HA Bachrach Pty Ltd v The State of Queensland and ORS B16/1997 [1998] HCATrans 252 (25 June 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B16 of 1997

B e t w e e n -

HA BACHRACH PTY LTD

Plaintiff

and

THE STATE OF QUEENSLAND

First Defendant

CABOOLTURE SHIRE COUNCIL

Second Defendant

KEYLIM PTY LTD

Third Defendant

GLEESON CJ

GAUDRON J

GUMMOW J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 25 JUNE 1998, AT 10.16 AM

(Continued from 24/6/98)

Copyright in the High Court of Australia

GLEESON CJ: Yes, Mr Lennon.

MR LENNON: My it please the Court. There are two matters: firstly, in response to a question raised by Justice Gummow, may I refer the Court to volume 2 of the statutory bundle behind guide card 12. That is the Local Government (Planning and Environment) Act 1954 . In answering the question as to who might seek to enforce the planning legislation, the relevant provisions would be at pages 39 through to 42 in sections 2.23(2A). That appears on page 39. This is a proceeding by way of complaint to distinguish it from the immediately following sections:

Proceedings under this section -

by way of complaint -

may be brought by a person - - -

KIRBY J: I am not hearing everything you say. What is the section?

MR LENNON: It is page 39. The section is 2.23, in subsection (2):

Any person may bring proceedings on a complaint -

and the other reference is to the following section, 2.24, starting on page 41. Now, this is an application by way of a claim for declaration or injunctive relief, or both, under section 2.24; the same expression, "Any person". I have provided to the Court earlier this morning a copy of the report of the decision of the Queensland Court of Appeal in NRMCA (Qld) Ltd v Andrew (1993) 2 Qd R 706. The only passage I wish to refer to your Honours is at page 711 against line 45 where, in the judgment of the court, it is said:

no question of locus standi arises.

I am identifying that by way of answering Justice Gummow and - - -

GUMMOW J: Thank you.

MR LENNON: The second matter is by way of answering a query raised by Justice Hayne as to the power of the Court of Appeal. Our outline at page 12 sets out our submissions with references to that power. There is, to our researches, only one case in which the Court of Appeal has considered how it might exercise that power. Copies of the case are on their way to the Court. I will give your Honours the references, if I may. Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41. That was a case in which two members of the court, with whom the third member agreed in this regard, considered whether they would dispose finally - that is otherwise than by way of remitter - and they did, and their reasons and consideration appear respectively at pages 70 point 5 in the reasons of the President and 76 point 8 in the reasons of Mr Justice Pincus and Mr Justice Mackenzie's agreement is at page 79.

I should ask the Court to note that that was a case in which the final disposition that was engaged in was to not remit in favour of allowing the objection wholly so that the application below failed. I do not put it forward as anything other than that.

Your Honours, those are the only oral submissions which we wish to make in amplification of our full written submissions.

GLEESON CJ: Thank you, Mr Lennon.

KIRBY J: May I just remind you that yesterday I raised a question because I remembered that last year the question of a demurrer was debated in the Court. The case is Levy v State of Victoria. The report I have is at [1997] HCA 31; 146 ALR 248 at 295 and I think elsewhere in the reasons of other members of the Court the question of demurrer jurisprudence was raised.

MR LENNON: Thank you, your Honour.

GLEESON CJ: Yes, Mr Solicitor.

MR KEANE: Your Honours, our learned friends made it clear, we think, yesterday that notwithstanding the allegations in paragraphs 20 and 25 of the statement of claim which allege, as we saw it, as material facts the bringing in of the bill and the Minister's accompanying statements, they do not support the pleading or the plaintiff's case on the basis that anything said or done in the Parliament itself constituted an invalidating fact. Nor is it sought to attribute an invalidating motive to the government in sponsoring the bill. On the basis that that is clearly understood, we would not need to press the Article 9 of the Bill of Rights argument.

Might we just make it clear that we do not suggest that the Hansard may not be looked at to ascertain the meaning of words in an Act in a case of doubt. Article 9 does not have that effect. It has been held not to have that effect in the House of Lords in Pepper v Hart. We do not need to take your Honours to that case now but we can give your Honours references.

KIRBY J: I think in most Australian States and in the Commonwealth now Parliament has, itself, enacted.....which, in a sense, require bills to - at least permit courts to have regard to what they said. Presumably that is by their concurrence, so far as the statutory provisions are concerned. But the common law was going in that direction anyway.

