Sydney Serviced Apartments Pty Limited & Anor v The Council of the Municipality of North Sydney

[1991] HCATrans 127

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4

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No SS of 1991

B e t w e e n -

SYDNEY SERVICED APARTMENTS

PTY LIMITED

First Applicant

S.M. CHEGWYN

Second Applicant

and

THE COUNCIL OF THE MUNICIPALITY

OF NORTH SYDNEY

Respondent

_Application for special leave

to appeal

MASON CJ DAWSON J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MAY 1991, AT 11.51 AM

Copyright in the. High Court of Australia

Sydney 1 , 10/5/91

MR B.S.J. O'KEEFE, OC: If it please the Court, I appear

with my learned friend, MR D. LLOYD, for the

applicants. (instructed by Sly & Weigall)

MR c.s.c. SHELLER, OC: If Your Honours please, I appear

with my learned friend, MR J.B. MASTON, for the

respondent.

MR O'KEEFE:  Can I hand to the Court four copies of the

submissions, please, Your Honour?

MASON CJ:	The first occasion, Mr O'Keefe, on which tourism has been presented as a ground for the grant of a
special leave application.

MR O'KEEFE: Well, Your Honour, it is merely one aspect of

the financial dealings of the community. I

suppose, in the present circumstances, it may be

more profitable in some areas of Australia than

banking which has always been regarded as an

important part of the economic intercourse of this

Commonwealth. It is also supported by the

affidavit in this case which, of course, is

helpful.

MASON CJ:  Now, this point does not involve any question of

principle, does it?

MR O'KEEFE: It does, in our respectful submission,

Your Honour.

MASON CJ:	What is the principle?
MR O'KEEFE:	The question of principle is the way in which

the Court, as a matter of principle or policy,

should approach the concept of domicile as

incorporated by the Court in the definition of

"residential flat building" which reflects also in

the definition of "dwelling-house" spread

throughout planning schemes throughout Australia.

The question that was raised in this case before the primary judge was one as to whether or

not the concept of domicile should be given an

ordinary dictionary meaning, namely, a place where

you can live or, whether it should be given a

strict legalistic meaning, the place of permanent

residence to which you have the intention of

returning.

The learned judge in the Land and Environment

Court held that in the absence of a statutory

definition of "residential flat building" you

should not incorporate into the concept of use of a

building as a residential flat building, the

concept of permanence that was involved in the

technical notion of domicile. In so doing, he

Sydney 2

approached the definition on the same basis as the Full Court in South Australia had done in the case

referred to in the written submissions, Masters v

Padley, that is the concept of a flat involves a

place where people may live. It is a domestic use
and that the word "domicile" is used in the sense

of being domestic as opposed to being permanent.

The New South Wales Court of Appeal, in

overruling the primary judge in this case, took a

different view from the view that was adopted in

South Australia. It is to be found, really, at

page 56, line 11, of the application book, the

basis of the reasoning, namely:

The description of a flat as a "dwelling"

or a "domicile" carries with it the notion of

that degree of permanency.

Which has been previously referred to at lines 7 to

10 on that same page. And in so arriving,

Mr Justice Mahoney, with whom the other two members

of the court agreed, and in so departing from the

primary judge's decision, Mr Justice Mahoney relied

upon what was said by Mr Justice Sugerman and

Mr Justice Samuels in two cases: one case, the

case that Mr Justice Samuels decided, is the case

that is referred to at page 54, Burwood Municipal

Council v Aboriginal Hostels Limited, and the decision of Mr Justice Sugerman is Slazengers v

Emerson.	And I hand to the Court copies of those
decisions.

The relevant passage in the judgment of

Mr Justice Samuels in Burwood v Aboriginal Hostels

is to be found at 39 LGRA at page 153. In that

case what happened was, there was a premises

constructed as a dwelling-house used as a home with

a home parent for a number of Aboriginal

apprentices and workers who lived in the premises

for a period of about 12 months, and then moved on

and were replaced by others. The question in the

case was whether or not the house was being used
for the purposes of a dwelling-house or not.

