Mainsel Investments Pty Ltd v Brisbane City Council

[1988] HCATrans 328

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane Nos B43 and BS0 of 1988

B e t w e e n -

MAINSEL INVESTMENTS PTY LTD

Applicant

and

BRISBANE CITY COUNCIL

First Respondent

STATE OF QUEENSLAND

Second Respondent

Applications for special leave

to appeal

BRENNAN J

Mainsel

DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 DECEMBER 1988, AT 9.34 AM

Copyright in the High Court of Austral i.a

Ml T 1/ 1/ JM 1 9/12/88

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

with my learned friend, MR P. KEANE, QC for

the applicant. (instructed by Feez Ruthning)

MR G.L. DAVIES, QC:  May it please the Court, I appear

with my learned riend, MR P.J. LYONS, QC for

the respondent. (instructed by the City Solicitor)

BRENNAN J:	Yes, Mr Callinan?
MR CALLINAN:	Your Honours, there are two applications

for special leave before the Court, both

arising out of majority decisions of the

Full Court of Queensland. We propose to deal

first with the issues raised by the application

which is second in point of time and which

relates to the substantive matter.

As was held in both courts below, the applicant had a right to develop its land

as proposed, subject only to such reasonable

and relevant conditions as the respondent might

properly impose. The relevant legislative

provision which forms part of the town plan for

the city of Brisbane is expressed in permissive

terms, that an applicant may apply for the

notification of conditions. That is somewhat

misleading in that there is another provision

in the town plan which makes it obligatory that

such an application be made before development,

which is permitted development, may proceed.

The applicant exercised its right of

applying for the notification of conditions on

2 June 1988. The application at that time

when lodged complied in all respects with all

relevant requirements and was extremely

comprehensive. It was voluminous and it contained

a great deal of information. The subordinate

legislative scheme provides that the Council

may request further information in relation to

such an application within 28 days of the

lodgment of the application and that the

Council must impose conditions within 40 days

after the application is lodged, or after such

time as any requested further information is
provied.

The request was in fact made by the Council and, of course, it was our case that the request

was not a bona fide request, but it was made

by the Council on the 25th day after lodgment

of the application, that is, three days before
the expiration of the period within which
further information had to be requested if it

was going to be requested.

DAWSON J: That is 27 June?

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Mainsel
MR CALLINAN:	Yes, Your Honour.	The position also was,

of course, that this application or this matter -

perhaps I should it put it this way - this

proposal, had been in the Council's hands

in various forms, but substantially in the

form the subject of the application, for many,

many months before the formal application was

made. For example, as the material shows, there

had been an application for consideration of

a proposal in principle for the construction of
a very high building of the order of 87 storeys;

the application itself, of course, was for a building

in excess of 100 storeys. I merely mention that

to show that there was really no novelty about the

application or the proposal of the applicant.

Among other things, at the hearing the

applicant contended that the request was not

made bona fide to obtain further information, but

was made merely to preserve the status quo whilst

the Council changed the rules, as it were, and

that issue was litigated at the trial.

So therefore, the second application concerns

these decisions by the majority whereby they

contrued section 22B of the CITY OF BRISBANE

TOWN PLANNING ACT so that the rights of an

applicant, in this case this applicant, in respect of

an as of right development as opposed to one in

respect of which a consent was required, as if

an as of right development were not protected

against changes in the town plan. Section 22B of

the CITY OF BRISBANE TOWN PLANNING ACT, on its

face, is obviously designed to preserve the

rights of applications which have been made

at the time, or before the time, at which the
change to the town plan is effected.

The majority held that section 22B did

not operate to protect this applicant simply
because of the making of the request for further
information by the respondent Council before

the change was effected in the town plan. Of course,

the request had not been answered at the time of
the change to the town plan - I should say the

purported change to the town plan; I will mention

why I say "purported" shortly. The Court will

appreicate what the timing was. There were,

of course, effectively only a few days within

which to answer the request for information

because the change, or the purported change in
the town plan was made almost immediately after

the request for further information, which was

a very comprehensive request, was sent to the

applicant.

The majority decided that the request

for information was valid, notwithstanding what

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Mainsel

we would submit and what was held by His Honour

the dissenting judge, Mr Justice Vasta, the

clearly unnecessary and oppressive nature of

many of the requests. That appears from the
findings of His Honour Mr Justice Vasta on

appeal at page 203.

The circumstance that the Council, we would

submit, had no intention of acting upon the

information furnished. The circumstance that

well before that time the Council had

unanimously resolved to oppose the application

because - and I adopt the terms of a resolution which

was passed by the Council before the application

was lodged by the applicant, the Council had

unanimously resolved to oppose the development

because it represented "State Government intrusion

upon the local government functions of the

subordinate authority", that is the Council. This

was the policy which informed and, we would submit,

clearly tainted the Council's application for the

amendment of the town plan.

BRENNAN J:  Mr Callinan, these are considerations which go,

I take it, to the question of whether the power to request information was exercised for the purpose for which it was conferred?

