have received your written submissions.  We have both read them.  We know what the issues are.  You realise that you have 20 minutes.

MR FRIEND:   Right, so I just start?

KIRBY J:   Yes, and say what you want to say.

MR FRIEND:   Thank you, your Honour.As you are no doubt aware, we are unlearned in law so you may have to bear with us on certain occasions.  The applicants humbly submit to this honourable Court the finding in the judgment of the Court of Appeal that the definition “animal husbandry” does not necessitate breeding, sale or profit, has no basis in State or federal law, or common belief.

No lawful explanation was advanced by the judges as to how such an opinion was formulated.  The opinion formed is not only an absurdity, in contravention of entrenched social customs, common knowledge, understanding and ordinary speech, but also in contravention of enacted State law.  The applicants rely on Order 45, rule 1 - that is page 1 of the application book - of the Supreme Court Rules, Queensland, where had the facts been discovered and known to the now applicants, they contend the judgment of the Court of Appeal would have been different.

“Animal husbandry” is an integral part of world society since man first strode planet earth, was included in the respondent’s town planning scheme, gazetted on the 12 November 1977, by virtue of the Stock Act 1915 Queensland, as amended, the principal controlling State act, covering animals as a complete husbandry management programme, including breeding, sale ‑ ‑ ‑

KIRBY J:   Can I just ask you - there was a suggestion somewhere that the planning scheme, which was applicable in your case, has now been replaced.  Is that correct, or not?

MR FRIEND:   We get to that in the submission later.  Just bear with me.

KIRBY J:   Very well, you just press on.  Leave a little bit of time for us to ask you a few questions.  That is the part we enjoy.

MR FRIEND:   Right.  Will I get extra time if I get interrupted?

KIRBY J:   No.

MR FRIEND:   Well do not interrupt.  In confirmation and affirmation of the University of Queensland curriculum on “animal husbandry”, and several dictionary definitions supplied by the now applicants to the Court of Appeal and dismissed by them as irrelevant.

Dogs were enacted into the Controlling Stock Act 1915 as stock, by the Governor in Council, by Order in Council, published in the gazette, 23 May 1942.  That is page 218, line 46, and the definition of “stock” at line 14.  Dogs, specifically and individually listed, the same as all other animals under the definition of “animal husbandry” in the respondent’s Town Planning Scheme 1977, were a non-consent use, with no restrictions, by virtue of the Stock Act 1915, and approval or consent was not required to keep any of the listed animals, in the rural “A” zone. The definition had the word “includes depasturing”, et cetera, not the words “means only”. The definition goes on further to include “hatcheries”, which necessitates breeding, and “holding yards” which necessitates sale and profit. The definition stated provisions. It did not provide restrictions.

The respondents, their officers or agents, have publicly stated “animal husbandry” including dogs, held no restrictions and was a non‑consent use in the rural “A” zone of their town planning scheme on a number of occasions before and after 1989.  The applicants submit not only is the Court of Appeal judgment absurd in law, manifestly unreasonable and illogical, but jurisdictional error, as held by this honourable Court in Craig v South Australia, where the Court delivered a joint judgment in allowing the appeal, at page 36, line 23, and stated:

An inferior court falls into jurisdictional error, if it mistakenly asserts, or denies the existence of jurisdiction, or if it ‑ ‑ ‑

KIRBY J:   The problem with that submission, the Supreme Court in its Court of Appeal is not an inferior court.  These proceedings are by way of an appeal, they are not by way of judicial review.  I would not spend too much time on this point because there are some important questions we have to ask you.

MR FRIEND:  

misapprehends or disregards the nature, or limits of its functions, in a case where it correctly recognises that jurisdiction exist.  Such jurisdictional error can infect either a positive act, or a refusal to act.

It is the refusal to act that the applicants question at this point.  Under the jurisdiction and powers of the Court of Appeal, Queensland, the court may, in proceedings before it, exercise every jurisdiction or power of the court, whether at law or in equity.  As to the power of the judges, a judge may exercise the powers of the court to dismiss an appeal for want of prosecution or for other cause specified in an Act.

The Court of Appeal made jurisdictional error and judicial error at its most obvious, when it failed to exercise every jurisdiction, at law and in equity, failed to dismiss an appeal for want of prosecution and refused to take judicial notice of the then respondent’s submissions and arguments for the proceedings before the Court of Appeal, concerned with the construction, effect and enforcement of the principal controlling State Act, The Local Government Act 1936, Queensland.

