Nettheim v Minister for Planning and Local Government

[1988] HCATrans 293

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl45 of 1988

B e t w e e n -

DAVID COSMAN NETTHEIM on behalf

of ACTORS EQUITY OF AUSTRALIA

Applicant

and

MINISTER FOR PLANNING AND LOCAL

GOVERNMENT

First Respondent·

and

BEVELON INVESTMENTS PTY LTD

Second Respondent

Application for special leave

to appeal

Nettheim

MASON CJ
BRENNAN J

GAUDRON J.

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 25 NOVEMBER 1988, AT 10.15 AM

Copyright in the High Court of Australia

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MR P.G. RELY, QC: If the Court pleases, I appear with

MR C.P. COMANS, for the applicant. (instructed

by the Environmental Defender's Office)

MR T.K. _TOBIN, QC:  I appear with MR T.S. HALE, for the

first respondent. (instructed by D.G. Brigden,

Solicitor for Department of Planning.

MR M.H. TOBIAS, QC:  I appear with MR S.B. AUSTIN, for the

second respondent, if the Court pleases.

(instructed by Gordon & Johnstone)

MASON CJ:  Mr Rely.

MR RELY: If the Court pleases. Your Honours, on this application

we seek to agitate just two questions. The first is a

question of statutory construction, and we submit that

the Minister had no power to embark upon the activites

which it embarked upon on 4 July. That is the first

point. The second point is that we submit that his

decision of 4 July was vitiated because it was reached

for an improper purpose or because he took into
account irrelevant considerations. The improper

purpose which we identify is a desire to have impact

upon the proceedings in the Land and Environment Court. account was the same matter, that is to say, that his

decision should have that effect. The second question

necessarily involves matters of fact. I appreciate

that factual questions are not usually the best vehicle
for an application for special leave but we submit

that in a particular and peculiar circumstance of this

case they bear upon the propriety and the fitness of

administrative process such that the Court should have

a second look at the matter.

Can I come to the first question, the question of

statutory construction, adding, always looking at

section 55 of the HERITAGE ACT which appears at

page 68 of the book? It says that where ·a minister

gives the requisite notices and takes into account

the specified matters he can revoke a permanent

conservation order. In this case, the permanent

conservation order had been placed on parts of the

Regent Theatre back, I think, in about 1981. He had

purported to revoke that conservation order on

12 April 1988. The lawfulness of his revocation was

the subject of challenge in the court and in the
court the Minister was adopting the stance that his
revocation was lawful.

As a matter of fact, the Minister thought, on 30 June 1988, that his previous ~ revocation was

effective. What section 55 contemplates, in our

submission, is two things: first, the existence of

a 1..:011s·ervation order which is in force and, second, a

decision to revoke it which, subject to gazettal,

will be effective to achieve that result. Each of

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those elements was absent in the present case because

the Minister was purporting to revoke a decision

which he thought was not in force. From his perspective,

there was no permanent conservation order in existence,

the revocation of which called for his consideration.

Second, his revocation would be completely devoid of

content unless the c~urt avoided the revocation order which he had previously made on 12 April.

Thus, what he was addressing was an order which he

had thought was gone. What he was pronouncing was

a revocation which he hoped and expected would never

have any practical operation because his first

decision would be upheld.

BRENNAN J: Is the proposition that there is no power to

exercise on a contingency a validity?

MR RELY: That is part of the proposition, but the proposition

has two aspects-· We submit that for the exercise of a

statutory power he must address himself to an

operative instrument with the purpose 0£ subject

to gazettal, revoking it.

BRENNAN J:  Why can he not say, "If there is an operative

instrument at ~he momen4 I don't think it ought to

be there and therefore I'm going to exercise this

power to revoke it"?

MR RELY:	Because that is not what the statute commits to his consideration, we submit. You have to first find,
as it were, an operative instrument or, at least,
an instrument perceived by him to be operative, and he has to address the question as to whether what is
currently in force should cease to be in force. If
he addresses himself to a different question we
submit that he acts not in obeyance to his statutory
duty.  That is the first point. I should say that I
am told by Mr Tobias, who appeared in the Court of
Appeal, that the case was not put to that court in
this way~but that notwithstanding, we would submit
that it is a matter which is appropriate for
consideration for this Court, particularly as some
such argument appears to have been put to Mr Justice Cripps
at first instance.

That takes me to the second point which is improper

purpose - irrelevant considerations. Could I take the

Court to page 137 at about line 15. This is a letter

from the Department to the solicitors for the

applicant setting forth the Minister's po~i~ion or the

Minister's instructions, and it is

clear that what appears at lines 15 to 20 that the

catalyst for the Minister's decision was the proceedings

in the Land and Environment Court. If what he was

do:i:u~ was u.:.u.:.l:'1.y considering f0r ~ SA.corirl time the
fate of the Regent Theatre and if, as a result of that

reconsideration, he came to the conclusion that the

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conservation or the protection of the HERITAGE

ACT should not be extended to it, there was no need

for him to publish a fresh order, his first order

could simply have stayed on foot. So what one gets

from this letter, two things: first, that the catalyst

for the reconsideration was the court proceedings;

second, that the publication of a second order,

rather than simply letting the first order stay in

place, related to the challenge which had been mounted

in the court proceedings.

BRENNAN J: If the court proceedings had resulted in success

for those who were opposed to the course which the

Minister wished to adopt, would the Minister then

have had a power to revoke the conservation order?

