Lithgow City Council v Jackson [2011] HCATrans 27

[2011] HCATrans 27

[2011] HCATrans 027

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S158 of 2010

B e t w e e n -

LITHGOW CITY COUNCIL

Applicant

and

CRAIG WILLIAM JACKSON

Respondent

Application for special leave to appeal

FRENCH CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2011, AT 10.26 AM

Copyright in the High Court of Australia

MR S.G. CAMPBELL, SC:   May it please the Court, I appear with my learned friend, MR S.E. McCARTHY for the applicant.  (instructed by DLA Phillips Fox Lawyers)

MR A.S. MORRISON, SC:   If your Honours please, I appear with my learned friend, MR D.W. ELLIOT for the respondent.  (instructed by Gerard Malouf & Partners)

FRENCH CJ:   Mr Morrison, it might assist us if you were to first of all address us on why this would not warrant the grant of special leave.

MR MORRISON:   Your Honours, we would say, first of all, that the interpretation of section 78 of the Evidence Act is a correct interpretation.  It is one which is based on longstanding authority as to what is meant by the word “necessity” and that the Court of Appeal, applying its duty of reconsideration of Warren v Coombes, Fox v Percy, was correct in the approach that they took.  If that be the case, then we say that the remaining matters are issues of fact, matters in respect of which this Court would not be the appropriate place for the determination of those issues.  It essentially becomes a factual determination.  We would say that in those circumstances this is not a suitable case for the determination of the High Court.

FRENCH CJ:   You would be raising a contention, I think, would you not?

MR MORRISON:   Yes, your Honours, we would be seeking to raise the approach taken by Justice Basten for which the respondent has consistently contended, namely, that there was adequate evidence in any event. 

FRENCH CJ:   Yes.

MR MORRISON:   We would be seeking to pursue that, if your Honours were against us in relation to the special leave issue.  We would say, essentially, there is simply no error in law and otherwise it is a factual issue.  If your Honours please.

FRENCH CJ:   Yes, thank you, Mr Morrison.  Mr Campbell, we will not need to trouble you.  There will be a grant of special leave and, of course, it will be subject to the notice of contention that will be filed in due course.

AT 10.29 AM THE MATTER WAS CONCLUDED