It was evidenced by the now applicants - application book, page 26, line 14, and page 14, line 25 - that the subordinate town planning scheme for the shire of Laidley, gazetted on the 12 November 1977, ceased to have force in law after the 13 November 1987, under the required provisions of the Local Government Act 1936, sections 33(4) and (5).  The respondents have not abided with the lawful requirement of this section.  Therefore, the now respondent’s town planning scheme was, ultra vires, null and void.  The Court of Appeal chose to disregard this relevant point of law when handing down a judgment based on two definitions, being part of the respondent’s town planning scheme, which ceased to have force in law after the 13 November 1987, and in doing so, not only held disregard for the Local Government Act 1936, controlling the administrative powers granted to the respondents by the Queensland Parliament, but also the Supreme Court Act of Queensland, constituting the Court of Appeal in 1991, the State and Federal Constitutions and common law.

KIRBY J:   Did you raise the question of the validity of the town planning scheme in the Land and Environment Court?

MR FRIEND:   Yes, we did, your Honour.

KIRBY J:   In the very first proceeding?

MR FRIEND:   The very first proceeding?  We did not know about it.  We are unlearned in law, we are only catching up ‑ ‑ ‑

KIRBY J:   I realise that but you cannot raise a matter at a late stage now which you did not raise at the trial.

MR FRIEND:   It was in the Court of Appeal.  It was written in all other submissions:  list A, list B.

KIRBY J:   Yes, very well, press on.

MR FRIEND:   Referring to Craig v South Australia again at page 33, line 18:

Jurisdictional error will occur when an inferior court disregards some matter in circumstances where the statute or other instrument establishing it or conferring its jurisdiction requires that a particular matter be taken into account, as a pre-condition of the existence of any authority to make an order or decision, in the circumstances of a particular case.

The 1936 Local Government Act was enacted law when the 1977 town planning scheme was gazetted and implemented.  Judicial notice was mandatory.  It was also mandatory under section 118 of the Australian Constitution.  The Court of Appeal President stated, application book, page 37, line 8, and I quote:

You are aware, Mr Friend, that the court has not only the record book, but has a written argument from the appellant and also various documents, that you have placed before the court.  I mention this so that you will not be surprised by the fact that the court has some familiarity with the matter, because it has had the opportunity to read not only the judgment below, but the arguments which have been put to it, not only by the appellants, but as well as the papers you have put before the court.  And one consequence of that, is that we are able to dispose of the hearing much more quickly than would be the case, if we dealt with the matter entirely by oral argument.

The now applicants had submitted written evidence, as requested by the court, believing new evidence would receive judicial notice, due process in law and the attainment of natural justice.  Chapter 29 of the Magna Carta under Edward I, 1297, page 264, line 17:

No free man shall be disseised of his freehold or liberties, or free customs, or otherwise destroyed;  nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land.  We will sell to no man, we will not deny or defer to any man either justice or right.

The applicants submit they had done everything within their power and knowledge at that time, being unlearned in law, to have the Court of Appeal take judicial notice of the principal controlling State Act, before the handing down of a judgment, based upon two definitions in a piece of subordinate regulation, which ceased to have force in law some 10 years earlier.  The Court of Appeal used discretion, when allowing the appeal, filed out of time, and estopped by statutory limitation, referenced in our submission, and stated to have been read and taken into account by the Court of Appeal which then awarded costs to the now appellants for the appeal being out of time, citing there was little bias and no prejudice to be felt on our behalf.  Application book, page 39, line 14 and 25.

Being unlearned in law we should have been afforded the protection of the court, to ensure the matter did not proceed.  The applicants feel the bias and prejudice of the judgment of the Court of Appeal was jurisdictional and judicial error, denying us natural justice and due process in law.  The handing down of a judgment based on an opinion of a definition, can have no standing in law, where no judicial notice was taken of the principal controlling State Act, was taken out of context and not dependant on any construction.  Further, misleading evidence was supplied in a perjured affidavit by the senior partner of the law firm representing the respondents, which we were not allowed to cross-examine.  Referring to Winningham v The Queen, at page 38, line 41, where this honourable Court, when granting special leave to appeal, held, I quote:

When a question of bias on the part of a judge arises, the proper test is whether fair-minded people might reasonably apprehend that the judge has pre-judged or might pre-judge the case.

Further to the issue of bias and prejudice, it was openly stated in the Court of Appeal hearing that on the night prior to the hearing that the respondent’s barrister, Mr Gore, and Justice McPherson JA, discussed our case without our knowledge, presence or consent.  Application book, page 52, line 25.  Further, in the judgment of Justice McPherson, he found a prohibition where none exists.  Application book, page 61, lines 14, 18 and 28.  Mr Gore handed a submission to the court and to the appellants at the hearing, referencing a whole raft of prohibitions, none of which had any bearing on the case.  Application book, page 38, lines 15 and 35.

