Sydney Training Depot Snapper Island Ltd v Brown, J

Re: "SYDNEY" TRAINING DEPOT SNAPPER ISLAND LIMITED
And: JOHN BROWN, MINISTER FOR SPORT, RECREATION AND TOURISM AND THE MINISTER
ASSISTING THE MINISTER FOR DEFENCE; A GALLERY, CHIEF PROPERTY OFFICER FOR
STATE OF NSW DEPARTMENT OF LOCAL GOVERNMENT AND ADMINISTRATIVE SERVICES; THE
HONOURABLE STEWART WEST, MINISTER FOR ADMINISTRATIVE SERVICES and THE
COMMONWEALTH OF AUSTRALIA
No. NSW G232 of 1987
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Administrative Law - Decision to give notice to quit leased property - Control and management of property vested by statute in a Minister - Whether rules of natural justice applicable - Whether natural justice was given to applicant - Authority of decision-maker - Whether there was evidence to support the decision - Whether decision bad for unreasonableness.

Cockatoo and Schnapper Islands Act 1949 s.6

Administrative Decisions (Judicial Review) Act 1977 s.5

Judiciary Act 1903 s.39B

HEARING

SYDNEY

#DATE 26:10:1987

Counsel for the Applicant: Mr R. A. Skiller

Solicitors for the Applicant: Star Carver & Co.

Counsel for the Respondents: Mr D. B. McGovern

Solicitors for the Respondents: Australian Government Solicitor

ORDER

The Application be dismissed.

The applicant pay to the respondents their costs of the proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

In one of the wider reaches of the Parramatta River, close to the point at which it joins the Lane Cove River to form Port Jackson, lies an island owned by the Commonwealth of Australia and containing less than one acre: Snapper -- sometimes "Schnapper" -- Island. To the north east of the island is Cockatoo Island, at which is located a major shipyard. North west lies Spectacle Island, which is much larger than Snapper Island and is occupied by the Commonwealth. The northern foreshore of this reach is constituted by the Woolwich peninsula whose southern protruberance is Pulpit Point. The Drummoyne foreshore lies generally west of Snapper Island, extending at its eastern most point to the mouth of Iron Cove at Birkenhead Point. To the east is Birchgrove.

