Ventana Pty Ltd v Federal Airports Corporation

[1996] FCA 884

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY       )        No VG 127 of 1995

)

GENERAL DIVISION                 )

BETWEEN:  VENTANA PTY LTD

(Applicant)

AND:     FEDERAL AIRPORTS CORPORATION

(First Respondent)

AND:     FAIRWAYS GROUP PTY LTD

(Second Respondent)

AND:     FAIRWAYS LEISURE MARKET PTY LTD

(Third Respondent)

CORAM:    Ryan J

DATE:     3 October 1996

PLACE:    Melbourne

REASONS FOR JUDGMENT

RYAN J:   There is before the Court a motion to vacate the trial of the application in proceedings numbered VG 127 of 1995 which is listed to commence on 16 October 1996 and to occupy three hearing days.  The basis of the application is the recent enactment of the Airports Act 1996 and the Airports (Transitional) Act 1996. It is common ground that that legislation will impose a specific planning and land use regime on a "core-regulated airport" or an airport specified in the regulations if there is an "airport lease" as defined for the airport. The present litigation raises the issue of whether the Federal Airports Corporation Act obliges the Federal Airports Corporation to comply with the planning and
environmental regulatory processes provided for by the Planning and Environment Act 1987 (Vic) in respect of the development and operation of retail activities at Moorabbin Airport.

I am told that there is presently conducted at the Moorabbin Airport a weekend market embracing some 200 stall holders as sub-tenants or licensees of the Federal Airport Corporation.  A similar application or action was instituted in the High Court and has been remitted to this Court and has been given proceeding number VG 460 of 1996. In that action the applicant is PT Limited and the respondents are the Federal Airports Corporation and Schwartz Hart Pty Ltd.  I am further told that the applicant in that application is related to the applicant in proceedings numbered VG 127 of 1995, both being members of the Westfield group of companies.

For the applicant it is submitted that the possible extension by Ministerial decision of the Airports Act and the Airports Transitional Act to Moorabbin and Essendon Airports will render academic and, for practical purposes, futile the resolution of the issue which I have just identified.  Accordingly, it is urged that the trial should be deferred until the intended application of the two new Federal Acts has been clarified and to allow the Moorabbin litigation to be heard and determined at the same time as, or immediately before, the Essendon litigation (VG 460 of 1996).  As I apprehend, there is no serious objection to the latter course by the respondents to either application.  However, it has been strenuously urged on behalf of the respondents in the Moorabbin litigation that the existing hearing dates should not be vacated.  It has been ascertained that if the hearing fixed to commence on 16 October this year were vacated, the matter could not be given another fixture before the end of this year.

I am fully alive to the concern of the applicants to have an opportunity comprehensively to analyse the new legislation and to explore, through political or other channels, the prospects of its being extended to Moorabbin and Essendon Airports in the near future.  However, I am not persuaded that those prospects are sufficiently certain for them to outweigh the prejudice to the respondents which would be occasioned by a delay until next year in the resolution at first instance of the issue to which I have referred.  I consider that a preliminary question can be formulated which will allow the Essendon proceedings to be heard together with the Moorabbin proceedings, at least to some extent, even if certain factual questions depending on the provision of discovery or other interlocutory steps have to be deferred.

I shall, therefore, refuse the motion to vacate the hearing date but I shall give directions for the hearing of an appropriately formulated preliminary question in the Essendon proceedings to occur concurrently with the trial of the Moorabbin proceedings, which shall remain fixed to commence on 16 October 1996.  In the circumstances I consider it appropriate to reserve the costs of all parties of the motion before the Court including today's hearing.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan.

Associate:

Date:

Counsel for the Applicant:       Mr H. McM. Wright, QC

with Mr N. O'Bryan

Solicitors for the Applicant:        Holding Redlich

Counsel for the First

Respondent:  -

Solicitors for the First             Dr G. Rumble,

Respondent:  Blake Dawson Waldron

Counsel for the Second and

Third Respondents:               Mr P.D. Santamaria

Solicitors for Second and

Third Respondents:               Minter Ellison

Date of Hearing:                 3 October 1996

Date of Judgment:                3 October 1996