MR CALLINAN:  Your Honour, yes, that and also - could I

tell Your Honours that there was really a

two-pronged attack. There was an attack upon

the application for amendment of the town plan

and there was an attack upon the request

for information and at the trial it was contended,

and it seemed to be accepted by the learned

trial judge, that evidence on each of those matters
might be relevant to the other; that if there

were bad faith, or improper purpose, or a

discriminatory or irrelevant purpose in relation
to either of those matters, then that affected

the other matter.

BRENNAN J: Yes, but now, is it not correct to say that

as findings of fact there are concurrent findings

of fact of the courts below against you?

MR CALLINAN:  Some findings of fact against us, yes,

Your Honour. However a -

BRENNAN J: The ultimate finding is the question: the

ultimate finding that the power was exercised

for the purpose for which it was conferred

was made against you by Justice de Jersey and

by the majority. Is that not correct?

MR CALLINAN:  Your Honour, not quite as clearly as that

by His Honour Mr Justice de Jersey.	Could I
say why?

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M ainsel

BRENNAN J:	Yes.
MR CALLINAN:	That requires me to take Your Honours to one

passage, which I will shorly do, in his judgment where His Honour seems to have adopted the view

that if the decisions were in part at least

for a proper purpose, it did not matter that

there might be other purposes operating on

the Council's mind. Now that, we would submit,

is one special leave question, and it is

important to have it resolved: that if there

is an improper purpose, it does not matter that

there may have been, as it were, concurrent proper

purposes; that there is a tainting, as it were,

of the decision if there is an improper purpose.

On that, could I say this, Your Honours, with

respect, the evidence was one way: that the

Council resolved to oppose this development

on - I use a shorthand term - political grounds

because the chronology shows that the Council

had not been resisting a development of this kind

until such time as there is an announcement by

the Premier of the State Government to the effect

that the Government would legislate to facilitate

in some way the construction of this building.

Immediately after that the Council resolved to

oppose this development, among other things. Now

that, it was our submission, was an improper purpose,

or not a relevant purpose and that certainly

affected the decisions that the Council made,

albeit that there may have been other purposes

and it was in relation to those other purposes

that there are ultimate findings of fact against

us.

Could we say this, however, Your Honours, in

relation to the ultimate finding of fact, we

would submit that it was really based substantially

on inference and, of course, we do have the
benefit of one dissenting judgment in the Full

Court to the effect that that ultimate finding

should have been reversed.

Your Honours, I will draw your attention

very shortly to the passage in which

His Honour Mr Justice de Jersey says, we would

submit, in effect that it does not matter that there may not have been other proper purposes.

Could I ask Your Honours to look at page 100

of the application book? The passage commences

at line 40 in the reasons for judgment of

His Honour. His Honour said:

As I have suggested, there is no evidence

that the Council was bent on "victimising"

Mainsel. The evidence which there is

MITl/5/JM	5	9/12/88
Nainsel

sug8ests to me that the Council was

concerned with a wider interest -

and His Honour uses this language -

arguably justifiable on town planning

grounds -

that seems to be as high as His Honour puts

it -

of ensuring that very tall buildings, not

limited to Mainsel's proposal, not be

erected. That was a permissible attitude,

sufficient to justify its seeking the

amendment of the Plan.

Now, Your Honours, we would submit that if

one reads that passage, and reads then the

reasons for judgment of His Honour Mr Justice Vasta

in the dissenting judgment in the Full Court where

His Honour sets out the other matters at some

length which informed the Council's decision,

it can be seen that at best for the respondent

there may have been a town planning basis for

the Council's attitude.

BRENNAN J:  But that is a question of fact surely,

is it: that you bore the onus of proving

bad faith which invalidated the exercise of

the Council's power to request information?

MR CALLINAN:	Yes.
BRENNAN J:	And you failed before Mr Justice de Jersey,

and you failed before the Full Court.

MR CALLINAN:	Yes.
BRENNAN J:	What is the proposition of law which you

wish to agitate on this appeal, or if it is

not a question of law, how do you hope to

escape the concurrent findings of fact in the

courts below?

MR CALLINAN:  Your Honours, we would submit that - first

of all, could I say this, when we use the

expression "bad faith' here, we use it in the

wide sense of to comprehend something other

than the exercise of a power for the purpose

for which it was conferred.

BRENNAN J: Yes.

MR CALLINAN:  And the question that we would want to

raise on this issue is whether, if other non-relevant

purposes are being regarded by the respondent

in exercising the power, then even though the

MITl/6/JM	6	9/12/88
Mainsel

power might in part had been exercised for

relevant or proper purposes, the improper or

irrelevant purposes operate to defeat the

exercise of the power.

BRENNAN J: What is the irrelevant purpose: that is

the political purposes you have described?

MR CALLINAN:	Yes.
BRENNAN J:	Where is there a finding as to that matter in either of the courts below?
MR CALLINAN:	Your Honour, could I say this - I am not

trying to avoid Your Honour's question - the

evidence was one way and not contradicted,

and I will find the actual evidence, to the

effect that the Council resolved to oppose this

application - or to oppose this development because

of State Government intrusion upon Council planning.

Now, there may not have been a finding in those

terms, but the evidence was one way: there was

a Council resolution to that effect. If Your Honours

will bear with me, I will find that.

