South Sydney City Council v Min for Local Government & Anor

[2003] HCATrans 584

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S307 of 2002

B e t w e e n -

SOUTH SYDNEY CITY COUNCIL

Applicant

and

MINISTER FOR LOCAL GOVERNMENT

First Respondent

LOCAL GOVERNMENT BOUNDARIES COMMISSION

Second Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 FEBRUARY 2003, AT 2.01 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR M.D.J. LEE, for the applicant.  (instructed by Marsdens Law Group)

MR N.C. HUTLEY, SC:   If the Court pleases, I appear with my learned friend, MR N. PERRAM, for the respondents.  (instructed by I.V. Knight, Crown Solicitor’s Office)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, there are two aspects to the case, both concerning the ambit of the duty of procedural fairness in circumstances to which I will advert in just a moment.  One concerns the duty in relation to providing information adverse to the interests of the Council, the boundaries of which are proposed to be changed.  The second is a rather narrower issue and that concerns providing information of a proposal to alter the proposal itself from that which was initially the subject of reference to the Boundaries Commission.

Your Honours, I need to explain a little what I mean by that.  The relevant provisions of the Local Government Act are set out in the reasons of Justice Mason at page 72 commencing at paragraph 60 and your Honours will see that he refers to the fact that:

The boundaries of one or more areas may be altered by the Governor, by proclamation –

and your Honours will see then that the exercise of the power so to alter the boundaries was limited by the provision which appears on the next page in paragraph 61, namely section 218D which says that such a function, to put it shortly:

may be exercised only after a proposal for the exercise of the function is dealt with under this Division.

That takes one then to the provision further down the page, 218F(1) that:

On making or receiving a proposal, the Minister must refer it for examination and report to the Boundaries Commission –

In the present case there was a proposal by the Minister.  The proposal can be seen diagrammatically at page 154.  The light blue line, your Honours, indicated the area that was the existing boundary of the South Sydney municipality.  Your Honours will then see a line which is the dotted yellow line and the dotted yellow line indicated that some areas of the municipality, between the yellow line and the blue line, would be taken from it and would become part of the Sydney Council area.

CALLINAN J:   So, does that include Darlinghurst, Woolloomooloo and Rushcutters Bay?  The whole of that area?

MR JACKSON:   Yes, that is so, your Honour, and also to the west, part of Camperdown, part of Chippendale and Darlington.  Your Honours, the red line represents what actually was recommended by the Boundaries Commission and your Honours will see that it has had the effect that parts of the municipality which were not to be taken away from it by the Minister’s proposal were then taken away from it.  They fell into two broad categories.  One was part of the University of Sydney in the west, and the other was a number of areas where what had been adopted was a course of taking the back boundary of properties bounding a road and to make that the boundary but back boundary that was taken was, in effect, on our side rather than on the City of Sydney side.

But, your Honours, may I come back to that in a moment?  Your Honours will see, if I could go back to page 74, paragraph 62.  His Honour then refers to the Boundaries Commission and the way in which it is constituted and he then goes on in paragraph 63 to set out the provisions dealing with its functions, et cetera.  Your Honours will see subparagraph (1) that it:

is required to examine and report on any matter –

Then, your Honours, one sees on the next page, subsection (3):

the Boundaries Commission is required to have regard to –

a number of matters and your Honours will see, for example, reference to councils in (e1), (e2) and there are other matters that are of significance at a local level.

The applicant had made representations to the Boundaries Commission opposing the loss of areas set out in the Minister’s proposal.  Its representations were not successful but the Boundaries Commission did not, as I submitted earlier, just report in favour of the acceptance of the Minister’s proposal, but added to it further areas and did so, your Honours, without any notification to us that it proposed to do so.  That is the lesser point, if I could put it that way, in relation to the question of procedural fairness.  May I come back to the rather larger one?  I said “lesser”, your Honour.  I think I would have better described it as narrower.

Your Honours, could I come then to the larger aspect?  Your Honours will see at page 18 in the reasons of the primary judge that he set out the nature of the contention.  It is page 18 paragraph 47 where he said:

The issue in this respect is relatively narrow and depends, to a large extent, upon whether the Court accepts that the BC was bound in the circumstances to give the council an opportunity to address material that was adverse to its interests.

Your Honours, I will not read out the remainder of the paragraph, but your Honours will see what his Honour there said and, for example, as is apparent from the material, a submission had been made by the City of Sydney which would gain extra area which we did not see and were not able to comment on until after the decision of the Boundaries Commission and, your Honours, indeed did not see it until interlocutory proceedings in relation to the case itself.