MR KEANE: Indeed, it was. We were simply giving your Honours the reference to make the point that was made in Pepper v Hart in the House of Lords that to have recourse to the Hansard for the purpose of better understanding the meaning of what Parliament said is not in any way to question the proceedings in Parliament, rather it is to give them better effect. The references in Pepper v Hart, which is item 17 in volume 1 of the book of authorities, is [1992] UKHL 3; (1993) AC 593. The particular passages are at 614 D to E, 616 D to E, 621 B to C and 639 F to G.

As to the construction of the Act, with respect, we do not consider there are any difficulties in its construction which are - and certainly not difficulties of construction which are assisted in their resolution by reference to proceedings in the House.

If we may take the Court briefly to the Act, as to section 3(2) of the Act which says:

For the Morayfield shopping centre land, the column 3 purposes are taken to include the following -

The column 3 purposes are defined in section 2 to mean:

the purposes mentioned in the planning scheme -

This provision and, if we might say as well, section 9, and in particular section 9(2) which says:

For the Planning Act -

(a) this Act is taken to operate as an amendment of the planning scheme under the Planning Act; and

(b) the provisions of a planning deed are taken to be conditions attached to an amendment of the planning scheme under the Planning Act.

We draw the Court's attention, as well, to subsection (3) which makes provision in relation to applications under the Planning Act. We would make two points in relation to these provisions. The first is that they are cast in terms intended to harmonise the provisions of the Morayfield Shopping Centre Act with the planning scheme and the provisions of the Local Government (Planning and Environment) Act, the general provision, the general statutory scheme.

The second point is that the language of section 3(2) and 9(2), which refer to "purposes are taken to include" and the "Act is taken to operate" speak to the world and for the future as to what the law shall be. That is in contrast, in our respectful submission, to the language of the statute in question in the New South Wales BLF Case, to which our learned friends took your Honours yesterday, whence it appears from the passage to which they took your Honours that that statute spoke of a certificate "shall be taken to be" valid. That provision was treated as speaking to the courts as to what shall be taken to be the legal conclusion of a dispute involving matters of fact which had occurred.

KIRBY J: I take the force of that submission, but the point that is made against you is that the Court has said at least a dozen times that in these matters you look at substance not form. It would be surprising if parliamentary counsel and those who give instructions did not learn from BLF, federal and New South Wales, and addressing the dangers which they face did not endeavour, if they were actually in substance seeking to stop particular litigation, to express an Act in a way that looked, on the face of things, to be addressed to the world. What is put against you here is, at least two things, first of all that when one looks at the face of the Act, the fact that it is really targeted to this litigation can be seen clearly enough in subsection 8(1).

And secondly, if we may look into the parliamentary processes, the finishing of this particular litigation, which was holding things up, was foremost in the minds of those who were debating the measure that became the Act. That therefore, if it is true, as the Court has said a dozen times, that you look at substance not form, the substance of this Act, though not in form, is targeted at stopping this nuisance litigation which was holding up an important development which the government and the Parliament ultimately concluded ought to go ahead. So I think you have really got to bite on that issue. It is the substance of this measure, not its form, that we have to address.

MR KEANE: Your Honour, we do not suggest that it is not the substance of the measure but one does have to identify the substance of the measure, and the substance of the measure is, indeed, in our respectful submission, to effect a rezoning of land which, notwithstanding our learned friend's complaints about our observation to that effect, is concerned with what other lawful uses to which that land may be put. And the substance of what the Parliament did was to provide that these uses shall be the lawful uses. So that the good burghers of Morayfield may have a shopping centre and may have it now.

Your Honours, in our respectful submission, it does not indicate - section 8(1) does not evince an intention to target the plaintiff. It evinces an intention to make provision in relation to the use of the land and the circumstance that they may render futile proceedings that were in train is precisely the circumstance that was held not to alter the substance of the Act in the Commonwealth BLF Case.

KIRBY J: I saw the submission that if the substance is to advantage Keylim then that is a different thing from the substance being to disadvantage the appellant. But it seems to me that that really is a matter of form: by advantaging Keylim you disadvantage the appellant.

MR KEANE: Your Honour, if we are talking about the substance of ad hominem legislation, the substance of ad hominem legislation is to harm someone. It is not to adjust rights, save perhaps in an attenuated sense of adjusting them as between the State and the person who is the target. In substance, this is not ad hominem in so far as as soon as one accepts, in our respectful submission, that it is concerned to make lawful that which would otherwise not be lawful, simply by reason of a town planning scheme or by reason of a Town Planning Act, which itself regulates the use that may be made of land which, at common law, could be used for any purpose.

KIRBY J: Why, in that case, was it necessary for Parliament to enact as it did in 8(1)? Why could it not have left it simply for the steps to be taken pursuant to the general law? Section 8(1) has the smell of ad hoc legislation to me. Perhaps my nose is too sensitive for these things.

