Bridgetown - Greenbushes Friends of the Forest Inc. v Executive Director of the Department of Conservation and Land Management and ANOR P33/1997 [1997] HCATrans 332 (23 October 1997)

.D.

TRANSCRIPT

OF PROCEEDINGS

AUSCRIPT

Western AustraliaLevel 216 St Georges TcePerth WA 6000Phone [phone]Fax [phone]

HIGH COURT OF AUSTRALIA

TOOHEY J

P31 of 1997

P32 of 1997

SOUTH-WEST FOREST DEFENCE

FOUNDATION INC

and

EXECUTIVE DIRECTOR OF THE

DEPARTMENT OF CONSERVATION AND

LAND MANAGEMENT AND ANOTHER

BRIDGETOWN-GREENBUSHES FRIENDS

OF THE FOREST INC

and

EXECUTIVE DIRECTOR OF THE

DEPARTMENT OF CONSERVATION AND

LAND MANAGEMENT AND ANOTHER

PERTH

9.32 AM, THURSDAY, 23 OCTOBER 1997

HIS HONOUR: Mr McIntyre?

MR G.M.G. McINTYRE: Yes, your Honour, I appear with my learned friend, MR BENNETT, for the applicants.

HIS HONOUR: Yes, Mr Cock?

MR R.E. COCK: If your Honour please, with MR THOMSON, I appear for the respondents.

HIS HONOUR: Yes, thank you. Mr McIntyre?

MR McINTYRE: Yes, your Honour, this is an application for expedition. The learned friends on the other side have provided your Honour and ourselves with a detailed outline of what they say is the law on the topic. What it does, hopefully, is to identify some of the law on the topic and essentially, it comes down to probably the two cases; Georgeson and Grundman and your Honour's recent decision in the State of Western Australian and Ward.

It seems that in each of those cases, there was slightly different emphases, at least on what were the proper tests for determining expedition. It may be that - and it probably almost certainly is, that that difference arises because of the particular factual circumstances in the two cases.

HIS HONOUR: Yes, I think it might be difficult to formulate a test that somehow answered the question in all cases.

MR McINTYRE: Yes.

HIS HONOUR: But, really the point here is, is it not, what is the basis proffered by the applicants for expediting the hearing of the special leave application. It seems to be put largely on the footing that while an application for injunctive relief may not be necessary at this stage, at this immediate stage, for reasons that are canvassed in the papers, if the application for special leave were not heard this year, then questions of injunctive relief would assume some real importance and some urgency perhaps.

MR McINTYRE: That is right. And so, essentially, we are saying: Well, we can, by this small device, if you like, avoid that difficulty emerging which would involve parties in extra activity and costs and associated matters. If we were able to jump this small hurdle of getting the matter heard in December, then a lot of those issues might either evaporate or if not evaporate, be dealt with in a rather different context. And my learned friend makes the point that if we got special leave then we possibly would still have to apply for injunctive relief and that is likely, but the circumstances in which we would be applying would be different.

In practice, the task set to us - if we were granted special leave, which would be a different one from the one which we would have to canvass before the end of the year. If we were applying for special leave in three months time, we would have to engage in a predictive exercise, which can be done and has been done, of trying to anticipate what the result might be in a special leave application, at least on an arguable case basis. So, essentially, we are saying that we would save costs and energy, if you like, in dealing with it in this way, rather than the other.

HIS HONOUR: The applications do not or the submissions in support, as it were, do not seem to place a lot of emphasis on the early hearing of an appeal if special leave were granted.

MR McINTYRE: Well, I suppose we are jumping one hurdle at a time. If we were granted special leave in December, then I suppose we would then approach the Registrar to deal with that issue. I mean, we are happy to deal with that now, if your Honour wished to deal with it.

HIS HONOUR: No, no, it is just an observation based on reading the papers, but I can see the point that you are making. If special leave was refused, at an early stage, as it were, then that is the end of the matter.

MR McINTYRE: Yes, that is right, and we would not have to bother the registry.

HIS HONOUR: There is no further litigation involved. If special leave were granted, then questions would arise, no doubt, both as to the hearing of an appeal or appeals and the position regarding injunctive relief pending the hearing of appeals.

MR McINTYRE: Yes, that is right, and we cannot anticipate all of that at this stage. Our suggestion is that your Honour in the Ward case really applied two criteria, whether the matter would otherwise ordinarily be entitled to be heard, if not for the congestion of the list - and we fit into that category - and secondly, whether there would be any prejudice to the other party and we say that, on that test, we would readily qualify for expedition.