BRENNAN J: Yes. It does mean that you have got two.

hurdles, does it not:  one is the obstacle of

the absence of a finding which must be overcome

in the way which you now propose to address?

MR CALLINAN:	Yes.
BRENNAN J:	The second is that even if such a finding

had been made, what its implication would be

for the validity of the exercise of the power?

MR CALLINAN: Yes. Well, the second, with respect,

seems to be clearly a question of law.	The
first, Your Honour, we would submit, we
did not have a finding because we did not

need a finding; it was effectively common ground.

It was for that reason that the learned trial

judge expressed himself in the way in which he

did in the passage to which I have referred,

where His Honour said, "arguably justifiable".

Could I refer Your Honours to page 233 of

the application book? Now, this is set out

in the supporting affidavit, but this was

evidence at the trial, and that - paragraph (ix)

Your Honours, on page 233 - sets out the

resolution which was before the Court:

"This council deplores any State

Government legislation aimed at overriding

the planning powers of the Brisbane City

Council in relation to the Central Place

development -

MITl/7/JM	7	9/12/88
Hainsel

that is, this development -

and condemns the continual intrustion into

the responsibilities of the property

elected planning authority for Brisbane

City Council, and this Council also opposes

the concept of an 107 storey building on
the site of the corner of Turbot, Edward

and Ann Street."

Now, on any view of it, we would submit that that demonstrates a political component of the

decision.

GAUDRON J:  Does it take you whole distance, Mr Callinan?

Does it demonstrate a political component of

the request for information?

MR CALLINAN: It may not, Your Honour, but, of course, if

we succeeded on either of these matters, we would

succeed in the case. In relation to the

request -

GAUDRON J:	What do you mean "either of these matters"? respect of which bad faith was alleged. One
MR CALLINAN:	Your Honour, there were two matters in

was the application by Brisbane City Council

to amend its town plan.

GAUDRON J:	And you have succeeded on that?
MR CALLINAN:	But only on one aspect of it; not on the

bad faith aspect, Your Honour. Could I say

this, we attacked the application to amend

the town plan on three grounds:  one, that

it was motivated or affected by bad faith;

secondly, that the responsible local government

minister of the State Government did not

comply with the statutory procedure in

considering the application for the amendment;

thirdly, that the Governor in Council, in

making the amendment, did not comply with the

statutory procedure. We succeeded on the

last. Now, our success on the last argument in

relation to the application for amendment

really made it unnecessary for there to be

any findings in relation to the other two grounds.

In fact, the learned trial judge did make

effectively a finding against us on the first

ground. There is no finding on the second ground,

that there was irregularity or non-compliance

with the statutory procedure on the part of the

minister. That was unnecessary because the finding

was made that there had been non-compliance by the

Governor in Council.

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Mainsel

GAUDRON J:  I still do not see why it is that you

do not need to establish a political component

in the request for information before you can

succeed in having your plan considered under

the old law, as it were.

MR CALLINAN:  Your Honour, if we were to succeed upon

the basis that the Council's application to

amend the town plan was affected by an

improper motive, then there never has been -

and there has never been an effective

amendment of the town plan.

GAUDRON J: Well, that is for a later day, is it not?

It is not in issue here?

MR CALLINAN:  With respect, Your Honour, that is a

matter, of course - that is the subject of

the second application for special leave.

Could I tell Your Honours what happened

at the trial? That issue was litigated; it

was litigated at length. The learned trial

judge said that it was unnecessary for him

to, in effect, make any declarations or do

anything of that kind in relation to it

because we had succeeded on the other basis.

The learned trial judge said that the second
order in council,which was introduced to

cure the invalidity of the first - he said

that we might have leave - he specifically

did not decide anything in relation to that

but said that our rights, as it were, were

reserved to challenge that. But it was very

much a live issue and it was very fully

litigated at the hearing, whether there had

been bad faith on the part of the Council

and also whether there had been non-compliance
by the minister in applying for the amendment

to the town plan.

The request for information is a separate

matter. Your Honour, if we could succeed in

demonstrating that the motive was discriminatory

or in some way irrelevant, or not for the
proper purpose in making the application for

amendment of the town plan, there has never

been an effective amendment of the town plan.

GAUDRON J:  Yes, I follow that. But could you even

argue that the matters set out in paragraph (ix)

are extraneous, irrelevant in terms of seeking

an amendment to a town plan? I can well see

that if you could make the point that those

matters led to the opposition of a particular

plan, that is one thing, but in so far as you

rely on paragraph (ix) as undisputed fact of

MITl/9/JM	9	9/12/88
Mainsel

an irrelevant consideration - if we can use

that expression - how is it irrelvant to

the amendment of the town plan?

MR CALLINAN:  Well, Your Honour, the only matter, it

is our submission, and this is one of the

issues that we would suggest this Court

should decide - the only matters which should

affect a decision to amend the town plan are

town planning matters. The power is conferred

for town planning purposes and no other.

For example, the resolution really seeks not only a political result, but also specifically seeks to give to the CounciL as a subordinate

administrative authority, a power to define

the scope of its powers. That is what it is

saying; it is saying the State Government should

not legislate in such a way as to affect the

planning powers of the Council. Now, that is
precisely the power that the State Government

has, because the State Government, of course,

is the legislating government in relation to

the CITY OF BRISBANE TOWN PLANNING ACT and the

LOCAL GOVERNMENT ACT.

