Nettheim v Minister for Planning and Local Government

[1988] HCATrans 266

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

pending hearing special leave	Application for injunction
application

Nettheim

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 3 NOVEMBER 1988, AT 10.31 AM

Copyright in the High Court of Australia

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MR R.P. MEAGHER, QC:  May it please the Court, in this matter

I appear with my learned friend, MR P. COMANS, for

the applicant. (instructed by E. Kirillova,

Environmental Defender's Office)

MR T.S. HALE:  If the Court pleases, I appear for the first

· · respondent, the Minister. (instructed by the

Crown Solicitor for New South Wales)

MR M.H. TOBIAS, QC:  If the Court pleases, I appear with my

learned friend, MRS. AUSTIN, for the second

respondent. (instructed by Gordon & Johnstone)

HIS HONOUR: Yes, Mr Meagher?

MR MEAGHER:  Your Honour, shortly before Your Honour came in

my learned friend, Mr Tobias, put to me a proposition

of which we concur which, if accepted by the Court,

will obviate the necessity of a hearing this morning.

Unfortunately, it does involve one matter in

respect of which neither my learned friend nor I

have control because it is a matter for the Court.

In effect, what my learned friend is suggesting is

that he undertake not to demolish the Regent Theatre

until the hearing for special leave is heard by the

Court, and that is acceptable to us. The crucial

fact, however, is that my learned friend seeks an

expedited hearing of the special leave application

which we, of course, do not oppose - we regard it

as obviously a proper case for expedition - but

unfortunately we do not know what the Court's

convenience is.

HIS HONOUR:  I would be prepared to expedite the hearing of

the application but,needless to say, the earliest

date that I could give it would be the motion day in

Sydney in the forthcoming November sittings.

MR MEAGHER:	That would be appropriate, Your Honour.
HIS HONOUR: Would that be acceptable, Mr Tobias?
MR TOBIAS:	I think that is 25 November, is it, Your Honour?

HIS HONOUR: Yes, that would be 25 November.

MR TOBIAS:  Yes, if we can get it listed on the 25th, Your Honour,

then the matter can be resolved now.

HIS HONOUR: Yes, very well. Now, do you want me to adjourn	or are you in a position, on the footing of the
hearing on that day, to indicate what the terms of
the arrangement between you are?
MR TOBIAS:	Yes. Does Your Honour have the summons?

HIS HONOUR: Yes.

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Nettheim

MR TOBIAS:	If Your Honour goes to page 2, paragraph 2.
HIS HONOUR:	Yes.
MR TOBIAS:	Your Honour, my client would give an undertaking

to the Court in terms of paragraph 2 up to and

including the date of hearing of the special leave

application down to the words "Theatre" five lines

from the bottom of that paragraph.

HIS HONOUR:	At the end of that line?
MR TOBIAS:	Yes.
HIS HONOUR:	"furnishing of that part of the Theatre"?
MR TOBIAS:	Yes, but the words "of that part of the Theatre",

Your Honour, to be replaced by the words, "the

subject of the said Permanent Conservation Order".

HIS HONOUR: Yes.

MR TOBIAS: Actually, if Your Honour goes up five lines, the

word "the" probably does not make too much sense

there but it probably does not matter.

HIS HONOUR: "subject to Permanent Conservation Order", omit

the definite article, "the Permanent Conservation - - -

MR TOBIAS:  Yes, and then in the line to which I referred,

if Your Honour deletes the words "of that part of

the Theatre" and insert in lieu the words, "the

subject of the said Permanent Conservation Order"	I have instructions to give an undertaking in those
terms until the hearing of the application.

HIS HONOUR:	Now, upon the second respondent, by its counsel, giving an undertaking in the terms in which he has
just enuciated - what is to be done with the
application itself? What order have you agreed
upon with respect to its disposition?

MR TOBIAS: Perhaps, Your Honour, it might be appropriate - we have not discussed that. The effect of this,

of course, Your Honour, is that the gazettal will

go ahead tomorrow. --.

HIS HONOUR:	Yes.
MR TOBIAS:	But that is relevant from our point of view; it

makes no difference in the event that the applicant

is ultimately successful but it does enable

us to negotiate with the City Council. May I suggest,

Your Honour, that this summons merely be stood over

to the hearing of the application and then it and

the question of costs of it can be then dealt with.

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HIS HONOUR:  Yes.

MR MEAGHER: That would be appropriate, Your Honour.

HIS HONOUR:  You are happy with that. And Mr Hale, are you

happy with that too?

MR HALE:  Yes, Your Honour.

HIS HONOUR:  Very well. Upon that undertaking being given

by Mr Tobias, senior counsel for the second respondent,
the application for interim relief will be stood

over, by consent, to the hearing of the application

for special leave to appeal.

MR MEAGHER:	May it please Your Honour.
MR TOBIAS:	Is it necessary, Your Honour, to make an order

fixing the hearing for the 25th or does that - one

assumes that will just go ahead?

HIS HONOUR:  Yes. In:·addition, I shall make an order that

the hearing of the application for special leave to
appeal be expedited so that the application is listed

with the applications for special leave to appeal

for hearing on 25 November.

MR TOBIAS:	Most obliged, Your Honour.
HIS HONOUR:	The Court will now adjourn sine die.

AT 10.37 AM THE MATTER WAS ADJOURNED SINE DIE

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Nettheim