His Honour, McHugh J, in a rather different case, suggested three criteria: whether the applicant has real prospects of obtaining a grant of special leave; secondly, whether a substantial part of the issues involved in appeal by the applicant were relevant to issues in another special leave application which was going to be joined with them; thirdly, whether the applicant would be disadvantaged if the appeal was not heard. In accordance with - - -

HIS HONOUR: Well, Georgeson was complicated by the fact that an order for expedition would not only displace a matter and application already listed, as it were, or at least anticipated to be listed, but would also involve removing an appeal which had actually been listed for hearing from the list. So, there was a complication in that case that does not exist here.

MR McINTYRE: Yes, and when one registers the reasons for the decision of McHugh J, it is clear that the weakness of the special leave application, which was quite pronounced in that case, was a much more significant factor. It is contended against us that we ought not to be granted expedition because we will displace somebody in the list, and that that will cause prejudice to that party. Now, that is not a contention that is sustained by any evidence or probably could be in these circumstances. I mean, it may well be that somebody - some other case will move further down the pecking order, but we do not know whether that would prejudice them, of course, it may or may not.

One cannot really sensibly judge that issue in this sort of an application in these circumstances. It is also submitted against us that we are trying to rearrange the Court lists for our own convenience. Well, clearly we cannot do that and it is a matter for your Honour's discretion. But, obviously it is more than a matter of convenience, it is a matter of the more efficient running of these issues, as I say, the reduction of the amount of litigation activity which would be involved if we got the special leave determination before the end of the year, in terms of dealing with injunction application. I think probably those are all the matters which I really need to raise with your Honour. Your Honour may have had an opportunity to glance at the summaries of argument.

HIS HONOUR: Yes, I have.

MR McINTYRE: All we would say about that is, that there are matters of some degree of intricacy and difficulty.

MR McINTYRE: Yes, well I have not allowed myself to be drawn into those areas particularly.

MR McINTYRE: No, all we would say is that we are in a significantly better position than in the Georgeson and Grundman case in terms of there being some substance in the special leave application.

HIS HONOUR: Yes, thank you, Mr McIntyre. Mr Cock?

MR COCK: Thank you, your Honour. The respondents do not contend that they will be prejudiced if your Honour is to expedite the matter in the way it was suggested. Our position is primarily that we do not believe the applicants have come to the Court basing a case on sound principle and we set out what we believe the principles to be. Our primary contention being that if the applicants need or desire to bring an application interlocutory injunction in respect of any of the forests - and there are four of course, the subject of the three special leave applications - they may do so before the special leave applications are heard.

We also do not, with great respect to my friend, suggest that there will be much difference in the way in which a Court would properly approach the granting of such a request, whether before or after the special leave applications, having regard to the principles and the cases we have cited.

HIS HONOUR: Well, there might be only in this sense, not so much in the way in which the Court would approach it, but that on the hearing of the applications for special leave, the Court would be informed of a number of matters, of course, relevant to the grant or refusal. And at the end of the day, if special leave were granted, and an application then and there made for injunctive relief, it would avoid the Court going over a lot of the ground that it might have to go over if independently, an application were made for injunctive relief. I think that is the way that it is being put.

MR COCK: With respect, your Honour, we do not see it being put on the base that an application for injunctive relief will be made at the time of the special leave application.

HIS HONOUR: I know, I did not say that. What I said is that consequent upon a grant of special leave, if special leave were granted.

MR COCK: I see.

HIS HONOUR: I mean, sometimes these are done on the footing that the Court, having granted special leave, would assign one of the members of the Court to deal with the injunction, either immediately, if time were available, or shortly thereafter and in that sense, it would not be necessary for that judge, as it were, to start from scratch, if I can put it that way.

MR COCK: Certainly, your Honour, if that was to arise, obviously that would expedite somewhat the hearing of the ultimate injunctive application.

HIS HONOUR: Yes. But, it would be in everyone's interest, would it not, that this matter be disposed of one way or another. When I say one way or another, if special leave is refused, then everyone knows where they stand.

MR COCK: Indeed, your Honour, and again, I can only indicate that we do not suggest we are prejudiced if the matter is brought on in the way my friends wish. The only point we really need to highlight is that the question that will arise on an injunction application will, by and large, focus not only upon the legal issues, but also on the balance of convenience.

