State of Queensland v Hammercall Pty Ltd & Anor

[2005] HCATrans 450

[2005] HCATrans 450

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B12 of 2005

B e t w e e n -

STATE OF QUEENSLAND

Applicant

and

HAMMERCALL PTY LTD

First Respondent

GOLD COAST CITY COUNCIL

Second Respondent

Office of the Registry
  Brisbane  No B13 of 2005

B e t w e e n -

GOLD COAST CITY COUNCIL

Applicant

and

HAMMERCALL PTY LTD

First Respondent

STATE OF QUEENSLAND

Second Respondent

Applications for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 23 JUNE 2005, AT 11.30 AM

Copyright in the High Court of Australia

__________________

MR M.D. HINSON, SC:   If your Honour pleases, with my learned friend MR S.M. URE I appear for the State of Queensland and the Gold Coast City Council in both applications.  (instructed by Crown Solicitor for the State of Queensland and King & Company)

MR A.P. ABAZA:   If the Court pleases, I appear for the first respondent in both matters, Hammercall Pty Limited.   (of Andrew P. Abaza)

McHUGH J:   Yes, Mr Hinson.

MR HINSON:   Your Honours, we do not want to say much in addition to what we have said in writing except for one small point.  Your Honours will have seen that a principal complaint is that the Court of Appeal conflated, merged together the two different tests, the first under section 3.5.30(1)(a) and the second under paragraph (b), and we just wanted to draw out a little the statutory history of the provision which is of interest in this case.

Under the 1936 Local Government Act the test for the imposition of conditions was expressed in terms that forbad the imposition of a condition that was not reasonably required by development, and it was that provision that was considered by this Court in the Cardwell Shire Council Case and that test has been carried forward in paragraph (b).  Upon the repeal of the relevant provisions of that Act by the Local Government (Planning and Environment) Act, the test was stated in section 6.1(1) of that Act in these terms, that:

the local government is not to –

(c)      subject its approval of that application to a condition that is not relevant or reasonably required –

and it was that provision that was the subject of consideration by the Court of Appeal in Proctor’s Case of the cases that we have referred to in our material.  The present provision retains in paragraph (b), as we have said, the provision considered in Cardwell Shire Council v King Ranch and in paragraph (a) the provision of present interest.  It is a slightly different form of that which was considered by the Court of Appeal in Proctor’s Case.  But the complaint that is made about the way in which the majority in the Court of Appeal approached the paragraph (a) test is that they transported into it the paragraph (b) test so as to give paragraph (a) an unduly confined operation and not the full operation that on its proper construction it warrants. 

Your Honours, we have otherwise sought to set out the points that we would wish to raise if there was a grant of special leave in the material.  We would only be repeating ourselves if we said anything further.

McHUGH J:   Thank you, Mr Hinson.  We need not hear you, Mr Abaza.

Having carefully read the submissions on behalf of the applicants and what Mr Hinson has said orally this morning, we are of the opinion that there is no reason to doubt the correctness of the decision of the Court of Appeal.  Accordingly, the application is refused and must be refused with costs.

The Court will now adjourn.

AT 11.34 AM THE MATTERS WERE CONCLUDED