CALLINAN J:   The Minister made a reference to the Commission, did he?

MR JACKSON:   He did, your Honour.  It is summarised in Justice Mason’s reasons.  I do not think the actual document is in the material, but your Honour will see that at page 80.

CALLINAN J:   I will tell you why I ask, Mr Jackson, because I was looking at 263(1) on page 74 to see whether what was done – I wonder whether part of your argument was that what was done went beyond the Minister’s reference.

MR JACKSON:   I have to say, your Honour, your Honour will also see section 218F(7) which is on page 73 and that appears to contemplate in 218F(7)(a) that there may be “modifications”.  Now, your Honour, so far as the narrower point is concerned, it appears to have been accepted below that what was done was a modification, the point being that there was no notification to us of the proposal to make the modification and so no opportunity given to comment on it.

GLEESON CJ:   Am I right in thinking that one of the reasons given for the modification in relation to the University of Sydney was that under the Minister’s proposal, part of the University would have been in one municipality and part of the University in another?

MR JACKSON:   Yes, that is so, your Honour, and, your Honour, may I say something about that in a moment, but we, in a sense were in a position where, if the University is going to be in one municipality – it is in ours now – it should stay in ours as distinct from it being cut in two and if it is to be cut in two we would still like to have some of it.

CALLINAN J:   It was entirely in yours before, was it?

MR JACKSON:   Yes, it was, your Honour.  It is within the blue line on page 154.  Your Honours, could I just come back to what I was saying a moment ago.  Your Honours will see then Justice Talbot’s view at first instance at page 28 paragraph 84 where he said he was:

satisfied that the BC took into account material submitted by the CSC.  That material contained adverse information in circumstances where the interest of the council may be seriously affected –

and your Honours will see the remainder of that paragraph where he formed the view in the last sentence, and in particular the last two sentences, saying, we had not:

been given the opportunity to address any of this material –

I should also have said page 30 paragraph 89.  In the Court of Appeal at page 67 Chief Justice Spigelman in paragraph 44 said that he agreed with his Honour Justice Mason:

that the broad basis on which the respondent succeeded below should be rejected.

He dealt with two aspects, one the broader contention which was described as being the open file, but open file really being a shorthand description for the fact that we said we should be able to comment on the submissions that were made that were adverse to our interests.

Your Honours will see that referred to at paragraph 44 and in that regard, having agreed with Justice Mason ‑ Justice Mason’s reasons commence relevantly at page 95 paragraph 113.  Your Honours will see there that he says that our “written and oral submission” on the occasion when we met the Commissioner:

dealt with the Minister’s proposal, not the CSC suggested alteration.

At page 97 at paragraph 120 your Honours will see in the extract from the recommendation made by the Boundaries Commission the second paragraph of it refers to the fact that it had taken into account submissions by the various councils.

One sees at page 134 paragraph 237 that the Sydney Council’s submission is there referred to and your Honours will note in the third line that it was accepted that it:

was not disclosed to SSCC prior to the trial before Talbot J.  It is also common ground that SSCC had no notice of any proposal for the transfer of land additional to that proposed by the Minister until it received the Commission’s Report.

CALLINAN J:   I am not from Sydney, Mr Jackson.  What was the underlying issue?  Was it rates or political?  Is that apparent from any of the material?

MR JACKSON:   Your Honour, our basic contention was that we wanted to keep the land we had.  We did not want our boundaries ‑ ‑ ‑

CALLINAN J:   Which would affect the Council’s revenues, I take it.

MR JACKSON:   Not the University land, your Honour, because of freedom from rating, but it is one thing to have an area where you have a university.  It gives a certain air to the municipality.  Municipalities describe themselves as various things.

CALLINAN J:   You might have a lot of students living in the municipality.

MR JACKSON:   Indeed, your Honour, and in relation to the additional area, by putting the line at the back rather than in the middle or putting the line at the back rather than at the back of the Council of the City of Sydney side, there is a very significant number of residents and ratepayers who now are on the other side.

CALLINAN J:   And effectively, the two councils are really adversaries in a sense.

MR JACKSON:   Indeed, your Honour, and that is the point I was going to seek to make, that it is one thing to say, as ultimately Justice Mason said, where you are entitled really to be informed of the nature of the proposal, but in circumstances where the proposal is that part of your land goes into another council’s area, then, in our submission, we would be entitled to see what the other council says in a submission that it makes to the body in support of that. 

