Sydney Training Depot Schnapper Island Ltd v Brown, J.

[1988] FCA 282

IN THE FEDERAL COURT OF AUSTRALIA)

1

NEW SOUTH WALES DISTRICT REGISTRY) No.GS75 Of 1987

1

GENERAL DIVISION	)
ON APPEAL from a single judge of the Federal Court of Australia
BETWEEN:
SYDNEY TRAINING DEPOT SCHNAPPER ISLAND LIMITED

Appellant

AND :

-

First Respondent

-	AND :
A. GALLERY CHIEF PROPERTY OFFICER FOR THE STATE OF NEW SOUTH WALES DEPARTMENT OF LOCAL GOVERNMENT AND ADMINISTRATIVE SERVICES

Second Respondent

-	AND :
THE HONOURABLE STEWART WEST, MINISTER OF ADMINISTRATIVE SERVICES

Fourth Respondent

Third Respondent

AND :	-
THE COMMONWEALTH OF AUSTRALIA

MINUTE OF ORDER

JUDGES WAKING ORDER:	FOX, LOCKHART h GUHMOW JJ.
DATE OF ORDER:	1 JUNE 1988
WHERE MADE:	SYDNEY
THE COURT ORDERS	TEAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents' costs of the appeal,

and of the motion dated 2 1 May 1988.

- Note: Settlement and entry of orders is dealt with by

Order 36 of the Federal Court Rules.

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA)

)

NEW SOUTR WALES DISTRICT REGISTRY) No.G575 Of 1987

)

GENERAL DIVISION	)
ON APPEAL from a single judge of the Federal Court of Australia
BETWEEN:
SYDNEY TRAINING DEPOT SCHNAPPER ISLAND LIMITED

Appellant

-	AND :
JOHN BROWN, MINISTER FOR SPORT RECREATION AND TOURISM AND MINISTER ASSISTING THE MINISTER FOR DEFENCE

First Respondent

-	AND :
A. GALLERY CHIEF PROPERTY OFFICER FOR THE STATE OF NEW SOUTH WALES DEPARTMENT OF LOCAL GOVERNMENT AND ADMINISTRATIVE SERVICES

Second Respondent

- AND :

THE HONOURABLE STEWART WEST,

MINISTER OF ADMINISTRATIVE
SERVICES

Third Respondent

AND :	-
THE COMMONWEALTH OF AUSTRALIA

Fourth Respondent

CORAM: FOX, LOCKBART L GUMMOW JJ.

- DATE: 1 JUNE 1988

REASONS FOR JUDGHIENT

EX TEAPORE

TEE COURT:

The appellant applied under the Administrative Decisions

(Judicial Review) Act 1977 - which I shall call the Act - for

review of a decision to issue to it notices to quit certain land owned by the Commonwealth being the major part of an island in

the Parramatta River where it enters Sydney Harbour and which is

known as Snapper (or Schnapper) Island.

The appellant based its application upon a number of

grounds: a denial of natural justice; that the decision-maker or

makers had no authority to make the relevant decisions; that the
decisions were contrary to law; that there was no evidence to

justify the decisions, and that they were unreasonable.

There was a challenge to competency on the ground that

the notice or notices to quit were not issued pursuant to a

decision under an enactment. There were, in fact, two notices

and the second may have supplanted the first. This was not

conceded and was not the subject of decision by h i s Honour and

has not been the subject of argument in this Court.

The appellant sought and was granted leave to amend its

application by adding the two last-mentioned respondents so that

s . 3 9 8 of the Judiciary Act 1903 could be relied upon.

Two matters have been stated a8 calling for relief under

the last-mentioned section, namely infringement of an equitable

proprietary right and the creation of a public nuisance. These

matters were not put to his Honour and argument thereon was not

developed in this Court.

His Honour dealt fully with the submissions made to him,

and, in particular, provided an historical survey of the island

and the relationship to it of the appellant and the appellant's

predecessor, MC Leonard Forsythe. His Honour was impressed, as

must be anyone to whom that history is familiar, with the

initiative, enterprise and industry many years ago of Mr Forsythe

and those later associated with im in creating on the island a

maritime training centre for young people which became

well-equipped and an extensive maritime museum.	Many buildings
were erected. It	is not difficult to understand the concern of
the appellant when told to	leave.

The notice to quit served (we shall resort to the

singular) gave one month's	notice as was appropriate under the
lease.	The lease having been entered into on 28 December 1931

and the original term having expired, the lessee was holding

over.	The lease was between The Australian Shipping Board and
Leonard Edgar Forsythe.

By the Cockatoo and Schnapper Islands Act 1949 the title

of the board in the island was transferred to the Commonwealth	by
a deed of assignment of 15 August 1978.	Mr Forsythe, with the

consent of the Commonwealth, assigned his interest as lessee to
the present appellant.

The validity of the notice is not challenged except on

the grounds above stated, although we understand from counsel	for
the appellant that his client	is resisting ejectment proceedings

in the Supreme Court on the ground, perhaps among others, that

his client has a proprietary interest	in the land, having in mind
the buildings which have been erected	by it and its predecessors.

Counsel for the respondents did not have any

instructions on this matter	and it seeming that it may be some
time before those proceedings were determined	in that court, we
continued with the hearing of the present	matter.