The present condition of Snapper Island is largely attributable to the work, skill and enthusiasm of one remarkable man: Leonard Edgar Forsythe. It appears that Mr Forsythe was, in 1931, Assistant Commandant of a unit of sea cadets located on the mainland at Iron Cove. The unit had been established three years earlier under the title "Sydney" Training Depot, as a tribute to HMAS "Sydney" of First World War fame. In 1930 the idea was conceived of developing Snapper Island, then a scrubby rock outcrop, as a home for the unit. An approach was made to the Commonwealth Government. On 9 July 1931 the Secretary of the Department of Works wrote to Mr Forsythe informing him that the Minister had approved of the island being leased to the cadets for a period of 15 years at a nominal rental, subject to certain conditions. Mr Forsythe accepted the conditions and a formal lease was executed on 18 December 1931.
The deed of lease named the lessor as the Australian Commonwealth Shipping Board, which entity was apparently the then owner. The lessee was Mr Forsythe personally but he was described as "Assistant Commandant 'Sydney' Training Depot" and the lease limited the use of the island to that of a training depot for sea cadets. By the deed the Board leased the island to Mr Forsythe for a term of 15 years from 1 August 1931 at a rental of two pounds per annum. Clause 1 provided that, if the lessee continued in occupation after the expiration of the term, the land should be held by him under a tenancy determinable at any time upon one month's notice being given by either party. Clause 4(b) permitted the Commonwealth to terminate the lease forthwith if, at any time, the land was required for any purpose of the Commonwealth. Clause 2(k) required the lessee to remove all buildings and other improvements at the expiration or sooner determination of the lease.
In July 1931 Mr Forsythe set about developing a training depot on the island. By the end of the year Mr Forsythe, with the assistance of the cadets, had cleared the scrub, levelled the rock surface and used the spoil to extend the island to its present area. Early in 1932 a wharf and buildings were erected. These improvements, only slightly extended during a period of United States naval occupation during the Second World War, remain on the island to-day; housing a substantial training depot with sleeping, eating and recreational facilities for the cadets, together with a museum. The museum, opened in 1963, contains an impressive array of maritime -- mainly naval -- exhibits, including many models and ship badges created by Mr Forsythe himself.
Apart from the period during the Second World War when the island was used for naval purposes, Mr Forsythe continued to occupy the island and to use it for the training of cadets and to house the museum. He retired as Commanding Officer of the cadet unit in 1972, but still continued his responsibility for the island. However, in 1976, being then in his 84th year, Mr Forsythe decided that the time had come to pass that torch, also, to others. With six other people, including four ex-cadets, he formed a non-profit company, Sydney Training Depot Snapper Island Limited, the present applicant. He sought the consent of the Commonwealth to an assignment of the lease to the company and this was effected by a deed of assignment executed on 15 August 1978. That deed was executed by the Commonwealth of Australia as lessor. It is not necessary to say more about the terms of the deed than that it had the effect of placing the applicant company in the shoes of Mr Forsythe, without affecting the duration or the terms of the tenancy. The initial 15 year term having, of course, long since expired, the applicant took only a tenancy determinable upon one month's notice given at any time.
Since the assignment of the lease the applicant has accepted responsibility for the maintenance of the island and its improvements. During the last six years it has outlayed about $8,400 for materials, but to this figure must be added the value of the labour voluntarily given by many people, including local service clubs. It appears that the expenditure would have been higher but for an emerging threat to the applicant's possession of the island.
For many years the Parramatta River has been used for the transportation of ammunition for the Australian Navy. At one time the ammunition depot was at Newington, but the present position is that long term storage is at Kingswood, near Penrith. When ammunition is required it is brought by truck to Newington wharf where it is loaded onto lighters, which are towed by tugs to the Man-O'-War anchorage near Garden Island, at which point it is loaded into the ships. On occasions, ammunition has to be unloaded from ships and stored, so that the reverse route is followed.
The distance between Newington wharf and Man-O'-War is such that it is often difficult to accomplish the complete transportation and loading exercise in the one day. So a temporary storage, or at least staging, post is required. The waters surrounding Spectacle Island were found to be suitable for this purpose, they being about half way along the river. Some 28 buoys were placed around Spectacle Island to which lighters could be secured. In practice it is sometimes necessary for loaded lighters to stay more than one night at these buoys, either because of delays in the transport arrangements or because only temporary storage, away from the ship, is required. The lighters are secured at one end only, drifting with the wind and tide.
An agency of the United Nations has developed a classification system for the types of explosives used by military and naval forces. Most of the ammunition shipped along the river falls into type 1, the most dangerous category. The North Atlantic Treaty Organization (NATO) evolved some principles for the storage of ammunition, specifying hazard distances according to the type of explosive, the nature of the container and surroundings and the quantity of ammunition kept in any single container. These principles indicate that ammunition, type 1, stored in a lighter -- and in the quantity normally held in a lighter on the Parrammatta River -- puts at risk houses and vehicles, and their occupants, at a distance up to 270 metres from the source of the explosion. In the case of heavy traffic or dense housing, the principles recommend that, for more abundant caution, there ought to be a set back distance of 400 metres.
In 1981 the Australian Department of Defence decided to adopt the United Nations classification system and the NATO safety principles for the storage by Australian defence forces of ammunition and other explosives. Certain preliminary steps were taken in that regard. However, the application of the NATO principles to Sydney Harbour presented a problem. A study was undertaken on behalf of the Department by a Mr Ian Chatten, a specialist officer from the staff of the United Kingdom Director of Armament Supply, who was then working on an exchange arrangement for the Australian Government. Mr Chatten recommended, amongst other things, that Spectacle Island continue to be used as a general staging point for explosives and that the sea cadet and museum activities on Snapper Island be transferred elsewhere. Mr Chatten also recommended that action be taken immediately to develop a limited facility at Jervis Bay for the ammunitioning of naval ships, in advance of the full development of the Jervis Bay armament depot.
Mr Chatten's report was adopted by the Naval Supply Commander of the Royal Australian Navy in January 1985. The reasoning behing his recommendation to obtain vacation of Snapper Island appears in a letter written by the Assistant Director-General of Supply - Navy to the Australian Government Solicitor in August 1985:

"The Drummoyne foreshore and Birkenhead Point are the most highly populated areas in the Spectacle Island region and consequently action is being taken to ensure that these locations are outside ammunition hazard zones. The principal action taken to achieve this reduction in risk is the movement of buoys away from the populated areas. Unfortunately this concentrates highly explosive moorings towards Snapper Island which in turn places that area at greater risk should an accident occur. This increased risk, albeit slight, plus the greater definition of explosive risks provided by the new rules, precludes the use of Snapper Island by the public. Accordingly, revocation of the lease is necessary."