DAWSON J:  But it is quite legitimate to say, in a town

planning sense, that you cannot, as a

planning authority, carry out your duties

properly if there are ad hoc intrustions from

time to time.

MR CALLINAN:  That may be so, Your Honour, that you

prefer that not to happen, but that is a

different matter - it becomes a different

matter, in my submission, when that attitude

is related to one proposal. For example,

could I say this, that there is a body of

Canadian authority to the effect that in
discriminatory attitudes by planning

authorities in relation to a particular

project, if they can be demonstrated, are

sufficient to defeat the exercise of the

town planning power, that is in introducing

by-laws.

Your Honours, there is a case,

THURLESTONE CO-OPERATIVE INC V CORPORATION a decision of a divisional court of the

Ontario Supreme Court. Could I just hand up

a copy of the decision to Your Honours, because

a planning

in that decision are collected a number of other discrimination in the exercise of

power is discussed. The discussion commences

at page 245, towards the foot of the page and,

Your Honours, the principle is stated when a

MITl/10/JM	10	9/12/88
Mainsel

passage from an earlier case is referred to

at the foot of page 246:

"It is, of course, well recognized that

every zoning by-law is discriminatory,

in the sense that the municipality

chooses the types of uses it will permit

..... and it is not invalid on that

account -

and over the page -

But there must be proper planning grounds or standards to warrant discriminatory

distinctions between property owners in

the same position, classification or

zoning category.

And so on. I need not refer to it any further,

but it is sufficient to point out that there is

a strong body of Canadian authority which, we

would submit, is such as could and should be

invoked in this sort of situation anrl that

is a novel point.

Your Honours would appreciate that that

is not our only attack upon the decision.

There certainly may be factual considerations

intruding into that issue.	I do not dispute
that.	I have really said what I need to say

about the mixture of fact and law involved in

that question.

(Continued on page 12)

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Mainsel

BRENNAN J:  The difficulty I see in your way, Mr Callinan,

is the passage to which you have already directed

our attention at page 100, in the finding by

Mr Justice de Jersey who makes a positive finding that:

There is no evidence that the Council was bent on "victimising" Mainsel.

MR CALLINAN:	Yes.
BRENNAN J:	By which I take it he means unreasonable or improper

discrimination against Mainsel.

MR CALLINAN:	I expect so, Your Honour, yes.
BRENNAN J:	He then goes on to say:

The evidence -

has -

arguably justifiable ..... town planning

grounds -

and so forth. Now, it seems, as I presently

understand the situation to be this: that here

is a planning authority which forms a view, tentatively•

perhaps or provisionally, about this application and

which sees it as desirable to obtain a large volume

of information about it. At the same time, there

is what my brother Dawson refers to as an ad hoc

intervention promised or threatened by the State
government and the Council's reaction is that the

State government should remain out of the problem because it is a planning authority's problem.

Now, if you have the Council, as it were, concerned with both matters, how is it that if it

is concerned with what you describe as a political

matter, that affects the validity of the exercise

of its powers under the planning legislation?

MR CALLINAN:  Because it has not exercised, if I use this term,

a planning power. It has not exercised the power

simply and solely, as we would submit it should,

for a planning purpose. It has exercised the power at best for the Council for mixed purposes; perhaps partly for a planning purpose but also, if one looks

at that passage that I referred you to, the resolution,

but also for a political purpose.

BRENNAN J:  But the fact that a valid exercise of the power

has desired and incidental consequences has never

been thought to invalidate the exercise of the power.

It is only if the collateral purpose is one which

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Mainsel

vitiates the total exercise so that it is not a

genuine exercise of the power that one gets to

the area that you are concerned with, surely.

MR CALLINAN: Well, we would submit, Your Honours, that that

is the question that - - -

BRENNAN J:  It is a question which permits of only one answer,

is it not?

MR CALLINAN:  Well, we would submit not, Your Honour. We

would submit tha 4 if an improper purpose intrudes,

then it is really impossible to say that the fact
that there may be some other incidental pro,er

purposes have not, themselves, been influenced by

the improper purpose.

BRENNAN J: Well, that assumes the very thing that has been

found against you, though, does it not? In other

words, if it is a question of proper purposes intruding,

that is one thing, but if the power has been exercised
for the purpose ·for which it was conferred, the fact
that the repository of the power sees that the exercise
of the power will achieve another and collateral

purpose does not itself vitiate the exercise of the

power.

MR CALLINAN:  No. With respect, I agree with that but

Your Honour has put it in a slightly different way, I think, from the way that Your Honour first put it

to me. Your Honour said that it the Council or the

authority sees that a collateral purpose will also

be achieved, then that does not mean that the

improper purpose is vitiated, in effect.

BRENNAN J:	Yes.
MR CALLINAN:	But, Your Honour, that is a different thing from

actually exercising the power for the collateral

purpose.

BRENNAN J:  But that is where the finding that there is no

evidence that the Council was bent ori victimizing

Mainsel seems to be of critical importance.

