The Crown v Murphy

[1989] HCATrans 280

..

•

• 'l6

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.

Copyright in the High Court of Australia

C2TJ·6,I 1./ JH 1 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 State Government

Departments' - vide part of contents

of letter produced by Dennis Arthur

Byrnes

and so on. Then, a little lower down in the middle

of the page:

Upon reflection -

and this was the council officer who had made recommendations in relation to the decision -

he is now firmly of the view that the only

possible reason for Council's refusal of

the application for rezoning was the

protection of the rookery. He claims that

there were no grounds from an engineering

and town planning aspect for its refusal.

Now, that was in the land court. Could I ask

Your Honours then to look at the land appeal court's

decision at page 25 of the book, point 9:

Correspondence tendered in evidence

illustrates that the Woongarra Shire Council

and the National Parks and Wildlife Service

..... were mutually concerned for the

protection of the turtles and that the

Council was prepared to refuse to rezone the subject land with the intention or the hope

that the Crown would resume.

And then, Your Honours, at page 27 point 2:

It was submitted for the dispossessed owners

that the Council had refused rezoning

approval and held the land in its rural

interests of protecting the turtles.

zon.ing following the representations of the the

This may be assumed to be quite correct.

C2T36/3/JH	3	17/11/89
Murphy

GAUDRON J:  But do you not have to go further down that

page, Mr Callinan, to the last ·two sentences in

that paragraph?

MR CALLINAN:  Yes, certainlY, Your Honour, but could I go

beyond those sentences also to the next paragraph,

about point 8, the sentence beginning:

It is immaterial that in addition to that basic situation the Council's refusal to rezone the land was accompanied by the

intention or hope that the Crown would resume

it. This merely demonstrates the strength

of the Council's opposition to the development.

The point of my submission is that even if there

may have been some quite proper purposes which

operated upon the council's mind,on any view of the

matter there was at least one improper purpose

and that was the desire, indeed, the fulfilment

of the wish by the National Parks Department that

it would obtain the land at a cheaper price if

ultimately it did come to resume it and there was

undisputed evidence to that effect to which I will

take Your Honours as it appears from the reasons

for judgment in the Full Court. At present I am

merely taking Your Honours to those passages in

all of the judgments, except perhaps for the judgment

of the dissenti..'i-ig judge in the Full Court, in which

it was common ground that one purpose was an

improper purpose. And on that basis, it is right

to approach the matter upon the assumption that the

council's decision to refuse to rezone was and must

have been vitiated by bad faith.

GAUDRON J: But where does that take the matter, Mr Callinan,

because in the Court of Appeal there was an appeal

as on a question of law?

MR CALLINAN:  Yes.

GAUDRON J:  The question of law which emerged in the Full Court

was this, was it not, whether or not the land

appeal court made any error of law in reaching the

decision that, as at the date of resumption, ,an owner

would have been faced by a council that reasonably

opposed rezoning?

MR CALLINAN:  No, with respect, Your Honour.

GAUDRON J: Well, what was the question of law in the Full Court?

MR CALLINAN:  The question of law in the Full Court was whether,

simply because the council may have taken into

account some valid considerations in determining

C2T37/l/CM	4	17/11/89
Murphy

whether to rezone, the council's decision not to

rezone was vitiated by bad faith.

GAUDRON J: What does the council's decision about rezoning

have to do with the valuation upon resumption, other

than in relation to the finding of the land appeals

court, that as at the date of resumption an owner

would have been faced with a council reasonably

opposed to rezoning at that date?

MR CALLINAN:  But Your Honour, with great respect, makes the

assumption that the opposition was reasonable.

GAUDRON J:  ~o, it is the finding, Mr Callinan,-that was

the finding of the land appeals court, was it not?

If you go to page - - -

MR CALLINAN: Yes,it was, I accept that, with respect, but - - -

GAUDRON J: Yes. And then the question for the Full Court could

only be, could it not, whether there was an error

of law attending that finding?