MR KEANE: With respect, your Honour, there is no suggestion that the provision for a regulation to approve the proposed form of the deed has anything to do with disadvantaging Bachrach at all, Keylim being the applicant for the rezoning, your Honour.

Once it be lawful to conduct these uses, a provision which facilitates the working out by machinery, the detail of working out an approved lawful use, is, in our respectful submission, ancillary. To that substa

ntive purpose it is not the pursuit of a different and invalidating purpose and, in our respectful submission, cannot be seen to be such as a matter of substance.

GLEESON CJ: Would it have been within the power of Parliament to enact a law that said, "The Planning Act, in so far as it applies to this particular land at Morayfield, is repealed."

MR KEANE: Yes. And to put it that way, your Honour, is, with respect, a clear way of demonstrating the substance of what actually occurred and that rather it is to concentrate on matters of form, not to say pedantry, to fix upon the use of language such as "shall be taken to be" - the difference between language such as "shall be taken to be" and "are taken to be" or "are taken" which, in our respectful submission, as a matter of substance, plainly speak to the future. It speaks to all the world. It does not speak as a direction to a court and it does not speak in relation to what shall be a court's conclusion about matters of past fact.

If we can go on in relation to the Act to the points that - - -

GUMMOW J: What is the significance of section 12 of the Act?

MR KEANE: Your Honour, my learned friend suggested that there might be something sinister about that. I am not quite sure what it was - - -

GUMMOW J: The one year has come to pass, has it?

MR KEANE: One year has come to pass. Your Honour, the answer to it is in section 10. Section 10 says:

This Act is a law to which the Acts Interpretation Act, section 20A applies.

Your Honours, we have copies of section 20A of the Acts Interpretation Act. The effect of section 20A is to make general provision in relation to the drafting of statutes, the intent of which, so far as this case is concerned, is apparent from subsection (3):

If an Act (the "savings law") declares an Act (the "declared law") to be a law to which this section applies -

(a) the effect of the declared law does not end merely because of its repeal; and

(b) the effect of the savings law does not end merely because of its repeal.

Now, the effect of that, your Honours, is to ensure that notwithstanding the repeal - we should have mentioned that in subsection (1) of 20A "repeal" is defined to include "expiry" - the effect of this provision is to enable, so far as the consolidated statues are concerned, laws not to be reprinted. It means that one has to go to the sessional volumes for each year to find the Act and to be able to trace the history of the law but its object is to save paper in the preparation of the sessional volumes.

It is perhaps a laudable motive, and a rather elaborate way of going about it, but the effect of the provision is to preserve the legal effect of this Act notwithstanding the expiry for which section 12 provides.

GUMMOW J: I am not sure I understand that.

GAUDRON J: Somebody is going to get very confused at some stage as to the precise status of this land.

MR KEANE: Your Honours, it is the precise status of some of the laws of the State of Queensland. But, nonetheless, it is not something specific and sinister directed at Bachrach.

GUMMOW J: In the statement of claim, paragraph 24 says that this law was enacted on 26 July 1996. That seems to be conceded by the demurrer, I suppose. But the reprint says the date of assent was the 30th and that it commenced on 30 July; page 10 of the print we have been given.

MR KEANE: Yes, that is so, your Honour. I suppose the answer to the question implicit in what your Honour has put to us is in Kathleen Investments where the Court affirmed the view of Sir Owen Dixon that a demurrer is taken to admit only those matters of fact that are well pleaded and not any conclusions of law. I suppose this is in the nature of a conclusion of law and the legal truth which the Court is not blinded from seeing by the allegation in the pleading is that the Act came into operation on the 30th.

GUMMOW J: So this mysterious section did its work on 30 July 1996 - - -

MR KEANE: And ceased to exist on 30 July 1997, yes. Your Honours, the other thing that we were taking your Honours to - we wished to take your Honours to, was our learned friend's submission in relation to section 7 which provides that there shall be no compensation payable by the State or the Council. Our learned friend suggested that was the equivalent to the provision in section 3(4) of the Act concerned in the New South Wales BLF Case, being a direction to the Court in relation to the disposition of the costs of the proceedings that were effected by those provisions. Your Honours, even if costs could be regarded as compensation, they would by no stretch of the imagination be payable as section 7 contemplates because of the enactment of the Act or anything done to give effect to the Act. They would be payable by reason of the need to dispose of the proceedings.