The current proposal of the Navy is to replace the existing mooring buoys with nine fixed piles, enabling lighters to be fixed fore and aft. The fixed piles will be further from the Drummoyne foreshore than are the present buoys. Whereas, at the present time, many of the buoys are within 400 metres from residences in Drummoyne, those residences will in future be outside the hazard zone. However, in order that this may be achieved, with an acceptable number of moorings, the proposed moorings will need to be closer to Snapper Island. The decrease in distance is not great, only 10 metres, but the result will be to put the nearest mooring only about 150 metres from Snapper Island.
There is in operation a statute dealing with Snapper Island: the Cockatoo and Schnapper Islands Act 1949. The Act is very short. By s.5 it transfers to the Commonwealth all the right, title and interest of the Australian Commonwealth Shipping Board in and to the two islands. Section 6 provides:

"6. The Minister shall have power, subject to any lease of Cockatoo Island or Schnapper Island, to control and manage those Islands and the works and establishments on those Islands."

The Minister having the administration of the Act, at relevant times, was the Minister for Local Government and Administrative Services.

In April 1985 a meeting was held between Commodore D H Thomson, Chief of Staff, and the directors of the applicant at which Commodore Thomson indicated that the Navy wished Snapper Island to be vacated. Commodore Thomson offered to provide alternative accommodation for the museum at Rushcutters Bay but, according to Mr M R Shannon, the honorary Secretary of the applicant, he indicated that no provision would be made for the cadets as there was already a naval reserve cadet unit at Rushcutters Bay. Naval reserve cadet units, unlike the unit at Snapper Island, are formally attached to the Navy. The discussion lasted for about an hour, during which time Commodore Thomson explained the reason why the Navy wished the applicant to move, but no agreement was reached.
On 3 December 1986 Commodore Thomson wrote a letter to Mr David Harper, President of the applicant, in which he referred to a recent meeting with the New South Wales Minister for Lands at which agreement had been reached with the State Government to allow the cadets from Snapper Island to use land at Rushcutters Bay. The proposal was for amalgamation of the unit with the unit of naval reserve cadets which was, for similar reasons, being moved from Spectacle Island. Commodore Thomson renewed the proposal that the museum be moved to Rushcutters Bay.
The directors of the applicant considered this proposal but they decided to reject it. In the result, the Commonwealth took steps to obtain vacant possession. Two separate notices to quit were given. I need refer only to the second, dated 30 April 1987, upon which the respondents place primary reliance. The notice was addressed to the applicant and read:

"THE COMMONWEALTH OF AUSTRALIA your landlord hereby gives you NOTICE TO QUIT and deliver up at the expiration of one (1) calendar month after the date of service of this Notice the possession of the land known as Schnapper Island situated in the Harbour of Port Jackson in the State of New South Wales held by you under a tenancy determinable at any time upon one (1) calendar month's previous notice being given by either party to the other pursuant to the Deed of Lease and Deed of Assignment described in the Schedule hereto."

The Schedule identified the deed of lease and the assignment, to which I have already referred. The notice to quit was executed by Mr A Gallery, Chief Property Officer for the State of New South Wales in the Department of Local Government and Administrative Services. Mr Gallery is the second respondent to this proceeding.