MR CALLINAN:  ~o, with respect, because if one puts that

question aside, there were other errors of law to

which I will point. Indeed, I have alreaoy pointed to

one. But could I come back to Your Honours question.

Your Honour puts to me the proposition that there
was a finding in the land appeal court that the council

was reasonably opposed. That is not, with great

respect, a mere finding of fact.	Bound up in that
is inevita~ly·a-questio~-of law.

(Continued on page 6)

C2T37/2/CM.	5	17/11/89
Murphy

MR CALLINAN (continuing):  Once one inserts the word

"reasonably", one has to take into account the
matters, which, by common consent, influence the
council, one of which was, the desire of the
council not to rezone in order that the State government

might get the land at the cheapest possible price.

BRENNAN J: Well, that only has the effect, Mr Callinan, of

perhaps vitiating a decision by the council not to

rezone to an appropriate zoning category.

MR CALLINAN:  Yes.

BRENNAN J: It could never affect the rezoning to an appropriate category. At most all it could do would be to vitiate

one decision and require the council to start it all

again, leaving that out of account, :and that leaves the
question, whether or not the council was opposed, on

reasonable grounds to rezoning, leaving that

extraneous or inadmissible consideration out of

account.

MR CALLINAN:	But, Your Honours, we had the benefit, in the court below, and indeed in the passage which I have
read you, from the land appeal court, the benefit of a finding that the council had taken into account - if
I characterize them this way - these irrelevant
matters, and as His Honour Mr Justice Connolly observed
in the Full Court, one is entitled to approach the matter upon the basis that the council will obey the
law and will act reasonably.

GAUDRON J: Yes, well now, what is the benefit to your client,

Mr Callinan, of that finding in relation to
the proceedings before the Full Court? It does not

seem to have been referred to in the Full Court.

MR CALLINAN: Implicitly it is, with respect, I can take

Your Honours to it.	I had not come to the Full Court's
discussions of this aspect of the matter, but I will

do so shortly. But, Your Honours, I do have the

benefit of the finding,which I have just read to you
at first instance which does not seem to have been
overturned in the land appeal court,that the
resonsible officer, who was then employed by the
council, on reflection, regarded the matter of
the turtles and the government's wish in relation to
the turtles as being the decisive matter when the

council reached its decision.

GAUDRON J: Yes, but I just do not see what the benefit is

of that finding. Certainly you have that finding -

I just do not see its significance or relevance and,

in particular, what you call, its benefit.

C2T38/l/FK	6	17/11/89
Murphy

MR CALLINAN: Well, at the very least, I have the benefit

that Your Honour the presiding judge referred to.

I submit it is more than that, but at least the

benefit of the proposition that it may be assumed

that the council, in dealing with the application,

would not be and should not have been influenced

by this extraneous improper purpose. Now, that

changes the whole complexion of the way in which

one approaches, or should approach,the prospects of

success of a rezoning application on the relevant

date, that is the date of the resumption. I have

got, at least, the benefit of that. In my

submission, it extends beyond that. It may be

assumed that the council would act reasonably.

BRENNAN J:  But, is not your problem this, Mr Callinan,

that in determining what is reasonable, in order

to determine what the council's hypothetical
decision should be on rezoning, the Full Court

in the majority, has held that the turtle rookery is

not, itself, a material factor which the council

would.have been entitled to take into account?

(Continued on page 8)

C2T38/2/FK	7	17/11/89
Murphy

MR CALLINAN:  Your Honour, no, I appreciate, with respect,

the force of Your Honour's question, but the decision

of the Full Court does not depend upon that. Could

I take you to page 58 point 2 of the application book?

What I wanted to point to there was the first

complete paragraph that begins on that page where,

His Honour, writing for the majority, said:

The conclusion to which all this brings me is

that, as a matter of law, the appellants were

entitled to have their application for rezoning

considered free, not only of the pressures of
the National Parks and Wildlife Service on

the local authority -

Could I pause there, Your Honour? That finding
would have been sufficient to justify - and it is

a finding of law, really - that finding would have

been sufficient for us, and is sufficient for us,

to sustain the decision. His Honour goes on to

say it is true:

but without regard for the possible impact
of a subdivision which might follow upon

the rezoning upon the turtle population.