GLEESON CJ:   What was the finding of the trial judge as to what it is that you said that you would not have said, or what it is you failed to say that you would have said if you had notice of this modification?

MR JACKSON:   He did not go into the detail of it, your Honour, but what he said was that we were entitled to have notice of any adverse material that there was, and the adverse material was, to put it shortly, the proposal that ‑ ‑ ‑

GLEESON CJ:   But did anybody find that you suffered any harm as a result of not having the notice?  We have dealt with this in two or three cases quite recently I think.

MR JACKSON:   Your Honour, it is right to say, I think, that one does not see in any detail in the reasons of the primary judge a statement of what might have happened. 

GLEESON CJ:   I think we have dealt with it, as recently as last Wednesday, in a case of Lam.

MR JACKSON:   I am sorry, your Honour, I could not give your Honour the detail of that.

GLEESON CJ:   There had been an argument put to us that you establish lack of procedural fairness simply by showing that somebody has not been given notice of a proposed change in intention by a tribunal and we rejected that on the basis that there was no evidence that anybody suffered any harm as a result of not being given notice.

MR JACKSON:   Your Honour, in the particular case, the harm in this case is that the proposals were proposals by, for example, the University on the one hand that it should be in one body rather than two, in one council area rather than two.  The situation, so far as the Sydney Council was concerned was that they were saying the boundary should go even further and so we were in a position where we would have been able to make submissions supporting the notion that those should not be accepted and the judge found that the views that had been put forward by the Council played a part in the determination by the Commission.

CALLINAN J:   Mr Jackson, a point of distinction between Lam, the case the Chief Justice mentioned, and your case might be that it was not a case of competing submissions.  No doubt the Commission here was inquisitorial in function, but that is why I asked you before about the reality of an adversary situation, and, of course, one does not have that with the Refugee Review Tribunal which was the Tribunal in Lam.  There is no opponent or adversary.

MR JACKSON:   Your Honour, what I was seeking to say before was that this is a case where the nature of it was that you had a proposal being dealt with and, there was on the one side a beneficiary and the other side someone likely to lose.  We were the people likely to lose and likely to lose in the sense that the land and things that were pertinent to it, and the people who lived in it, would be lost to us.  Now, in circumstances where the decision of the Boundary Commission on an issue of that kind is one that is a prerequisite to the exercise of the power, if a submission is made by one side adverse to our interests on that, then, in our submission, we would be entitled to endeavour to respond to it.

GLEESON CJ:   Endeavour to respond to it how?  Was there any indication before the primary judge of what it is that you would have put in relation to this matter if you had been given an opportunity to put anything?

MR JACKSON:   Your Honour, it is right to say he does not go into it in detail, but what one does see in relation to it your Honours will see at page 30 paragraph 89 that:

the adverse material remains undisclosed to the council and the time for the making of submissions to the Minister has expired –

and the question, of course, your Honour, was perhaps naturally that the - your Honour, I am sorry, I should also have said page 28.  You will see that we identified:

the prejudicial or adverse material –

in paragraph 83 and, your Honours, he said, in paragraph 84, they took into account:

That material contained adverse information in circumstances where the interest of the council may be seriously affected by ‑ ‑ ‑

GUMMOW J:   Was there evidence at trial as to what you would have done?

MR JACKSON:   Apart from making a submission, your Honour, no.

GLEESON CJ:   But we have said repeatedly in the last year that procedural unfairness is not a theoretical matter, it is a practical matter and that when people complain that they have been deprived of the opportunity of making some submissions, they have to give some kind of indication that there were some submissions they could have made or might have made that would have advanced their case.  What sort of submission are we dealing with here?

MR JACKSON:   Your Honour, one is dealing with a matter which, in a sense, is argumentative, of course.  There are some factual aspects to it, but in other respects it is argumentative.  What might easily be said is if one does not know in the first place what submissions are being made by the Council, by the other Council, it is difficult to respond.

GLEESON CJ:   But you know now.  What would you have said if you had been told at the time what was put in the Sydney City Council submission?

