Save the Showgroud for Sydney v Minister for Urban Affairs & Planning

[1998] HCATrans 79

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S78 of 1997

B e t w e e n -

SAVE THE SHOWGROUND FOR SYDNEY INC

Applicant

and

MINISTER FOR URBAN AFFAIRS AND PLANNING

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MARCH 1998, AT 9.59 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC:   If the Court pleases, I appear for the applicant with my learned friends, MR B.J. PRESTON and DR J. RENWICK.  (instructed by Woolf Associates)

MR P.G. HELY, QC:   If the Court pleases, I appear with MR P.D. McCLELLAN, QC and MR A.E. GALASSO for the respondent.  (instructed by C. Hanson, Manger, Legal Branch, Department of Urban Affairs and Planning)  (Mr McClellan did not appear in Court)

GAUDRON J:   Yes, Mr Bennett.

MR BENNETT:   Your Honours, the issue in this case concerns a question which was left open by Chief Justice Mason in Attorney-General v Quin.  The question is this:  if one has a legitimate expectation of procedural fairness in a particular context, and there is then a change of policy which alters the context so that one would no longer have the benefit of the expectation, does one have nevertheless a legitimate expectation of a right to be heard in relation to the change of policy?

GAUDRON J:   Now, who had the legitimate expectation here?

MR BENNETT:   The section 22 committee and the members of it.

GAUDRON J:   And that is not the applicant, is it?

McHUGH J:   Some members of it.

MR BENNETT:   Some members of it are, your Honour.

GAUDRON J:   But it is a separate entity.  How can one party or one person advance a legitimate expectation held by another as a basis for its right to be heard in a different context?

MR BENNETT:   Because the Act permits it, your Honour.  If your Honours go to page 115 ‑ ‑ ‑

GAUDRON J:   I know the Act gives you standing.

MR BENNETT:   Page 115 of the application book, your Honour sees at paragraph 2.9:

It is common ground that standing is assured ‑ ‑ ‑

GAUDRON J:   I am not worried about standing.  But if I had a legitimate expectation that my local council will hear me before it makes an order affecting my property, how can my neighbour come along and say, “I had a legitimate expectation.  I wish to be heard because my neighbour had a legitimate expectation.”  That seems to me your problem here.

MR BENNETT:   It is a point never taken against us.

GAUDRON J:   It is a point that surely must go to the question whether or not there is a legitimate expectation.

MR BENNETT:   Your Honour, having brought section 123 of the Act along, which gives us the locus standi to be heard ‑ ‑ ‑

GAUDRON J:   Oh yes, but locus standi is quite different from whether or not you have got a legitimate expectation.

MR BENNETT:   I am reminded, your Honour, as is said in paragraph 2.9 ‑ and I have not brought the case here because I did not anticipate this point - but in the Balmain Association Case, which was a legitimate expectation case, legitimate expectation there was not that of the applicant.

GAUDRON J:   Maybe it should have been the subject of an application for special leave.

MR BENNETT:   If there were a problem with parties, that is a matter which could, of course, be cured.

GAUDRON J:   No, it is not a problem with parties; it is really a problem I just do not see how you can have a legitimate expectation - how this plaintiff can have a legitimate expectation based on somebody else’s legitimate expectation.

MR BENNETT:   Your Honour, it is really, in practice, under section 123, no different to a class action.  The legitimate expectation is of persons who have an association with the plaintiff.  It is a convenient way of dealing with it in that ‑ ‑ ‑

GAUDRON J:   Some of whom, not all of whom, some of whom.

MR BENNETT:   The problems which arise in other jurisdictions in relation to locus standi and in relation to who is claiming the remedy simply do not apply in the Land and Environment Court.

GAUDRON J:   I am sure that is right and I am not concerned by that.  I am concerned by your assertion that there is a legitimate expectation - a legitimate expectation that you be heard?  No.  That somebody else be heard, is that right?

MR BENNETT:   Yes, your Honour.  And we are a convenient vehicle to put that claim on behalf of the various people.  No one has challenged that, your Honour, and the Act permits it.  We would submit it is really as simple as that.  In this area where a great deal of litigation is public interest litigation and one of the matters which is frequently relied on is legitimate expectation, we would submit that section 123, which gives the locus standi, carries with it the proposition that one can rely, where one is running public interest litigation, on the legitimate expectation of others, particularly here where it might be inconvenient to have a large number of plaintiffs ‑ ‑ ‑

GAUDRON J:   But what if the others do not seek to be heard.  See, this is the problem with your argument.  My neighbour comes along and says, “I had a legitimate expectation that Justice Gaudron would be heard on this matter.”  Justice Gaudron says, “I couldn’t care less about it any more.  I don’t want to be heard.” 

MR BENNETT:   If evidence were given to that effect, it might give all sorts of discretionary reasons why the leave should not be granted.   But that was not the situation here, where substantially the same people - or many of them - were involved.  Of course, if there is a breach of natural justice to the committee, that is a breach of the Act ‑ ‑ ‑

GAUDRON J:   When you say the “committee”, you are talking about the section 22 committee?