MR CALLINAN: Well, that is an inference, Your Honour, totally

contrary, we would submit, to the undisputed and

indisputable resolution which I have referred

Your Honours to at page 233.

BRENNAN J: Well, that is a matter of argument but it is a

question of fact, is it not?

MR CALLINAN: Well, it is. Well, no, it is a question of an

inference from a fact, Your Honour.

BRENNAN J: Yes, of course.

M1T2/2/SH	13	9/12/88
Mainsel
MR CALLINAN:	Not merely a factual question.	Your Honours

will appreciate that this is not the only, we would

submit, special leave point. Perhaps the more

important point, for the purposes of soecial leave,

is the proper construction of section 22B.

BRENNAN J: Yes. Well, have you said everything you wish to

say about this aspect of it?

MR CALLINAN:  Save in respect of the request for infor~ation,

Your Honours, because if that - again, there is a

finding of fact of the kind that Your Honour has referred to, against use there but Your Honours,
really, that finding of fact involves inferential

elements - a number of inferential elements, too,

and we would submit to Your Honours is insupportable

when one looks at the documents from which the

inference has to be drawn.

Now, I will not say any more than that, though I

immediately accept that, of course, there is a factual

component in it.

BRENNAN J: Yes.

MR CALLINAN: It is not exclusively, however, a factual matter

and, of course, evidence on one is highly pertinent

to evidence on the other one and, of course,

His Honour Mr Justice Vasta found the chronology

of events very compelling. I might also say

that, in those Canadian cases to which I have

referred or which are collected in THURLSTONE,

the chronology has there assumed very considerable

importance. However, those are factual matters.

Your Honours, on the other matter, that is the proper construction of section 22B of the CITY OF

BRISBANE TOWN PLANNING ACT, there is, really,a very

important legal question there to be determined.

That provision has an analogue in the LOCAL

GOVERNMENT ACT, the planning sections of the LOCAL

GOVERNMENT ACT. There are more than 130 local

authorities in Queensland, all of which may be
affected by a provision of this kind.

Your Honours, the important aspect of that

matter is that there will always be unresolved

applications at the time of any amendment to

town plans of any of these local authorities

because every local authority is under a statutory

obligation to review its town plan at various

intervals of time so that that is, we would submit,

an important question. It goes to very important

matters. It really involves,in a sense, a

construction of legislation to give it something

in the nature of a retrospective effect.

MlT2/3/SH	14	9/12/88
Mainsel

Now, Your Honours that is,we would submit,

an important question. It is likely to affect

very, very many applications and very, very

many people.

BRENNAN J: Well, that turns on the construction of 22B (l)(a)

duly made and lodged. Is that - - -

MR CALLINAN:  Yes, Your Honour.

BRENNAN J: And there is a corresponding phrase on which the

court below relied in the town plan itself somewhere,

is that right?

MR CALLINAN:  No, Your Honour. There is a slightly different

phrase in the town plan,in section 24(3).

BRENNAN J: Where does one find that, Mr Callinan?

MR CALLINAN:  Your Honour, that is in the application book

at page 243. Your Honours, 24.3.2 - do Your Honours

see that in the left-hand column?

BRENNAN J:	Yes.
MR CALLINAN:	This is, of course, the subordinate legislation.

This is the town plan made pursuant to the CITY OF

BRISBANE TOWN PLANNING ACT:

A person may make an application for the

notification of the conditions, if any, in respect of some permitted development by -

Now, it was conunon ground that there had been full

compliance with all of (a) to (d).	The question was
whether the words:

A person may make an application for the

notification of the conditions, if any, in respect of some permitted development by -

doing various things and:	(e) Where a request is made under 24.3.3
comply with that request.

So, this was an application which was completely

valid in form at the time that it was lodged.	It
would be, of course, impossible for anybody to

anticipate what, if any, further information would

be required, within three days of the expiration of

the 28 days referred to in 24.3.3, a request for

information was made. The question then became

whether that request having been made the application

was to be regarded as having been duly made and lodged

pursuant to section 22B of the Act.

MlT2/4/SH	15	9/!2/88
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BRENNAN J: If it had been, then 24.3.5 comes into operation

40 days so, in effect, it is impossible for the

Council now to impose any conditions. Is that the

situation?

MR CALLINAN:	Yes.
BRENNAN J:	Yes.

MR CALLINAN:  Your Honour, I stand corrected. We still have

to answer the request and the Council can still

impose conditions. I misstated that. The question

is simply whether we have a duly made and lodged

application at the time of the amendment to the

town plan.

So, the Council have to deal with the matter

as if there had not been a change in the plan.

BRENNAN J:  Yes, I appreciate that significance but why is

it that 24.3.5 does not operate because the 40 days

have expired?

MR CALLINAN:	Because one assumes - let us assume that the request for information is regarded as valid.
BRENNAN J:	Yes.

MR CALLINAN: Let us assume that we succeed. It is held that

there has been an application duly made and lodged.

Let us assume that we fail on our attack upon the request for information. There has been a due

request for information. We have either answered

that properly and the Council has imposed conditions

following upon that answer or we have not yet answered

it and the Council is at liberty to request further

information and then to impose the conditions.