MR JACKSON:   Your Honour, we could have said things of this nature.  We are a council of – I think the evidence was about 89,000 people.  We need to keep as many people as that.  It gives an area diversity, things of this kind.  Your Honours, a lot of matters are argumentative, perhaps, but they do go to the political desirability, political in the broad sense, of course, of having one council in one area, one in another and what their areas are.  There were reports to which we could have referred and said this is a desirable – we referred to, for example, Professor Sproats’ report in part of the submission we did make and we could have said other things about it.  Your Honour, it is very difficult to say precisely what one might have said, but certainly one would think there are things that could have been said even if one describes them simply as sufficient.

Your Honours, could I just say something about the narrower point and it is this?  Your Honours will see the issues referred to by Chief Justice Spigelman at page 68 paragraph 46.  He refers to the nature of the two changes and he said in the next paragraph:

It is difficult to see that any disadvantage arose by reason of the loss of the remaining part of the land occupied by the non‑rateable University of Sydney.  None was suggested –

but, your Honours, could we just say, no doubt we did not suggest a financial disadvantage but we would know we were to lose in toto one of the features of the municipality, the University, and that affected the character of the municipality.

GLEESON CJ:   You were going to lose most of it on the Minister’s submission, were you not?

MR JACKSON:   On the Minister’s proposal.  But, your Honours, on the narrow point, if it was going to be all or nothing, then we would be in a position to say we want it all, that the proposal should allow the lot.  Your Honours, I see the time has expired.  May I have a moment to complete what I am about to say?

Your Honours, as to the other aspect, the back lot principle, Chief Justice Spigelman, in our submission, was right in saying at paragraph 47 that whilst the “back lot principle” might be “sensible” it did:

not explain why the boundaries should be –

on our side rather than the other side and, your Honours, we could legitimately say, “Why me?”, but he held we had not put such a case.  That is paragraphs 49 and 50.  Your Honours, that, with respect, is not quite so.  One can see that from the red supplementary book.  At page 5, your Honour, paragraph 13 of the pleading and, your Honours, at page 31M, Mr Hemmings, who was appearing for our side, the trial judge, then says at page 32E:

But your Honour that issue was never raised for comment, as we understand it, from any person during the proceedings, either as a modification or as a Minister’s proposal.

GLEESON CJ:   Who was Mr Hemmings appearing for?

MR JACKSON:   Our side, your Honour.  Now, your Honours, Justice Mason deals with the issue at page 145 paragraphs 274 to 278 and, your Honours, in relation to his paragraph 284, page 148, he said:

It is impossible to see anything that SSCC would have put before the Commission in relation to the loss of an additional part of the non‑rateable University land ‑ ‑ ‑

GLEESON CJ:   That is bound up with the point I was intending to put to you earlier for your comment.

MR JACKSON:   Yes, your Honour, what I was going to say, your Honours, was one could simply say it was going to be all or nothing with the University.  Why should it not be us rather than the other Council, and, your Honours, as to the back lot adjustment, all that his Honour said was it seems “too sensible to require debate”.

GLEESON CJ:   What do you say about the last sentence in paragraph 284?

MR JACKSON:   Your Honour, with respect, that is not really correct and your Honours will see at the bottom of page 13 of the red book, Mr Hemmings saying between letters T and V:

It’s our submission that what was being considered and what was being recommended was something that notice was never given to any person of anything below the yellow line.

Your Honours, one sees also, in the passage to which I referred earlier, and that is at page 31M to 32J, that the same issue is clearly being raised in the proceedings.  Your Honours, this is a case, in our submission, where we would submit there is an important question about procedural fairness in relation to these sort of proposals.

GUMMOW J:   Now, you would seek a reinstatement of this declaration?  Was that the only relief?

MR JACKSON:   Yes, your Honour, so the matter would then be further determined by the Commission.

GUMMOW J:   Is that the only remedy that could have been asked for?  There is nothing setting aside any decision, just to make a declaration at page 32 and that is all that seems to be sought for reinstatement.

MR JACKSON:   Your Honour, it is because the respondents had said they would act in accordance with the declaration.

GUMMOW J:   I see, thank you.

MR JACKSON:   Your Honour, those are our submissions.

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr Hutley.

MR HUTLEY:   Your Honours, whilst four arguments have been pursued in the applicant’s summary of argument, the only two which are pursued orally are in relation to procedural fairness.  In relation to the first argument, the first point to be made is that the Court of Appeal unanimously held that the appellant before them, the applicant here, had failed to identify any, what was described as, adverse material in the material said not to be disclosed to them in the sense that they had not identified what was bad about it and, ergo, as a precondition to, in effect, saying they did not identify what they would say about it.

