The Crown v Murphy - [1989] HCATrans 280

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B35 of 1989
B e t w e e n -

THE CROWN

Applicant

and
D.R. MURPHY AND COVE HOUSE
AUSTRALIA PTY. LTD.

Respondents

Application for special
leave to appeal

BRENNAN J GAUDRON J McHUGH J

Murphy

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 17 NOBEMBER 1989, AT 11.54 AM.

C2TJ·6,I 1./ JH

17/11/89

MR J.A. GRIFFIN, QC:

May it please the Court, I appear with

my learned friend, MR G.J. GIBSON, for the
applicant. (instructed by the Crown Solicitor for
the State of Queensland)

MR I.D.F. CALLINANf QC:

May it please the Court, I appear

with my earned friend, MR P.J. FAVELL, for the

respondent. (instructed by Flower & Hart)

BRENNAN J:

I think we would prefer to hear Mr Callinan

first.

MR GRIFFIN:	If Your· :-fo:10ur vleas~s.
BRENNAN J:	Yes, Mr Callinan?
MR CALLINAN:	May it please the Court, in our submission,

in all three courts below it was found that a
major, if not the absolutely dominant consideration
adopted by the council in rejecting a rezoning -
Your Honours would appreciate that there had been
a rejection of a rezoning - was the wish of the
State government to protect the interests of State
government departments and to enable the government
to get the land at the cheapest possible price,
and I will take Your Honours very briefly to those
passages in each of the three judgments below.
It is, therefore, cormnon ground on any view of the
matter at all that the council decision must have
been vitiated by bad faith and it was, therefore,
right for the land court and the Full Court to
hold for the respondents.
Your Honours, could I take you to the passages,

I can do it fairily quickly, in the application book at page 6 point 1 in the decision of the land
court member - perhaps I should start at the foot
of page 5:
It was stressed during the course of the

case from the claimants' side of the bar table that the principle reason for council's
refusal to grant the rezoning application was

the Crown's (through the Department of objection to it, and that the ultimate resumption of it ..... was the fulfilment of the scheme of resumption because of the existence of the turtles.

Then a little further down at about point 7,
about the middle of the next paragraph:
I find, after considering written
submissions on the point, that the
resumption is part of the scheme for the
protection and preservation of turtles.

C2T36/2/JH	2	17/11/89
Murphy

Then over the page, and this is probably the key
passage in the land court members' decision,
about point 2 on page 7:
Further, it is clear that the
Woongarra Shire Council, in rejecting
the rezoning application, was of the
belief that it was "protecting the
interests of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Crown v Murphy

Details

AGLC: The Crown v Murphy [1989] HCATrans 280
Case: [1989] HCATrans 280
Decision Date

CaseChat Overview and Summary

The parties before the High Court of Australia were the Crown, as the applicant, and D.R. Murphy and Cove House, as the respondents. The dispute concerned the rejection of a rezoning application by a local council. The High Court was hearing an application for special leave to appeal.

The legal issue before the court was whether the council's decision to reject the rezoning application was vitiated by bad faith. Specifically, the court was required to determine if the council's decision was improperly influenced by the State government's desire to acquire the land at the lowest possible price and to protect the interests of State government departments, rather than by genuine planning or engineering considerations.

The court was presented with submissions that in all three lower courts, it was found that the dominant consideration for the council's rejection of the rezoning was the State government's wish to protect its interests and acquire the land cheaply. Counsel for the respondents argued that this common ground meant the council's decision must have been vitiated by bad faith, justifying the decisions of the Land Court and the Full Court to find for the respondents. The court was referred to passages in the judgments of the lower courts which indicated that the council's refusal was based on the protection of turtles and the interests of State government departments, with no apparent engineering or town planning grounds for refusal.

Orders