BRENNAN J:  Yes.

MR CALLINAN:  We would not argue - and we do not think we

could argue that if the request for information

is upheld as a valid request, then we could, in any

way, resist compliance with the other provisions.

It would simply be that the application would have

to be treated as an application under the provisions

which have subsequently been superseded.

BRENNAN J:  I appreciate that but at the moment I cannot see

why it is if, under 24.3.2 a person may duly make

and lodge an application without reference to

paragraph (e), why, omitting paragraph (e), one

does not come down to 24.3.5 and discover that

40 days have passed since the application was

made in compliance in all respects.

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Mainsel
MR CALLINAN:	Yes.	Your Honour, with respect, we submit

that the application is duly made and lodged

obviously before any request for information in respect of it can be made because, if it is not

a proper application, the Council would not be

obliged to act as it if were.

BRENNAN J:	Yes.
MR CALLINAN:	It would not be obliged to treat it seriously

as an application, would not be obliged to consider

it seriously and to formulate a request for

information.

BRENNAN J:	Yes.
MR CALLINAN:	So, we would be of the view that we could not

resist any contention that, so long as the request

is not struck down, we are obliged to comply with
it and, to keep on complying with it, if any further

requests are made of a proper kind.

BRENNAN J:  One further question, then: how is it that you

distinguish between the necessity to comply with

(a) to (d) and the necessity to comply with (e) as

a condition for the due making of an application?

MR CALLINAN:  Your Honour, with respect that assumes that the

expression "may make an application" or "make an
application" in section 24.3 is one and the same

as the due making and lodgement of an application

within the meaning of 22B. Now, that was held

against us but we submit that, for a number of reasons,

it is wrong.

BRENNAN J:	Yes, it is wrong.
MR CALLINAN:	And, indeed, it does have a Draconian effect

upon us because it is quite impossible for anybody

to anticipate what requests are going to be made.

One could well imagine that the request-making

process and the furnishing of information pursuant

to it could take months and months and months,

depending upon the size of the project and it is,

we would respectfully submit, a rather unlikely

result that, notwithstanding that everything that

one could reasonably do at the time to make an application has been done, none the less, some supervening change in the town plan defeats existing

rights.

17

MlT2/6/SH	9/12/88
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Your Honours, in a sense that point is made

or half made, perhaps, for us at page 174 in the

reasons for judgment of His Honour Mr Justice Kelly

who wrote, of course, the only judgment for the

majority, at about point 9, the last sentence that

commences on that page:

In the present case I would consider that

the legislative intention may be presumed to have

been to protect those applicants who have

fulfilled all the requirements for the making

of an application and have lodged that application

with the Council before a new Town Plan or an

amendment to the existing Town Plan, as the

case may be, comes into force, in which event
they are then tneitled to have their application
dealt with under the Town Plan as it stood when

they did so.

And His Honour said:

In my view there is nothing in the operation of

the statute on a literal reading which does not

conform to that legislative intent.

Of course, the decision against us seems to be

completely contrary to the legislative intent to

which His Honour has referred. But, really, in the

end the point we would seek to make is that the

phrase "duly made and lodged" in the Act is a

composite expression and we have obviously lodged

something. We have obviously made an application.

It is not a necessary consequence that, because

we made not have made an application within the

terms of section 24 of the subordinate legislation

simply because we have not and cannot anticipate

a request for information, we have not duly made

and lodged an application within the meaning of

section 22B and that is the matter that has been

found against us.

DAWSON J: Well, that could be, of course, if you had not given

with your application the other material which is

required, a request could go to that and that would

not have been a proper application.

MR CALLINAN:  Of course, Your Honour, and if we put in an

application that was a sham application. If it was

an application which no reasonable person could say

was not a bona fide application, then so tea we would

not have duly made an application within section 22B

but there is no suggestion that we did not do that

and, of course, it had a marked - - -

DAWSON J: What are the instructions? What do they tell you

by way of information that you have to give?

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MR CALLINAN:	Not a great deal, in fact, Your Honour. Real property description - - -
DAWSON J:	But is it specific?

MR CALLINAN: Yes. There is a form - various things - and

I might say, as the material shows, we gave a

great deal more information than the minimum

information.For the purposes of this aspect of

the argument, I do not have to attack the request

for information but an enormous amount of

information was given. Let me give one example

because it appears from the material: for example,
the applicant was asked in the request for information

to provide shadow diagrams which would show the extent

of the shadow of the tall building over various other
parts of the city of Brisbane. That was in the

request for information. In fact, that material

had been provided to the Council some time before.

The respondent had that material.

I merely make the point that, to some extent,

the materials were, in fact, anticipated. They were

far in excess of the statutory minimum but, of course,

it would be impossible to anticipate everything.

Your Honours, I am reminded that the change to

the town plan was, of course, made before the request
for information.