Before one can, in effect, put forward a case that you have been harmed by the failure to disclose something in this case, one ought, and one must, identify what was disadvantageous about the material and the Court of Appeal ‑ and this is in the judgment of the President at page 144 of the application book, actually commencing at the bottom of 143 in paragraph 269, the President refers to the paragraph of Justice Talbot’s judgment your Honours were taken to and records identified certain “prejudicial” material and then he continues at 270, page 144:

These six documents could not by any stretch of the imagination represent material withheld by the Commission in breach of its duty of procedural fairness because there is no evidence to suggest that the six documents were ever sent –

to the CSC.  That was the first point and, secondly:

Beyond this category, there are the other identified and unidentified classes of “submissions”, “reports” and “information” referred to in pars [81], [83] and [84] of Talbot J’s reasons.  The content and level of “adverseness” is not identified in the judgment.

272  Absent any findings to the effect that some particular issue was so damaging and so unforeseeable that SSCC should not have been “left in the dark” about it until publication of the Report, the conclusions about denial of natural justice as regards the access to submissions point cannot stand.  A fortiori since they were reached after a trial at which SSCC did not point to any particular part of the Report (leaving aside its case based on the Chapter 2 error) and in which the appellants charted their course . . . 

273  In submissions – but not by notice of contention – SSCC pointed to particular parts of the CSC submission of 26 November 2001 that made specific criticisms of SSCC.

This was criticisms of their management, your Honour.

One SSCC argument was that certain allegations by Lord Mayor Sartor in a letter of 21 February 2002 about the conduct of Leichhardt and South Sydney Councils acting in such a way as to frustrate the examination process were the source of a mild observation in Chapter 3 of the Commission’s Re[port. 

This reflected a policy adopted by the Councils not to participate at a certain stage in the exercise being undertaken by the Commission.

That submission is noted but rejected on the basis that (1) 1 would not draw that inference and (2) the comment is so mild that it does not attract any Mahon‑type obligation.  The same can be said about the material in the Part 4.1.7 of the Report concerning financial issues.

So the first point in point of fact is that there never has been identified in any of the material which even went to the Commission what about it was adverse such as to call for a need let alone an investigation of what would have been done by way of counteracting it.  So the case, in effect, stopped in point of fact at that level.  A fortiori, the circumstance where there is a complete absence of evidence as to what one would have done, the absence of that bespeaks the lack of adverseness of the material itself.  So the first point is that the case simply failed in point of fact and no question of principle arises.

The second point which is referred to as the “red line” point, shortly put:  the points of claim referred to in paragraph 13 of the relevant pleading, which your Honours will see in supplementary application book 5 essentially related to the disparity between the yellow line and the dark blue dotted line on page 154.  The dark blue dotted line, your Honour, was the description which appeared in Chapter 2 of the report which their Honours found, and it is not now challenged, was there by mistake.

GLEESON CJ:   That error seems to have disappeared from the case at this stage.

MR HUTLEY:   Quite, but the important point is that the case run at trial was that the proposal truly considered was not the proposal submitted by the Minister, that is the yellow dotted line, but the dark blue dotted line and there was no debate that if that was truly the proposal obviously it was material – there would have been a breach of the law because it affected, obviously, a substantial part of the municipality.

There was no case run about a disparity between the red line and the yellow line because it would have had to be a truly alternative case, namely that the proposal you considered was the correct one, but you varied that or modified that in the terms of the section and we were entitled to notice about it because the red line, relevantly, is within the area subtended by the dark blue dotted line and the yellow line.

So the case put was inconsistent with a case complaining about the red line.  One had to put a truly alternate claim and the submissions of Mr Hemmings, to which my learned friend took you, have to be looked at in that context.  No case was being put about the red line of itself.  That can be seen from the judgment of Justice Talbot.  At application book 16 to 18 his Honour sets out the Council case and there is no mention at all of the red line in those paragraphs.

At application book 20 paragraph 54 his Honour makes the finding that the Commission considered the Chapter 2 proposal, being the dark blue dotted line, and his Honour’s consideration of procedural fairness commences at application book 24.  He identifies, and your Honours have been taken to it, the adverse material identified relied upon in paragraphs 79 and 80 and 81 to 83 and in conclusion is in 84.

Your Honours, the one salient point about that is that there is no reference at all to the red line and his conclusion in relation to the adverse materials is at application book page 30 in paragraph 89, again referring to the materials he has earlier identified being the documents which were considered by the Court of Appeal and found to contain no adverse material.  Again, no reference to the red line.

