Munday & Anor v Stradbroke Island Management Organisation Inc

[2003] HCATrans 348

[2003] HCATrans 348

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B64 of 2002

B e t w e e n -

S. MUNDAY

First Applicant

BELT COLLINS AUSTRALIA LTD

Second Applicant

and

STRADBROKE ISLAND MANAGEMENT ORGANISATION INC; FRIENDS OF STRADBROKE ISLAND ASSOCIATION INC; HAIG BECK; JACKIE COOPER; JANI HAENKE; BRUCE JOHNMAN; JAN JOHNMAN; PATRICIA LAKE; BEN HAWKE; P. JOE LAKE; ROBERT WHITE; J.D. WHITEHEAD; V.R. WHITEHEAD; BRONWYN ZUTTION

First Respondents

REDLAND SHIRE COUNCIL

Second Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 SEPTEMBER 2003, AT 11.06 AM

Copyright in the High Court of Australia

__________________

MR D.R. GORE, QC:   May it please the Court, I appear with MR M.E. RACKEMANN for the applicants.  (instructed by MacDonnells Solicitors)

MR T.W. QUINN:   May it please the Court, I appear for the first to seventh named first respondents.  (instructed by Carew Lawyers)

MR S.M. URE:   May it please the Court, I appear for the second respondent.  (instructed by Deacons Lawyers)

McHUGH J:   Yes.  The Deputy Registrar has certified that she holds a letter from a barrister, instructed by Mr Robert White, the eleventh‑named first respondent, informing her that for the purpose of today’s hearing Mr White will submit to any order of the Court, save as to the costs, and that there will be no appearance on his behalf.  Yes, Mr Gore.

MR GORE:   Yes, thank you, your Honour.  Your Honours, there are three basic reasons why special leave should be granted in this case.  First, the case raises an important question of principle, which has not been resolved by this Court, namely, in circumstances where an inferior court has exclusive jurisdiction to terminate proceedings and where an appeal to a superior court is limited to error of law, what is the power, if any, of the superior court to make its own findings of fact or to re‑exercise the discretion, committed to the inferior court, if a vitiating error of law is established?

Secondly, on that point of principle, the decision of the Queensland Court of Appeal in this case is at odds with decisions of the New South Wales Court of Appeal and the Full Court of the Federal Court, such as to reinforce the appropriateness of a decision of this Court to resolve the conflict.

Thirdly, the applicants contend that this is a case where the interests of the administration of justice require consideration by this Court of the judgment of the Court of Appeal, in view of the range and nature of errors contended for by the applicants, the acknowledged considerable public importance in the outcome, and the obvious prejudice suffered by the applicants if the Court of Appeal decision is allowed to stand.  The first two reasons, your Honours, go to what may be termed “the powers point”, and the third reason goes to what may be termed “the justice point”.  May we first briefly summarise the effect of the key statutory provisions which may be found behind tabs 1 and 4, but we will not trouble your Honours to go to that material at the moment. 

First, section 4.1.2(2) of the Integrated Planning Act 1997, which conferred exclusive jurisdiction relevantly on the Planning and Environment Court. Secondly, section 4.1.56(1)(a), which relevantly limited an appeal to the Court of Appeal to the ground of error in law. Thirdly, rules 745 and 765 of the Uniform Civil Procedure Rules, which in combination effectively provided that the appeal to the Court of Appeal from the Planning and Environment Court was not by way of rehearing. Fourthly, section 4.1.58 of the Integrated Planning Act, which deals generally with the powers of the Court of Appeal, including the power to substitute another decision, and, finally, rule 766 of the Uniform Civil Procedure Rules, which also deals generally with the powers of the Court of Appeal.

Your Honours, may we first trouble you with some of the authorities on the powers point.  We do this partly because they are not all referred to in our outline.  The first that we would like to take your Honours to is the decision of the New South Wales Court of Appeal in North Broken Hill Ltd v Tumes, which is case No 7 in our bundle of authorities.

HAYNE J:   Just before you do that, can I understand, under the legislation, is the Court of Appeal given a power to make a decision replacing a decision that is set aside?

MR GORE:   There is language which the respondents contend is apt to give the court that power, but it is our submission that the proper interpretation of that provision is one of the central questions which ought to be decided by this Court.