Although we have set out the grounds relied upon, they

all centre around one consideration; namely that the termination
of the tenancy and removal from the island of the appellant is
sought on grounds of safety, which the appellant says are
misconceived and which, in any event it says, can be sufficiently

moderated. The reasons given relate to UN-NATO safety measures

concerning the transport of explosives, but it is said that they

do not, and probably will not have application because of the

nature of the operations being carried on by the Navy in relation

to the transport of the explosives.

Snapper Island is close to a sea route regularly used by

the Royal Australian Navy for the transport of explosives. More

particularly, it is close to a smaller island, known as Spectacle

Island, at or around which lighters on which explosives are

carried stage briefly en route from naval ships down harbour to

and from a point up harbour to which they are delivered by motor

.

5.

transport. It is plain that Snapper Island is within the risk

area associated with explosives on lighters tied to buoys on the

Snapper Island side of Spectacle Island.

Counsel for the appellant points out that some of the

mainland is within the same	area, but certainly Snapper Island is
much closer. The Navy now proposes to fix the lighters	by bow

and stern, and this means that some of them (perhaps only two)

will be 10 or so metres closer to Snapper Island than were the

lighters when swinging by the bow to the buoys then in existence.

Extra pylons have to be put in place to allow for the new

procedure. The view is taken that Snapper Island should be

cleared. The part of it not the subject of the lease to the

appellant is already a naval zone.

The appellant submits that the UN-NATO arrangements do

not deal with lighters in transit, as has been the case with

those which stage	at Spectacle Island, but if correct this would
at the most only mean that extra precautions are being	taken.

The risk it is said i s infinitesimal, as past experience shows,

but consideration of the merits of the course being followed is

for the authorities and	not for this Court which deals with the
legality of decisions.

We agree with the learned judge in his conclusions and

reasons. No case i6 made out under the heading of denial of

n8tural justice. His Honour looked beyond the question of

whether the rules	of natural justice applied to their content	in
a case such as the preeent, and we can do the	same.	The most

that could be required is that the appellant receive an adequate

hearing.	This	requirement,	if it existed, is essentially
procedural	in	nature	but counsel pressed upon us arguments

relative to rights, said to flow from "reasonable expectations".

This phrase has significance in connection with a fair

hearing, but does not by itself involve the creation	of legal and
equitable rights.	The fact is that the appellant was told months
ahead of the intentiods	of the lessor, and. discussions and
correspondence ensued.	At one stage a senior naval officer

addressed a meeting at some length on what was proposed and the

reasons for the proposal.

Then it is said that the reasons were wrong, or at least

inadequate, and perhaps further and wider matters were in mind.

This type of Consideration can sometimes	be	relevant to the
exercise of a power in the wider	realm of administrative law,	but

here what is being considered	is a decision to issue a notice to
quit: a matter which	is of a proprietary nature and concerns the
immediate parties.	No statute can be pointed to which directly

or indirectly controls the giving of the notice. We should not,

however, be taken as deciding that on no occasion where a notice

to quit is issued by a public body are the provisions	of the Act
applicable.

In this case there seems to have been a perfectly

comprehensible reason for a lessor issuing a notice to quit to

it6 lesree. The power to do so unfettered by requirements of

purpose as to future use and free from considerations of motive

l .

was available and was u ed. The whole case turned on the matters we have mentioned. We are therefore of the view that the appeal

fails and should be dismissed.

Before the hearing of the appeal commenced, an

application by way of notice	of motion was made:
(a)	that fresh evidence in the form of three affidavits and

another document, being a copy of a recent report to Parliament

by the Auditor-General	be received on the hearing of the appeal;
(b) that the Court should take a view of the island and	(c) that

injunctions should be granted to restrain the further

construction of fixed mooring pylons adjacent to the islands

mentioned.

As to the fresh evidence, the principles governing its

reception are well established and need no repetition. It

appeared that most of the evidence sought to be adduced had been

available at the time of the hearing, although some was not immediately available. No application was then made for an

adjournment so that it might be obtained. That which was

unavailable is of slight significance, and indeed would not have
been helpful to the appellantts argument. Some of that which	it

was sought to have received by this Court was inadmissible, in

any event, in the form in which it was tendered.

TO admit some of the evidence, having in mind its

assured relevance, would inevitably have led to the necessity to
remit the matter to the judge of first instance and quite likely
would have required some amendment to the pleadings. The Court

therefore refused to receive it.

The Court saw no need for or advantage in a view. If the

third matter which is mentioned is to be raised it will have to
be in separate proceedings which will show fully the basis on
which the relief is sought. It could not be dealt with as an
appendage of some sort to the present proceedings. The order of

the Court is that the appeal be dismissed.

The Court is of the view that the appeal should be

dismissed with costs, together with the costs of the notice of

motion of 27 May.

I certify that this and the

seven (7 ) preceding pages are

a true copy of the Reasons

for Judgment herein of the

Court.
Associate: &&L&

Date: 1 June 1988

Counsel for the Appellant: Mr R.A.S. Skiller

Solicitors for the Appellant: Star Carver h Co.

Counsel for the First,Second,Third

L Fourth Rerpondents: Mr P.R. Graham QC with
Mr D.B. McGovern

Solicitors for the First,

Second,Third and Fourth Respondents: Australian Government Solicitor

Dates of hearing: Sydney; 31 l4ay.l June 1988

Date judgment delivered: Sydney; June 1988 1