In the passage of the Petition of Right, 1628, through the Parliament of Great Britain, page 298, line 32, Charles the First stated, and I quote:

I command you all that are here to take notice of what I have spoken at this time, to be the true intent and meaning of what I granted you in your petition.  But you, my lord judges, to you only, under me, belongs the interpretation of the laws, for none of the commons, joint or separate, what new doctrine soever may be raised, have any power, either to make, or declare a law without my consent.

The applicants submit the Court of Appeal has enlivened invalid regulation, which ceased to have any force in law after the 13 November 1987, in handing down a judgment based on two definitions contained in an extent town planning scheme of 1977.  The Court of Appeal, therefore, has written law and used it specifically against the now applicant.  The applicants contend there has been no separation of power in this case.

Referring to Justice Gaudron, in Kable v Director of Public Prosecuions (New South Wales), page 102, line 19:

Neither the recognition of Ch III that State courts are the creatures of the States nor its consequence that.....the Commonwealth must take State courts as it finds them detracts from what is, to my mind, one of the clearest features of our Constitution, namely, that it provides for an integrated Australian judicial system for the exercise of the judicial power of the Commonwealth. Moreover, neither that recognition nor that consequence directs the conclusions that State Parliaments may enact whatever laws they choose with respect to State courts. If Ch III requires that State courts not exercise particular powers, the Parliaments of the States cannot confer those powers upon them. That follows from covering cl 5, which provides that the Constitution is “binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State”, and from section 106, by which the Constitution of each State is made subject to the Australian Constitution. So much was recognised in The Commonwealth v Queensland, where it was said that State legislation in violation of “the principles that underlie Ch III” is invalid.

In this case there is no duly enacted State law, no federal law, and only two tiers of government recognised by the Australian Constitution, with a resoundingly firm rejection, of more than 2:1 against in a federal referendum of 1988, brought by about by the Commonwealth Referendum Act 1988, that any other tier of government, being acknowledged constitutionally by the Australian people.  We contend the Court of Appeal has legislated law for an administrative body, namely the respondents, who simply asked the court to enact law on their behalf, specifically against us, the applicants.

Justice McHugh, also in Kable v Director of Public Prosecutions, at page 110, line 37:

One of the basic principles which underlie Ch III and to which it gives effect is that the judges of the federal courts must be, and must be perceived to be, independent of the legislature and the executive government.

At line 46 it continued:

Public confidence in the impartial exercise of federal judicial power would soon be lost if federal or State courts exercising federal jurisdiction were not, or were not perceived to be, independent of the legislature or the executive government.

In the case of State courts, this means they must be independent and appear to be independent of their own State’s legislature and executive government as well as the federal legislature and government.

The applicants submit this requirement must also apply to subordinate bodies, officials and agents, with no legislative power or function, who have no constitutional recognition and at best, may only have some administrative power bestowed on them by the State Parliament.  The Act of Settlement 1701, provided absolutely for the independence of judges, and so established them and the courts over which they preside as a distinct organ of the legal system, separate from the legislature and the executive (page 292, line 12).

The monarchy enshrined this separation of powers into the colonies. The Queensland Constitution, which embodies a number of imperial Acts, proclamations and letters patent, further reinforced it, ensuring the continuation of the separation of powers. The people of Queensland joined with the people of the other colonies at Federation to make a contract with the monarchy, humbly relying on the blessing of almighty God, to unite in one indissoluble Federal Commonwealth, under the Crown, and under the Constitution, which again embodies a separation of powers between the judiciary, the legislature and the executive.

As this honourable Court stated in Western Australia v Commonwealth, page 63, line 5:

The King cannot take away, abridge, or alter any liberties or privileges granted by him or his predecessors, without the consent of the individuals holding them.

It is not reasonably proportionate that the applicants have had to suffer not only nine years of litigation and beyond, should this honourable Court disallow this special leave to appeal, but also suffer nine years of mental, physical, emotional, social and financial attrition, stress and duress, trespass, threat, intimidation, vilification, defamation, a denial of their common law rights to their property, and work, personal and family life, the invalidation of freedom of movement, the loss of their combined 50 years reputation in the racing industry and the community at large, because of this serious miscarriage of justice.