BRENNAN J: If that proposition be right, then the assessment

of compensation must proceed on the footing that

that factor would not have been taken into account

and the council, accordingly, would have granted a

rezoning.

MR CALLINAN:  On the balance of probabilities the council

would have granted a rezoning. Taking into account

proper matters that council would have granted a

rezoning.

BRENNAN J: Well, if that latter part of the proposition is

erroneous, then the basis of assessment of

compensation is erroneous.

MR CALLINAN:	Your Honour, I do not seek for the purposes of the argument for presently. If the matter went on
appeal it might be entirely different but for
present purposes I do not rely upon that and I do
not need to rely upon that second arm, as I would
put it, of His Honour's decision.

GAUDRON J: Well, Mr Callinan, that is where I have some

difficulty. You say you do not need to rely on the
second arm, but if you go to page 27 of the

application book and the very last sentence in the

first whole paragraph, there is this:

That does not mean that if this scheme had

never been introduced there was not a

situation which would have militated against

the rezoning of the subject land.

C2T39/l/DR	8	17/11/89
Murphy

And that is what the finding was by the land appeals

court and -

MR CALLINAN:  I accept, of course, what Your Honour says. It

is there - - -

GAUDRON J:	- - - the land appeals court then said, did it not, that quite apart from the resumption the council
would have been reasonably opposed to the rezoning?
MR CALLINAN:	Yes, I know the passage Your Honour is

referring to but, Your Honours -

GAUDRON J: Yes, it is the last paragraph on page 27:

We cannot fail to look at the position that, had there never been a scheme of

positive action of which the resumption

was an integral,part, the position would

have been that the land would have already
had a Rural zoning and any proposed
developer would have been faced with a

Council which would have been strongly

and reasonably opposed to any rezoning.

Now, that seems to me to be the finding of the land appeals court against you, is it not?

MR CALLINAN: Yes, but of course, it is a finding, we would

submit, that is not open because that simply was

not the factual situation.

GAUDRON J: No, they had to consider the hypothetical situation.

(Continued on page 10)

C2T39/2/DR	9	17/11/89
Murphy

MR CALLINAN:  Well, no, with respect, because - could I take

it this way? Your Honours have read the judgments

and Your Honours would know that there had been

a planning application which had been rejected

previously in relation to a nearby parcel of land.

After the rejection of that there was some subsequent

negotiations and indeed, a subdivision, albeit on a

somewhat limited basis, was allowed by the council

in relation to that other land. Now, what had happened

in the meantime, of course, was that after the
application for rezoning was made in respect of this,

the subject land, it only became apparent subsequently,

that is on the hearing of this claim for compensation,

that there had been this improper, we would submit,

intervention by the State g~vernment department.

All I am doing - I do not want to go to a long

discussion about the facts, I know that is the last

thing the Court would be interested in at this stage.

But there were specific facts which had to be dealt

with here, and at the forefront of those specific

facts was an improper purpose. And the land appeal

court left out of account entirely, in our submission,

that improper purpose. And it is not to the point,

in our submission, to go to the hypothetical situation.

Not only did the - - -

GAUDRON J:  But that is not the basis on which the Full Court found in your favour, is it?

MR CALLINAN: Well, of course, it is my submission that it is,

in effect, because - - -

McHUGH J:  If you look at page 44 where Mr Justice Connelly

identified what he regarded as the central issue,

44 point 5, he said:

the central point being whether it was
open to either of the courts below to
have regard to the likelihood that

residential subdivision of the subject

land would not be permitted in the interests

of the turtle population.