The definition of "dwelling-house" is to be found set out at page 151 of the report, that is:

"a building or group of buildings containing

one but not more than one dwelling"; and

"dwelling" to mean "a room or suite of rooms

occupied or used or so constructed or adapted as to be capable of being occupied or used as

a separate domicile".

Sydney 3

At page 153, at about point 7,

Mr Justice Samuels says, about half-way through

that paragraph:

I am also inclined to the view that the same

result may be achieved by paying attention

only to the definition of dwellinghouse in
this ordinance extended by dint of the
evidence to read "a building containing a

suite of rooms used as a separate domicile''.

Domicile" here is used in preference to

"residence" or "home" or "habitation" and must

be intended to bear its technical legal

meaning.

It is that which Mr Justice Mahoney adopts at

page 56 of the decision in this case. That is:

a place of permanent residence to which the

subject, if absent, has the intention of

returning.

Now, Mr Justice Hutley, at the bottom of the

page, reserved his view in relation to that. So,

while Mr Justice Samuels took that view,

Mr Justice Hutley reserved his view.
Mr Justice Mahoney agreed with Mr Justice Samuels,

namely, with the judgment that had been delivered.

Now, what happened in this case was the

consent was given by North Sydney Council - - -

MASON CJ:  I am not sure what that means actually.

MR O'KEEFE: With respect, Your Honour, I am not either

since there were two judgments that went before it

and it is not clear except by what happened later

in this case what Mr Justice Mahoney was actually

agreeing with. However, the point that arises is

in the Burwood case Mr Justice Samuels took the

strict technical view that would be appropriate,

say, for succession law or for matrimonial law in
relation to domicile.	Mr Justice Hutley reserved

that position. It is our submission that that

concept of "domicile" that was adopted by

Mr Justice Samuels in that case and taken through by Mr Justice Mahoney in this case - into his

judgment at page 56 is inappropriate to planning

law and that is what we say is a very important

matter because it not only touches upon what is a

residential flat building, it touches upon what is

the characteristic of use for a dwelling and that

spreads not just throughout New South Wales but

throughout the Commonwealth, and that is what we

say an important question of principle is.

Sydney 4

DAWSON J: His Honour Mr Justice Mahoney does not take up

the concept of "domicile" and apply it directly,

does he?

MR O'KEEFE: Except this, Your Honour: it is very

difficult, with respect, to understand why he uses

that word "domicile" at line 12 and then refers to

what Mr Justice Samuels has said in the other case,

"unless he is so doing".	He is talking about that
degree of permanency.	He must, with respect, be
taking up that concept, we would submit.	And what
he then says at lines 18 to 21 is that:

It is, I think, sufficient to conclude, as I

do, that what was said by Sugerman JA and

Samuels JA indicate the basis on which the

construction of the phrase "residential flat

building" should be approached -

given this context. And that has to be, having

regard to what Mr Justice Samuels said and the form

of this judgment, the taking up of that permanent

place of residence to which you intend always to

return, in our submission.

Now, Mr Justice Sugerman, in Slazengers v

Emerson, which is - - -

MASON CJ: Well, before you leave that, on the matter to which Justice Dawson adverted, you might have a

look at page 56.

MR O'KEEFE:  Of the application book, Your Honour?

MASON CJ: Yes.

MR O'KEEFE:  I have that open, yes.

MASON CJ: Page 56, the paragraph commencing on that page,

because His Honour certainly derives the notion of

a degree of permanence from the word "domicile".

MR O'KEEFE:	He does, Your Honour, yes.
MASON CJ:	And he refers again to the judgments of

Mr Justice Sugerman and Mr Justice Samuels.

