Quinn v Regional Council of Goyder

[2011] SASCFC 126

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

QUINN v REGIONAL COUNCIL OF GOYDER & ANOR

[2011] SASCFC 126

Reasons for Ruling of The Full Court

(The Honourable Justice Gray, The Honourable Justice Kourakis and The Honourable Justice Blue)

7 November 2011

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - FURTHER EVIDENCE

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - OTHER MATTERS

Appeal against decision of Environment, Resources and Development Court - where this Court allowed the appellant's application to amend in relation to the tender before this Court of further evidence in the nature of fresh evidence - whether on the basis of consent by the parties this Court should allow the appeal and remit the matter to the Environment, Resources and Development Court for further consideration.

Held: appeal allowed without consideration of the merits - matter remitted without consideration of the merits to the Environment, Resources and Development Court for hearing having particular regard to the further evidence tendered before this Court.

QUINN v REGIONAL COUNCIL OF GOYDER & ANOR
[2011] SASCFC 126

Full Court:      Gray, Kourakis & Blue JJ

1. THE COURT: This appeal is from a decision of the Environment, Resources and Development Court of 24 November 2010.  That Court ordered that development plan consent be granted to AGL Energy Ltd to erect wind turbines at locations at Mt Bryan.  The consent was subject to specified conditions.  The appellant, William Laurence Quinn, is a resident of the Mt Bryan district and opposed the application by the respondent, AGL Energy, to develop the proposed wind farm.  The Regional Council of Goyder is also a respondent to the appeal, but the Council indicated that it did not wish to take part in the appeal and would abide the order of the Court.

2. When the appeal came on for hearing, the appellant sought to amend his grounds of appeal.  An issue had arisen as to the extent of noise generated by wind turbines.  The appellant had only become aware of these matters following the delivery of the judgment from the Court below.  Affidavits were filed both on behalf of the appellant and AGL Energy.  The affidavits from AGL Energy acknowledged that a noise problem had developed.  The appeal was adjourned on several occasions to allow AGL Energy to investigate the issue.  The appellant was granted leave to amend the grounds of appeal to address what was asserted to be the new problem and the consequences of that problem. 

3. A question arose as to how to deal with the proposed further evidence.  Ultimately, the parties suggested that the appeal be stood over with a remittal to the Environment, Resources and Development Court for consideration of the further evidence, with findings to be made in respect of that evidence and for that Court, insofar as it may be appropriate to do so, to amend the orders made.  An issue arose as to the jurisdiction of this Court to act in this way.  An alternative raised by the Court was for the appeal to be allowed, without consideration of the merits, and the matter remitted for further consideration. 

4. Both parties submitted that this Court had jurisdiction to stand over the appeal and to remit the discrete issue that has arisen for consideration and findings by the Environment, Resources and Development Court, the making of such further orders as that Court may consider appropriate and then for the appeal to this Court to be resumed and finalised. 

5. This Court had concerns about this procedure and the possible complications that might arise.  Having regard to those matters, the Court suggested that the better course to be followed was, without consideration of the merits, to allow the appeal, having regard to the existence of the further material, and to remit the matter for reconsideration by the Environment, Resources and Development Court, in particular, having regard to the relevance of the further material.  In the ordinary course a case is only remitted to a trial court for rehearing because of subsequently discovered evidence if an evaluation of that evidence by the appeal court shows that it is in the interests of justice that the order of the trial court should be set aside.  The further evidence on which the appellant relies, on its face, suggests that there is an important factual issue to be resolved; however the Environment, Resources and Development Court is better equipped than this Court to fully evaluate it.

6. Once the matter has been remitted, of course it will be within the jurisdiction of Environment, Resources and Development Court to conduct the matter as it sees fit.  As was pointed out in the course of argument, that Court is governed by the requirement to act according to equity and good conscience.  

7. Having regard to the foregoing and with the consent of the parties, the Court has determined to allow the appeal without consideration of the merits, set aside the orders under appeal and remit the matter to the Environment, Resources and Development Court.  The Court emphasises that the appeal has been allowed without consideration of the merits, understanding that the second respondent vigorously contests each of the grounds of appeal and contends that each of those grounds is without substance and would, on full consideration, fail.

8. The order of the Court is that the appeal is allowed and the orders of the Environment, Resources and Development Court are set aside.  The matter is remitted to the Environment, Resources and Development Court for hearing having particular regard to the further evidence that has been tendered before this Court.  The Court reserves the question of costs of the appeal proceedings.