MR BENNETT:   Yes, your Honour.  It is a breach of the Act and the plaintiff has locus standi under section 123 to complain about that breach.

McHUGH J:   But if you go to the merits of the case, you really are pushing a barrow up hill, are you not?  The legitimate expectation of the section 22 committee is that they would be consulted with respect to the future use of the site to be dealt with under a regional environmental plan.  Now that, surely, is the beginning and end of their legitimate expectation.

MR BENNETT:   The problem of characterisation of legitimate expectation is a different one if one starts at the other end.  If one starts with a principle, which we seek to contend for in this Court, which says ‑ step one is, I have the legitimate expectation that I will be heard in relation to particular matters.  Step two ‑ ‑ ‑

McHUGH J:   But you keep using these very general expressions, that they had a legitimate expectation or a legitimate expectation in respect of matters.  You have to commence by defining with some precision what legitimate expectation they began with.

MR BENNETT:   Yes, your Honour.  But whether one characterises it as a legitimate expectation to be heard within a particular procedure or as a legitimate expectation to be heard and the context happens to be that procedure, it does not, we would submit, affect the overriding principle.  If one starts with a principle that where there is a legitimate expectation in relation to a right to be heard, and I deliberately, putting it this way, leave open the width of the expectation, if one starts with the proposition that where that occurs and there is a change in policy which removes the availability of the procedure and says a new method will be used to resolve this particular problem which does not involve consultation, our simple proposition is that the legitimate expectation extends to being heard in relation to the implementation of that change of policy.

If it is done legislatively, of course, that does not apply.  But if it is done ‑ ‑ ‑

McHUGH J:   I do not know why, on your argument, it would not lead to the conclusion that if the Minister wanted to introduce legislation to that effect, to introduce a new regime, that you would be entitled to be heard - or the committee would be entitled to be heard as to whether he should introduce the legislation.  You would have to go that far, would you not?

MR BENNETT:   No, your Honour.  There are other reasons affecting the sovereignty of Parliament which arise at that point.

McHUGH J:   No, not the sovereignty of Parliament, but the Minister wishing to introduce legislation.

MR BENNETT:   Your Honour, there cannot be, we would submit, an ‑ it would interfere with the sovereignty of Parliament for a Minister to be precluded by a court from introducing legislation.  I am not aware of any case which has ever suggested that that is an available remedy, for any wrong or any breach of administrative law.  It would be an exception to the rule, clearly, in relation to that.  The higher principle would override it.

But, your Honour, if one starts by saying that legitimate expectation to be heard necessarily involves going back a step and saying, if as a matter of policy the procedure is to be changed, so we have a new procedure which does not give you the right to be heard, then you have an entitlement to be heard in relation to that change, then we would submit that is a logical corollary of the right to be heard - of the expectation of the right to be heard. 

Then, the second issue decided against us here, which your Honour just referred to, goes away because to describe the expectation as one to be heard only within a particular procedure is to assume that there is no such rule.  The only evidence of that was that the documents giving rise to the expectation were largely documents which said you will be heard and the reason that you will be heard is there is a procedure which we are following at the moment.

GAUDRON J:   You will be heard in connection with ‑ ‑ ‑

MR BENNETT:   There are various phrases used.

McHUGH J:   The regional environmental plan, and that is the whole purpose of the committee.

MR BENNETT:   Yes, that is so, your Honour.  But once you have that expectation, we would submit it is not a big step to say, the expectation extends to being heard in relation to an overriding removal of the right.  Your Honours, Chief Justice Mason in Quin (1990) 170 CLR 1 thought that was an arguable proposition and it has been applied in England in a case I will take your Honours to in a moment by a Court of Appeal in recent years. But the proposition in Quin I can show your Honours very quickly.  It is one paragraph at page 24.  Your Honours recall what had happened in that case was that there was a spill, in effect, of all magistrates in New South Wales.  Under new legislation they needed to be reappointed. 

The government appointed all but five and it was held in some proceedings that those five had been treated unfairly in that they had been denied natural justice because allegations against them, which resulted in their not being reappointed, had not been put to them.  Then, after that, the reappointments took place and a new policy was applied to the appointment of future magistrates.  This Court held, not surprisingly, that the legitimate expectation that had been disappointed on the first occasion and which existed could not extend to consultation under a new procedure which did not provide for it.

The point left open, which was not argued, was whether they would have had an expectation of being heard on the decision to change the procedure.  That issue was referred to ‑ ‑ ‑

GAUDRON J:   Or to change the policy.

MR BENNETT:   To change the policy, yes.

GAUDRON J:   It has to be the policy, has it not?

MR BENNETT:   Yes, your Honour.

GAUDRON J:   It would not make any sense otherwise.

MR BENNETT:   Yes, that is so, your Honour.  At page 24 his Honour said this, at point 3:

It remains for me to consider the suggestion that, assuming that the respondent had a legitimate expectation that his application would be treated on its merits and not in competition with applications from persons who have not been magistrates, then the Executive should not have disappointed his expectation without affording him natural justice by giving him an opportunity to make representations that there should be no change of policy.