MR HELY:	Yes, but he would have shed himself or had shed from
him his previous decision. One would not have the tm.edifying
spectacle, in our submission, of the Minister in an
adversary sense in the Land and Environment Court
asserting the validity of what he had once done
and simultaneously going through the motions of appearing to give it a separate reconsideration.
The stance that the Minister was adopting was that the activity upon which he was engaged was one which was unnecessary, irrelevant and unproductive of
practical consequences because his first decision was
valid. So, there is, in effect, a conflict of interest position in which he finds himself, asserting on the
one hand the efficacy of what he has previously done,
engaging in litigation with the plaintiff with respect
to that matter, yet at the same time purporting to
start again.

BRENNAN J: Does that not mean that a power which the

legislature reposes in the Minister is, on this

argument, suspended during the course of litigation

which is taken to challenge the validity of his

affo-rde<! exerci-se of a power?

MR HELY:	Subject to the question as to whether it would be open
to him to revoke himself his first determination and
to start again. Subject to the existence of that
power, he could certainly clear the decks for himself and
start again.

BRENNAN J: And is there any power conferred upon him to revoke

a revocation?

MR HELY:  Not specifically. Its existence would be dependent

upon the INTERPRETATION ACT - the application of that

Act. Revocation might be a question of some difficulty

because it might be put that you cannot revoke a

revocation because that is, in effect, the imposition

of an order And if ::me is to impose an order, one

has to follow the statutory mechanism.

Could I go then to page 3, line 24, across to

page 4 at line 5, simply to make the point that in

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the proceedings in the Land and Environment Court

the Minister sought to assert as a relevant fact

his second revocation. Page 110, line 25: one of

the departmental officials who gave evidence
indicating that what he wanted to do was to plug

the holes. Page 107, line 6:

That wasn't a coincidence was it
that the Minister made a decision on

the 4th -

which, of course, was the date on which the proceedings

before Mr Justice Cripps were to commence. At page 111,

lines 12 to 18 are perhaps an interesting exposure

of the bureaucratic mind that indicate an expectation

that the Minister would come to the same decision

as that to which he had previously come. Page 121,

line 14:

the purpose ..... was to patch up those

defects.

If one takes into account the letter from the Minister

plus that evidence, we submit that it becomes clear

that the only purpose for the Minister doing what he
did when he did was because of impact which he

expected that that would produce upon the pending

proceedings.

Mr Justice McHugh, at page 74, line 7, came to the conclusion there was:

not a scintilla of direct evidence that

the Minister took into account -

irrelevant considerations, and at page 75, line 14,

came to the conclusion that there was no evidence of

a purpose of thwarting litigation. We submit that

there was ample direct evidence, in terms of the Minister's letter, plus indirect evidence in the terms of the circumstances, that his purpose for

doing what he did when he did must have included a

purpose of producing ar impact upon the pending

proceedings and it is perfectly clear that there is

sufficient material upon the basis of which to draw

an inference that a fact of which he took account

in coming to his conclusion was an expectation on his

part that it would have an impact upon the

proceedings that were then~ current -

BRENNAN J: If he had the power, that is very understandable, is

it not?

MR RELY:	That depends upon the purpose to which it is exercised
and the circumstances of whil"'h account js taken in connection with the exercise.

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BRENNAN J:  But if he has power to decide whether or not a

revocation should be made and the validity of the

first attempt to exercise it is in question, and

he says, "I'm the repository of this power. If

they should succeed in the first challenge, I want
to ensure that they don't succeed in the second."

What is that doing to the proceedings except providing

two possible foundations on which the Court may decide

that his purported but challenged exercises of power

were valid?

MR RELY:	Because we submit it is no part of the Minister's
function to exercise his powers for a purpose which includes an operative purpose, a decision to have
impact upon litigation to which he is a party.
BRENNAN J:	But the litigation is only to determine the impact that his exercise of power has had.
MR RELY:	Yes, but if he was concerned with the proper
exercise of the administrative process, he could
wait until the litigation is concluded. If it is
against him, then he is shed of the fetters of his previous decision and he can reconsider the matter
afresh. But impartial reconsideration, we submit, is
a practical impossibility if it is undertaken in
circumstances where he, in an adversary sense, is
seeking to uphold his previous decision in the courts and seeking to assert that reconsideration is
totally unnecessary.  We submit, with respect, that
it has a feeling of hollowness to it which is
unsatisfactory as part of the administrative process.

11.

Your Honours, they are the bases on which we would submit that this is an appropriate case for

the granting of special leave. Other points have been taken in the application which we--do_.not put forward as grounds for special leave but if

the Court were minded to uphold our application and
to permit the appeal to go forward, we would seek
to argue the points which have been mentioned in the

application and not simply the points which I have

put forward in support of the present submission.

If the Court pleases.

MASON CJ: The Court need not trouble you, Mr Tobin, nor you,

Mr Tobias.

Having considered the arguments presented by

Mr Rely, the Court has come to the conclusion that

the actual decision of the Court of Appeal is not
attended with sufficient doubt to justify the grant

of special leave to appeal.

MR RELY: If the Court pleases.

MASON CJ:  Do you make an application for costs?

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MR TOBIAS:	Yes, Your Honour.
MR TOBIN:	Yes, Your Honour, we apply for costs.

MASON CJ: You cannot resist costs, can you, Mr Rely?

MR RELY:	I do not think so, Your Honour.
MASON CJ: The application is dismissed with costs.	Is there

any need to deal with the interlocutory order that

was made pending the appeal? My impression is not

because I think it was conditioned on the making

of a further order, was it not?

MR TOBIAS:  It was an undertaking pending the hearing of this

application, so it now expires.

MASON CJ: Yes, very well. The application is refused with

costs.

AT 10.37 AM THE MATTER WAS ADJOURNED SINE DIE

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