BRENNAN J:	Yes.
MR CALLINAN:	Your Honour, could I just say something very

briefly about the other application. Your Honours,

at the trial - I have told Your Honours what the

points were that were litigated - and His Honour

the learned trial judge specifically left a question

- Your Honours, at page 90 of the reasons for judgment,

at line 10, the learned trial judge said:

I consider the Order in Council of

23 June 1988 to be invalid. I may be pardoned

for observing that the contrary was not strongly

argued. Now it emerges that on the first day of

the trial of this action, when the validity of
this Order in Council had been put in issue,

another order Order in Council was made,

effecting an amendment to the Town Plan in

the same terms as had been attempted, as I find,

unsuccessfully, on 23 June 1988. That Order in

Council is Exhibit 56. Mr Callinan, for Mainsel,

reserved his client's right to challenge the

validity of that subsequent Order in Council.

Its validity is not in issue in these

proceedings and could not reasonably be

litigated, given the exigencies of the matter.

I must, however, assume its validity for the

purposes of this judgment.

MlT2/8/SH	19	9/12/88
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Now, Your Honours, could I say this: there was only ever one application by the Council for amendment of the town plan. That anplication is made pursuant to section 6 of the CITY OF BRISBANE

TOWN PLANNING ACT. The first order in council was held to be invalid by reason of non-compliance by

the governor in council with the statutory procedure.

So, therefore, His Honour did not have to make any

final decision with respect to the validity of the

application by the Council but that matter was

litigated, of course, in the sense that there was

a great deal of evidence led in relation to it.

There was cross-examination and argument in relation

to it. His Honour did not have to decide it in the

end because he found for invalidity on another ground

but it is undoubtedly so, we would submit, that, had

we asked His Honour for a declaration that the

application by the Council was valid or not valid,

His Honour would have made a declaration of validity against which we could have appealed.

Now, the short point is that we would submit

the Full Court misconstrued the effect bf the cases

referred to in the reasons for judgment of His Honour

Mr Justice - or, in particular, the Federal Court case

of AH TOY referred to in the reasons for judgment of

His Honour Mr Justice Kelly. I do not think I need

say any more about it than that. There is a decision,

we would submit, of the Federal Court different in

effect - the Full Federal Court now from the decision

of the Full Court of Queensland as to the circumstances

in which a party may appeal against an order or against,
in effect, a finding which would have constituted an

order, had the parties sought it.

BRENNAN J:  What is the order which it would have constituted,

Mr Callinan?

MR CALLINAN:  A declaration that the application by Brisbane

City Council for amendment to the town plan for the

city of Brisbane was valid. That would have been

the declaration that His Honour would have made,

had we asked him in order that we might have something

to appeal against, in formal terms. We would contend -

BRENNAN J:	But the declaration was that it was invalid.
MR CALLINAN:	No.

BRENNAN J: That the plan was invalid or the - - -

MR CALLINAN:	No, the order in council was invalid.
BRENNAN J:	- - - order in council was invalid, yes.
MR CALLINAN:	Not the preceding application.

MlT2/9/SH	20	9/12/88
Mainsel

BRENNAN J: Yes. Well, why would you make a declaration

about the invalidity of the application when the

resultant instrument was held to be invalid?

MR CALLINAN:  Well, His Honour did not have to but, of course,

nobody knew when the pleadings were drawn and when the matters were being litigated that that was the

basis upon which His Honour would find that the

order :fn council was not valid.

GAUDRON J:  But what pleading would you have asked for in

your pleadings, Mr Callinan?

MR CALLINAN:  A declaration that the application was invalid.

GAUDRON J: Yes, and you would then have appealed from a

refusal of the declaration?

MR CALLINAN:  Yes. The other side might well have asked,

of course, Your Honour, for a declaration that the

application was valid. It is plainly implicit in

all of the reasons for judgment of His Honour, the

learned trial judge. There is not the slightest

doubt that His Honour regarded the application as

valid. He simply stopped short of making a declaration

in those terms because he was prepared to hold that

the result of everything that had gone before was

invalid because of the ultimate invalidity of the

order in council.

BRENNAN J: · What more could you want, Mr Callinan?

MR CALLINAN: Well, Your Honour, we want more because, of

course, there is a second order in council. There

is a second order :fncouncil which, one would assume,

has been mane :fn compliance with the statutory

procedure imposed upon the governor in council and

the Minister for Local Government but, of course,

unless the preceding application is, in all respects,

valid, then we would submit - and we would submit that

there is a great deal of authority to support the

proposition - that the passing of it or the making

of it by the governor in council cannot cure any

defects in the making of the application for it.

DAWSON J:	If you were successful in your application in this respect, what would you be asking this Court to do?
MR CALLINAN:	To make a declaration that the application was

invalid.

DAWSON J:  Is that not a finding of fact which was not made

by the - on the basis of a finding of fact which

was not made by the court below.

MR CALLINAN: Well, that goes back to the original matter which

Your Honour, the presiding judge, asked me about and

I have said everything I wanted to say about that, that

MlT2/10/SH	21	9/12/88
Mainsel

it is not simply a question-of fact.

DAWSON J:  Or even on a mixed question of fact and law.

MR CALLINAN:  Yes. But, could I say this, Your Honour:

it was fully litigated. That matter was fully

litigated at the trial. I mean, whether in the

end, this Court thinks it appropriate to take

hold of a mixed question of law and fact on that

issue is another matter but there is no question,

we would submit, that if the Court were to entertain

an appeal in this matter, it would be appropriate to

look at that question but, of course, if the Court

were minded to grant us special leave. all the Co~rt would do at this stage is give us - grant us special

leave in relation to the first matter which could - - -

DAWSON J:  But why should this Court made a declaration?