Your Honours, as to the enforcement, in addition to what our learned friends have mentioned, can we simply give your Honours reference to the Local Government (Planning and Environment) Act section 2.16 which is at page 29 of volume 2 of the statutory materials, item 12. Subsection (1) provides:

A local government is to implement, administer and enforce every planning scheme approved for its area or part of its area and is bound thereby.

In relation to our submission as to the point that section 3(2) and 9(2) are drafting mechanisms designed to harmonise the special Act with the scheme and the general Act - and we refer your Honours to section 2.18 at page 30 which provides:

If the Minister has proposed under this section that a planning scheme be amended, the planning scheme may be amended by the Governor in Council by order in council.

So that this was a different means of amending the planning scheme from that which the general Act provided.

Your Honours, in relation to the powers of the Court of Appeal, in addition to the case my learned friends have given your Honours, can we refer the Court to a case Makucha v Albert Shire Council (1993) 1 Qd R 493. This is the only reference additional to that which our learned friends have given your Honours in relation to Yu Feng where we are aware that the question of the court's powers has been considered. It is at page 498 in the judgment of Justice Williams at line 40 where his Honour said:

This Court cannot, because factual issues are involved, determine the application on the merits. As the Planning and Environment Court has jurisdiction to determine the matter on the merits the appeal should be allowed and the matter remitted to that court to be dealt with according to law.

Your Honours, unless your Honours have something further to raise with us, those are our submissions.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Sheahan.

MR SHEAHAN: If it please the Court. In this Court the plaintiff has submitted that the Morayfield Act is or amounts to a series of directions to the Court of Appeal as to how it ought to hear and determine the plaintiff's appeal. In our submission, this misconceives the Morayfield Act. Nothing in it directs or compels a conclusion by the Court of Appeal or anyone else as to the matters in question before the Court of Appeal. That is - - -

KIRBY J: Does it not, in terms, inform, but it is the kiss of death for the appellants right to appeal?

MR SHEAHAN: What it does, your Honour, is remove the appellant's obvious incentive to appeal. In the same way - in other words, the Act is not something which the Court of Appeal would ever give effect to. The Court of Appeal could decide the appeal that was before it. That is, decide whether or not the Planning and Environment Court had erred in law or exceeded its jurisdiction. It could make an order as to costs if that were appropriate. It could deal with costs below, but there would be no point anymore in remitting the matter for further consideration by the Planning and Environment Court because there would be nothing left for that court to do.

KIRBY J: That is what the appellant complains about. I am not saying their complaint is a valid one but they say this legislation has knocked out their litigation in the middle of it whilst it is before the courts.

MR SHEAHAN: But by removing the incentive for them to litigate, rather than adopting a mechanism of directing the court how it ought decide the litigation, the legislature has adopted precisely the technique that was adopted in the Commonwealth BLF legislation. That legislation did not direct the court to do anything, it simply removed the practical significance that anyone might attribute to the outcome of the litigation and - - -

HAYNE J: Would it not go further than that? Would it not also make that appeal hypothetical, thereby depriving the Court of Appeal of jurisdiction?

MR SHEAHAN: Your Honour, the appeal would not be hypothetical in so far as it was concerned with questions of costs below, and it would not be hypothetical in so far as, for example, rights had been accrued in the meantime on the strength of the existing approval by the Council. Now, it is not easy to think of how that might occur but, say, hypothesising, the plaintiff here had entered into a contract to sell its shopping centre conditional upon the appeal against the Council's approval being successful, that would give it a continuing real commercial interest in agitating that question which might be sufficient to justify the attention of the Court of Appeal and to justify continued prosecution of the appeal.

Your Honour Justice Kirby mentioned section 8(1) as being a provision in the Act that might have given some colour to a notion that it was ad hominem - - -

KIRBY J: That is where your client got honourable mention.

MR SHEAHAN: Well, yes. Your Honour, the function of section 8(1), in our submission, is relatively simple. As at the date the Act was passed, the shopping centre land had not been rezoned because there had not been a decision by governor in council which is a necessary part of that process. Apart from section 8(1), the effect of the other provisions of the Act would have been to entitle my client, as of right, to construct a shopping centre on the land and to use it in accordance with the permitted uses as amended by section 3. The effect of section 8(1) is to enable the Council to impose conditions on my client, in respect of its use of that land in that fashion. The original approval by the Council, which was the subject of the proceedings before the Planning and Environment Court, included conditions which were imposed on my client. The effect of section 8(1) is to create a new mechanism for the Council to impose conditions on my clients use of the land as a shopping centre.