MR CALLINAN: Well, if one reads that in isolation, of course,

I would be bound to agree with Your Honour, but indeed,

although it is right of course that His Honour describes

it as the central point, as he develops his reasons
it can be seen that the central point is really the

point to which I have referred at 58point 2. Your Honours,

could I take you, for example, to demonstrate this

point, to 46 at about point 3, about the sixth

line. His Honour said:

The second ground was that subdivision would

effectively re~der the land unavailable for
acquisition for nature conservation purposes.

This latter point is heavily emphasised in paragraph 2.2 of the document where the point

C2T40/l/LR	10	17/11/89
Murphy

is made that while the subject land

remains rural, it is likely that it will not

cause the loss of the rookery and there is
always the possibility of the Crown purchasing

at a fair market price if acquisition is

deemed necessary. It is contended however

that if the land is subdivided and built on,
the option of Crown purchase is virtually

lost as the cost becomes prohibitive -

and so on. And the government will not face the

unpopular political choice of dispossessing occupants.

Now, if Your Honours read that and Your Honours read

- I will not read it again, but the passage to which

I have pointed at 58 point 2, the judgment can be sustained

on those grounds. The other point I want to make is,

Your Honours, that on any view of the matter - - -

McHUGH J:  What about at page 59, the last paragraph, where

His Honour said:

I read the judgment of the land appeal court

as deciding that the rezoning application

must necessarily have been refused without

the intervention of the National Parks

and Wildlife Service.

MR CALLINAN:  I am sorry at 59, Your Honour? I did not hear

the -

McHUGH J: It is the first sentence in the last paragraph.

(Continued on page 12)

C2T40/2/LR	11	17/11/89
Murphy

MR CALLINAN:  Yes well, Your Honours, I do not rely upon

that passage and I do not have to rely upon that

passage in the reasons of His Honour

Mr Justice Connolly; the ratio is really in the

passage to which I have pointed on page 58 point 2.

The rest of the consideration was really

unnecessary after His Honour reached that

conclusion.

GAUDRON J:  Well, again, I do not think that is right,

Mr Callinan. Even if it were right to say that

they were entitled to have their application for

rezoning considered free of the pressures of the
National Parks and Wildlife Service, that does not
take you to the point as to the inevitability
or even the probability of rezoning from rural

to residential A, I think it was, as at the time

of the resumption. I mean there is no doubt that

when it was resumed it remained rural land and

and it would be valued simply on the basis of

rural land with whatever value attached to it by reason of the probabilities of its being rezoned.

So you still have to go, I would have thought, to

address the probabilities of rezoning.

MR CALLINAN:  That, of course - could I accept, with respect,

what Your Honour says to me for the purposes of
the argument - goes to the point that in any event
the Full Court held that the matter should go back

to the land appeal court for further findings.

BRENNAN J:  But to go back on the footing of this problem

about what is involved in the environment.

MR CALLINAN:	Yes.
BRENNAN J:	That is why I put to you before that whatever

assessment is made under the influence of this

judgment must be made upon that basis.

MR CALLINAN:  Yes but, Your Honour, of course my response

to that - I do not want to be repetitive - is that
the matter really goes back and can go back upon

the basis of the finding at page 58 point 2 to

which I have referred but I am repeating myself and

I will not say that again. Unless Your Honours have

any more questions of me in relation to that

aspect there are some other matters that I would

like to point to if I may.

BRENNAN J:	Yes.
MR CALLINAN:	Your Honours, we would submit that at least

the amount which was found in the land court at first

instance can be sustained upon the basis of some

evidence which is narrated and which was virtually

C2T41/l/JH	12	17/11/89
Murphy

unchallenged, indeed, was certainly uncontradicted.

It was narrated at page 8 by the land court member

at first instance. Could I just say this by way

of introduction? There was a two-pronged approach

in the land court. First, there was a challenge to
the proposition that the land had no potential

for rezoning or for subdivision because it could not

be rezoned. The other approach was, if one were

to assume that the land can only be used in such a

way as would not interfere with the turtles or the

turtle rookery, then it had undoubted potential

for the development of a tourist resort which was

worth at least a million dollars.