It has been said that there is a conflict of authority upon the question whether a person who is adversely affected by a change of policy has a legitimate expectation which entitles him to make representations.....That is a matter that requires examination on an appropriate occasion.  However, in the circumstances of this case, it would be unprofitable to undertake such an examination.  The suggested basis for relief was not argued in the Court of Appeal and, even if it were well founded, it would not sustain the conclusion reached by the majority in the Court of Appeal.  What the respondent sought and obtained in that Court and seeks here is a decision that the Attorney-General and Cabinet are bound as a matter of law to consider his application on its own;  he has never sought to make representations in relation to the change of policy in 1987.

Here, the relevant people did seek that opportunity.

McHUGH J:   Yes, but it is one thing to say that you might be heard in respect of a change of policy in so far as the change is required to accommodate the individual interest of the person with the legitimate expectation.  But your legitimate expectation is that of consultation.

MR BENNETT:   Yes, your Honour.

McHUGH J:   You want to change a policy so that - I am not sure what it is ‑ so you can continue to be consulted?

MR BENNETT:   Yes, your Honour.

GAUDRON J:   Not so that you can but so that another body can.

McHUGH J:   Another body can continue to be consulted.

MR BENNETT:   Yes, your Honour.

McHUGH J:   Well, it really seems a hopeless proposition, with great respect.

MR BENNETT:   There are elements of public interest in it because it is a representative committee of people in the area and so on, there is that sort of factor associated with it.  Your Honours, it is what Lord Justice Glidewell did and Justice Hidden in Regina v British Coal Corporation (1993) ICR 720. That was a case where a union had a legitimate expectation of consultation with a body. There was a change of policy which changed their procedures and it was held that the expectation extended to consultation in relation to that change which would remove the right of consultation. The passage is at page 758 just above letter F, the judgment of Lord Justice Glidewell. His Lordship says:

In my judgment the agreement of 1985 to establish the mechanism known as the modified colliery review procedure and the fact that the mechanism was constantly used thereafter, initially including reference to the independent review body, later to national level, gave to the N.U.M and N.A.C.O.D.S. and their members.....a legitimate expectation.  This expectation was that, when British Coal proposed to close any pit or pits, they would consult the relevant unions by using the review procedure -

So it is an expectation within a particular review procedure.  They go on to say:

including the independent review body, if the unions so wished, and ‑

and this implication is found as well from those facts -

and would not withdraw the use of that consultative mechanism without first informing the unions of their intention to do so and giving them a proper opportunity to comment and object.

That seems to be simply assumed from the existence of the legitimate expectation.

McHUGH J:   One can understand that courts might be prepared to go so far when you are dealing with matters that affect the individual interest, in this particular case of the members of the union.  But this is consultation about something that is in the public arena and the Minister decides to use a new procedure.  And you say, well, not only do we have a legitimate expectation to be consulted while he was dealing with it under the regional environmental plan, but we had a legitimate expectation to be heard as to whether he should continue to use the regional environmental plan.

MR BENNETT:   In both cases, your Honour, there is a public element and a private element.  The closure of a pit in England and the resulting effect on a local town is no doubt something with a substantial public element, as well as a private element, as is the issue in the present case.  We would submit that they are analogous issues and really, one frustrates the concept of legitimate expectation of consultation if it can be overridden so easily by the Minister concerned or the official concerned saying, well, I will change my policy to one of no consultation.  If one has a legitimate expectation ‑ ‑ ‑

GAUDRON J:   That was not quite the change of policy.  I will change my policy from regional plan to State environmental plan.  Now, it is true that one does involve consultation and one does not, but that is a somewhat different proposition from the bare change of policy with respect to consultation.

MR BENNETT:   Certainly, your Honour.  One has to surmount both stages.  But the short proposition is that if one is to defend legitimate expectations against too easy destruction, there should be a standard corollary that one has legitimate expectation of consultation and that carries with it that if there is to be a change of policy which has the effect that the right of consultation is removed, then there should be consultation about that change of policy.  It is not a bit jump.  It does not dramatically fetter the ability to impose a change of policy.  It merely requires a degree of consultation which, of course, can take place very quickly and very shortly. 

But, in my respectful submission, it is a point left open by the High Court.  It is decided in our favour by the English Court of Appeal.  It is an important issue and it is one which is, we would submit, necessary in order to defend the concept against too ready destruction.  May it please the Court.

GAUDRON J:   Thank you, Mr Bennett.  We do not need to trouble you, Mr Hely.

In this matter, the Court is of the view that the proposed appeal does not enjoy sufficient prospects of success to attract the grant of special leave.  Accordingly, the application is dismissed.

MR HELY:   We would ask for an order for costs, your Honour.

MR BENNETT:   I suppose I put Mr Basten’s arguments in the last case but no doubt they will be to the same effect, your Honour.

GAUDRON J:   Yes.  It is dismissed with costs.

AT 10.19 AM THE MATTER WAS CONCLUDED