The first respondent is the Hon. John Brown who was, at material times, Minister for Sport, Recreation and Tourism and Minister assisting the Minister for Defence. He apparently became involved in the matter in his latter capacity. Early in 1987 Mr Harper made some representations to Mr Brown on behalf of the applicant. Mr Brown responded by a letter dated 26 February 1987 in which he explained the reason for the decision to remove the applicant from Snapper Island and re-affirmed the offer of accommodation at Rushcutters Bay. As I understand the letter, the applicant's cadets would, upon this offer, be able to retain a separate identity at Rushcutters Bay.
Between 26 February 1987 and the date of the notice to quit there was further correspondence between representatives of the applicant and Mr Brown. It is not necessary to say more than that it is clear that the applicant was made well aware of both the nature of the proposed Commonwealth action and of the reasons therefor.
This proceeding was commenced on 28 May 1987 when an Application was filed seeking review of the decision of Mr Brown that the applicant should no longer be allowed to remain in occupation of the island as lessee from the Commonwealth and the decision of Mr Gallery to issue and serve the notice to quit. Questions arose at an interlocutory hearing as to whether Mr Brown had in fact made any relevant decision and as to whether such decisions as had been made were decisions "under an enactment" so as to be reviewable under the Administrative Decisions (Judicial Review) Act 1977. Pursuant to leave granted by me, the applicant amended its Application so as to add as respondents the Hon Stewart John West, the present Minister for Administrative Services, and the Commonwealth of Australia. The amended Application sought to avoid the question whether the decisions were made "under an enactment" by also placing reliance upon s.39B of the Judiciary Act 1903.
I am not sure that the amendments made to the Application overcome all of the problems discussed at the interlocutory hearing. In particular it is by no means clear that Mr Brown made any relevant decision. I have no doubt that the notice to quit was issued at the instigation of the Navy, but it seems likely that the formal decision was taken within the Department of Administrative Services. Whether the Minister, who has the responsibility for the management of the island under the Cockatoo and Schnapper Islands Act, personally took any decision does not appear. But the notice to quit was issued by a senior officer of his Department and I think that it should be inferred, in the absence of any evidence to the contrary, that Mr Gallery took this action pursuant to an appropriate authority -- whether general or specific to the particular case -- given to him by the then Minister for Local Government and Administrative Affairs. Upon this view, there was a decision on behalf of the Commonwealth, so that it does not matter whether Mr Brown also made some justiciable decision.
The applicant has argued five grounds in support of its case that the relevant decisions were invalid: a denial of natural justice, that the decision-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 the decisions were unreasonable.
The effect of the decision to issue and serve the notice to quit was to terminate a property interest. As the applicant submits, this is a consequence which, in an appropriate case, would attract the duty to effect natural justice. But there is a question whether this is such a case. The obligation to afford natural justice is not one which applies to all legal relationships. The application of the obligation has expanded considerably in recent years, but it remains true that the obligation arises only in the realm of public law, that is to say in cases where a person is considering the exercise of a power conferred by a statute or by the royal prerogative -- see Council of Civil Service Unions v Minister for the Civil Service (1985) 1 AC 374 and Cohen v Peko-Wallsend Limited (Full Court, 7 September 1987, not yet reported). The concept of natural justice has no application to a case where a person is considering the exercise of a mere right of private property.
So far as the evidence discloses, the only legally significant decision made in the present case was the decision of Mr Gallery, whether on his own initiative or upon the instructions of his Minister, to issue and serve the notice to quit. In form this was a decision relating merely to the exercise by the Commonwealth of a property right vested in it. On the face of the matter, there was no exercise of any statutory or prerogative power, so that the rules of natural justice had no application.
Counsel for the applicant, however, contends that the decision to issue and serve the notice to quit also involved an exercise of the power of control and management given to the Minister by s.6 of the Cockatoo and Schnapper Islands Act. That section, read with the relevant Commonwealth administrative arrangements orders, no doubt determined the identity of the Minister upon whose behalf the relevant decision would be made. It does not follow that the decision itself was an exercise of power under s.6. However, as the matter is not free from argument, I prefer to base my conclusion concerning the first ground raised by the applicant upon the next question which arises in regard thereto: assuming that the obligation to give natural justice does arise, was natural justice given in this case?

