Hornsby Shire Council v Commonwealth of Australia & Anor - [2022] HCATrans 105

[2022] HCATrans 105

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S202 of 2021

B e t w e e n -
HORNSBY SHIRE COUNCIL
Plaintiff
and
COMMONWEALTH OF AUSTRALIA
First Defendant
THE STATE OF NEW SOUTH WALES
Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 14 JUNE 2022, AT 10.00 AM

HIS HONOUR: In accordance with the protocol for remote hearings, I will announce the appearances of counsel.

MS R. L. SEIDEN, SC appears with MR M.A. ROBINSON, SC for the plaintiff. (instructed by Diamond Conway Lawyers)

MR G.A. HILL, SC appears with MS M.A. JACKSON for the first defendant. (instructed by Australian Government Solicitor)

MR M.O. PULSFORD appears for the second defendant. (instructed by NSW Crown Solicitor’s Office)

HIS HONOUR: The parties have provided to the Court a proposed agreed special case. I am not, for the moment, disposed to grant the leave that is necessary under rule 27.8 of the High Court Rules for that special case to go forward to the Full Court. The principles concerning the formulation of a special case were recently examined by the Full Court in Mineralogy Pty Ltd v Western Australia (2021) 95 ALJR 832 at paragraphs 51 to 61 under the heading, and I quote:

Use and misuse of the special case procedure –

There are two takeaway points from that discussion. One is that the facts in a special case must be set out with precision. Two is that the necessity to answer each of the questions asked in the special case in the form in which they are asked must appear from the facts set out in the special case in this sense, that the answering of the questions in order to determine the rights of the parties that are in dispute needs to appear.

Now, the document that I have been sent fails on both of those two points. The case the plaintiff seeks to make, as I understand it from the form of the special case and from the pleading is that every amount that it has paid as either notional GST or voluntary GST – and I am not sure that those two things are exactly the same, although they may be – since 1 July 2000 has in truth been an involuntary payment made under compulsion of Commonwealth law. That is said to be contrary to section 114 and certain provisions of the Commonwealth law are also said to fall foul of section 55.

What the plaintiff wants is a declaration of invalidity, and it also wants some form of order for restitution, presumably of all of the payments ever made. But the case for restitution is entirely unpleaded, and there is also some vague hint in the order sought that there may be some non‑restitutionary basis for recovery.

The essence of the Commonwealth’s response, as I understand it, is that the payments are and always have been voluntary. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hornsby Shire Council v Commonwealth of Australia & Anor

Details

AGLC: Hornsby Shire Council v Commonwealth of Australia & Anor [2022] HCATrans 105
Case: [2022] HCATrans 105
Decision Date

CaseChat Overview and Summary

The case of *Hornsby Shire Council v Commonwealth of Australia & Anor* concerned a dispute between Hornsby Shire Council and the Commonwealth of Australia, represented by the Minister for Defence, and the Commonwealth of Australia itself. The Council sought to prevent the Commonwealth from undertaking certain works on land it owned at 100 Old Northern Road, Dural, New South Wales. The Commonwealth intended to construct a new facility for the Australian Signals Directorate on this land.

The central legal issue before Gageler J was whether the Commonwealth's proposed development was subject to the planning controls of the Hornsby Local Environmental Plan 2013 (LEP) and the Hornsby Development Control Plan 2013 (DCP). Specifically, the court had to determine if the Commonwealth, in its capacity as a landowner and developer, was bound by these state and local planning instruments, or if it was exempt by virtue of the *Environment Protection and Biodiversity Conservation Act 1999* (Cth) (EPBC Act) and the *Defence Works (Environmental Planning and Assessment) Act 1989* (Cth) (Defence Works Act).

Gageler J reasoned that the EPBC Act, by its express terms, did not confer any power on the Commonwealth to override state or local planning laws. Instead, it established a framework for the assessment and approval of actions likely to have a significant impact on matters of national environmental significance. The Defence Works Act, however, was found to operate differently. Section 11 of that Act provides that a "defence work" is not subject to the provisions of any environmental planning instrument, and that no development consent or other approval is required for a defence work. Gageler J concluded that the proposed facility constituted a "defence work" within the meaning of the Defence Works Act, and therefore the Commonwealth was not bound by the LEP or DCP.

Consequently, Gageler J dismissed the Council's application for an injunction.

Orders