MR O'KEEFE: Yes, Your Honour. If I could go to Slazengers

v Emerson, (1967) NSWSR 144. Now, the case is

really not directly in point. The question there arose under workers' compensation legislation and

what happened in that case is the court had to

consider whether or not the concept of a flat

involved a self-contained notion or not. It does

not matter for the purposes of this case why that

was important in that case. But at page 146,

Sydney 10/5/91

Mr Justice Sugerman raises the point, at about

point 3, that:

For the purposes of this subsection a worker's

journey from his place of abode shall be

deemed to have commenced at, and the terminal

point of his journey to his place of abode to

be (i) if his place of abode is a flat or home

unit in a residential flat building or home
unit building - that exit of the flat or home

unit whereby he departed on his journey from

his place of abode -

then, lower on the page, the question becomes

whether or not flat has to be self-contained or

not.

At page 147, at about point 6,

Mr Justice Sugerman points out in the paragraph

secondly commencing on that page:

Judicial usage as to the correct

employment of the expression "flat" is, if one

accepts Mr Samuels' hypothesis, by no means

uniform.

And then he uses the words:

separate "self-contained" dwelling.

Relevantly, it would seem, we would submit,

that what Mr Justice Mahoney was referring to in

the judgment of Mr Justice Sugerman is at page 148,

at about point 5, Your Honours.	The passage that
begins:

It must, that is to say, be a distinct portion

of the building with internal

intercommunication between its rooms and with

an outer door or doors leading to the

passageways and stairs ..... so that it is

possible to distinguish between what is used	in common and what is part of the "flat" and
to say with certainty where the worker's
"place of abode", and where, therefore, his
daily or other periodic journeys, begin and
end.
Now, in looking at that question, a little

lower down on the page, Mr Justice Sugerman goes to

section 304 of the Local Government Act.

Section 304 of the Local Government Act occurs in

Part XI and is the definitional section in that

Part for the purposes of that part of the Act, not

Part XllA as this consent was given under.

Sydney 6

What is there referred to is the definition of

"flat" which means:

a room or suite of rooms occupied or used or

so constructed, designed, or adopted as to be

capable of being occupied or used as a

separate domicile.

Now, that is where the question of domicile arises.

If I could go back, Your Honour

Mr Justice Dawson, to the question Your Honour

asked: unless that concept of domicile is really

being incorporated as to - in the reasoning,

rather, that Mr Justice Mahoney is applying in this

judgment, it is difficult to see why he refers to

what Mr Justice Sugerman says in Emerson.

DAWSON J: But "domicile" is not there used in its private

international law sense, is it, surely?

MR O'KEEFE:  No, no, that is our point.

DAWSON J: Yes. It is only used to mean that it is with a

certain degree of permanency which is what - - -

MR O'KEEFE:  The question is does it involve any degree of

permanence? Now, that is where the New South Wales

court differs from the approach that was taken by
the South Australian court. In the written

submissions that we have put to the Court, the

Court will see at page 4 - - -

DAWSON J:  I am not - perhaps I should appreciate what you

are putting, Mr O'Keefe. You are saying that by

using the word "domicile" or referring to these

cases, Mr Justice Mahoney was indicating that a

certain degree of permanency was required for a

flat to be a residential flat?

MR O'KEEFE: Yes.

DAWSON J: Well, no one would contest that, I suppose. And

the South Australian court said, "Well, that's	not
right because a flat remains a flat and a
- _ 11
residential flat, whether it's for a week or -

MR O'KEEFE:	A week or a month or six months.
DAWSON J:	And it seemed silly to the South Australian court

to say that a flat which one day was a residential

flat, the next day it may not be.

MR O'KEEFE: Exactly, and the terminology that is used in

the definition which the South Australian court

looked at, which is set out at page 3 of the

written submissions, involved that same concept of

Sydney 10/5/91

domicile as was incorporated in the reasoning of

Mr Justice Mahoney by reference to both the

Aboriginal Hostels case and Emerson's case.