Your Honours, in attempting to characterise the Morayfield Act as directory, the plaintiff has relied on the use of the verb "to take" in sections 3 and 9, encouraged by the reasoning of Chief Justice Street in the New South Wales Builder's Labourers' Case, in relation of that, we adopt the submissions made this morning on behalf of the first defendant. In our submission, your Honours, what the Morayfield Act does is simply achieve a legislative and executive goal of permitting the third defendant to conduct a shopping centre on this land. It does so directly, by legislation which operates in futuro rather than by declaring the legal status and effect of past events. In these respects, your Honours, it is really on all fours that the legislation considered in the Commonwealth BLF decision.

Even if, your Honours, it were not so, by achieving the legislative goal directly the Act has avoided the vice that was found by this Court in the Community Protection Act in Kable. In effect, that Act removed Gregory Wayne Kable to a prison cell, shut the door and left the court with the discretion as to whether the key ought be turned or not. It was for this reason that your Honour Justice Gaudron was able to speak of the Court's role under that Act as an executive role dressed up as proceedings involving the judicial process. Justice McHugh spoke of the Act as making the Supreme Court the instrument of a legislative plan initiated by the Executive Government to imprison the appellant. Your Honour Justice Gummow spoke of the legislature employing the Supreme Court to execute, to carry into effect, the legislature's determination that the appellant be dealt with in a particular fashion.

KIRBY J: Some of those words seem, possibly, to apply to this case.

MR SHEAHAN: With respect, not, your Honour, because this Act does not call for the court to do anything.

KIRBY J: It cannot do anything. You have taken away the chance of the court doing anything except dispose of costs.

MR SHEAHAN: Dispose with any questions of costs or dispose of the merits of the appeal if they remain relevant for someone to agitate. But, it is because the court is not being co-opted to fulfil a legislative purpose that the Kable principle is not offended here. The Morayfield Act does not leave the court with a task repugnant to its purpose of applying the law.'

KIRBY J: Well, here it has. It has a litigant before it who has duly lodged an appeal who would, in the normal course of events in this country, expect that the appeal would be heard and disposed of according to law and suddenly, by reason of what is decided in the Executive Government of the Parliament, that is taken away. Now, (a) it is unusual, and (b) the court is then rendered powerless.

MR SHEAHAN: Well, I am not sure that we would agree with your Honour that it is unusual - this type of thing, well, it is not the ordinary course of legislation, it does - - -

KIRBY J: It has happened twice before in Queensland in this area apparently.

MR SHEAHAN: Yes, apparently. But it crops up even in the federal sphere as the BLF legislation indicates and, indeed, as the litigation concerning the Migration Act in Lim indicates. Two of the provisions at stake there, 54L and 54N, had the precise effect of rendering nugatory litigation then on foot by the appellant, challenging his unlawful detention. The court found that as things stood when the legislation was enacted, the detention of the appellant was unlawful, but sections 54L and N, the validity of which was confirmed, made his continued detention lawful. The proceedings that were on foot were not seeking damages for his unlawful detention, they were seeking an order for his release.

So, that litigation, that legislation was on all fours with the Morayfield Act here. It is simply a case of the legislature declaring for the future what the rights of these parties will be, and not in, may we say, an area which naturally or historically attracts considerations of judicial power. This is simply a piece of town planning legislation, as his Honour Justice Gummow pointed out yesterday. Apart from statute, the third defendant was entitled to use its land at Morayfield as it saw fit, subject only to the common law of nuisance and the equitable rights that might arise from restrictive covenants of the sort considered in Tulk v Moxhay.

That liberty of my client to use its property was removed when a town planning scheme took effect in relation to the Caboolture Shire. It was restored, partially and conditionally, by the Act that is the subject of this litigation. Neither the law which removed my client's liberty nor the law which, partially and conditionally, restored it, was or involved the use of ..... of judicial power. They were simply town planning laws. In relation to the history and the nature of the jurisdiction exercised in this type of matter, your Honours, as to history, Queensland legislation conferred a right of judicial review in relation to Council decisions only in 1964. Prior to that, following the pattern of English legislation, all appeals were to the Minister. As regards the nature of such appeals, in our submission the best analogy is, perhaps, the powers of industrial arbitrators as described in the waterside workers - - -

KIRBY J: What is the point of this ancient history - that is against you, is it not? It indicates that Parliament moved from giving appeals to Ministers, to giving people legal rights which they could enforce in courts of law.

MR SHEAHAN: Subject to many qualifications, your Honour, and subject to the power of the Parliament to restore the old regime. Indeed, the old regime is not brought to an end entirely because the Act provides for ministerial rezonings in section 2.18. So, the Minister, without the involvement of the Parliament or the courts, could have achieved the same purpose in a different way. There was a series of steps that had to be gone through. Perhaps it was thought that it was more convenient and quicker to do it this way.