When in the first instance in 1989, and at all times since, the respondents have been acting outside the administrative power granted to them by State Parliament, through the Local Government Act 1936.  In 1989 the male applicant took direction and advice without malice from an officer acting on behalf of the respondents, in good faith and belief.  In the decision, Shaddock v Parramatta City Council, it was held by this honourable Court, the Council was under a duty of care when supplying information to the public.  Justice Gibbs said, page 80, line 4:

From the standpoint of principle there is no difference between a person who carries on the business of supplying information and a public body which in the exercise of its public functions follows the practice of supplying information which is available to it more readily than to other persons, whether or not it has a statutory duty to do so.  In either case, the person giving the information to another whom he knows will rely upon it in circumstances in which it is reasonable for him to do so, is under a duty to exercise reasonable care that the information given is correct.  A public body, by following the practice of supplying information upon which the recipients are likely to rely for serious purposes, lets it be known that it is willing to exercise reasonable skill and diligence in ensuring that the information supplied is accurate.  In the circumstances, diligence might be more important that skill, although competence in searching for and transmitting the information must play a part.  However, even if diligence only and not skill were required, a public body might be specially competent to supply material which it had in its possession for the purposes of its public functions.

The applicants submit this duty of care would apply to all officers, councillors and agents acting for the respondents, and the court created under the Local Government Act 1936, when the applicants are made to suffer dire consequences, through no fault of their own.  The requirement to make application for the use of land in 1989, the conditions placed upon the use of the land by the respondents, through the Local Government Court in 1992, and used as the basis for an injunction to stop the use of the land in the Planning and Environment Court in 1996, then appealed by the respondents in the Court of Appeal in 1997 was ultra vires the Local Government Act 1936, section 33 ‑ ‑ ‑

KIRBY J:   Mr Friend, you have to leave some time for the Court to ask you some questions.  The yellow light is now on, so you only have about two minutes.

MR FRIEND:   - “Specific Powers and Duties - Town Planning”, and was therefore, invalid, null and void.

KIRBY J:   It would have been more efficient for you to have sent this written material in and then we could have had a conversation about your case.  You just want to read us the whole long slab of written submissions.

MR FRIEND:   I only have a couple of more pages.

KIRBY J:   We can read, you know.

CALLINAN J:   Mr Friend, before you go on, you said at page 52 it appears that Mr Gore had a private conversation with Justice McPherson before the case.  I have looked at page 52 and that just is not right.  What seems to have happened is that you supplied the court with some material the day before and you did not supply it to Mr Gore’s solicitor.

MR FRIEND:   That is not accurate at all.

CALLINAN J:   That is how the transcript reads, Mr Friend.  You look at it, and you should not be saying things that are not right and do not appear ‑ ‑ ‑

MR FRIEND:   What I am saying is absolutely right.  The transcript has many holes in it.

CALLINAN J:   It does not appear to me to be so, Mr Friend.

MR FRIEND:   “What your Honour read last night was not ringing any bells with me but now I understand why”.

CALLINAN J:   Yes, well look at page 52.  Mr Gore says he has not seen the material that you have given to the court.

MR FRIEND:   We only made one submission to the court as we were asked.  We were not allowed to give oral submission and we handed that in at the thing.

CALLINAN J:   You continue, but just be careful about being accurate when you make statements of fact.

MR FRIEND:   I am sure I am.

KIRBY J:   There is one matter I would like you to deal with and that is the suggestion by the respondent that you deliberately waited - went back to the Planning Environment Court and chanced your arm there before you brought this application for special leave to this Court.

MR FRIEND:   That is not true.

KIRBY J:   You  have to deal with that matter, because they put that in as a basis for the court refusing you the opportunity of being heard on your application for special leave.

MR FRIEND:   Can I just read in - I have two pages I want to put in?

KIRBY J:   No, I think your time has expired.  You had better start answering our questions now.  What is the position in relation to the suggestion which the respondent puts to us that you deliberately refrained from proceeding to this Court and instead elected to go back to the Planning and Environment Court, in the hope that you would have a satisfactory result there and it is only when that went against you that you have sought this application for special leave many months out of time?

MR FRIEND:   Could I hand in the rest of what I had prepared to the Court?  We will do it that way, if you want.

KIRBY J:   Yes, very well, you can hand that up.

MR FRIEND:   We were told that - the matter was already arranged back in the Planning and Environment Court 12 days after the Court of Appeal.

KIRBY J:   I realise that, but that did not prevent you bringing your application to this Court.  You could have proceeded with this Court at the same time.

MR FRIEND:   We were unlearned in law, we knew nothing of the matter.  The decision of the Court of Appeal was brought then down 25 April, a matriarch of the family died in Sydney on 1 March, I had to go to Sydney.  We got a letter ‑ ‑ ‑

KIRBY J:   We do not have any evidence of this material.  You are merely stating this.  But anyway you say that because you did not know that you could have proceeded in this Court separately and because you had personal problems at the time, you proceeded in the Planning and Environment Court and then when you failed there, you pursued the matter here, is that the correct sequence of events?

MR FRIEND:   No, it is not.