MR CALLINAN: Well, the short answer is to save all of that

issue being litigated again.

DAWSON J:  Because the trial judge did not err in failing to

make it. He was never asked to make it, I suppose.

MR CALLINAN: Well, I think he was - no, I am sorry.

DAWSON J: But, in any event, he did not have to.

MR CALLINAN:  No. I think he was asked to deal with the

question. I think he was asked expressly by the

Council down below to deal with the question but,

no, there was never any prayer for relief which

sought a declaration and nobody in terms asked the learned trial judge to make it but he was asked to

deal with the validity of the application.

GAUDRON J:  But your only complaint in this Court, Mr Callinan,

surely, can be that the Court of Appeal struck out the

grounds of appeal relating to this as incompetent.

MR CALLINAN:	Yes.
GAUDRON J:	Now, they said they were applying AH TOY.
MR CALLINAN:	Yes, they did.
GAUDRON J:	They referred to the relevant aspects of that

decision, did they not?

MR CALLINAN:  Yes.

GAUDRON J: Is there any error of principle to be detected in

what the Full Court did in this area?

MR CALLINAN:  Well, we would submit error of principle, yes,

but statement - misstatement of principle, no.

MlTl/11/SH	22	9/12/88
Mainsel

GAUDRON J:  What is the error, then, that you say occurred in

the Full Court's dealing with this matter?

MR CALLINAN:  Well, it is really the opposite, Your Honour,

of what happened in the AH TOY case because in the

AH TOY case there were not formal orders but the

Federal Court none the less dealt with the question

and, indeed, a similar sort of thing was done in the

other case, the case that was in this Court and which

is referred to, the DRICLAD case. So, I agree, with

respect, that there was no misstatement of principle

but there seems to have been a misapplication of

authority because, Your Honour, in both of those

cases, the opposite result was reached. Both courts

held that, although there was not a formal order,

the trial judge had dealt with the matter. He had

made findings on the matter and that, had the parties

asked him to do so, he would undoubtedly have made

declarations or given appropriate orders. It was

simply that the trial judge had stopped short of

making the final orders.

Could I say this, Your Honour: of course, it

is always impossible for parties to know when a trial

judge is offered with a choice of results, as it
were, of this kind on which basis the trial judge is

going to reach a particular result because, if I take

this instance, there is really very strong evidence

that, even at the intermediate stage, that is, the

stage at which the Minister was dealing with the
matter before it went to the governor in council,

there had been non-compliance with the statutory

procedure. So, there were three choices. We

undoubtedly failed in relation to the first; the

second became quite unnecessary to consider and

we succeeded on the third.

BRENNAN J:	Mr Callinan, I presume that if you failed on your second application, you would have no interest in
persisting in the first.

MR CALLINAN:  Yes, Your Honour.

BRENNAN J: 

You would?

MR CALLINAN: 

There is the 22B matter.

BRENNAN J: 

No, on the question of the findings that were

made or the absence of a finding with respect to
the absence of good faith affecting the application
to amend the town plan, the failure of the Full Court
to deal with grounds 6 to 10.

MR CALLINAN: 

If I failed on my application for special leave in relation to that matter - - -

MlTl/12/SH	23	9/12/88
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BRENNAN J:  No, if you failed in relation to the other matte~,

if you fail with respect to 22B.

MR CALLINAN:	No, Your Honour, we would still wish to - - -
BRENNAN J:	You would still wish to agitate that.
MR CALLINAN:	Because it would eive us the - if the Court were

prepared to entertain those grounds and if we succeeded

on them, we would still succeed in the case.

BRENNAN J:  Yes, very well, thank you. We need not trouble you,

Mr Davies.

MR DAVIES: If Your Honour pleases.

BRENNAN J:  The first aspect of this application depends upon

issues of fact which were relied on to establish that

a purported exercise by the Brisbane City Council of

its statutory power to request information was void.

In the courts below the applicant failed to

establish that any matter which may have been in

the mind of the Council at the time the power was exercise so infected the exercise of the power as to show that the power was not exercised in good faith

for the purpose for which it was conferred. It is not

appropriate to grant special leave to appeal to canvas?

the issues of fact. The decision of the Full Court on

the question of law involved in this issue does not
reveal any error of law which would justify the grant

of special leave.

On the question of construction of section 22B

of the CITY OF BRISBANE TOWN PLANNING ACT, there is

insufficient reason to doubt the correctness of the

decision of the Full Court.

As to the application for special leave to

canvass the grounds on which the Full Court refused

to pass, that decision seems to have been clearly

right and it would, therefore, be inappropriate to
grant special leave to appeal.	Both applications
are accordingly refused.

MR DAVIES:  I ask for costs, may it please the Court.

MR.'CALLINAN: Nothing to say, Your Honour.

BRENNAN J:  They will be refused with costs.

AT 10.38 AM THE MATTER WAS ADJOURNED SINE DIE

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