HAYNE J: Is that section 4.1.58?

MR GORE:   Yes, it is, your Honour.

HAYNE J:   Well:

substitute another order or decision for, the court’s or judge’s order or decision – 

seems, on its face, plain, does it not?

MR GORE:   Your Honour, it may, on its face, seem plain, but there have been equally broad provisions in other statutes which the appellate courts have read down, and that is why we would like to take your Honours to some of these authorities.  So, first, is Tumes’ Case ‑ ‑ ‑

HAYNE J:   The point becomes one of the construction of this particular provision of the Integrated Planning Act, does it?

MR GORE:   It does, your Honour, in the context of, in particular, section 4.1.2, which I have already mentioned, which confers exclusive jurisdiction on the Planning and Environment Court to determine appeals which are created under that Act.

HAYNE J:   Thus the point which you seek to agitate is one dependent entirely upon the proper construction of this particular Act.  Is that right?

MR GORE:   That is correct, your Honour, but whilst that may suggest that it is a matter for a local statute or for the Court of Appeal to decide, as I have mentioned, there are decisions from the Federal Court and the New South Wales Court of Appeal which, we submit, favour the construction which we contend for, and it is appropriate that this Court resolve that conflict.

McHUGH J: The jurisdiction given by, or the power conferred by, 4.1.58 has also to be read with rule 766, has it not, which gives the Court of Appeal powers to “draw inferences of fact” and “make any order the nature of the case requires”?

MR GORE:   Your Honour, ordinarily, that would be so, but the Queensland Full Court, in another case in our bundle, of Logan v Woongarra Shire Council, rejected a similar argument in relation to the statutory provisions which were then in force. The argument is relevantly indistinguishable and what the Queensland Full Court decided in that case was that the rules of the court could not affect the proper scope of the appeal given by the statute, and the statute limited the appeal to a point of law. So, in our submission, rule 766 does not give the Court of Appeal, in an appeal under the Integrated Planning Act, the wide powers it would give to that court in an ordinary appeal from the trial division of that court. 

Could I take your Honours perhaps to Logan’s Case, which is case No 1 in our bundle, a decision of the Queensland Full Court in 1983.  It dealt with section 28(3) of the City of Brisbane Town Planning Act, which your Honours will find set out at the bottom of page 690 of the judgment, relevantly, in the same terms as section 4.1.2, and at page 691, below letter G, this point was dealt with. In the last couple of lines, the court, through Justice Williams, emphasised that the appeal was limited:

strictly to the grounds specified in the statute.  The reference to the “Rules of Court” is, in my view, a reference to procedural rules; nothing in O. 70 – 

which was the applicable Order at the time – 

could expand the nature of the appeal conferred by the section under consideration.

Reference was then made, between letters B and E, to an argument which attempted to rely upon a rule similar to rule 766 here, but it was rejected by the Full Court in that case. As I have submitted, your Honours, there is relevantly no difference in the statutory structure, and therefore we also have a situation where there is conflict between the Court of Appeal in the present matter and the Full Court in Logan’s Case.

HAYNE J:   Those remarks of Justice Williams were directed to the nature of the appeal, were they not?

MR GORE:   They were, your Honour.

HAYNE J:   Not directed to the powers of the court in disposing of the appeal.

MR GORE:   Your Honour, necessarily, they dealt with the powers of the court.

McHUGH J:   You seek to take them from that context and apply them into the different context with which we are now faced?

MR GORE:   Your Honour, I am respectfully submitting that they did necessarily deal with the power, so that I am not taking them into a different context.  Could I take your Honours to Tumes’ Case; it is a New South Wales case, behind tab 7 in our bundle.  The relevant passages are at page 420 in the judgment of Justice of Appeal Beazley, with whom the others agreed.  In paragraph 23, reference was made to section 107 of the Workers Compensation Act, which your Honours will see gave exclusive jurisdiction to determine all matters under that Act to the Compensation Court. 

In paragraph 24, his Honour dealt with a matter of fact which needed to be resolved in the case, but said that the jurisdiction of the appellate court was:

limited by s 32 of the Compensation Court Act to the determination of whether the trial Judge erred in law or wrongly admitted or rejected evidence.

Section 32(2) conferred a relatively wide power, your Honours will see, to:

make such other order in relation to the appeal as the Court of Appeal sees fit.