DAWSON J: But why is it incongruous to say that a flat one

day is a residential flat, the next is more akin to

a hotel suite? A person may use a flat as a

residential flat or may use it for another purpose.

MR O'KEEFE:  Your Honour, it goes, with respect, beyond

that. Take this situation: take the definition of

"dwelling-house", that is, involving as it does in

these statutes and in the subordinate legislation

the concept of "domicile". Would one then say,

with respect, that one's holiday house, since it is
not a place of permanent residence, is not a

dwelling-house.

DAWSON J: That is what I say. Obviously, the term

"domicile" was not being used as a technical term

in any of the judgments but merely to indicate a

certain degree of permanence. Now, that is

imprecise but that is all that Mr Justice Mahoney

meant, surely. I mean, obviously, if I stay in a

flat, last night, in Sydney for one night, I am not using it as a residence but if I am here for a long case and stay in it for three months, I may be.

MR O'KEEFE:  The question though goes back to the consent

that was given in this case and, hence, the concept

of what is involved in a residential flat building.

Does it require to be used on a more or less

permanent basis with a significant degree of
permanency of habitation in order to bear that

connotation? Our submission was, "No". The

primary judge in the specialist court agreed with that. The South Australian court agrees with it. We say it is an important matter and the New South

Wales Supreme Court has applied notions more

stringent and more appropriate to other areas of

law than planning law and this Court should then

rationalize the conflict between the two States and

between the appellate court in New South Wales and

the primary court in New South Wales. Of course,

in the appellate structure, the appeal rationalizes

that for New South Wales, at least to an extent.

But can I then ask the question, "What is that degree of permanency that is required?" It has got

to be a significant degree of permanency of

habitation or occupation. With respect, what would

be the difference in use of the premises from a

week-to-week tenancy and a tenancy from month-to-

month or for six months. It is our respectful

submission that on the basis of what the - the

ordinary dictionary definition of "domicile" which

ought to have been applied and which was applied by

Sydney 8

the primary judge, the degree of permanency does

not become an element in the concept of "flat" and

certainly does not become an element in the
definition of "residential flat building". The

error of principle we say is that what happened

was, in the absence of a definition of what a

residential flat building was, the court took a

definition from another part of the Act not
relevant to Part XIIA and introduced the concept of
"flat" from that Part into Part XIIA. In so doing,
it applied a concept of "domicile" more stringent
than is appropriate to the field of law with which

the statute or that part of the statute is dealing

and that the correct approach is to be found in the

primary judge and in the approach taken by the

South Australian court in relation to a cognate

matter.

MASON CJ:	Of course, the problem with all this, Mr O'Keefe, as you would be aware, is that the Court has
considerable difficulty in taking up questions of
interpretation in planning legislation.
Essentially, the view is taken that the
interpretation of planning legislation is for lower
courts because this Court does not have that kind
of specialist knowledge and expertise which equips
it, as a matter of familiarity, to place the
interpretation of particular provisions in their local context.
MR O'KEEFE:	I understand that, Your Honour, and that is why

point 9 appears on page 7 of our written

submissions. It is not as if the specialist court

found to the contrary of it. That court which had

that facility - - -

MASON CJ: Yes, I follow that you had a decision in your

favour by Mr Justice Bignold.

MR O'KEEFE: Yes, and what I am saying: given the point has

legs to run, that this Court is in no worse

position than the Court of Appeal and that the

strictures - - -

MASON CJ: But it is in a worse position than the Court of

Appeal because these cases not infrequently get to the Court of Appeal.

MR O'KEEFE: This one has not, however, and this one does

involve an apparent conflict - we say a real one -

between the approach taken in South Australia and

the approach taken in New South Wales and that

ought not persist in legislation which is spread

throughout the Commonwealth, not just New South

Wales and South Australia.

MASON CJ: But it is local legislation.