KIRBY J:   Tell me the sequence of events then.

MR FRIEND:   The sequence of events was that we had a letter from the respondent’s solicitors - I think it was dated 10 days after the Court of Appeal hearing, that it was already back in the Planning and Environment Court.  We did not put it back there.  We wrote to the judges ‑ ‑ ‑

KIRBY J:   The Court of Appeal sent it back there.

MR FRIEND:   Okay.  There was a mention heard within - it was certainly within 28 days, it was already heard which I had to go for memorial services to Sydney, for my mother’s funeral.  The matter was heard before Judge Quirk without us being there.  They discussed our case, there was a full mention heard, they wrote to the court explaining ‑ ‑ ‑

KIRBY J:   You had notice of it though.

MR FRIEND:   We had notice that a mention had been arranged - I think it was within three weeks, but it was already arranged within, like I said, within 12 days of the matter.  Like I said, my mother died, I had to go to Sydney for the funeral.  I had to go back for a memorial service and I could not attend the mention.  We wrote to the court asking for it to be put off but they refused to do that.  There is a copy of the mention - they talked about it, Mr Connor and Judge Quirk discussed the thing and did not seem to care, that it mattered if I was not even there.  The matter was discussed without ‑ ‑ ‑

KIRBY J:   You have answered that question.

MR FRIEND:   I certainly - I mean, we had no knowledge of an appeal and we assumed that the Court of Appeal knew what it was doing by putting the matter back before the Planning and Environment Court.

KIRBY J:   Yes.  I think your wife is asking you to say something, so you had better listen to that.

MR FRIEND:   Can she speak?  It might be easier.

KIRBY J:   Yes, certainly.

MRS FRIEND:   And as for, your Honours, finding out, I found it because I am doing much of the research for the case and I found the Judiciary Act, which said about special leave, so I got on to the High Court and I have Mr Popple’s letter in our submission on the 14 August, and it says:

I refer to your telephone inquiry of today.  I advise that in order to appeal to the High Court, you will need to apply for special leave to appeal to this Court.  Order 69A of the High Court Rules deals with applications for special leave to appeal.  I enclose a copy of your -

thing, and point 1 points out:

Your must file an application seeking special leave to appeal against the judgment of court below -

that was the Supreme - the Court of Appeal.  This was on the 14 August, as I said, so, when I found out from this, we sat down and we worked out something very quickly and, sorry, but I am very nervous, and I cannot recall all the dates, I am sorry, your Honour, but our submission was started

because we had to do it and put it in and then the Planning and Environment Court judgment ‑ ‑ ‑

KIRBY J:   You deny the suggestion by the respondent that you deliberately delayed the proceedings ‑ ‑ ‑

MRS FRIEND:   No, your Honour, we did not delay the ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ to see whether you would win in the Planning and Environment Court?

MRS FRIEND:   No, we did not, because as you said, the judgment had not even come down.

KIRBY J:   Yes, very well, thank you very much.  You have dealt adequately with that.  Was there anything in those pages that you have handed up that was important to your case that you feel you have not said to the Court?  Just have a look at those pages.  I do not want you to read them please, because that is not efficient, but just have a look to see if there is anything important you feel ought to have been put to the Court.

MR FRIEND:   The principal State Acts - controlling Acts - was that part and second, another section was on common law, dealing with the Racial Discrimination Act, of course the Constitution, Mabo, Western Australia v Commonwealth, the Universal Declaration of Human Rights and the common law.

KIRBY J:   Yes, very well.  I think we have the general drift of that from the written submissions.

MR FRIEND:   Can I submit them or they will be put into the Court records?

KIRBY J:   Yes, you can hand those up.  If you hand them up they will be put into the Court records.  Thank you very much, Mr Friend.

MR FRIEND:   Thank you, your Honour.

KIRBY J:   Mr Gore, there are two matters, first of all there is the suggestion that there was some certain private communication with Justice McPherson.  What is the position in relation to that?

MR GORE:   Your Honour, I have an affidavit, not by me, but by Mr Connor, which expands upon what occurred before the Court of Appeal which deals with that issue.  It has been filed.

KIRBY J:   Is this the affidavit of Michael John Connor?

MR GORE:   Yes, it is, your Honour.

KIRBY J:   There is a supplementary affidavit; the first affidavit being sworn the 10 April, the second affidavit being sworn the 17 April - is it the 10th or the 16th?

MR GORE:   The 16th, your Honour.

KIRBY J:   Very well.  Have you seen those affidavits by Mr Michael John Connor, Mr Friend, Mrs Friend?

MR FRIEND:   Your Honour, late on Wednesday afternoon, we had police deliver these ‑ ‑ ‑

KIRBY J:   But you have seen them?