HIS HONOUR: Yes.

MR COCK: And it will not matter much - well, it will not influence at all, the work required in considering that element, whether the matter is dealt with before or after the special leave application. I think that is perhaps the more important point we should make. But, if the Court's lists are able to be juggled in the way my friends suggest - - -

HIS HONOUR: Well, "juggle" is an unfortunate term, Mr Cock.

MR COCK: Sorry, your Honour.

HIS HONOUR: But, adjusted.

MR COCK: Adjusted, thank you, your Honour. We have nothing - - -

HIS HONOUR: I mean, there is a problem with any application for expedition in the sense that it may - and one cannot say with certainty - displace some matter that otherwise would be heard.

MR COCK: Yes.

HIS HONOUR: Now, it is really not possible, certainly not possible for a judge sitting as I am sitting here, to make any sort of assessment of what consequences the order might have upon a particular matter. I mean, in one sense it might make no difference if it is an application for special leave where no urgency at all attaches. It might quite comfortably go over to another time.

MR COCK: We recognise, and that is really why we put in our outline, the observation that primarily, the rules place the responsibility for the determination of the lists on the registrar, he, presumably, having some knowledge, or some - perhaps, with respect - greater knowledge than your Honour about the types of cases that are presently anticipated for listing in December, but we do not push the point any more strongly than simply making the observation, your Honour.

HIS HONOUR: Yes.

MR COCK: Thank you, your Honour.

HIS HONOUR: Thank you, Mr Cock. I do not need to hear from you in reply, Mr McIntyre.

.D.

[9.45am]

HIS HONOUR: This is the second of these applications I have had recently, although based upon rather different considerations. I certainly do not want to lend any encouragement to the making of applications for expedition, but I am prepared to make such an order in each of these matters. The principal reason advanced by the applicants for that course is that an early listing may avoid a hearing aimed at securing interlocutory injunctive relief. That will certainly be so if the applications for special leave to appeal are refused.

If there is a grant of special leave, no doubt the appellants, as they would then be, would seek such relief pending the hearing of the appeals. But it does seem to me that the disposition of that aspect could be more readily dealt with by the Court, or a member of the Court, seized of the matter after the special leave hearing. The respondents do not assert any prejudice to themselves if an order for expedition were made. Indeed, it would seem to be in the interests of all parties to have the applications brought on as early as possible.

The respondents do contend that an order for expedition will have the effect of displacing an application already listed. That is a consideration for the Court and of course for anyone thereby affected, but the consequences are virtually impossible to assess without an appreciation of the circumstances surrounding other applications.

This litigation does have implications for the wider community and its resolution is, it seems to me, a matter of some urgency. As I said, the decision of McHugh J in Georgeson v Grundmann (1996) 70 ALJR 990 is distinguishable in that an order for expedition was likely not only to displace another application but to have the inevitable consequence that an appeal already listed for hearing would have to be removed from the list.

That is not the case here.

Unless counsel wish to speak to the terms of each summons, I propose an order in those terms. Perhaps I should look to you, Mr Cock. Is there anything you want to say about an order in the terms of paragraphs 1 to 4 of each summons?

MR COCK: Each order would seem appropriate to us in the circumstances, your Honour.

HIS HONOUR: Yes. Thank you. And you, Mr McIntyre?

MR McINTYRE: No, your Honour.

HIS HONOUR: Well, in each of the three applications, and I have not immediately checked, Mr McIntyre, but I take it each summons is in the same form?

MR McINTYRE: It is a combined summons for all three matters, your Honour.

HIS HONOUR: Yes, so it is. I beg your pardon. Well, it is probably appropriate to make three orders. Mr McIntyre, the date in paragraph 3, 10 December - - -

MR McINTYRE: Yes.

HIS HONOUR: - - - is not, as it now appears, accurate. It would be 8 December, which is the Monday of the second week of the sittings. So with that amendment in paragraph 3 from 10 December to 8 December, in each of these applications there will be an order in terms of paragraphs 1, 2, 3 and 4 of the summons.

MR McINTYRE: Yes. I am reminded that it may well be that we will be dealing with a combined application book. I do not think that order precludes us from doing that by arrangement. Yes.

HIS HONOUR: No, it does not. No, it does not. It is a matter between you and the Senior Registrar. Yes. Thank you, the Court will adjourn.

AT 9.55 AM THE MATTER WAS ADJOURNED

INDEFINITELY