GLEESON CJ: It is not universally regarded as self evident, that the best way to determine issues as to land use is litigation.

MR SHEAHAN: No, we would agree with that, your Honour.

KIRBY J: You agree if you happen to get the ear of the Minister and the Parliament, but if you are an ordinary citizen you are stuck with the law and your legal rights.

MR SHEAHAN: The reason, your Honour, with respect, that we agree with the Chief Justice's suggestion, is that land use legislation is aimed at protecting the public interest in the broad. The considerations that affect the public interest in the broad are often not easily accommodated to the traditional form of adversarial litigation which our courts are used to.

GLEESON CJ: It is quite common in New South Wales in the case of particularly sensitive, and I include politically sensitive developments, for issues as to land use to be taken out of the ordinary litigious process and to be determined, as apparently happens in Queensland from time to time, by ministerial decision, where the issue is removed into the area of political accountability.

MR SHEAHAN: Yes.

KIRBY J: I think the New South Wales Act contains similar fast streaming or alternative streaming legislation for Ministers to do things and also with the Olympics, there was a special Act enacted, I think, to exempt certain Olympic developments from the scheme. But, the distinguishing point is that, normally, at least in my knowledge, that is done before people have gone before courts and planning courts, and not whilst they are in the middle of their litigation.

MR SHEAHAN: May we say, your Honour, why should it matter? Can it be that the mere fact that someone has commenced a statutory process of appeal in relation to a statutory regime for regulating land use stifles the capacity of the Parliament or the Executive, that it would otherwise clearly have, to achieve what is thought by those powers to be an appropriate town planning outcome? Is it to be said that their powers are stifled until the litigation happens to be resolved? Or is it stifled forever or for some intermediate period? None of these questions have been answered by the submissions put by our learned friends. They are our submissions, your Honour.

GLEESON CJ: Thank you, Mr Sheahan. Yes, Mr Solicitor. Mr Solicitor for South Australia, I think.

MR SELWAY: Your Honours, we have filed two lots of written submissions - supplementary written submissions dealing with Article 9 - your Honours, we rely upon those written submissions and make no further oral submissions in respect of that question. We have also filed a written submission dealing primarily with the use that can be made of United States authorities. Again, we rely upon our written submissions and make no further oral submissions on that question.

KIRBY J: What is the point - I did not quite follow the point on the United States authority?

MR SELWAY: Your Honour, to a certain extent, happily, the plaintiff at page, I think, 39 does refer to a United States authority. The purpose of making submission more generally was that, I think, your Honour Justice Kirby and Justice Gummow did refer to a United States authority which may have had some relevance in this case, of Plaut in the case of Nicholas, as did Justice Toohey, and at least Justice Toohey thought it was directly applicable. In the developing jurisprudence of this Court on Chapter III, there seems to have been some significant reliance, at least on some of the dicta in Mistretta and it seemed, with respect, that there had - - -

GUMMOW J: You want to kerb any such tendency which you see as dangerous - - -

MR SELWAY: With respect, yes, your Honour, and it seemed to us there had been no submissions put to the Court on what use could be made of US authorities, nor did there seem to be any particular academic discussion on the question. It seemed appropriate to raise it, whether this was the appropriate case or not, I am not certain, but in any event, we have now done so.

KIRBY J: Had there been any academic discussion of this case, or of cases like it, recently that you are aware of?

MR SELWAY: No, I am not, your Honour. In respect of United States authority, the only reference we could find that was particularly on point was an article by former Chief Justice Gibbs, which we have referred to, I think, in paragraph 6 of our outline.

GUMMOW J: That is a speech he gave in Virginia, I think.

MR SELWAY: Yes, your Honour. It is not a very detailed paper but in terms of more general discussion, we could find very little of any particular use. If it please the Court.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Solicitor for New South Wales.

MR KATZ: If the Court pleases, I would like, if I may, to make four brief points? First, in connection with submissions made on behalf of the Attorney-General for Victoria, your Honours have a copy of the written submissions. In paragraph 7 there is reference to a number of subsequent decisions of this Court in which it is said that the decision of the Builder's Labourers' Case has been affirmed. One of the cases which appears in that paragraph is Owens v The Commonwealth, a decision of the Full Court of this Court in 1991 - - -

KIRBY J: That is a one page - - -

MR KATZ: Yes, and it was included in an excess of enthusiasm, on reflection, your Honours. It does not really affirm the Commonwealth BLF Case for the purposes for which we are presently interested in it. So, if your Honours would ignore the reference to Owens - - -

KIRBY J: I looked at it. It does refer to the case and said it stands as an obstacle as to Owens.