MR FRIEND:   No, something unsigned, about 100 pages.  Just briefly, it had nothing to do with the case at hand, it went on to ‑ ‑ ‑

KIRBY J:   Yes, could you answer the question, please, because we have a very busy day today?  Have you seen the two affidavits of Mr Connor, you have received them?

MR FRIEND:   We have received one, it was unsigned.  I do not know whether that is ‑ ‑ ‑

KIRBY J:   Presumably it is the same as the one that we have now received signed.  Do you wish to ask Mr Connor any questions?

MR FRIEND:   We object that we have not had time to look at it or do anything about it.

KIRBY J:   When do you say you received these?

MR FRIEND:   Wednesday afternoon, about 4.30.

KIRBY J:   Yes.

MR FRIEND:   That was one.  I just received another one two minutes before we came inside.

KIRBY J:   Yes, very well, sit down please.

MR FRIEND:   Which I have not had a chance to look at and I feel that it jeopardised - we have been denied natural justice ‑ ‑ ‑

KIRBY J:   Yes, very well, I understand your objection.  What do you say about this, Mr Gore?

MR GORE:   Can I summarise the effect of it, your Honour?

KIRBY J:   Well, it is a question, first of all, whether we receive it.  Why is an affidavit relating to a matter which has been listed before the Court for a long time filed three days before the return date and then the supplementary affidavit given to the applicants at the beginning of the proceedings?

MR GORE:   Your Honour, I accept that is most regrettable and I am conscious of the provision which requires three working days notice of material not included in the application book ‑ ‑ ‑

KIRBY J:   He objects to it - I must say, for my own part, I have not read it and I am not inclined to receive it, which may leave you in the position that you have to deal with the suggestion that has been made orally but, as I understand it, without any evidence that there was a private communication.  What do you say in relation to that?  Was that suggestion put to the Court of Appeal?

MR GORE:   No, it was not, your Honour, and what happened sufficiently does emerge from the transcript which is in the application book.  I have summarised the effect of it.

KIRBY J:   Yes, where do we find this page?

MR GORE:   It begins at page 49 at line 10, where Mr Friend sought to provide the court with a written submission.  I indicated that I had not seen it - that is at line 28.  The President asked whether I had any objection and on page 50, line 1, I said that it did “raise some issues which are new”.  The President asked, “Such as?”, and then I referred to this 10‑year argument and at line 30 Justice McPherson said:

McPHERSON JA:  I’ve seen in one of the submissions that I read last night a statement to the effect that the town plan lasted only 10 years, so that’s his proposition so that’s not entirely new, I don’t think, is it?

KIRBY J:   That is a reference, presumably, to reading a submission on behalf of the applicants?

MR GORE:   That is so, your Honour.

KIRBY J:   Is there any evidence or is there any suggestion in the transcript that there was some private communication between you or anybody on your side and Justice McPherson?

MR GORE:   What Mr Friend points to, is at page 52 of the record at line 25, where I address Justice McPherson and said:

What your Honour read last night wasn’t ringing any bells with me but now I understand why.

KIRBY J:   That was because Justice McPherson had the material and you did not have it, and he had referred to it and you wondered what he was referring to.

MR GORE:   That is precisely so, your Honour.

KIRBY J:   The material shows exactly the contrary to what Mr Friend was submitting.  It shows that Mr Friend submitted material to the court that you did not have and there was not the slightest suggestion that there was any communication between you and Justice McPherson.

MR GORE:   Might I be permitted to say that obviously one of a barristers worst fears is that he has not read his brief correctly and when Justice McPherson raised this matter of having read it the previous night, it did take me by surprise and it emerged in the discussion which followed, and I really sort of made the point at line 5 on page 52, that there was this risk that the court had been given something that had not been given to the counsel.

KIRBY J:   Yes.  Do you tell the Court, as a barrister of the Court, that you had no private communication with Justice McPherson?

MR GORE:   I most certainly do.

KIRBY J:   Yes, very well, thank you.  Now, the second matter - you will have a chance of replying - the second matter relates to the suggestion that the point was raised before the Court of Appeal which contested the continuing operation of the Town Planning Scheme.  That would have presented certain difficulties because, as I understand the argument in the Court of Appeal, the suggestion was that the present applicants were positively relying on the scheme and on their interpretation of the scheme,

but was it argued in the Court of Appeal that the scheme on which they were there relying had expired in some way or been replaced?

MR GORE:   It was contained in the written submission which Mr Friend handed up, as I have indicated at page 49 of the application book, it is the 10 year argument as I have described it, and that is what I said was something new and that Justice McPherson had suggested was not something new because it was in this previous submission.  The argument was not developed by us because it was not an argument that was raised in the court below at first instance.