It seems to me that there can be only one answer to that question. Although, it is true, Mr Gallery did not give to the applicant a hearing before deciding to issue and serve the notice to quit, there were at least two discussions between Commodore Thomson and the directors of the applicant prior to the decision to issue and serve the notice to quit. At those discussions the reasons for requiring the applicant to vacate the island were revealed and the applicant was given a full opportunity to put whatever it wished in opposition to that course. It is worth noting that the applicant's representations were not without some effect. The position of the Navy, in connection with the arrangements for cadets at Rushcutters Bay, became progressively more generous; although, of course, the Navy did not accept the applicant's primary request that it be left in occupation of Snapper Island. Following these discussions, and still before the notice to quit, the applicant had the opportunity of putting its case to Mr Brown. There being nothing to indicate to the contrary, I think that I am entitled to infer that all of these matters would have been passed on to the person who made the final decision that the tenancy should be terminated. Having regard to the nature of the decision and to Mr Brown's involvement, it seems to me highly probable that the effective decision was made at the political level.
The claim that the decision was bad by reason of a denial of natural justice must be rejected.
The second ground argued on behalf of the applicant, lack of authority, depends upon the proposition that the relevant decision-maker was an officer of the Navy, or of the Department of Defence. The argument is that the island was vested in the Commonwealth of Australia and that, at the relevant time, s.6 of the Cockatoo and Schnapper Islands Act gave the control and management of the island to the Minister for Local Government and Administrative Services. It followed, according to counsel, that any decision, on behalf of the Commonwealth, to obtain vacant possession of the island had to be made by or on behalf of the Minister for Local Government and Administrative Services.
I do not disagree with the reasoning contained in the argument but I do not accept the assertion that the effective decision was made by an officer of the Navy or of the Department of Defence. There is no evidence to that effect. There is no doubt that some senior naval officers thought that the island ought to be vacated. It is reasonable to assume that this view was shared by officers of the Department of Defence; it was apparently shared by the Minister assisting, Mr Brown. It may be inferred that one or more of these officers, or one or more of their political masters, took steps to bring the matter to the attention of the Department of Administrative Services. But there is no reason to doubt that, within that Department, a decision was made to seek vacant possession. The fact that the actual notice to quit was signed by a senior officer of that Department indicates a correct understanding of where the legal responsibility lay.
The applicant submits that the decision to issue and serve the notice to quit was unlawful. The argument is that the keeping of explosives in large quantities in a populated area is a common law misdemeanour, so that anything done in pursuance of such an objective must also be unlawful.
There are two difficulties about this submission. In the first place the actual decision was merely to give notice to quit the island. That decision could not be rendered unlawful by the circumstance, if it existed, that, absent the unlawful activity, the notice to quit would not have been given. Secondly, there now exists a Commonwealth statute, the Explosives Act 1961, dealing in some detail with the handling of explosives on behalf of the Commonwealth. In the face of that legislation it is difficult to see that there can be any application, in relation to the Commonwealth, of the common law misdemeanour. It is not suggested that the procedures undertaken by the Commonwealth in connection with the storage of ammunition near Spectacle Island constitute a breach of this legislation.
The remaining two grounds, no evidence and unreasonableness, may be discussed together. The fundamental case made in support of each of these grounds is that the eviction of the applicant is unnecessary and discriminatory.
Explosives have been stored on Spectacle Island for many years. On 31 October 1969 an area around the island was declared as naval waters, under the Control of Naval Waters Act 1915. The evident purpose of this declaration was to facilitate the mooring of the ammunition lighters; the existing buoys are close to the outer limits of the declared area. It seems likely that these buoys have been regularly used since that time by the ammunition lighters. The evidence in this case is that the Navy has never had an accident, causing an explosion, in the course of handling, transporting or storing its ammunition. The reorganization of the moorings near Spectacle Island will improve the situation, from a safety point of view, because the lighters will now be more secure, being tied at both ends. Counsel says that, given these circumstances, there is no necessity for the applicant to vacate Snapper Island; an accident causing death or injury to persons on Snapper Island is a most unlikely event.
In relation to discrimination, counsel points to evidence as to the other hazards involved in the transportation of ammunition from Kingswood to the loading point at Man-O'-War anchorage. The ammunition is transported by road from Kingswood to Newington wharf. Virtually the entire journey is through built up areas on busy roads. The trucks carrying the ammunition are subject to the risk of collision at any time. The distance between the trucks, whilst in transit, and the nearest people, houses and vehicles would be nothing like 400 metres. The same statement is true in relation to the lighters whilst travelling down the river. The NATO principles make no stipulation as to hazard distances for explosives in transit. The rationale for this omission is that the risk is only transitory; a statement only correct if considered from the point of view of the particular individuals placed at risk. Perhaps the true reason is that it would be impossible to move the more dangerous types of ammunition in most cities if significant safety distances had to be adopted. Furthermore, the applicant points out that there is no proposal by the Commonwealth to preclude public access to that part of the Parramatta River which is within 400 metres of any of the proposed new moorings. This part of the river is heavily used. Three ferry routes lie through these waters, individual ferries carrying up to 200-300 people at a time. The area is used by many sailors and fishermen, some of whom come into close proximity to the lighters. In contrast, the maximum number of people likely to visit Snapper Island at any particular time is only about 20-30 people, and this normally only at weekends. The principal expert witness for the respondent, Mr P W Dean, agreed that, in the course of a typical month, the number of person hours of people in the area for purposes unconnected with Snapper Island would greatly exceed the number of person hours recorded by people visiting the island.
Finally, the evidence is that there is now a firm proposal for the establishment of an armament depot at Jervis Bay. When this facility becomes available, ammunition will be loaded and unloaded at Jervis Bay. The transportation of ammunition in lighters in Sydney Harbour will no longer be necessary, except perhaps in cases of emergency. At that stage it is unlikely that the moorings at Spectacle Island will continue to be required, except for emergency use. However, it is not expected that the Jervis Bay facility will be available until "the mid 1990's"; some seven or eight years hence.
Notwithstanding all of the matters to which I have referred, it cannot, in my opinion, be said either that there is no evidence to justify the making of the decision to obtain vacant possession of Snapper Island -- assuming that this ground would in any event be available, as to which see Television Capricornia Pty Limited v Australian Broadcasting Tribunal (1986) 70 ALR 147 -- or that the making of the decision was unreasonable, in the relevant sense. Unreasonableness, in this sense, requires a finding by the Court that the decision was one "that looked at objectively, (is) so devoid of any plausible justification that no reasonable body of persons could have reached (it)": see per Lord Diplock in Bromley London Borough Council v Greater London Council (1983) 1 AC 768 at p.821.
The respondents concede that the risk of an explosion occuring is very small. They concede that, if an explosion did occur -- whether elsewhere in the transportation route or at the moorings -- persons not on Snapper Island may be killed or injured. But they say that these circumstances do not justify the continuance of an identifiable, avoidable risk of injury to persons on Snapper Island; the fact that other risks cannot be eliminated does not justify a refusal to eliminate those that can. The distance between Snapper Island and the position of the nearest fixed mooring will be only about 150 metres, whereas many of the other people within the 400 metres hazard zone would be further removed from the source of any explosion.
The parties have reached different conclusions as to the acceptability of the risk involved in the applicant's continuing to use Snapper Island during the period which must elapse before the move to Jervis Bay. I am satisfied that each has done so genuinely and that the Commonwealth Government has no ulterior purpose in seeking vacant possession of the island. Persons who are not directly involved might also differ in their assessment of the acceptability of the risk. My own opinion is not legally relevant. However, it may assist the acceptance of this judgment by those associated with the applicant if I say that the evidence, an understanding of which was assisted by my inspection of the island and of its surrounds, persuades me to the Navy's view. Although the chance of an explosion is extremely small, the consequences of such an explosion to people on Snapper Island would be extremely grave. Whilst the current activities continue, a large proportion of the people on Snapper Island at any particular time will be likely to be children and young people who cannot be expected to make an informed decision as to the risk which they run. I think that it is no answer to say that other risks will remain. The respondents concede that the whole situation is unsatisfactory and that it is important that alternative arrangements be put into effect at the earliest possible moment. But, in the meantime, I think that this separate and identifiable risk ought to be eliminated.
I say that my personal opinion is legally irrelevant because the question which arises, under the two grounds of challenge which I am currently considering, is not whether, in the view of the Court, the decision was the correct one. Rather, the question is whether there was evidence to sustain that decision and whether the decision was so devoid of justification as to be properly characterised as irrational. In the latter connection the words of Lord Hailsham LC in Re W (an Infant) (1971) AC 682 at p 670 bear repetition:

"Not every reasonable exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable. There is a band of decisions within which no court should seek to replace the individual's judgment with his own."

There is evidence to support the conclusion that the proper course is to have the island vacated; and it cannot be said that such a conclusion is unreasonable. Whatever one's personal view may be, this is clearly within "the band of decisions" within which the Court may not interfere.

It follows that all of the grounds of review fail and that the Application must be dismissed. The usual order for costs must be made, against the applicant. It will be for the respondents to decide whether to enforce the order for costs. They may choose not to do, but that is a matter for their discretion. So far as the Court is concerned, there is no reason for departing from the usual practice. The respondents have succeeded on the legal issues raised and no criticism can be made of their conduct in the litigation.
During the course of the hearing I raised with counsel the possibility of some compromise of the problem. There has been a long, harmonious and mutually supportive relationship between the applicant, and its predecessor, Mr Forsythe, and the Navy. Considerable goodwill still exists. The applicant is a charity whose activities are carried on by dedicated volunteers, no doubt at considerable personal sacrifice. Despite the view I have expressed upon the acceptability of the risk, I can well understand the reluctance of the directors to relocate the museum. In a sense, the island itself is one of the exhibits. I raised with counsel the possibility that the applicant could be allowed to remain in possession pursuant to an arrangement precluding access at times when loaded lighters were tied up at the moorings, or perhaps at the moorings south of Spectacle Island. Such an arrangement would be inconvenient to the applicant, it may be unworkable, but I express the hope that, notwithstanding the decision in this case, whatever can be done to minimise the disruption to the applicant's activities will in fact be done.

[1987] FCA 570

26 OCTOBER 1987