MR KATZ: Yes, only on the power question, the 51(xxxv) question, it does not itself advert to the Chapter III aspect of the matter at all. So, for that reason, we would ask your Honours not to pay any regard to its inclusion in the submission. The second matter arising out of the Victorian submissions is this. Section 9(5)(a) of the Act under challenge, which appears in the demurrer book at page 95, provides:

This Act does not prevent -

the Council, or an owner of the Morayfield shopping centre land or a part of the land, from taking action under the Planning Act to change its zoning.

That provision led us to submit in paragraph 18 of the written submissions at the very bottom of page 7, that the Morayfield Act did not prevent an application under the planning legislation for a change of zoning and we thereafter submitted, thereby providing rights to objectors etc. May I make plain that the reference to "thereby providing" is not a reference to section 9(5)(a) itself - - -

KIRBY J: Where is this, I am sorry, I have lost it.

MR KATZ: I am sorry, your Honour, I am now at - - -

KIRBY J: Paragraph 18, page 7.

MR KATZ: Yes, at the very bottom of the page are a number of assertions about the effect of the Morayfield Act and the one after the letter b) is that the Morayfield Act did not prevent an application under the planning legislation for a change of zoning (thereby providing rights to objectors etc). It was not the intention to convey by that parenthetical comment that section 9(5)(a) itself provided rights to objectors, rather the point was that if an application were made under the general planning legislation, that legislation would provide rights to objectors. I make this point only because, in the written submissions on behalf of the plaintiffs, there appears to be a misconception of the effect of what we were there saying.

May I turn then to the submissions on behalf of New South Wales. Your Honours, in the original submissions filed on behalf of the plaintiffs, and I am referring in particular to page 70 in the demurrer book, there was a statement in a paragraph lettered G, that:

The Morayfield Act can also be identified as ad hominen legislation -

well, I see there is a typographical error, but as ad hominem legislation:

by the circumstance that it rezones a party's land and confers on it (and on that party) certain specific rights of use and immunities which other land does not have and the ownership of other land does not confer.

Could I direct your Honours' attention also, if your Honours are at page 70, to the following paragraph which says that:

The Morayfield Act was introduced into the legislature immediately upon the appeal of the Plaintiff being lodged with the Supreme Court -

and then further in paragraph H at the top of the next page, there is a reference to the fact that:

There can be no doubt that other people would be affected -

that is to say, by the Morayfield Act -

(for example, neighbours).

Two matters arise out of the paragraphs to which I have just referred and we dealt with them in paragraphs 7 through to 11 of our own written submissions. In paragraph 7 to 10, we criticised the plaintiff's attempt to describe the legislation in question as ad hominem legislation, given their own characterisation of it as legislation which uniquely assisted the third defendant.

KIRBY J: They have to change it from "ad" to "pro".

MR KATZ: Yes. Well, in any event, that did - - -

KIRBY J: It is still a hominem.

MR KATZ: Well, in our submission, not in the sense in which the term has been used in the cases in which there have been challenges to validity to legislation. But, may I say that, perhaps, it would be convenient if your Honours would go to page 17 of the ultimate document which has been put forward on behalf of the plaintiffs. Your Honours will there see the answer which is given to the criticism which we made in our own paragraphs 7 to 10, and it is there said that the practical effect of the legislation:

cannot be construed as a benefit to Keylim other than by the fact that it commercially damages Bachrach.

And then it is said as well that:

The practical effect of the legislation is that it tends to single out Bachrach for detrimental treatments.

May I say that those assertions are sought in some way to stand together with the continued assertions which we first criticised, but may I draw attention also to the fact that the suggestion which is made - - -

KIRBY J: You say there is no disadvantage in this Act of the plaintiffs?

MR KATZ: What I say is that there is no plea in the statement of claim of the existence of any commercial damage to the plaintiffs. What we have really been treated to is some evidence from the bar table about this matter. With respect, it is not, by any means, self-evident that the plaintiffs have suffered commercial damage and, as the matter is to be dealt with on a demurrer, it is all the less appropriate that we should be told about the existence of this commercial advantage without any plea to that effect.

KIRBY J: Well, would not one infer, people who have taken it through two stages and want to take it - or taken it through one stage and want to take it through two, and maybe a third stage, they have some reason for doing so. We are not in a dream world here. There is an element of reality occasionally chimes in.

MR KATZ: Yes. Their view that they may have suffered, or may suffer commercial damage, may be as wrong headed as their view that this statute is unconstitutional.

GUMMOW J: Was there any averment in their statement of claim of their standing to attack the validity of this Act?