KIRBY J:   Yes, but is it common ground between you and the applicants that the town planning scheme, which is the subject of this litigation has now been replaced?

MR GORE:   No.

KIRBY J:   It is not.  You say it is still in force?

MR GORE:   That is so, your Honour.  The argument was that by force of a provision in the Local Government Act which required a review of planning schemes within 10 years, the fact that there had not been a review within that 10‑year period has a consequence that the scheme automatically lapsed or became a nullity.  There is no provision in the Local Government Act to that effect and I would be happy to deal with the argument should it arise.

KIRBY J:   No, I think I understand that.  Yes, very well, is there anything else that you wish to say?

MR GORE:   Well, what I would say, finally, in relation to that, your Honour, is that the Court of Appeal did not find it necessary to deal with the point because it was not a point which had been fairly raised below.

KIRBY J:   Yes, very well.  The Court is not inclined to receive the affidavits, they being out of time and causing surprise to the applicants.  The affidavits of Mr Michael Connor will be rejected.  Yes, the Court does not need further assistance.  Yes, Mr Friend.
MR FRIEND:   Your Honour, in list A that we had to put before the Court of Appeal, which was done a long - whatever, it is on page 26 of this application book in list A, it is the third point, Local Government Act 1936, section 33(4)(b)(iv) which provided which provided that a Planning Scheme shall have a duration of 10 years.

The Laidley Shire Council Town Planning Scheme Gazetted 12th November 1977 had force for ten years from that date unless extended by the Minister.  The scheme under which the Council sought to bring the action lapsed in 1987.  Section 33 is not discretionary.  The term “shall”, in conjunction with the requirement to apply for an extension, renders the condition mandatory.

The section imposes an obligation in the public interest, is not waiverable and requires to be interpreted in its mandatory sense:-see SS Constructions Pty Ltd v Venture Motors Pty Ltd (1964) VR 229 and R v Registrar of Titles;  Ex parte John Wolbers Constructions Pty Ltd (1973) VR 723.

So, it was in there.  What Justice McPherson was talking about is that he had read that in that document.  What Mr Gore is trying to say, how did Mr Gore know that he was reading it last night?

CALLINAN J:   Because his Honour Justice McPherson had told him.

MR FRIEND:   No, it is not mentioned before ‑ ‑ ‑

CALLINAN J:   Now, I am sorry, Mr Friend, it is not correct.  I am not going to permit you to say something that is not correct.  It is clear from the transcript that Mr Gore took us to that his Honour Justice McPherson was referring to matters of which Mr Gore was not aware and only became aware as his Honour Justice McPherson developed them.  That occurred because you had supplied material to the court which Mr Gore had not yet got.  That is what happened and it is plain from the transcript.

MR FRIEND:   We understand what is in the transcript but we were in the court and actually heard what was said and the full record ‑ ‑ ‑

CALLINAN J:   The transcript is the record, Mr Friend, and I do not want to hear anything further on that matter because it is plain.

MR FRIEND:   This document, which they are saying they have not seen, this submission, had to be given to them.  By court order we had to send it to the respondents, which we did, and they certainly had it.

CALLINAN J:   They saw it in due course.

MR FRIEND:   No, they had it for quite some time before.  These were done months before.

CALLINAN J:   You just continue, Mr Friend.

MR FRIEND:   And the Court of Appeal, if I may add, did not allow us to give any oral defence and that is when we handed in the written submission that we were putting in as an oral defence.  We were denied that, so we could not develop the case but it was handed in and the court assured us that that was what they would be taking notice of and we would reiterate that it is pretty hard to make a decision on a definition that is in a document which is controlled by the controlling State Act, and not to take notice of the requirements of that.  I mean, the Town Planning Scheme had expired.  It did not exist.  Thank you.

KIRBY J:   The applicants who have appeared in person wish to use their land at Lockyer Waters in the State of Queensland to breed greyhound dogs for racing.  The Council of the Shire objected on town planning grounds.  It relied on the Town Planning Scheme for the Shire of Laidley.  In the Planning and Environment Court of Queensland, Judge Quirk found that, within the applicable zone, under the scheme, the purpose proposed by the applicants did not require the Council’s consent.  It was within the wide definition of “animal husbandry”.  The Council appealed to the Court of Appeal of Queensland.  An appeal lay to that Court only on a question of law.  See Local Government Planning and Environment Act 1990 (Q), s 7.

The Council contended that Judge Quirk had erred in law in his construction of the scheme.  It had argued that the proposed use constituted a “kennel” which required the Council’s approval under the scheme.  The Court of Appeal unanimously upheld the Council’s appeal.  It referred the matter back to the Planning and Environment Court for consideration of the Council’s objections.  That eventually resulted in a decision adverse to the applicants and to a restraining order forbidding the use of the land proposed by them.