That is, we submit, equally as wide as the power to substitute, but his Honour said that:

That latter provision does not, however, invest the Court of Appeal with jurisdiction to make findings of fact.

That approach was picked up in language which is very apposite for the present appeal in the Court of Appeal decision in Maurici v Chief Commissioner of State Revenue, which is behind tab 11 in our bundle.  This matter, as your Honours know, went on appeal to this Court, but the point that I want to refer to was not affected by the decision of this Court.  The passage in question is at page 686 of the judgment of Justice of Appeal Handley, with whom the others agreed.  In paragraph 53, his Honour referred to section 57(1) of the Land and Environment Court Act, which your Honours limited the appeal to a question of law.  The powers of the court in section 57(2), which included in:

(b)  make such other order in relation to the appeal as seems fit.

Again, a wide power.  Their Honours thought it:

indistinguishable from s 32(2) of the Compensation Court Act – 

and then referred to Tumes’ Case and said:

Where decisions of the Compensation Court which involved fact finding or the exercise of a discretion were set aside for error of law, this Court had no power to make its own findings of fact as on a re‑hearing, nor could it re‑exercise the discretion but was bound to remit the proceedings to the Compensation Court for re‑determination according to law.

That is a passage which we emphasise with your Honours.  Reference was then made, correctly, in our submission, to the decision in this Court of Vetter v Lake Macquarie, where:

the majority did not find it necessary to consider – 

that particular question with respect to section 32(2), but it was obviously a question of some interest to the Court.  Justice Kirby did refer to the question and did decide that section 32(2) limited the powers of the Court of Appeal for reasons which he gave. 

Your Honours, decisions of the Full Court of the Federal Court are to similar effect.  If we could take you to Brown v The Repatriation Commission (1985) 1 FCR 302, which is behind tab 10, particularly at page 303. This was a case which involved section 107VZZH of the Repatriation Act.  There was an argument ‑ just as there is by the respondents here ‑ which relied upon decisions of this Court in the income tax field, where this Court has held, in that context, where the statutory provision speaks of a question being involved in the decision, that once the court decides that there is a question of law that it is seized of the whole decision. 

But the Full Court of the Federal Court distinguished that line of authority in Brown’s Case. They pointed out at about point 8, on page 303, that there was a fundamental difference between the two types of appeal; referred – towards the bottom of the page – to the different statutory language. Right at the bottom of the page is the language of the section before them, which spoke of an appeal “on a question of law”, similarly to section 4.1.52 of the Integrated Planning Act.  Then they said at 304, at about point 2:

The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal;  rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it.

There are other passages later in the judgment which are consistent with that.  Then, behind tab 9, your Honours will find the decision of the Full Federal Court in Agfa‑Gevaert v Collector of Customs. Again, this was a matter which came before this Court and appeal was allowed by this Court, but not in terms which touched upon the passage that I want to take your Honours to. That passage is in the judgment of Justice Gummow, when he was a member of this court, at page 654, where his Honour was concerned with section 44 of the Administrative Appeals Tribunal Act.  He referred to an earlier decision of the Federal Court in Australian Trade Commission v Richard Shrapnel Consulting Services and to the judgment, which said:

“Must the matter, then, be referred back to the tribunal?  It alone can decide questions of fact; but there are cases where only one decision is in law open on the facts which have been found, or which are not in dispute.”

His Honour took the view that that was not a situation in the Agfa‑Geveart Case.  There was not one only ultimate finding, and it is our submission that that was the position here as well.

Also, the decision of this Court in what I will call the “Sri Lankan refugee case”, because it has an unpronounceable name – it is behind tab 3 in our bundle, Minister for Immigration and Multicultural Affairs v Thiyagarajah.  The relevant passages begin at page 356.  Can I first take your Honours to the statutory provision that this Court was concerned with; it is at page 357.  It was section 481(1) of the Migration Act, which the Court said, at 357, point 2, was “in broader terms than s 44 of the AAT Act”. It included, your Honours will see in paragraph(c), power to make:

an order declaring the rights of the parties in respect of any matter to which the decision relates –

So, quite wide powers, but this Court took the view that whereas in the litigation before it the ground of review relied upon is error of law, the decision in Gungor’s Case, which I will come back to, provides guidance as to the appropriate exercise of discretion to make one or more of the orders identified in section 481, and then referred to what Justice Brennan, as he then was, said in Johns v Australian Securities Commission, that:

the question of relief is not at large and the doing of justice between the parties means justice according to law.

