Tricare Australia Ltd v Gold Coast City Council

[1998] QCA 387

[1998] QCA 387

COURT OF APPEAL

de JERSEY CJ
McMURDO P
MOYNIHAN J

Appeal No 10551 of 1997

TRICARE AUSTRALIA LIMITED  Appellant

v

GOLD COAST CITY COUNCIL  Respondent

BRISBANE

DATE 01/10/98

THE CHIEF JUSTICE:  This appeal is brought against a determination of the Planning and Environment Court made by Judge Skoien constituting that Court on 12 November 1997.

His Honour's actual order on that occasion as relevant today was to adjourn the appeal which was brought before him to a date to be fixed for the purpose of his hearing further evidence in order to determine whether conditions imposed under the Mixed Use Development Act were impermissible in light of his direct inconsistency approach putting those conditions into the context of prior approvals granted under the Local Government Planning and Environment Act.

Mr Gore QC, who appears today for the appellant, would seek to agitate the view that His Honour adopted the wrong test, that he should have adopted what Mr Gore styled an indirect inconsistency test based on a covering the field notion, such that if any condition imposed under the Planning and Environment Act approvals were of that wide scope, any subsequent condition imposed under the Mixed Use Development Act trespassing into that area would necessarily be invalid.

When the matter came on this morning, I raised initially some concern as to whether it was appropriate for the Court to determine the matter.  That was based on my concern that testing at this stage the validity of His Honour's approach with relation to the question of law may not ultimately be helpful to the parties because of the necessity for ultimate factual determinations in the Planning and Environment Court.  My feeling was at that stage that it may be better to let the Planning and Environment Court proceed to a final determination on the issue and then assess the validity of its approach in law should the parties then wish us to do that.

Mr Gore did however urge that this Court continue with the matter now on the basis that if we were satisfied that his approach to the construction of the legislation were correct, then the scope of any further hearing in the Planning and Environment Court would be substantially circumscribed at least.

Mr Gore concedes that even if his approach is correct, there will need to be some further hearing on the facts in the Planning and Environment Court, but as I say, it would be much more limited, he assures us, than if the matter now proceeds in the ordinary way before that Court, assuming as the learned Judge will, the correctness of the legal construction he has placed on the legislation.

When we pressed Mr Gore about the matter, it did seem to me to emerge quite clearly that even accepting his approach, substantial factual questions would nevertheless remain.  But even in testing his approach, factual questions will necessarily arise.  It would be necessary for this Court, for example, to reach some understanding of the scope of certain rezoning conditions.  Particular reference was made to clause 6(b) in that regard, but no doubt there are others.

It may be said that this Court does not necessarily have the sort of highly refined expertise which the Judges who constitute the Planning and Environment Court would have with relation to that particular discipline.  There is no need for the Judges of this Court to have that particular expertise because, and it is rightly limited, the jurisdiction here depends upon the existence as relevant today of mistake in law only.

Of course there is ultimately some discretion in the Court and if I were persuaded that the extent of any residual factual inquiry might be so limited as to warrant our proceeding now safely to determine the question of law thereby perhaps saving the parties a large amount of money and inconvenience into the future, I would be inclined to proceed.  But I regret to say that I cannot reach that degree of satisfaction.  I think it will be better if the matter proceeds now to an ultimate conclusion before Judge Skoien and then if the parties wish, his conclusion may be tested by reference to any questions of law involved in it.

I am conscious that a large amount of money no doubt has been spent in preparing the material which is before the Court on this occasion and I will propose adjourning this appeal to a date to be fixed in the particular hope that this material can then be used on any further appeal, simply supplemented by additional material necessary to reflect what happens from this point on.

I would adjourn the appeal to a date to be fixed and reserve costs.

THE PRESIDENT:  I agree.

MOYNIHAN J:  I agree.  It is clear that whatever outcome occurred if this Court dealt with the matter now would involve the matter going back to the Court below for factual findings to be made.  That itself would carry implications of the prospect of a further appeal.  In any event I am not persuaded that the matter could be formulated and dealt with here in such a way as to obviate the intrusion of factual issues or to avoid the determination of factual issues in order to resolve what would otherwise be hypothetical questions.

THE CHIEF JUSTICE:  Adjourn the appeal, costs reserved.