Now, six months out of time, the applicants have applied to this Court for special leave to appeal against the Court of Appeal’s decision.  The Council opposes an extension of time sought by the applicants.  It suggests that they chanced their arm to see if they would achieve a result satisfactory to them on the merits and thus that they deliberately delayed their application to this Court.  Although there is no evidence on the matter, Mr Friend, who spoke for the applicants, informed the Court that, being unaware of the legal requirements, the applicants simply proceeded in the Planning and Environment Court to which they had been returned by order of the Court of Appeal, suffered a bereavement in the family, and brought the proceedings to this Court when they were later informed of the time limit by a Deputy Registrar of this Court. 

The Court has heard oral argument on the merits of the application.  It has also considered written arguments which were filed by both sides in advance of the hearing.  Although the latter deal mainly with the issues in contention, those of the Council deal at some length with the time default.  Those of the applicants raise several other objections.  These included the alleged bias of the Court of Appeal, discrimination against them, constitutional grounds and grounds based on the Racial Discrimination Act 1975 (Cth) and the Universal Declaration of Human Rights. The applicants also claim jurisdictional error by the Court of Appeal. However it was pointed out to them during argument that the principles invoked by them do not apply to a superior court such as the Court of Appeal which is part of the Supreme Court of Queensland. They also raised a late challenge to the validity of the Town Planning Scheme although, in the Court of Appeal, the applicants had relied on the validity of the Scheme to uphold the interpretation which they advanced. The Court of Appeal rejected their argument as to validity upon the basis that it was only belatedly raised and had not been previously litigated. When it is elaborated it is apparent that it has no legal merit.

The case thus involves nothing more than the construction of a Queensland planning scheme expressed in particular language.  It has no apparent significance beyond the present parties.  No error rising to the possibility of a miscarriage of justice has been shown which would otherwise attract special leave to appeal to this Court. 

It is necessary to say something briefly in relation to the suggestion of bias on the part of the Court of Appeal.  That suggestion was that there had been a private conversation between one of the Judges of the Court of Appeal and counsel appearing in the interests of the respondent.  That suggestion must be rejected.  First, there is no evidence to support it.  Secondly, in so far as the transcript of argument was referred to, far from indicating any affirmation of a private conversation between a Judge and counsel for the respondent, it simply indicates that the Judge had received a written submission for the present applicants which came as a surprise to counsel for the respondent, he not having received it at that time.  The Counsel concerned, who is also present in this Court, has affirmed that he had no private conversation with a Judge.  The Court accepts that assurance.  Affidavits were tendered on behalf of the respondent to respond to the applicant’s unproved assertion but because they were only lately filed and came as a surprise to the applicants, the Court rejected them.  It did not have to rely on them to reach its conclusion.

The Court will, in the circumstances described, allow the extension of time, having regard to the personal situation which has been explained.  However, it rejects the application for special leave upon the basis that there is no reason to doubt the correctness of the decision of the Court of Appeal.  The application is therefore refused.

MR GORE:   The respondent asks for costs, if the Court pleases.

KIRBY J:   Can you say anything in resistance to the application by the respondent for the costs of the application which has just failed?

MR FRIEND:   I am bewildered, your Honour.  There is no basis for any of the action that they have taken.  They have absolutely no law on which they can‑ ‑ ‑

KIRBY J:   Yes, but they have a decision of the Court of Appeal in their favour.  That decision they are entitled to defend.  They have now succeeded in resisting an application for special leave to appeal to this Court.  Ordinarily that would attract an order for costs in their favour and they ask for it.  What is the basis on which we could depart from the ordinary rule that governs these matters?

MR FRIEND:   They had no law to take us to court in the first place.  I mean, there is no legal - the Local Government Act clearly states‑ ‑ ‑

KIRBY J:   Yes.  This is a matter that has been determined conclusively against you.  The question is whether costs should be ordered.

MR FRIEND:   You said you would take notice of this, that we have handed up.  You have already made a decision without looking at it.

KIRBY J:   No.  We understand the submissions that you have put.  You have a certain time, like everybody else.  The Court has a busy day.  You were given almost twice that time.  The Court has heard your argument and dismissed it.  The application is dismissed.  The applicants must pay the respondent’s costs.

MR FRIEND:   So we have no right to our own freehold?

KIRBY J:   You have right to your freehold in accordance with law.  The Court will now adjourn in order to be reconstituted for the succeeding applications.

AT 10.28 AM THE MATTER WAS CONCLUDED