(Continued on page 14)

C2T41/2/JH	13	17/11/89
Murphy

MR CALLINAN (continuing): That appears at page 8 in

the second last paragraph. Mr Weigh was

called, development manager for the

Queensland Tourist and Travel Corporation,

which is a ~ueensland statutory body:

but formerly also in the employ of -

that is a firm of engineers and town planners

is impressed with the Mon Repos site

as a potential tourist oriented

development site due to the presence

of the-turtle rookery and to-the

elevated nature of the land. Mr Weigh

envisages an ultimate concept to be for

open space development with low rise

units and compliementary landscaping.

Bure style units in groups of four are

..... preferable ..... Mr Weigh presented a

feasability study for this style of

development from which he concludes that

the value of the resumed land to a develoner

would be in the vicinity of $1,000,000. ~

He seems to have accepted the evidence, but in the end, of course, he found an amount

considerably lower than that. We would

seek to rely upon that uncontradicted evidence

to justify -

BRENNAN J: Where does that take you in terms of the

Full Court's decision on a question of law

only?

MR CALLINAN:  I understand what Your Honour is saying

to me, the matter just simply was not dealt
with in the Full Court. It was certainly

never abandoned, indeed it was argued in the

Full Court. The matter just simply was not

dealt with. But it is uncontradicted evidence;

it is inherently probable and it certainly

justifies the amotmt for which we would contend.

BRENNAN J: That is in the land court, you have just

taken us to?

MR CALLINAN:  Yes, it is not referred to - - -

BRENNAN J: And it goes then to the land appeal court?

MR CALLINAN:  Yes.

BRENNAN J: And the land appeal court is a rehearing,

is it not?

MR CALLINAN: Literally a rehearing with oral evidence.

One can call whatever witnesses one likes again.

C2T42/l/JM 14 17/11/89

Murphy
BRENNAN J: Anc1. then there is an appeal on question of law

only to the Full Court of the Supreme Court?

MR CALLINAN:  Yes.

BRENNAN J: This is an application for special leave

from the last of those judgments.

MR CALLINAN: Yes.

BRENNAN J:	So are we not constrained to consider the question of the questions of law which were
agitated on appeal to the Full Court of the
Supreme Court and those alone?

MR CALLINAN: Certainly if Your Honours give leave

I would be contending that we would be

entitled to cross appeal or perhaps file

notice of contentions to support this,

that on a grant of an application for s~ecial

leave the Court may confine the applicant

but does not ordinarily confine the respondent.

BRENNAN J:  But if leave were granted it would be leave

to the Crown and that with a view to setting

aside the judgment of the Full Court

and that would leave the judgment of the

land appeal court intact?

MR CALLINAN:  Unless I could persuade the High Court

that independently of the "environmental

considerations", or indeed taking them

properly into account, the value should be

at least $570,000 for a tourist resort.

BRENNAN J:  Mr Callinan, the problem I see about that is

that that was not a subject which was agitated

before the Full Court of the Supreme Court
either by way of notice of contention or

otherwise.

MR CALLINAN:  I think, with respect, it was, Your Honour. I will check it but I am almost certain that

it is a ground of appeal. Your Honours, we

never abandoned this argument, indeed it was

specifically argued in the Full Court.

BRENNAN J:  Was this a question which was raised for the

consideration of the Full Court?

MR CALLINAN:	Yes.
BRENNAN J:	As a question of law?

C2T42/2/JM	15	17/11/89
Murphy

MR CALLINAN:  Yes, it was,Your Honour, in the sense that

it was submitted that the evidence was uncontradicted

and, as a matter of law, it should have been

accepted.

BRENNAN J: And was not dealt with by the Full Court?

MR CALLINAN:  No.

BRENNAN J: Then may it be a question of if you ~·Jere unsuccessful

on the aspect which the applicant seeks to

agitate, if special leave were granted, might this

be a problem which would have to be sent back to

the Full Court for further hearing?