Sydney 9 10/5/91

MR O'KEEFE: It is local in the sense that each one is local

but, with respect, that is true of every statute

like a workers' compensation statute or a Factories

and Shops Act or a Scaffolding and Lifts Act which

is a piece of State legislation.

MASON CJ: True, but generally speaking planning schemes

represent peculiarly local considerations.

MR O'KEEFE: Well, some parts do and some parts do not, with

respect, Your Honour. Those parts which are

concerned with definitional matters have a broader concept than the detail of what colour is on a map

and the like and this is very much a definitional

matter common to schemes throughout the country.

So that in that sense we would respectfully submit
that it extends beyond the merely municipal or

local and that it in fact extends Commonwealth wide

and that is what gives it the flavour that, in our

respectful submission, should attract the attention

of the Court. That, combined with the different

approaches taken, which involve a question of

policy, which ought to be resolved.

Otherwise, Your Honours, the matters are set

out in our written submissions. And the error, we

say, is to be found at page 56, and that is to be

contrasted with the approach that was taken by the

primary judge in the specialist court which is to
be found at page 14 at the top of the page in the
paragraph there first occurring. Nothing in those

meanings requires or suggests an element of

permanence of residential occupation. And then

His Honour refers to James' case which I will, if I

might, refer to before I leave. At page 15:

What then is meant by use as a residential

flat building or directing attention to the

use of each of the flats therein

contained ..... the more precise question is

what is meant by use as a flat?

The short and obvious answer in my

opinion is use and occupation as a separate

place of human habitation, abode or residence.

And that is precisely the approach that was adopted

by the South Australian court. And at page 16,

lines 14 to 18, where His Honour the primary judge

says:

In my opinion the nontechnical meaning of

"domicile" provided by the Shorter Oxford

English Dictionary:  "A place of residence or

ordinary habitation; a house or home" is

clearly the more apposite meaning in the

context of town planning legislation having

Sydney 10

regard to the objects and purposes of that

legislation.

Now, if one compares that with what was said

by the South Australian court in Masters v Padley,

(1984) 53 LGRA 417, at page 422 to page 423,

commencing at the paragraph at about point 5, just

below it:

The learned special magistrate considered

that the word "domicile" in the definition of

"flat" was used "as opposed to 'place of

abode'" and he considered that it denoted a

place of "permanent residence to which the
subject, if absent, has the intention of

returning" .

That is precisely what Mr Justice Samuels said in

the Aboriginal Hostels case which was relied upon

by Mr Justice Mahoney in the present case. That is

rejected by the South Australian Supreme Court, the
Full Court:

I think that "domicile" is used in the definition in the sense of "place of residence" or "home": see Shorter Oxford

English Dictionary.

And then the passage which is set out in the

written submissions is embarked upon. And

His Honour the Chief Justice says, and the court agrees, "Short-term holiday residences, none the

less, remain flats" and, in our submission, of

course, they would remain dwelling-houses within

the definition.

DAWSON J: But, you see, that only demonstrates the point:

the definition there is quite different and is, as

His Honour says, in terms of architectural design

and physical character, and includes any way,

expressly things commonly known as serviced flats.

MR O'KEEFE:  Your Honour, I appreciate that. The add-on to

that definition is not to be found in the
definition of "flat" in section 304 but the

question of domicile, in our respectful submission,

remains the same independently of that.

DAWSON J: Well, I am not sure that it does. I mean, you

have to take that in the context.

MR O'KEEFE:  I would not argue to the contrary of that,

Your Honour. What I am saying is that this context

is a town planning context. The town planning

court itself says that for the purposes of the
context of town planning legislation, and having

regard to the objects of that legislation, there is

Sydney 11

no need to and it is not appropriate to go to the

technical concepts that are involved in the word

"domicile" as used in the New South Wales

legislation. We would respectfully submit that

that is a correct approach as a matter of principle

by the specialist court in this case.