MR KATZ: Well, there is the - - -

HAYNE J: Paragraph 3 is about the closest it gets.

MR KATZ: I am sorry, your Honour.

HAYNE J: Paragraph 3 might be about the closest it gets.

MR KATZ: Well, I was, in fact, myself, going to point to paragraph 22 in which they assert that they had appealed from the decision of the Planning and Environment Court to the Court of Appeal. It may be that that - - -

GUMMOW J: Maybe it is the impact on their rights of appeal that is said to be sufficient.

MR KATZ: Well, it may be, but certainly there is no - - -

GUMMOW J: That is the tenor of, I thought, Mr Lennon's submissions, actually.

MR KATZ: Yes, but in so far as it is submitted that there is commercial damage - - -

GUMMOW J: A right of appeal being conferred upon them in respect of litigation, the initiation of which lay at the suit of any person, as we have now established.

MR KATZ: Yes. Well, may I then just turn to the last point that I wanted to make which goes back to page 70 of the demurrer book, the assertion that the Act:

was introduced into the legislature immediately upon the appeal of the Plaintiff being lodged with the Supreme Court.

That assertion in the submissions is contrary to the accounted events which appears in the statement of claim itself. We did complain of the assertion that the Act was passed after the appeal was lodged and that provoked a response in the ultimate document as well, on page 17.

KIRBY J: That is actually what they said in Parliament. The statement in Parliament suggested that the very reason for the legislation was because an appeal had been lodged, which would hold things up.

MR KATZ: Your Honour, I am not dealing with that. I am dealing with the assertion in the submissions that their appeal to the courts preceded the introduction of the legislation into the Legislative Assembly. There is no support for that, certainly, in the statement of claim itself, in fact the chronology suggests the contrary. On page 17 the plaintiffs seek to deal with the point which we made at letter N by saying that:

the legislation in question was introduced for the second time into the Parliament as is obvious from the pleading.

Your Honours, there are a number of things which are obvious from the pleading but that is not one of them. Unless it be the case - and it is a matter as to which we have no information whatever - that there have been two bills in this matter, the point which we made is as good now as it was when we first made it, namely that the appeal succeeded the introduction of the bill for the relevant Act. Those are the only matters that - - -

GLEESON CJ: But, Mr Solicitor, what is the legislation that is governing the preparation of the Homebush Bay site for the Olympic Games in Sydney?

MR KATZ: I am sorry, your Honour, I have no knowledge of the matter.

GLEESON CJ: What about Darling Harbour? Is that the subject of special legislation?

KIRBY J: I think in the Court of Appeal we had a case and it was concerned with special legislation for Darling Harbour and I think I have seen something about the Olympics.

MR KATZ: I have the idea that I have seen legislation with the parenthetical words "Darling Harbour" in them relating to planning but, I am sorry, I do not have sufficient information to give your Honour a useful answer to the question.

GLEESON CJ: Thank you.

KIRBY J: Could I just ask you: is there any territory in Canada where they have looked at the sort of BLF question where legislation has been enacted which has changed people's rights, before the Charter - - -

MR KATZ: Your Honour, I can report the result of my researches was to look at Professor Hogg's latest edition of his Constitutional Law in Canada to seek to find, say - I am sorry, I do not really know how to pronounce it - Liyanage, perhaps, case. I could not find that certainly in the table of cases and I have not been able otherwise to discover any Canadian decisions dealing with this sort of situation.

KIRBY J: Perhaps this sort of situation does not happen in Canada.

MR KATZ: I suppose the answer involves - - -

GUMMOW J: They do not have any Chapter III. It could only arise under the Charter and some things have been extracted from the Charter.

MR KATZ: It is, of course, the case that there is no Chapter III in Canada but there is the equivalent - or has been in the equivalent of a doctrine of separation of powers at the provincial level by reason of the federal power of appointment of superior court judges. So it is conceivable that questions might - - -

GUMMOW J: No such thing as federal jurisdiction, however.

MR KATZ: No. But I have not been able to find, admittedly perhaps by a rather blunt means, any Canadian authority dealing with the topic. If the Court pleases.

GLEESON CJ: Thank you, Mr Solicitor.

MR KEANE: Your Honours, just in relation to that question your Honour the Chief Justice asked our learned friend for New South Wales, we cannot assist with the New South Welsh provisions but, for examples of specific rezoning provisions in Queensland, there are a number of them collected in the submissions for the third defendant at page 57 of the demurrer book in footnote 5.

GLEESON CJ: Thank you. We will reserve our decision in this matter.

AT 11.13 AM THE MATTER WAS ADJOURNED