Pt Ltd v Federal Airports Corp

[1997] FCA 537

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY       )    No. VG 460 of 1996

)

GENERAL DIVISION                 )

BETWEEN:  P.T. LIMITED

(ACN 004 454 666)

(Applicant)

AND:     FEDERAL AIRPORTS CORPORATION

(First Respondent)

AND:     SCHWARTZ HART PTY LTD

(ACN 069 305 862)

(Second Respondent)

Judge Making Order: Ryan J

Date of Order:     20 June 1997

Where Made:       Melbourne

MINUTES OF ORDER

THE COURT ORDERS:

1. That the questions reserved pursuant to O. 29 r. 2 of the Federal Court Rules be answered as follows:

1. On their proper construction, do the Planning and Environment Act 1987 (Vic) and the Moonee Valley Planning Scheme purport to bind the Crown in right of the Commonwealth?

No.

1. Is the FAC entitled to the privileges or immunities of the Crown in right of the Commonwealth?

Yes.

1. If yes to 2, do those privileges or immunities extend to the proposed activities of Schwartz Hart Pty Ltd as intended lessee from the FAC in relation to the use of part of Essendon Airport for the purpose of a retail shopping complex?

Yes.

1. On its proper construction, does s. 7(2)(d) of the FAC Act have the effect that land at Essendon Airport in respect of which a lease has been granted to a person other than the Commonwealth can validly be used:

(a)by the FAC; or

(b)by the lessee

for a purpose not directly related to aviation notwithstanding that the use of the land is not permitted by the planning and environmental regulatory process provided for by the Planning Act and the Moonee Valley Planning Scheme?

(a)Yes.

(b)Yes.

1. That the application herein be adjourned before Ryan J for further directions on a date and at a time to be fixed.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY       )    No. VG 460 of 1996

)

GENERAL DIVISION                 )

BETWEEN:  P.T. LIMITED

(ACN 004 454 666)

(Applicant)

AND:     FEDERAL AIRPORTS CORPORATION

(First Respondent)

AND:     SCHWARTZ HART PTY LTD

(ACN 069 305 862)

(Second Respondent)

Coram:    Ryan J

Date:     20 June 1997

Place:    Melbourne

REASONS FOR JUDGMENT

RYAN J:   For the reasons given for the judgment pronounced today in Ventana Pty Ltd v Federal Airports Corporation and others (VG 127 of 1995) the corresponding questions posed for separate determination pursuant to O. 29 r. 2 should be answered as follows:

1. On their proper construction, do the Planning and Environment Act 1987 (Vic) and the Moonee Valley Planning Scheme purport to bind the Crown in right of the Commonwealth?

No.

1. Is the FAC entitled to the privileges or immunities of the Crown in right of the Commonwealth?

Yes.

1. If yes to 2, do those privileges or immunities extend to the proposed activities of Schwartz Hart Pty Ltd as intended lessee from the FAC in relation to the use of part of Essendon Airport for the purpose of a retail shopping complex?

Yes.

1. On its proper construction, does s. 7(2)(d) of the FAC Act have the effect that land at Essendon Airport in respect of which a lease has been granted to a person other than the Commonwealth can validly be used:

(a)by the FAC; or

(b)by the lessee

for a purpose not directly related to aviation notwithstanding that the use of the land is not permitted by the planning and environmental regulatory process provided for by the Planning Act and the Moonee Valley Planning Scheme?

(a)Yes.

(b)Yes.

I shall adjourn this application for a further directions hearing before myself on the same date and at the same time as are fixed for a further directions hearing in VG 127 of 1995.  At that directions hearing I shall consider also what further orders, including orders as to costs, should be made in light of the answers given above to the questions posed in this matter.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment of his Honour Justice Ryan.

Associate:

Date:

Counsel for the Applicant    :    Mr H. McM. Wright, QC

with Mr N. O'Bryan

Solicitors for the Applicant :    Holding Redlich

Counsel for the First       :    Mr A. Robertson, SC

Respondentwith Mr S. Gageler

Solicitors for the First         :    Blake Dawson Waldron

Respondent

Counsel for the Second      :    Mr S. Gageler

Respondent:   

Solicitors for the Second

Respondent:    Roth Warren

Date of Hearing             :    16, 17 and 18 October 1996

Date of Judgment            :    20 June 1997