DAWSON J:  And in any event, I should point out just to

complete it, that that is a definition of "flat"

not a "residential flat".

MR O'KEEFE:  Your Honour, that is true but, with respect, if

one does not have a residential flat, what sort of

a flat does one have, with respect? The whole idea

of importing the definition from section 304,

Part XI, which is for that purpose, into a

Part XIIA consent itself has real problems about

it, in our respectful submission, but that was the

approach that the Court took. In our submission,

what you say is not, "What is a residential

building as defined in the ordinance?" and then
take a definition of "flat" from another place and
put it in the middle of those two words, which is

what the Court of Appeal did in this case, and say

that involves permanency. What one asks oneself,

as a matter of proper principle, is, "What is

involved in the concept of a 'residential flat

building'?" Now, that question was never addressed

in that form by the Court of Appeal and that,

itself, in our respectful submission, is part of

the error involved in this case.

The contrary view is the view that is taken in the court below by the primary judge. He says,

"Well, what is the concept of a 'residential flat

building'? It is one that involves somewhere where

people can live, a place they can use as an abode."

Now, I will not say it again - I will say it this

time - because I do not repeat myself and take the

Court's time: that is consistent with and appropriate for the achievement of the objects of

town planning legislation as the primary judge	finds and one ought not to go into concepts of
"permanence".

Can I raise this question as a practical

consideration? As a matter of enforcement, the

problems that are posed by the concept of

"permanence" being introduced into the notion of

"use of a residential flat building" are, in our

submission, very significant. What do you do? Do

you knock on a door and say, "How long are you here

for?" And if you are only here for a short time

and somebody else is coming for a short time, the

question of illegality of use arises, and the same

is true not only of "flat" but of "dwellings" as

well. In our respectful submission, that

Sydney 12

substantiates the sort of policy considerations

that the primary judge is referring to at page 16

of these appeal papers.

The other case that I just wanted to refer to

briefly was the decision in South Sydney v James,

35 LGRA 432. Now, that was concerned with a

particular definition which the Court will find at

page 437 of the appeal at about point 8.

As we point out in the written submissions

that have been lodged with the Court, at page 5,

the court was there concerned to reach a conclusion
that any use that was consistent with the physical

character of the dwelling erected for a single

family was consistent with the planning purpose

permitted under the definition that I have

indicated. The Court will find that at page 439,

at the top of the page, and page 440, in

particular; page 440, at the paragraph that first

begins on that page.

In our respectful submission, the Court of

Appeal fell into error and did so by two means:

one, by taking a definition from another part of

the Act and inserting it between the two words
"residential" and "building" which was defined and,

secondly, by attaching to that word "flat" from

section 304 the concept of "domicile" as involving

a high degree of permanency - what was described, I

am sorry, as a significant degree of permanency.

Our submission is that the better view is that

adopted by the court below, adopted in

South Australia and that because of the impact

of this approach throughout Australia, the Court

should grant special leave. If it please the

Court.

MASON CJ: Thank you, Mr O'Keefe. The Court need not

trouble you, Mr Sheller.

The question of interpretation of a particular

planning instrument, which arose in this case, is

finely balanced but it raises no question of

general or fundamental principle. The decision of

the Court of Appeal upon the point was unanimous.

The decision of the Supreme Court of South

Australia, in Masters v Padley, 53 LGRA 417, is

plainly distinguishable.

In these circumstances, the case is not

appropriate to the grant of special leave and the

application is refused.

MR O'KEEFE:	May it please the Court.
MR SHELLER:	I would ask for costs, if Your Honour pleases ..

Sydney 13 10/5/91

MASON CJ:	You do not oppose that, Mr O'Keefe?
MR O'KEEFE:	I do not, Your Honour.
MASON CJ:	The application is refused with costs.

AT 12.29 PM THE MATTER WAS ADJOURNED SINE DIE

Sydney 14 10/5/91