There was an issue before his Honour as to whether, after the Commission had prepared its report and submitted it to the Minister for consideration and the Minister had afforded to the Council an opportunity to comment upon the report and make submissions about anything in the report, whether adequate time to make those submissions had been given.  It was in that context that the paragraphs in the oral submissions which you were taken to, reference to the modifications was made to explain the point that there was a power to modify, but it was not relating to the antecedent question, namely whether the Commission had acted in some inappropriate fashion.  So there never was an issue about the red line per se.

Next, there was no notice of contention filed in the Court of Appeal proceedings relating to the red line and the case relying on the red line was first advanced in argument in the Court of Appeal and the Chief Justice dealt with it at application book 68 paragraphs 45 to 50 where his Honour held that it was inappropriate to agitate the argument for the first time in the Court of Appeal because, inter alia, it could have led to the admission of evidence had it been agitated and, in our respectful submission, that is obvious.

Whilst some properties besides the University have been affected by being moved from the yellow line to the red line there is no evidence at all as to the nature of those properties, the rating of those properties, whether it was a net advantage to the Council or disadvantage to the Council.  That simply was never investigated.

Now, it was not necessary to investigate those questions if one was dealing between the yellow line and the blue dotted line because the loss of Surry Hills, the entirety of most of Newtown and a fair part of Darlington would obviously have that effect.  Therefore, the issue at trial on that point was, did it occur.  Had there been an issue that the sole point would be concerning the “back lot” principle, an active issue would arise of was this de minimis, did it adversely affect them at all?  His Honour the President refers to the implications in relation to obligations to maintain roads of a principle of dividing municipalities down the centre of roads.

Now, all those issues would have had to have been investigated on the question of did anything occur which was other than beneficial to the Council had it been agitated at first instance.  It simply was never investigated.

Now, the Chief Justice therefore rejected the case on the basis that it could not be agitated for the first time in the Court of Appeal and Justice Ipp agreed with that analysis at application book 153 paragraph 296.  The President approached the point in a slightly different fashion.  He was uncertain as to whether the issue was truly raised and your Honour was taken to the relevant paragraph where he refers to the absence of any submission relating to it by Mr Hemmings at first instance, but his approach was that any duty to advise or give notice of a proposal could not apply to every square metre, every possible minute modification and, therefore, it would be a question of degree in the circumstances, no doubt affected by evidence tendered as to its likely affectation.

His Honour was of the view that it was likely that there was no adverse effect and Justice Ipp agreed with that as an alternate reason.  The result of all that is that the case, on any view, is not an appropriate vehicle to consider anything in relation to the red line.  Firstly, the first question in any appeal was did the Court of Appeal err in declining to entertain the issue.  That is a point of no general interest.

Secondly, even if the Court were of the view that the court did err, one would then have to embark on an inquiry as to what was the court dealing with.  Did one, for example, assume that the alterations affected by the red line were of no significance, trivial, a benefit?  If that is the case, why would the court interfere with the alternate reason given by the President for declining to interfere is that, as a matter of discretion, even if there had been a breach of the rules of procedural fairness, because of its trivial nature it would not be minded to interfere and no argument has been addressed as to why that exercise of discretion would not be upheld in this Court.  Those are our submissions.

GLEESON CJ:   Thank you.  Yes, Mr Jackson.

MR JACKSON:   Your Honour, may I just deal with one aspect?  In relation to what was argued in the courts below ‑ I took your Honours to page 13 of the red book before ‑ your Honours will see that at about letter S it was said by Mr Hemmings:

Chapter 5 boundary is in fact the red line which is not as extreme as the blue line but it covers a number of areas which are south of the area referred by the Minister.

It is our submission that what was being considered and what was being recommended was something that notice was never given to any person of anything below the yellow line and then the Court of Appeal at page 130 at paragraph 233, Justice Mason said, and your Honours will see it there:

Most of the case at trial appears to have been erected upon this (false) basis.

That is the dark blue line.

But not all, I would conclude.

Your Honours will see the remainder of that paragraph.

GLEESON CJ:   Thank you.  We will adjourn for a short time to consider the course we will take.

AT 2.45 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.45 PM:

GLEESON CJ:   In this matter the Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is refused with costs.

We will adjourn for a short time to reconstitute.

AT 2.46 PM THE MATTER WAS CONCLUDED