Importantly, can I emphasise that this was a case where the Court was concerned only with the making of orders, not with the making of findings of fact, where there is even less scope, in our respectful submission, for interpreting section 4.1.58 widely. Gungor’s Case is referred to by the Court at page ‑ ‑ ‑

McHUGH J: Yes, but you have to face up to the fact that under section 4.1.58 the court has power to substitute another order or decision for the primary court’s or judge’s order or decision, and then you have rule 766 giving the court power to draw inferences of fact – not findings of fact, not all findings of fact, but inferences of fact. In that context, it seems to me that none of those decisions to which you have made reference have any bearing.

MR GORE:   Your Honour, rule 766, on a generous view, is even worse for us, because it purports to give the Court of Appeal all the powers of the court appealed from.

McHUGH J:   Yes.

MR GORE:   But that flies in the face of section 4.1.2 of the Integrated Planning Act and necessarily indicates that section 4.1.58 has to be read down.

McHUGH J:   But why should it be read down?  The appeal can only be allowed on a question of law, a mistake or error of law, but it may be that the court has to make some findings of fact to determine whether or not there is an error of law.

MR GORE:   Your Honour, with great respect, that is not so.  An error of law can be identified against the background of the findings of fact made by the court below ‑ ‑ ‑

McHUGH J:   Of course it can.  No one would argue to the contrary, but what I am saying to you is that sometimes it becomes obvious, when some other findings of fact have been made, that there is an error of law.

MR GORE:   The question is whether or not the appellate court has the power to make those findings of fact.

HAYNE J:   There is well established stream of authority in this Court that one does not read provisions giving powers to court narrowly.  “Shin Kobe Maru”, I think, and other cases plainly establish that you do not read these powers in some niggardly fashion.

MR GORE:   Your Honour, we are conscious of that line of authority, but none of it, in our respectful submission, involves a situation like the present, where there is an express confinement of jurisdiction to one court.  They were all cases which involved a general power and not confining jurisdiction to one particular court.  That is the critical difference, your Honours, which, with great respect, has always made a difference to the Queensland Full Court in the previous decisions which we have referred

to, which invariably has remitted matters to the Planning and Environment Court to determine matters of fact unless there is only one possible outcome.  But in this case ‑ ‑ ‑

HAYNE J:   Assume that this point is debatable; assume in favour of your contentions that the point can be argued.  Why, even in those circumstances, should this Court entertain it, when the relevant planning provisions have, I think, been altered, have they not, and your client is undertaking a fresh application for development in the area?  Why should we get into it?

MR GORE:   Your Honour, a few things. Firstly, the relevant planning legislation, as far as the exchange between us today is concerned, has not been altered. Section 4.1.58 is ‑ ‑ ‑

HAYNE J:   I understand that, but the local planning requirements have changed, have they not?

MR GORE:   They are undergoing change, your Honour, yes, that is so, but the question that we want this Court to determine relates to the new statute, the powers of the Court of Appeal in Queensland which will be exercised for many, many years to come.  Secondly, in relation to the making of the fresh application, your Honours, one cannot predict what the outcome of that application will be.  The material before you shows that the current objectors are objectors to that application as well; you cannot rule out the prospect of a long debate in relation to that matter. 

Thirdly, a decision of this Court on the powers point will assist all courts when similar questions arise.  This Court has shown some interest in points of this kind in Vetter’s Case, in the Sri Lankan refugee case, and even in the recent case of Amaca, which is case No 1 in the respondents’ bundle.  So this Court has recognised in recent decisions that the powers of an appellate court in circumstances involving a point of law is a very real matter for this Court to determine.

McHUGH J:   Yes, thank you. Mr Gore.  The Court need not hear you, Mr Quinn or Mr Ure.

We are of the view that none of the points raised have sufficient prospects of success to warrant the grant of special leave.

MR QUINN:   May it please the Court, I ask for costs.

McHUGH J:   Yes, the application is dismissed with costs.

AT 11.29 AM THE MATTER WAS CONCLUDED