MR CALLINAN: Well, naturally if I could avail myself of that,

I would like to do so. Although I would like to be able to embrace that, Your Honour, we would submit

that it is a matter that could also be dealt with

by the High Court, because the Full Court is in no

different a position in the sense that it is confined

to questions of law.

GAUDRON J:  But does not that evidence go to the time of the

refusal of the rezoning application and not the time

of resumption, by which time, of course, the

environmental impact statement policy had been

adopted?

MR CALLINAN:  No, because this was not inconsistent with the

environmental - two things we would say. First it

is not necessarily inconsistent with the environmental

impact statement and secondly, the environmental
impact statement is not written in stone. One still

has statutory rights in Queensland to appeal against

a decision of a local authority and that appeal is

heard by a court of record; a local government court

which is a division of the district court. So that

is not conclusive and the fact that that has come into

existence - it is true, of course, that courts and

councils have regard to it, but our primary answer is

that Mr Weigh's proposal was not necessarily inconsistent

with the statement.

GAUDRON J: But that is somewhat different from erecting a

proposition of law that that evidence must have been

given weight and given effect by a finding in your

favour, at the date of resumption.

MR CALLINAN:	But I am sorry, Your Honour, one cannot ignore the refusal of the rezoning for one purpose and take
it into account for another purpose to be used
against us. One takes into account all the history of the land up until the date of the resumption and
part of that history is that an application for rezoning
had been refused. Part of the history is that there had

C2T43/l/CM	16	17/11/89
Murphy

been the prom.ulgation of an environmental impact

statement and equally part of the history is the

fact that the land has been shown to have,

demonstrably, . a utility for another purpose that

was not in conflict either with the environmental

impact statement or with the general wishes and

desires of the Wildlife and Natural Park Department.

BRENNAN J:  Mr Callinan, as this point was not canvassed in

the judgment of the Full Court, it seems to me that in order to raise it, if special leave were granted to the applicant to appeal, it would be necessary

for you either to lodge a statement of contention,

or to obtain leave to cross appeal, if that was

the course which you were advised to take. In either

event it seems perhaps not appropriate for us to

deal with it on present application, which must be
considered I should have thought on the footing of

the questions that have been debated with you thus

far.

MR CALLINAN:  Yes. I only pointed to it to show that it was

our submission that the amount could be justified

by reference to that matter and I will not say

anything more about it than that.

McHUGH J: You rely on it as a discretionary ground for

refusing leave?

MR CALLINAN:  Yes, I do. And its uncontradicted nature, of

course, is a powerful consideration, in our submission,

in that regard. Your Honours, there is only one

other matter that I wish to point to and that is

here,of course,that the applicant is also the

legislating authority. It is the Crown, it is the State

government, and any uncertainties in relation to

the meaning of - - -

McHUGH J: It is not the same thing as the legislature.

MR CALLINAN:  Yes, I am sorry. I did not hear what Your Honour - -

(Continued on page 18)

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McHUGH J:  I said, "The Crown is not the same thing as

the legislature".

MR CALLINAN:  No, but, in fact, in a real sense it is because

that party becomes a party by virtue of the CROWN

PROCEEDINGS ACT in Queensland. It is certainly

within the capacity of the Crown, advised by the
legislating authority, to change the law - to
resolve any doubts or deficiencies that there may
be, in the LOCAL GOVERNMENT ACT with respect of

the meaning to be attributed to environment.

Your Honour understands my submission. Thank you,

Your Honours .

BRENNAN J:  Thank you, r:r Callinan. lfr C-J::"iffin, vre -would like to r..ear

from you on a-x> points : first, why your application, if it

should succeed, should not be limited to grounds
(c) to (g) in your draft notice of appeal, and,

secondly, what you have to say with regard to the

matter that Mr Callinan last discussed and whether

or not, if there by substance in that point, how it

could be dealt with, having regard to the stage at

which the proceedings have now reached.

MR GRIFFIN: That, Your Honour, was the point about Mr Weigh's

evidence?

BRENNAN J: Yes.

MR GRIFFIN:  Your Honours, on that point, we would point out

that even the land court did not base its assessment

upon Mr Weigh's evidence, which was to the effect

that, as a tourist development, the property would

be properly valued at $1 million.

BRENNAN J:  No, the problem is this, Mr Griffin, it is not a

question of whether the evidence should have been
accepted or not or how it 'W3.S based; Mr Callinan has

put the argument that there was uncontradicted

evidence which should support an appeal to the

and it is upon that evidence which the Full Court	Full Court from the land appeal court's decision,
has not passed. Mr Callinan would seek to uphold
the order of the Full Court by reference to that
evidence. In what way should that argument be
considered and by whom?

MR GRIFFIN:	It is a question of fact, and Your Honours might be assisted in this regard by the opening words
of Mr Justice Williams' judgment at page 64, where
he pointed out at the middle of the page that the appeal to the Full Court was:

pursuant to s. 45 of the LAND ACT -

and was:

C2T44/l/FK	18	17/11/89
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limited to grounds "of error or

mistake in law on the part of the

Land Appeal Court".

He proceeded to say that:

The Notice of Appeal -

had:

dressed up a number of questions relating purely to matters of fact as questions of

law -

and we would venture to suggest that this was one of them.

·BRENNAN J:  We do not have the notice of appeal to the Full Court,

do we?

(Continued on page 20)

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MR GRIFFIN:  You do not have it in the application wook,

Your Honours. There was a ground - I am just

having it looked up. It was ground 17. It

was to this effect: "Further or alternatively the
land appeal court should have accepted the
uncontradicted evidence of Mr Weigh that the land
had a value of about $1 million for tourist or like

purposes."

BRENNAN J:	Yes.
MR GRIFFIN:	From that, we would submit that the Full Court simply treated the matter as a question of fact.
Your Honours, as to the other point, Your Honours
are, in effect,asking me why the question of the
be before the Court on the hearing of the appeal. environmental impact policy statement should not page 98 - - -
GAUDRON J:	I think the question is, Mr Griffin, why the

grounds should not be confined to those in (c), (d),

( e) , ( f) , and ( g) .

MR GRIFFIN: Yes.

GAUDRON J:  I am sorry, I am at cross ourposes. You are

at ground (h), are you?

MR GRIFFIN:	Yes, I am, Your Honour.
GAUDRON J:	I am sorry.
MR GRIFFIN:	What that would leave out, in effect, would be

the validity of the environmental impact policy

statement and the - - -

GAUDRON J:  But does that bear on the matter other than

incidentally in this sense, that if you come to

the conclusion that the environment includes the rookery, then the environmental impact statement

is a matter which can be looked at?

MR GRIFFIN:  Yes, it is probably a matter that is more

significant in relation to the special leave

application in the sense that the ultimate finding

of the Court would have a bearing upon the validity

of that statement. So we would have no objection

to (h) not being ventilated.

BRENNAN J:  I think we are minded to allow you to leave (h)

in if you are so advised, Mr Griffin.

MR GRIFFIN: If the Court pleases.

BRENNAN J:	But that would exclude (a), (b), and (i).
MR GRIFFIN:	Yes.
C2T45/l/LR	17/11/89
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BRENNAN J:	Do you have any difficulty with that?
MR GRIFFIN:	No, Your Honour.
BRENNAN J:	We do not need to hear you any further, I think, Mr Griffi

MR GRIFFIN: If the Court pleases.

BRENNAN J:  Mr Callinan, have you anything further to say

in relation to any of the matters raised with

Mr Griffin?

MR CALLINAN:  No, Your Honour.

BRENNAN J: In this matter, the Court is of opinion that special

leave should be granted to appeal, limited to
the paragraphs (c) to (h) in the draft notice of

appeal.

AT 12.39 PM THE MATTER WAS ADJOURNED SINE DIE

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